Conspiracy Law's Threat to Free Speech

Abstract

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story.

This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes the use of speech in conspiracy cases, and thereby reveals threats to free speech not recognized by past approaches to the subject.

Current scholarship’s unipolar approach has led some commentators to conclude that conspiracy law poses no threat to freedom of speech. Contrary to the necessary assumptions underlying this conclusion, the All-Purpose Speech Model discounts the operational distinction between agreement, overt act, mens rea, and evidence thereof. It reveals that these elements and evidence in support of them collapse together, becoming homogenized. The result is that speech used as evidence becomes the crime of conspiracy itself. This raises serious concerns for free speech.

This Article first provides a factual context by discussing conspiracy issues in terrorism, communism, and narcotics cases. It then sets forth the All-Purpose Speech Model by exploring the intersection between conspiracy law and free speech. Next, it uses Kent Greenawalt’s tripartite typology of speech and the category of speech integral to criminal conduct to establish a new four-part typology that is useful to analyzing the use of speech in conspiracy cases. Finally, it applies this typology to the extant system of speech protection, which includes the familiar concepts of high-value speech, low-value speech, and speech thought to be entirely outside of the First Amendment’s protection.

This Article addresses only conspiracy’s threat to principles of freedom of speech. A different, and equally important, inquiry concerns its potential violation of the First Amendment. Recognizing the novelty of its argument and the political, evidentiary, and conceptual challenges of placing conspiracy charge-related speech under First Amendment protection, I reserve that inquiry for later work, so that it may be given the attention it deserves. Nonetheless, I conclude with a tentative foray into Brandenburg-related constitutional questions posed by conspiracy law.

Keywords: conspiracy, speech, first amendment, terrorism, free speech