Criminal Speech and the First Amendment

Abstract

First Amendment law contains an unresolved tension. On the one hand, it is black-letter law that the First Amendment prohibits governmental sanctioning of speech unless that speech incites 'imminent lawless action and is likely to incite . . . such action.' On the other hand, courts hold that crime receives no free speech protection merely because it is in the form of speech. These positions are not necessarily incompatible, but the distinction between speech and crime remains thinly reasoned and poorly understood. As a result, the scope of the freedom of speech is not governed by any consistent view of the nature of expression and is dangerously arbitrary.

This Article proposes a more coherent theoretical regime for distinguishing speech and crime--an approach that cuts across the areas of criminal speech and symbolic speech. The aim is to incorporate well established law and scholarship concerning the distinction between conduct and expression into a broader theoretical framework. Within this framework, the threshold distinction between crime and speech can better be understood as a version of the familiar distinction that courts rely upon when seeking to identify whether conduct (such as marching or nude dancing) is sufficiently expressive so as to merit First Amendment protection. By framing the distinction between speech and crime in terms of the broad principles identified by courts and scholars in a context where similar First Amendment goals are at stake, this Article seeks to provide an approach to distinguishing speech and crime that is both intelligible and workable.

To be clear, the aim is not simply to replace one set of formalistic categories with another, but to articulate a method of analysis. While the principles gleaned from the cases and scholarship addressing symbolic speech do not provide a mechanical test for identifying criminal speech, they do offer a general framework for analysis that can be refined. By engaging in such an analysis, courts will at least ensure that the outcome determinative decision of whether to apply the First Amendment is explained adequately, thus reducing the risk that the crime exception to the First Amendment will undermine the American commitment to freedom of speech.

Keywords: First Amendment, Brandenburg, Speech Conduct Distinction, Symbolic Speech, Speech Act, Expressive Conduct