Defending Speech Crimes
28 Pages Posted: 17 Jan 2021
Date Written: 2020
The First Amendment is supposed to provide important protections against criminal prosecutions for speech crimes. In practice, however, those protections are inadequate: in a world of vanishing trials, criminal defendants lack meaningful opportunities to litigate often fact-bound First Amendment questions. Through the lens of prosecutions for false speech, this article proposes refocusing First Amendment protections in criminal cases on criminal procedure rather than substantive questions about what the First Amendment protects. It suggests two procedural reforms—revitalizing the indictment and unanimity requirements—to help make the First Amendment’s ostensible protections more of a reality for criminal defendants.
Keywords: First Amendment, criminal justice, criminal legal system, criminal procedure, crim pro, false speech, Alvarez, impersonation, perjury, false statements, indictments, grand jury, unanimity
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