"Rhodes’ seditious conspiracy conviction suggests the jury believed, as one prosecutor asserted, that he “
concocted a plan for an armed rebellion to shatter a bedrock of American democracy.” In other words, he was convicted over what he had said and written prior to the actual Jan. 6 attack – and this is where free speech comes into play.
The First Amendment guarantees that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It’s considered a sacred American right, one that sets the U.S. apart from many peer nations,
some of which have stricter controls and consequences for speech that may be harmful.
Efforts to arrest and convict groups in the U.S. that have discussed violence against racial groups, politicians or others have often been
stymied by appeals to the First Amendment.
Far-right extremists or other hate groups can claim they are just venting or even fantasizing – both of which would be protected under the First Amendment. In the absence of any specific plan, threat
or incitement, group members may never suffer legal consequences for oral or written expressions that nonetheless create fear in those who draw these groups’ ire.
For this reason, seditious conspiracy charges have historically been hard to prosecute.
The last time this charge was attempted was against members of
the Christian militia group called Hutaree in Michigan in 2009,
for allegedly planning to engage law enforcement “in armed conflict.” But the judge
dismissed the sedition charges, citing First Amendment protections.
What is interesting about the Oath Keepers case is that
Rhodes himself did not breach the Capitol yet was convicted of seditious conspiracy. Meanwhile three of his co-defendants – Jessica Watkins, Kenneth Harrelson and Thomas Caldwell – did storm into the Capitol building,
but were not convicted of that charge.
This suggests that the jury believed that Rhodes’ texts and other communications incited others to violent, undemocratic action in a way that requires accountability."
The convictions of Stewart Rhodes and other Oath Keepers may lead law enforcement agencies to shift their understanding of militia groups.
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