Sections Section I: The Sedition Act of 1918 — Origins, Application, and Repeal Section II: The Doctrinal Evolution — From Clear and Present Danger to Brandenburg Section III: The Statutes That Survived — A Comparative Analysis Section IV: The January 6 Prosecutions — Proof of Concept Section V: The Full Statutory Landscape — Current Status Table Section VI: The Communist Control Act and the Zombie Statutes Conclusion Appendix A: References

Section III: The Statutes That Survived — A Comparative Analysis

The Espionage Act of 1917 — The Most Durable Survivor

While the Sedition Act of 1918 was repealed and the Smith Act was judicially narrowed into effective disuse, the Espionage Act of 1917 (Pub. L. No. 65-24, 40 Stat. 217, 1917), codified principally at 18 U.S.C. §§ 793–798, remains the most actively enforced national security statute in federal law. Its durability reflects a key structural feature: it targets the disclosure and transmission of information relating to national defense — conduct, not speech. The Act does not criminalize the political ideas of those who disclose classified information; it criminalizes the act of disclosure itself.

The Act's application in the modern era has focused primarily on government insiders who leak classified information — intelligence analysts, military personnel, contractors — and has generated consistent controversy about its scope and proportionality. The cases have nonetheless produced convictions:

The Espionage Act's critics — including many civil libertarians and press freedom advocates — argue that it was designed for traditional espionage and is being misapplied to journalists' sources and whistleblowers. The statute contains no public interest defense and makes no distinction between the spy and the whistleblower. This critique is ongoing; the statute, whatever its policy defects, remains fully operative and actively enforced.

18 U.S.C. §§ 2383 and 2384 — Insurrection and Seditious Conspiracy

Two statutes in the same chapter as the Smith Act have proven far more durable precisely because they target conduct — conspiracy and insurrection — rather than speech. Section 2383, titled 'Rebellion or insurrection,' imposes up to ten years in prison and permanent disqualification from federal office on any person who 'incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto' (18 U.S.C. § 2383, 2018). Section 2384, titled 'Seditious conspiracy,' imposes up to twenty years on any two or more persons who 'conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof' (18 U.S.C. § 2384, 2018).

These statutes survived the post-Brandenburg era for a straightforward reason: they describe criminal agreements and overt acts, not speech. A conspiracy requires an agreement between at least two people to commit an illegal act and an overt act in furtherance of the agreement. The First Amendment does not protect conspiratorial agreements any more than it protects contract murder. Brandenburg's 'imminent lawless action' test governs the boundary of protected speech, not the boundary of criminal conduct.