Rage And The Republic

How can you keep a democracy from silencing its critics when fear spikes and tempers flare? In this book, Jonathan Turley argues that free speech survives only when you recognize two things at once: it is both an individual’s human birthright and the crucial oxygen of self-government. When either half is forgotten, societies relapse into a familiar spiral—public rage erupts, authorities answer with “state rage,” and the ensuing panic invites legal tools that criminalize dissent. Turley’s core claim is that this cycle is not an accident; it is the predictable outcome of treating speech as a managerial instrument rather than as a near-categorical personal liberty.

Turley threads this argument through history—from the Boston Tea Party and Shays’ Rebellion, through the Alien and Sedition Acts, the World War I Espionage prosecutions, the Palmer raids and McCarthyism, and into the present “Age of Rage” culminating in January 6. You see a repeated playbook: define dissent as danger, reach for vague laws like sedition, and let prosecutors and judges translate ideas into crimes. Against that backdrop, Turley urges a return to an autonomy-grounded vision of speech (call it the Rockwell view) anchored in Mill’s harm principle and modern incitement doctrine (Brandenburg), and capped by a concrete reform: abolish sedition.

Two rival foundations—and why your choice matters

You begin with two competing theories that still shape everything: the functionalist rationale (protect speech because it improves democracy) and the autonomy or natural-rights rationale (protect speech because it is part of being human). Louis Brandeis’s Whitney concurrence straddles both—celebrating open discussion as essential to political truth while hinting at a dignity-based freedom “to think as you will and to speak as you think.” The problem, Turley shows, is that functionalism invites balancing: when elites decide some expression has low public value, they feel justified in suppressing it. The autonomy view resists that sliding scale by placing the right with the speaker, not the content’s perceived utility.

The rage-repression loop across American history

Turley maps a cycle you can recognize: grievance sparks protest (sometimes unlawful), leaders frame it as existential threat, and the state escalates—prosecutions, raids, blacklists. From Shays’ farmers to Whiskey rebels, from the Adams-era Sedition Act to WWI dissidents like Eugene Debs and Jacob Frohwerk, officials reliably revive speech crimes during crises. The pattern repeats after January 6: mass arrests, severe pretrial conditions, and the revival of seditious-conspiracy charges for a subset of defendants. The lesson is not to excuse violence; it is to see how panic routinely narrows speech for everyone.

Holmes’s hinge and a misquoted mantra

Oliver Wendell Holmes Jr. becomes a hinge between repression and restraint. In Schenck v. United States he minted the “clear and present danger” test and the crowded-theater line used to sustain wartime convictions. Later, he authored the “freedom for the thought that we hate” dissent in Abrams and gestured toward the marketplace of ideas. But his early flexible standard lingered in political rhetoric, still deployed today to rationalize censorship without meeting Brandenburg’s stricter imminence test (intent, imminence, likelihood). Turley’s point: doctrine evolved, but slogans outlived their context.

Modern machinery: the Triumvirate

Turley then shows you how censorship now scales through coordination among government, tech platforms, and academic or nonprofit intermediaries. The Twitter Files expose regular FBI, DHS, and CDC contacts with platform staff; third-party groups like the Global Disinformation Index flag “risky” outlets; advertisers and payment processors finish the job. The result is practical suppression with plausible deniability—a system that “externalizes” censorship while escaping the constitutional scrutiny that direct regulation would trigger.

Campus orthodoxy and the erosion of inquiry

Colleges mirror this drift. Once a protected circle of inquiry, many campuses now enforce ideological conformity through speech codes, compelled statements, and disruption of disfavored speakers. Turley points to cases like Shellyne Rodriguez’s attack on a pro-life display, Mireille Miller-Young’s assault of demonstrators, and the sanctioning of Stuart Reges for dissenting from a mandated land acknowledgment. When universities normalize orthodoxy, the broader culture’s tolerance for disagreement atrophies.

A restorative baseline—and a structural fix

To break the cycle, Turley calls for a Millian baseline: interfere with speech only to prevent concrete harm (fraud, defamation under established standards, true threats, conspiracy or solicitation of imminent crime). Pair that with Brandenburg’s imminence test to keep incitement narrow. Then make a structural move: abolish sedition. With ample laws already punishable—obstruction, conspiracy, assault, treason—sedition remains mostly a stigma that politicians revive in panics. Eliminating it would reassert the bright line between speech and crime.

Madison’s warning

“Sedition,” Madison said, is the “monster that must forever disgrace its parents.” Turley’s project is to finally slay it—doctrinally and statutorily—so temporary panics stop translating dissent into crime.

By the end, you’re left with a workable compass. Choose autonomy over ad hoc functionalism; watch for the rage-repression loop; distrust vague standards and stigma labels; restore Mill and Brandenburg; reform campuses to protect debate; and remove sedition from the prosecutorial toolkit. Those steps won’t prevent crises, but they give you institutions that keep their constitutional head when others lose theirs.

Turley’s narrative starts where your intuitions do: why do we protect speech at all? He sketches two enduring answers—functionalist and autonomy—and shows how your preference predicts whether you tolerate offensive speech or invite balancing tests that shrink expression in crises. Understanding the split helps you decode both Supreme Court doctrine and today’s content-moderation debates.

Functionalism: speech as democratic instrument

If you are a functionalist, you defend speech because it helps discover political truth, check officials, and inform voters. This is the spirit of Alexander Meiklejohn and threads through Brandeis’s Whitney concurrence, which calls free discussion “indispensable” to democratic safety. The catch is that once speech is a means to an end, judges and administrators feel licensed to rank its value—political speech at the apex, and “low-value” categories (obscenity, fighting words) ripe for suppression. In panics, the temptation grows to widen low-value bins and equate dissent with danger (think WWI prosecutions under the Espionage and Sedition Acts).

Autonomy: speech as human dignity

If you adopt the autonomy view, you protect speech because it expresses identity and conscience. Lockean natural-rights thinking and Enlightenment philosophy (Spinoza, Madison) cast expression as a core part of being human. Turley deepens this with neuroscience: Nancy Andreasen’s work on creativity and the Phineas Gage case illustrate how the brain’s frontal systems enable deliberation and social reason; isolation studies (Antarctic expeditioners, solitary confinement) show expressive deprivation erodes selfhood. Under autonomy, you resist downgrading “offensive” expression because the right attaches to the person, not the message’s merit (compare United States v. Alvarez protecting false claims of valor, and 303 Creative recognizing speech as inalienable; both echo autonomy more than narrow public utility).

Rockwell vs. connoisseurship

Turley uses a cultural metaphor to make the split vivid. Norman Rockwell’s “Freedom of Speech” paints a plain-spoken neighbor rising at a town meeting; it captures an intuitive, egalitarian liberty. By contrast, what he calls the modern “connoisseur” stance resembles abstract expressionism: technical, managerial, and comfortable with experts deciding what counts as worthy discourse (he nods to Clement Greenberg’s dismissal of realism as kitsch and Tom Wolfe’s critique of elite taste). The Rockwell stance presumes everyone gets the mic; the connoisseur stance presumes gatekeepers optimize discourse by filtering.

Why your choice predicts outcomes

Turley shows the stakes by revisiting cases. Brandeis’s Whitney concurrence leans functional but intuits autonomy; the Court’s creation of “low-value” categories tracks functionalist comfort with balancing (Chaplinsky’s fighting-words carve-out). In modern controversies, Barbara McQuade’s framing of “disinformation” as an existential threat licenses more censorship; autonomy defenders highlight the Great Barrington Declaration scientists—Jay Bhattacharya, Sunetra Gupta, and Martin Kulldorff—whose dissent on pandemic policy was algorithmically suppressed, only to later gain partial vindication in public debate.

A hybrid constitution with a tilt

American doctrine is a hybrid: it celebrates open debate (a functional promise) and treats speech as an individual right (an autonomy baseline). But practice has tilted toward functionalism when fear spikes. That tilt explains why the same nation that valorizes free speech also produced the Alien and Sedition Acts, WWI mass prosecutions, and recent coordination with platforms to police “misinformation.” Turley’s aim is not to erase function—democracy benefits from robust speech—but to restore autonomy as the anchor so function cannot swallow the right.

Practical compass

Ask of any policy: does it protect the speaker as a person, or does it sort speech by perceived social value? The first answer resists panic; the second invites it.

(Note: You still regulate fraud, defamation under established standards, true threats, and solicitation of imminent crime—narrow zones that target concrete harm. The autonomy view insists those exceptions remain the exception, not the gateway to managing public discourse.)

Turley’s most unsettling contribution is diagnostic: once you see the rage-repression loop, you can’t unsee it. Grievances—tax hikes, economic shocks, wartime fear—trigger protest that sometimes slides into illegality. Authorities respond with “state rage,” broadening criminal categories and showcasing prosecutions. The cycle leaves deeper mistrust and an expanded apparatus that outlives the crisis.

Colonial sparks and imperial backlash

Start with the Boston Tea Party. Colonists dumped tea to protest the tax regime and monopoly power; the Crown answered with the Coercive Acts, punishing Boston and tightening control. What authorities narrated as existential threat became the accelerant of revolution. The lesson carries forward: when the state elevates expressive property damage to rebellion, it radicalizes moderates and polarizes factions.

Early Republic: revolutionaries become governors

Shays’ Rebellion reveals the pattern among the victors-turned-rulers. War veterans facing foreclosures massed to halt court proceedings; Governor Bowdoin called out forces to crush the uprising. The episode fueled calls for a stronger federal framework—then, almost immediately, Whiskey rebels in western Pennsylvania met Hamilton’s preference for a dramatic show of force to “inspire respect.” Fries’s Rebellion followed, with John Fries sentenced to death before Adams’s pardon; alongside, the Alien and Sedition Acts criminalized opposition journalism (Benjamin Franklin Bache, Matthew Lyon). The people who hated imperial repression adopted a variant once in power.

World War I: the playbook matures

WWI hardened the template. The Espionage Act and 1918 Sedition Act amendments enabled sweeping prosecutions for anti-draft leaflets and speeches. Charles Schenck mailed circulars and was convicted; Jacob Frohwerk published critical articles and lost; Eugene Debs gave a speech and went to prison. Courts embraced “bad tendency” and “clear and present danger,” letting the government punish speech with remote or speculative links to harm. A few judges—like George Bourquin, who acquitted Ves Hall—insisted on proximity and intent, but they were outliers.

Red scares, raids, and McCarthy

After WWI, Attorney General A. Mitchell Palmer’s raids rounded up radicals amid bomb scares, while the Smith Act later criminalized advocacy of overthrow. Dennis v. United States accepted probabilistic danger to sustain convictions of Communist Party leaders; Hollywood blacklists proliferated. Turley emphasizes the spectacle: crisis talk plus courtroom theater creates deterrence far beyond the actual cases.

The modern echo: January 6 and “shock and awe”

January 6 replays the cycle in high definition. A mass protest devolves into a riot with violent breaches by groups like the Proud Boys and Oath Keepers; thousands more mill inside after barricades fall. Prosecutors launch “shock and awe” arrests (as Michael Sherwin put it), impose strict pretrial conditions, and revive seditious-conspiracy charges for a fraction of defendants—layered atop obstruction and conspiracy counts that already captured criminal conduct. Turley condemns the violence while warning against inflating “riot” into Civil War–grade “insurrection,” a move that tempts Section 3 disqualifications and tit-for-tat de-democratization.

Pattern recognition

In any age of rage, free speech is the first and easiest casualty. If you want to predict repression, watch for emergency rhetoric, moral panics, and vague legal tools suddenly rediscovered as essential.

(Note: Seeing the cycle is not moral equivalence. You can punish violence swiftly and narrowly while rejecting the political urge to criminalize broad swaths of dissenting speech. The cure, Turley argues, is structural—anchoring law to concrete harm, not to mood.)

Oliver Wendell Holmes Jr. is both hero and cautionary tale. Turley traces Holmes’s path from war-scarred pragmatist to the author of a flexible “clear and present danger” test and the famed theater analogy—then to the dissenter who celebrated freedom for “the thought that we hate.” The throughline: Holmes’s rhetoric shaped generations of judges and politicians, sometimes helping liberty, sometimes giving cover to suppression.

The wartime trilogy: Schenck, Frohwerk, Debs

In 1919, Holmes upheld convictions under the Espionage Act. Charles Schenck’s anti-draft leaflets, Jacob Frohwerk’s critical articles, and Eugene Debs’s antiwar speech all lost. Holmes’s “falsely shouting fire in a theatre” line felt intuitive but proved elastic; it justified punishing speech with attenuated links to harm. Learned Hand’s Masses opinion tried to draw a sharper line—punish only direct incitement—but the Supreme Court did not adopt it then. The result was a doctrinal fog that favored the government during crisis.

The redeeming dissent: Abrams

Holmes soon pivoted in Abrams v. United States, championing a “free trade in ideas” where truth emerges from competition. His companion phrase—“freedom for the thought that we hate”—became a libertarian touchstone, echoed later by Justices Brennan and Gorsuch in different registers (New York Times v. Sullivan’s robust protection of debate; 303 Creative’s insistence on speech as an inalienable right). Yet Holmes never fully abandoned the contextual, functionalist frame. He still allowed that powerful speakers or wartime circumstances might justify suppression where danger felt imminent.

From bad tendency to Brandenburg

Over decades, the Court tightened the standard. Brandenburg v. Ohio (1969) replaced “bad tendency” with a demanding test: the state may punish advocacy only when it is intended, likely, and imminent to produce lawless action. That shift answers the very dangers Holmes’s early cases unleashed. You must look for the three prongs—intent, imminence, and likelihood—before supporting criminal liability for speech. This bright-line rule constrains panic-driven prosecutions and protects ugly, even hateful expression by default.

The afterlife of a metaphor

Despite Brandenburg, Holmes’s theater line lives on in politics and policy papers. It reappears whenever officials want flexible authority to curb “disinformation” or “dangerous” speech—precisely the indeterminacy that history shows officials exploit. Turley’s counsel is simple: whenever you hear the theater line, ask whether the speaker is substituting metaphor for the Brandenburg elements. If they are, you’re being invited back into a pre-1969 world of ad hoc suppression.

Phrase power

Holmes proves that a single metaphor can outlive doctrine. Guard your legal vocabulary—today’s clever line can be tomorrow’s censorship license.

(Note: Turley credits judges like George Bourquin who, long before Brandenburg, demanded intent and proximity to harm—an early Millian instinct. Their example shows that restraint is possible even in wartime if you prioritize principle over panic.)

Turley catalogs the tools that convert ideas into crimes. Once you know the toolkit—sedition, seditious libel, “false news,” conspiracy, and catchall obstruction—you can spot how the state repurposes it whenever fear surges. The pattern runs from the Star Chamber to the DOJ’s post–January 6 prosecutions, with prosecutors and judges often marching in step.

From Star Chamber to the Sedition Act of 1798

English law punished “seditious libel” and “false news,” a logic that bled into colonial practice. Early America’s Alien and Sedition Acts criminalized “false, scandalous, and malicious writing” against the government, targeting opposition editors like Benjamin Franklin Bache and congressman Matthew Lyon. Supreme Court Justice Samuel Chase openly leaned into partisan prosecutions of James Callender and Thomas Cooper—proof that judicial robes do not immunize against fevered politics.

WWI Espionage and Sedition prosecutions

The 1917–18 Acts offered federal prosecutors a sledgehammer. Eugene Debs was imprisoned for a speech; Jacob Frohwerk and Charles Schenck for words on paper. The courts often applied “bad tendency”—if speech might lead to harm someday, it was enough. A rare counterexample came from Judge George Bourquin in Montana, who threw out charges against Ves Hall because local griping lacked intent and proximity to obstruct military operations. His opinion models what restraint should look like: focus on overt acts and specific intent.

Palmer raids, Smith Act, and McCarthy-era fallout

A. Mitchell Palmer’s raids swept up radicals in 1919–20, and the mid-century Smith Act punished advocacy of overthrow. Dennis v. United States endorsed probabilistic fear during the Cold War, sustaining convictions of Communist leaders. The legal process amplified political fear, while blacklists punished beyond the courthouse (Hollywood’s graylists and financial ruin prove how social and economic sanctions shadow legal ones).

The modern overlap problem

After January 6, prosecutors stacked counts: conspiracy to obstruct Congress, obstruction of an official proceeding, and for a subset, seditious conspiracy. The conduct—breaches, assaults, planning—was already captured by obstruction and conspiracy statutes with serious penalties. Sedition’s role was symbolic, branding cases with political stigma. Turley notes similar elasticity in United States v. Rahman and Dennis: when treason or terrorism standards are hard to meet, sedition-like charges serve as a lower bar to similar punishment.

Prosecutorial culture and judicial deference

The book emphasizes culture. Timothy Pickering and Justice Chase in Adams’s era, Palmer and Francis Biddle in wartime, and modern U.S. Attorneys in national-security cases all show a tendency to push boundaries under political pressure. Courts often defer in emergencies, ratifying vague standards like “bad tendency,” “clear and present danger,” or the “integral speech” exception. Your takeaway: vague standards plus fear equals discretion, and discretion concentrates power in the executive.

Guardrails to demand

Narrow statutes, specific intent, proximate acts, and independent judicial scrutiny. History rewards those constraints; it punishes their absence.

(Note: Turley does not deny security threats. He insists we use precise, non-speech-centric crimes—assault, conspiracy to commit specific unlawful acts, destruction of property—rather than political-speech crimes whose stigma and vagueness chill the whole public square.)

Not all censorship marches under national security. Turley devotes a chapter to moral crusades—especially the Comstock era—to show how “virtue” can be a velvet glove over an iron fist. When authorities criminalize obscenity with capacious definitions, they acquire a tool to silence social critics who transgress sexual or religious norms.

Anthony Comstock’s crusade

As a postal inspector and founder of the New York Society for the Suppression of Vice, Anthony Comstock architected the Comstock Act, banning the mailing of “obscene, lewd, or lascivious” materials. He boasted of thousands of arrests and tons of literature destroyed. The vagueness let him target contraception education, sexual frankness, and political criticism wrapped in taboo topics. The mail—a federal artery—became a censorship choke point.

Woodhull and Claflin: dissent under moral fire

Victoria Woodhull and Tennie Claflin published allegations about the famed preacher Henry Ward Beecher and advocated free love and women’s rights. Comstock used interstate mail rules to prosecute them under obscenity laws. While a court later ruled newspapers fell outside the particular statutory ban invoked, the process ruined their finances and chilled their platform. The episode shows how moral statutes punish critics even when they ultimately win on technical grounds.

Movement splits and institutional ambivalence

Free-speech defenders fractured. Libertarian radicals (e.g., the Free Speech League) defended contraception advocates and sexual speech, while some civil libertarians accepted obscenity carve-outs as necessary for social order. The ACLU’s stance evolved over time, reflecting the broader ambivalence of institutions tempted by functionalist balancing. That schism matters today when “harm” extends to “psychological safety” and platforms use brand risk to de-amplify controversial viewpoints.

Modern echoes: content moderation as moral hygiene

Today’s “disinformation” rules often behave like secular Comstockery—policing discourse around sex, health, and identity with moral urgency. The Great Barrington Declaration’s suppression during the pandemic, framed as preventing public harm, rhymes with Comstock’s urgency to protect public virtue. Turley’s caution: when elites claim guardianship over the public’s moral or epistemic health, they prefer filters to debate, and the censors seldom stop where they start.

Rule of thumb

If a law bans categories defined by offense rather than demonstrable harm, expect it to silence dissidents first and “the obscene” second.

(Note: Narrow obscenity law survives in modern doctrine, but Turley argues the Comstock story is a warning against reviving broad moral policing through statute or corporate policy. Mill’s harm principle supplies the corrective: regulate only where concrete, non-speculative injury can be shown.)

Turley argues that modern censorship scales through a “triunvirate” (his spelling varies with sources; think triumvirate): government agencies, technology platforms, and academic or nonprofit validators. Together they form a system of influence operations, content takedowns, and economic pressure that achieves state-like suppression without clear state accountability.

How coordination works

Records known as the Twitter Files exposed regular meetings between platform counsel (e.g., Stacia Cardille) and agencies like the FBI, DOJ, DHS, and CDC. FBI official Elvis Chan discussed keyword flagging and even offered “top secret” channels. Agencies provided lists of accounts or narratives to watch; platforms adjusted visibility, demoted, or removed content. The cadence—standing meetings, shared dashboards—looked less like ad hoc outreach and more like institutional process.

Academic and nonprofit surrogates

Third-party organizations, some with government funding, supplied risk scores and blacklists. The Global Disinformation Index rated outlets and nudged advertisers to pull revenue. University labs proposed “externalizing” moderation decisions (Michigan’s WiseDex) so platforms could outsource blame. The Atlantic Council’s DFRLab and other outfits served as validators, transforming political judgment calls into “expert” metrics. Payment processors and ad networks then enforced the verdict through demonetization and service denial.

Election and health flashpoints

The Hunter Biden laptop episode shows the model under stress. Pre-election, Twitter blocked the New York Post’s reporting, citing hack-and-leak risks primed by government warnings. Jack Dorsey later apologized, but the incident underscored how “integrity” frames can justify sweeping content decisions on thin evidentiary bases. Pandemic-era moderation similarly targeted dissenting scientific views, invoking harm-to-health rationales that morphed with policy guidance.

Constitutional fault lines

Courts often treat platforms as private actors, limiting First Amendment claims. But Turley points to state-action precedents (Lombard v. Louisiana; Paige v. Coyner) where government made “suggestions” backed by implicit threats. If agencies use regulatory leverage or funding carrots to induce censorship, private takedowns can become state action. The legal challenge is proving coercion or significant encouragement—an evidentiary problem the Twitter Files help illuminate.

What you should watch for

• Routine government–platform meetings tied to takedown queues.
• Funding streams from agencies to “disinformation” labs generating blacklists.
• Advertiser guidance based on opaque risk metrics—de facto blacklisting.
• Official rhetoric that equates dissent with infrastructure risk (e.g., CISA’s “cognitive infrastructure”).

Core concern

When everyone has a little power to censor and no one owns responsibility, the First Amendment’s limits vanish in the gaps.

(Note: Turley’s critique is institutional, not partisan. The triumvirate model can be wielded by any faction—and once normalized, it will be.)

Universities train the civic norms you later live under. Turley argues the modern academy—once a protected grove of inquiry—now often enforces orthodoxy through disruption, compelled speech, and administrative punishment. The cultural result is a generation habituated to treating disagreement as harm and censorship as care.

From Akademos to adjudicators

The original academus was a sheltered circle where rivals could argue safely. Today, some faculties and administrators privilege safetyism and group solidarity over heterodoxy. Faculty point out colleagues to activist mobs; students chant “silence is violence” as a cudgel to force speech or punish silence. Surveys now show many students self-censor in class, a marker of an unhealthy marketplace of ideas.

Flashpoints and patterns

Turley recounts episodes to map the pattern. At Hunter College, professor Shellyne Rodriguez destroyed a pro-life display, later chasing a reporter with a machete. At UC Santa Barbara, faculty rallied around Mireille Miller-Young after she assaulted pro-life demonstrators. At the University of Washington, Stuart Reges was removed from an intro course role after he dissented from a prescribed land acknowledgment. Disruption or punishment of disfavored viewpoints substitutes for engagement.

Academic freedom theories under strain

Three rationales circulate: marketplace-of-ideas (protect broad debate), autonomy (individual fulfillment), and democratic competence (produce expert knowledge). Scholars like Robert Post and Jennifer Ruth emphasize the last, arguing academic freedom attaches to expertise and institutional autonomy more than to individual speakers. Turley warns that this functionalist tilt can justify excluding “uninformed” or “dangerous” views, sliding toward orthodoxy. Administrators then weaponize “collegiality” as a pretext for discipline (courts, as in Porter v. Board of Trustees of North Carolina State University, sometimes accept it).

Procedural reform, not curricular control

Turley endorses the Chicago Principles as a baseline and proposes federal conditions on research grants tied to viewpoint-neutral rules. The recipe: forbid “free speech zones,” protect time–place–manner rights, guarantee due process in discipline, and require transparent reporting of violations. Crucially, he avoids dictating content or hiring—pedagogical autonomy remains intact while procedural fairness is enforced (a Millian move focused on process, not orthodoxy).

Why this matters to you

The academy sets your culture’s conversational temperature. If campuses train citizens to fear dissent and outsource judgment to gatekeepers, democratic resilience withers. If instead they rehearse robust disagreement with civil rules, the body politic builds antibodies against panic and speech crackdowns.

Action cue

Support institutions that adopt speech-protective charters and insist on due process—culture follows structure.

(Note: Turley’s critique applies across ideologies. Orthodoxy can flip; the mechanism—administrative power plus social intimidation—stays constant.)

To get out of the panic cycle, Turley returns to John Stuart Mill’s harm principle: the state may interfere with individual liberty only to prevent harm to others. He pairs that with modern incitement doctrine—Brandenburg’s intent, imminence, and likelihood—to offer a practical, protective framework that distinguishes hurt feelings from actionable injuries.

What counts as harm

For Mill, mere offense, error, or heresy is not harm. Harm means a concrete invasion of rights or safety: fraud that tricks you out of money, defamation that meets established standards, true threats that put you in reasonable fear, conspiracies and solicitations that are tightly linked to imminent illegal acts. This conception narrows the state’s role and keeps most speech in the protected circle around each person.

How Mill corrects functionalism’s drift

Functionalist balancing expands during crises because it measures speech by social consequences estimated by officials. Mill insists on objective harms, not speculative harms. In Sullivan, Justice Brennan quoted Mill to protect debate—even false statements can contribute to truth-seeking. The cure for bad ideas is counterspeech, not criminalization, unless the Brandenburg elements are satisfied.

Historical and modern examples

Judge George Bourquin’s WWI ruling in favor of Ves Hall reads like Mill applied: no intent to obstruct, no proximate effect—no crime. Contrast Schenck and Frohwerk, where remote “tendencies” sufficed. In our time, the punishment of Great Barrington Declaration scientists for policy dissent illustrates what Mill warns against: treating disagreement as danger. A Millian regime would demand evidence that their speech intended and was likely to cause imminent harm beyond policy discomfort.

A Millian enforcement blueprint

• Criminalize only with specific intent and proximate acts (attempt-like standards for speech-linked crimes).
• Use existing harms: fraud, defamation (per Sullivan and progeny), true threats, solicitation or conspiracy to imminent unlawful action.
• Reject broad categories like “disinformation” or “malinformation” unless tied to concrete, demonstrable injury.

Practical test

Before regulating speech, ask: Who was harmed, how, and how soon? If you can’t answer with evidence, you likely have a policy gripe, not a crime.

(Note: Mill is not absolutist; Brandenburg captures the legitimate edge cases. The power of his approach is its focus—by tying intervention to objective harms, you starve panic of its favorite fuel: vague alarms.)

Turley ends with an unapologetically concrete reform: abolish sedition. Across centuries, sedition laws have served as flexible weapons against opposition—disguised as public safety, invoked in panics, and rarely essential to punish real crimes. Removing sedition would be both symbolic and practical, clarifying that acts, not ideas, are the proper focus of criminal law.

A toxic lineage

From England’s De Scandalis Magnatum and Star Chamber’s seditious libel, through colonial prosecutions and the 1798 Sedition Act, to WWI and the Smith Act, sedition’s throughline is political control. Madison called it a “monster” that disgraces its authors. Each revival follows the same script: warn of foreign influence, equate dissent with treachery, and target critics. Each aftermath leaves scars and shame.

Redundancy in modern law

We already criminalize what counts: conspiracy, obstruction, trespass, assault, destruction of property, terrorism, and treason. Post–January 6 cases illustrate redundancy: obstruction and conspiracy addressed conduct; sedition added stigma. United States v. Rahman and Dennis show prosecutors reach for sedition-like theories when proof for higher charges is thin. The availability of sedition invites overcharging and political theater.

Counterarguments and replies

“It’s rarely used,” critics say—precisely why it’s dangerous. Dormant tools awaken in panics. “It’s needed for dangerous conspiracies”—but specific, non-speech crimes already fit. “Abolition sounds radical”—yet it simply aligns law with Mill and Brandenburg, focusing on harmful acts and imminent incitement. Symbolically, abolition repudiates the idea that criticizing government—even harshly—is ever a crime in a republic.

A practical abolition agenda

• Repeal statutory sedition and seditious-conspiracy provisions; purge common-law remnants.
• Clarify that overt acts, specific intent, and proximate harm are required in related offenses.
• Adopt reporting requirements to track use of adjacent statutes (obstruction, conspiracy) when tied to political events.

Madison’s ideal

Free political communication is “the only effectual guardian of every other right.” Abolishing sedition sharpens that guardian.

(Note: Abolition does not immunize violence or plotters; it forces prosecutors to prove concrete crimes. That shift disciplines state power and signals to citizens that the republic trusts debate more than it fears dissent.)