The 'Speech Integral to Criminal Conduct' Exception

Abstract

In the last 10 years, the Supreme Court has been reviving a long-dormant and little-defined First Amendment exception: the exception for “speech integral to criminal conduct,” first expressly noted in Giboney v. Empire Storage & Ice Co. (1949).

The Court has recently used this exception to justify prohibitions on distributing and possessing child pornography, on soliciting crime, and on announcing discriminatory policies. Lower courts have used it to justify restrictions on speech that informs people how crimes can be committed; on doctor speech that recommends medical marijuana to their clients; on union speech that “retaliates” against union members by publicly criticizing them for their complaints; on intentionally distressing speech about people; and more. Government agencies have used the exception to justify restrictions on, among other things, the publication of bomb-making instructions, speech by tour guides, and offensive speech by protesters near a highway.

The Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well-defined and narrowly limited, courts need to explain and cabin its scope. This Article aims to help with that task.

It also tells the story of this exception, which turns out to be central to much of the evolution of modern First Amendment doctrine -- including the fighting words exception, the threats exception, and the incitement exceptions. And it suggests that the Court’s recent turn away from categorical balancing, and towards history, in developing First Amendment exceptions has coincided with the revival of Giboney. Just as Giboney was an important tool for Justice Black (its author) in resisting thoroughgoing categorical balancing, so Giboney has become a comparably important (though dangerous) tool for the Roberts Court.

Keywords: First Amendment, Freedom of Speech