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concepts and controversies
This page considers the nature of treason and sedition
law. It also offers points of entry to literature regarding
the history of sedition law, treason and government responses
to seditious content on the net.
It covers -
 introduction
Legislation regarding treason predates the Romans and
along with restrictions on sedition has been a feature
of many regimes since that time, although its application
in non-totalitarian states has been increasingly rare.
It is of interest for perspectives on -
- the
nature of the state, including the conceptualisation
and administration of justice
- the
shape of civil society
- the
bounds of free speech, in periods of civil disorder,
wartime and otherwise
- contemporary
responses by liberal democracies to threats posed by
terrorists and expression by fundamentalists seeking
to subvert those states
treason
What is treason? As the following pages indicate, the
popular and legal characterisation of treason has varied
over time and by jurisdiction. In law it has typically
taken two forms, both centred on a betrayal of a subject's
duties to the state.
The first concerns prohibition of action to overthrow
the legitimate government of one's country, in the past
centred on action against a sovereign (held to embody
the community and state). In some instances that prohibition
has encompassed questioning the legitimacy of the government
or advocacy of action to remove a ruler (or the ruler's
representatives) rather than substantive action. It has
also encompassed such offences as denigrating the ruler
and counterfeiting coinage.
The second, perhaps more familiar to most people, concerns
betrayal of the state by waging war against it or by consciously
acting in a way that assists that state's enemies, particularly
during wartime.
sedition
Sedition as a concept has similarly had a spectrum of
meanings, but centres on expression or action aimed at
alienating subjects (in particular the armed forces and
law enforcement personnel) from the ruler or more broadly
from the government.
disaffection
Some regimes feature disaffection legislation, ie law
making it an offence to subvert the loyalty of the armed
forces and/or police forces.
In the UK, for example, the Incitement to Disaffection
Act 1934 deals with those who
maliciously
and advisedly ... endeavour to seduce a member of the
armed forces from his duty or allegiance.
The
Act was used in the 1970s in prosecution of campaigners
for withdrawal of British troops from Northern Ireland;
the salient cases are R v Arrowsmith [1975] QB
678 and Arrowsmith v UK (1978) 3 EHRR 218.
The UK Police Act 1996 similarly prohibits acts
calculated to cause disaffection among police officers
or to induce them to withhold their services or commit
breaches of discipline.
In some African nations - where the army provides the
model for government agencies (and in practice often is
the state) - disaffection law has been extended to cover
postal, telephone, banking, transport and other civil
services.
mutiny
Mutiny involves disobedience by the armed forces or police.
Australia's Naval Discipline Act 1957 (Cth) thus
stated that a mutiny is a
combination
between two or more persons ... to overthrow or resist
lawful authority, to disobey such authority, so as to
make the disobedience subversive of discipline, and
to impede the performance of any duty.
The
current Defence Force Discipline Act 1982 (Cth)
indicates that mutiny is a
combination
between persons who are, or of whom at least 2 are,
members of the Defence Force:
(a) to overthrow lawful authority in the Defence Force
or in an allied force; or
(b) to resist such lawful authority in such a manner
as to prejudice substantially the operational efficiency
of the Defence Force or of, or of a part of, an allied
force.
studies
In contrast to the growing literature on cyberwar and
contemporary terrorism there is surprisingly little recent
writing about responses to sedition. Much of it is narrowly
historical or concerned with the development and reception
of particular ideologies.
Janet Coleman's Against the state: studies in sedition
and rebellion (London: BBC 1990) is a point of entry
to the substantial historical literature on sedition in
pre-industrial and industrial Europe.
For the classical period see Treason in Roman and
Germanic Law: Collected Papers (Austin: Uni of Texas
Press 1965) by Floyd Lear
For Australia see in particular the Australian Law Reform
Commission's 2006 report
Fighting Words - Report on the Review of Sedition
and Related Laws, following on its discussion paper
and issues paper
of the same year. The ALRC report is complemented by the
2005 report
of the Senate Legal & Constitutional Affairs Committee
Inquiry into the provisions of the Anti-Terrorism
Bill (No. 2) 2005 and What Price Security?: Taking
Stock of Australia?s Anti-Terror Laws (Sydney: UNSW
Press 2006) by Andrew Lynch & George Williams.
Past practice in Australia is explored in Roger Douglas'
2002 study
Saving Australia from Sedition: Customs, the Attorney-General's
Department and the Administration of Peacetime Political
Censorship and in Kevin Baker's more anecdotal Mutiny,
Terrorism, Riots & Murder: A History of Sedition in
Australia and New Zealand (Dural: Rosenberg 2006).
For the 1949 Sharkey and Gilbert cases see Stuart Macintyre's
The Reds: The Communist Party of Australia from origins
to illegality (St Leonards: Allen & Unwin 1998),
Robin Gollan's Revolutionaries & Reformists: The
Rise and Fall of the Communist Party of Australia, 1920-1955
(Canberra: ANU Press 1975), Ross Fitzgerald's The
People's Champion: Fred Paterson, Australia's Only Communist
Member of Parliament (St Lucia: Uni of Queensland
Press 1997) and John Murphy's Imagining the Fifties:
Private Sentiment and Political Culture in Memzies' Australia
(Sydney: UNSW Press 2000).
There has been no wide-ranging study of sedition in New
Zealand, apart from Baker's 2006 Mutiny, Terrorism,
Riots & Murder. Particular case studies are highlighted
on the final page of this note.
For pre-1950s anti-sedition and subversion regimes in
the US see John Miller's Crisis in Freedom: The Alien
& Sedition Acts (Boston: Little Brown 1951),
Library of Congress page
on the federalist era legislation, the Montana Sedition
Project site
and associated Darkest Before Dawn: Sedition and Free
Speech in the American West (Albuquerque: Uni of
New Mexico Press 2004) by Clemens Work.
For a perspective on more recent times see It Did
Happen Here: Recollections of Political Repression in
America (Berkeley: Uni of California Press 1989)
by Bud Schultz, Ruth Schultz & Victor Navasky.
More recent perspectives from China and Malaysia are the
RSF report
on Chinese censorship of chat rooms, the 2003 Information
Control and Self-Censorship in the PRC and the Spread
of SARS report (PDF)
by the US Congressional Executive Commission on China,
2003 Memorandum on the Malaysian Sedition Act 1948
(PDF)
by Article 19 and Davidson, Friesen & Jackson's 2001
'Lawyers and the Rule of Law on Trial: Sedition Prosecutions
in Malaysia 'in Criminal Law Forum 2001.
As points of entry into the large literature on US blacklisting
during the 1950s and beyond see David Caute's The
Great Fear: The Anti-Communist Purge under Truman and
Eisenhower (New York: Simon & Schuster 1978),
David Johnson's The Lavender Scare: The Cold War Persecution
of Gays and Lesbians in the Federal Government (Chicago:
Uni of Chicago Press 2004), Richard Fried's Nightmare
in Red: The McCarthy Era in Perspective (New York:
Oxford Uni Press 1990), Eleanor Bontecou's The Federal-Loyalty
Security Program (Ithaca: Cornell Uni Press 1953),
Francis Thompson's The Frustration of Politics: Truman,
Congress, and the Loyalty Issue, 1945-1953 (Rutherford:
Fairleigh Dickinson Uni Press 1979), Athan Theoharis'
Chasing Spies: How the FBI Failed in Counterintelligence
but Promoted the Politics of McCarthyism in the Cold War
Years (Chicago: Ivan R Dee 2002) and Alan Harper's
The Politics of Loyalty: The White House and the Communist
Issue, 1946-1952 (Westport: Greenwood 1969).
For the film industry see Patrick McGilligan's Tender
Comrades: A Backstory of the Hollywood Blacklist (New
York: St Martin's Press 1997) and Robert Vaughn's Only
Victims: A Study of Show Business Blacklisting (New
York: Putnam 1972).
Literature on 'cyberterrorism' (variously defined), cyberwarfare
and 'hate online' is now a minor genre, with a large number
of works (albeit of distinctly uneven quality). We have
highlighted particular studies in discussing online security
& infocrime and hatespeech.
These range from Cyberwars: Espionage on the Internet
(Cambridge: Perseus 1999) by Jean Guisnel, Terror
on the Internet: The New Arena, the New Challenges
(Washington: USIP Press 2006) by Gabriel Weimann and Netspionage:
The Global Threats To Information (London: Butterworth
2000) by William Boni & Gerald Kovacich to Information
Security Management: Global Challenges in the New Millennium
(Hershey: Idea 2001) edited by Gurpreet Dhillon, Cyber-Threats,
Information Warfare & Critical Infrastructure Protection
(Westport: Praeger 2002) by Anthony Cordesman, Information
Warfare & Security (New York: Addison-Wesley 1999)
by Dorothy Denning and Islam in the Digital Age: E-jihad,
Online Fatwas and Cyber Islamic Environments (London:
Pluto Press 2003) by Gary Bunt. Government studies include
the US Department of Justice report
on The Electronic Frontier: The Challenge of Unlawful
Conduct Involving the Use of the Internet.
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