enter image description here

Link

The said law says:

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons. (June 25, 1948, ch. 645, 62 Stat. 808; July 24, 1956, ch. 678, § 2, 70 Stat. 623; Pub. L. 87–486, June 19, 1962, 76 Stat. 103; Pub. L. 103–322, title XXXIII, § 330016(1)(N), Sept. 13, 1994, 108 Stat. 2148.)

Reference

My question is,

Does saying, "the people want to bring down the regime" constitute knowingly or willfully advocating the "overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession"?

  • 2
    Answerers should note that case law is a critical factor here. In particular, see Yates v. U.S. (1957), 34 U.S. 298. The Supreme Court interpreted 18 USC 2385 very narrowly, so much so as to render it, as a Wikipedia editor puts it, "nearly unenforceable". – Nate Eldredge Nov 16 '16 at 14:52
  • "Overthrowing the government": Only the attempt is a crime :-) – gnasher729 Nov 16 '16 at 16:07
  • 2
    Also, even under the statute, it contains the key language "by force or violence." – ohwilleke Nov 16 '16 at 17:18
  • 2
    Apart from any advocacy being indirect, there is an utter lack of context presented. There are no facts presented in this question that specify that the regime is the American regime. Based solely on this tweet, it would be absurd to claim that there is no reasonable doubt as to whether the regime is American, rather than Assad's or some other regime. – Acccumulation Jan 4 at 18:07

It is not a crime to say, "The people want to bring down the regime."

This specific tweet is almost certainly not illegal. Even if this guy is subjectively trying to overthrow the government, this would probably be an impossible prosecution for a lot of reasons.

First: 18 USC 2385 deals with "overthrow or destruction of the government." Does "regime" mean the government or does it just mean the Trump administration? I'm guessing it just means the administration, and if that's the case, you're dealing with a matter of public concern rather than a true threat of overthrow. Especially because this comes right after the election, you've got strong arguments that this is commentary on a matter of public concern, either that you already want to change end the Trump regime, that the American public wanted regime change and therefore voted for Trump, or that you need a change in the constitutional form of government do do away with the Electoral College. Whatever it means, commentary on a matter of public concern cannot be punished under Section 2385. Rankin v. McPherson, 483 U.S. 378.

Second: The 18 USC 2385 deals with overthrow by "by force or violence." To say you want to bring down the regime says nothing about how you want to bring down the regime.

Third: The invocation of the Arab Spring could sort of cut in either direction, as it involved regime changes effected both through nonviolent protest and violent revolution.

Fourth: Even if we interpret this as Ayloush saying that regime change would be good, that he personally wants regime change, or that other people should want or work toward regime change, that's still not enough to get you into the conduct prohibited by Section 2385, which does not prohibit "doctrinal justification of forcible overthrow." Here's some relevant language from Noto v. U.S., 367 U.S. 290:

[T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material.

This seems like pretty solidly First Amendment-protected political speech.

  • 1
    Basically, there is no laws against saying you want to bring down the regime or even saying you would like to see it happen through violent protest (not said here. As I recall, the Arab Spring was peaceful on the peoples parts... the violence came from the government). Actually instigating such violent protest OR showing that you could instigate such a violent protest very soon are illegal. In the observations of Lennon and McCartney, you can "Say you want a revolution" but it's the actual destruction where it becomes a problem. – hszmv Apr 4 at 13:56
  • What does “force” mean? Violence is fairly easy to interpret, but how does one interpret “force”? Suppose I write “We must overthrow the United States federal government by forcing any official to resign (through votes) who does not support abolishing the Constitution and replacing it with nothing.” Would that be a felony? – Joshua Apr 4 at 15:50
  • "‘[F]orce’ means the use of physical power other than the power of oral and written speech." United States v. Schneiderman, 106 F. Supp. 906, 934 (S.D. Cal. 1952) – bdb484 Apr 4 at 21:21

Does saying, "the people want to bring down the regime" constitute knowingly or willfully advocating the "overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession"?

Be careful, what he actually said was:

Ok, repeat after me: "the people want to bring down the regime" (Arab Spring Chant)

The extra context - specific reference to an actual insurrection that occurred in recent memory - can only be interpreted as making the statement more, not less, legally precarious. The situation would be quite different if the phrase hadn't been associated with a recent insurrection and if the one using the phrase hadn't made specific reference to that. Asking that others participate does not help matters either.

Whoever knowingly or willfully

He knew what he was doing and meant to do it, check;

advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of

Asking others to repeat after him, thereby abetting and teaching the desirability or propriety of, check;

overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein

More context is needed to say for sure what this post is in reference to. The timing (11 pm Nov 8) is suggestive. If made in reference to the election results, a reasonable person could reasonably infer this in reference to the federal government of the USA. Check;

by force or violence, or by the assassination of any officer of any such government

Reference to Arab Spring, check;

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

I don't know whether it is feasible to show this post proves his intent to accomplish his stated goal. I might err on the side of not pursuing this one against him.

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

There is a call for his followers (Twitter followers, possibly members of his organization) to repeat after him, which probably could be seen as attempting to organize a group of like-minded individuals. Check;

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

I am not a lawyer but a plain reading of the statute and facts of the case would seem to support the belief that the crime the statute seems to describe seems to have been committed here.

  • What about the trump card of Freedom of speach? – Topher Brink Nov 16 '16 at 14:38
  • @TopherBrink there is no absolute freedom-of-speech. – feetwet Nov 16 '16 at 14:40
  • @TopherBrink Freedom of speech is not unlimited. Many (most? all?) of the freedoms guaranteed in the Bill of Rights have exceptions. Incitement to violence, insurrection, treason, even slander/libel are all examples where the government has a legitimate interest in limiting what people are free to express. – Patrick87 Nov 16 '16 at 14:40
  • 3
    @Patrick87: I think a plain reading of the statute may not be sufficient here, as court interpretations have narrowed it significantly. See the comment I left on the question. – Nate Eldredge Nov 16 '16 at 14:53
  • 4
    @Patrick87 While the First Amendment has exceptions, the incitement exception is limited to cases where speech is directed towards producing, and actually does have the effect of producing, imminent lawless action. Since you don't even address the First Amendment in the answer, this is a very incomplete answer. – cpast Nov 16 '16 at 14:58

Your Answer

 

By clicking "Post Your Answer", you acknowledge that you have read our updated terms of service, privacy policy and cookie policy, and that your continued use of the website is subject to these policies.

Not the answer you're looking for? Browse other questions tagged or ask your own question.