115 Pages Posted: 17 Sep 2004
Many recent free speech controversies - over contract murder manuals, secret Patriot Act subpoenas, contributory copyright infringement, encryption and decryption algorithms, Web pages that contain bombmaking information, discussion of gaps in security systems, publication of the names of abortion providers, boycott violators, crime witnesses, and police officers, and more - turn out to be special cases of a general problem: How should First Amendment law treat crime-facilitating speech, a term I define to mean (1) any communication that, (2) intentionally or not, (3) conveys information that (4) makes it easier or safer for some listeners or readers to (a) commit crimes, torts, acts of war, or suicide, or (b) to get away with committing such acts? Surprisingly, scholars have not focused much on these broad questions, and the Supreme Court has never squarely confronted them either in their general form or in their specific applications.
This article begins by drawing the link between the many different examples of crime-facilitating speech - a link that's important to recognize, since it means that the decision in any of those cases may affect the decisions in others. It then explains why restrictions on crime-facilitating speech can't be easily justified under existing First Amendment doctrine, and goes on to discuss the various distinctions that might form the building blocks of a possible new First Amendment exception. One seemingly appealing distinction - between speech intended to facilitate crime, and speech that is merely said with knowledge that some readers will use it for criminal purposes - turns out to be less helpful than might at first appear. Many other possible distinctions end up being likewise unhelpful, though a few are promising.
The article ultimately suggests that crime-facilitating speech ought to be constitutionally protected unless (1) it's said to a person or a small group of people when the speaker knows the listeners are likely to use the information for criminal purposes, (2) it's within one of the few classes of speech that has almost no noncriminal value, or (3) it can pose truly extraordinary harm (on the order of a nuclear attack or a plague) even when it's also valuable for lawful purpose; but I hope its analysis will be helpful even to those who would reach a different conclusion.
Finally, the article notes that, while crime-facilitating speech cases arise in all sorts of media, and should be treated the same regardless of the medium, the existence of the Internet does make a difference here. Most importantly, by making it easy for people to put up mirror sites of banned material as a protest against such bans, the Internet makes restrictions on crime-facilitating speech less effective, both practically and (if they're cast in terms of purpose rather than mere knowledge) legally.
Keywords: First Amendment, Free Speech, Freedom of Speech, Crime, Aiding and Abetting
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