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A test for criminal speech acts

A test for criminal speech acts

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  • INTRODUCTION
  • I. CRIMINALLY INSTRUCTIONAL SPEECH AND THE CIS TEST
  • C. The CIS Test: A Basic Overview
  • II. CIS TYPE I: AIDING AND ABETTING
  • A. CIS Type II: Rice v. Paladin Enterprises
  • A. Low-Value Speech as an Alternative
  • C. Overprotection
  • CONCLUSION

A Test for Criminally Instructional Speech Author(s): Leslie Kendrick Reviewed work(s): Source: Virginia Law Review, Vol

. 91, No. 8 (Dec., 2005), pp. 1973-2021 Published by: Virginia Law Review Stable URL: http://www.jstor.org/stable/3649409 . Accessed: 16/01/2013 14:12
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NOTE
A TEST FOR CRIMINALLY INSTRUCTIONAL SPEECH By Leslie Kendrick*
INTRODUCTION ..............................................................................1974
I. CRIMINALLY INSTRUCTIONAL SPEECH AND THE CIS TEST... 1975 A. What Criminally Is Instructional 1975 Speech?....................... B. FreeSpeechPremises 1977 ..................................... A C. The CIS Test: Basic Overview ..................................... 1979 II. CIS TYPE I: AIDING AND ABETTING................................... 1984 A. Incitement theButtorff and Problem ..............................1986 B. Incitement Criminal and Instruction .........1987 Distinguished Unintended C. Incitement's Consequences .........................1992

III. THE CIS TEST ..........................................................................1995
IV. THE FUTURE OF CRIMINALLY INSTRUCTIONAL SPEECH ....... 1998

A. CIS TypeII: Rice v. PaladinEnterprises........................ 1998 B. CIS TypeIII: Instructional No Speechwith Underlying 2004 Offense.................................. 2. A Recent Case Under StateLaw ............................... 2008 3. A Recent Case Under FederalLaw............................ 2011
1. Facilitating"Civil Disorders" UnderFederal Law .... 2006

V . O BJECTIONS 2014 .............................................................................

2014 Low-ValueSpeechas an Alternative ............... Paradigm The Vagueness an Intent 2017 of Test....................................... 2018 ..................................... Overprotection 2020 ................................................................ Underprotection C ONCLUSION .................................................................................. 2021

A. B. C. D.

*J.D. of SchoolofLaw; D.Phil., Uni2004, expected May2006, University Virginia I Vincent of like Professors BlasiandRobert O'Neil versity Oxford. would to thank for and Kenneth Lillian their and Abraham, BeVier, insightful supervision Professors I alsowould to thank for comments. like AtMichael Klarman their Jennifer helpful Dan Bress, Sarah MicahSchwartzman, Teich, thestaff and of Charles Barzun, trep, Michael and Law Nemelka ClaraVondrich. theVirginia Review, especially

1973

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1974

Law Review Virginia
INTRODUCTION

[Vol. 91:1973

about how to commit sion that provides technicalinformation from crimes. Such speech maytake manydifferent forms, ranging betweenaccomplices publications to discommunications personal seminatedto a wide audience. It includesspeech thatultimately of to contributes the actual commission a crimeand speech that does not. makes it difficult regulatecriminally to instrucThis diversity criminal tionalspeechin a way thatbothdetersdangerous activity for For example, and maintains strong protection freeexpression. an of mostpeople wouldconsider analysis a building's vulnerability whensharedbetween to terrorist attackto be unprotected speech who then attempt such an attack.Such communicaconspirators in suchan attack tionbetween conspirators theprocessofplanning would provoke a similarresponse.But what if such an analysis or were posted on a websiteexplicitly implicitly that suggesting Whatifit wereposted readerstake advantageoftheinformation? Whatifitwerein an enon a website without suchsuggestion? any of Whatifit werein a on report the safety the building? gineering the articlealerting publicto the weaknessesof a city's newspaper anti-terrorism plans? What if it were in a movie or book thatdeattackon thebuilding? picteda fictional In all ofthesecases,thecontent thespeechremains same, the of This Note will but the contextvaries and, withit, our intuitions. contendthatour intuitions to changebecause theyare responsive reasonableconcernsabout the intentof speakerswho uttersuch of a has speech.The doctrine aidingand abetting longcriminalized on the basis certainsubcategory criminally of instructional speech oftheintent with whichthespeechwas made.This Note willargue catethata similar intent-based approachcan extendto the entire betweenprotected goryand make sound and reliabledistinctions intent-based can adand unprotected inquiry speech. A rigorous above without dress situations ensimilarto those hypothesized of of on croaching therobustprotection speech,regardless itscontent.

test THIS Notewillpropose a FirstAmendment forcriminally instructional instructional speechis expresspeech.Criminally

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2005]

A Testfor Criminally Instructional Speech

1975

instructional Part I of thisNote will describecriminally speech and briefly introducea test for criminally instructional speech instruc("CIS Test"). Part II will considerthe kindof criminally tional speech most routinely under the criminal lawpunished PartIII willshowhow the aidthataids and abets a crime. speech the paradigmexplainedin Part II informs CIS ing and abetting test.PartIV willapplythe CIS testto forms criminally of instrucPart V will address tionalspeech otherthan aidingand abetting. to objections theCIS test.
I. CRIMINALLY INSTRUCTIONAL SPEECH AND THE CIS TEST

A. What Criminally Is Instructional Speech? Professor instrucRecently, Eugene Volokh classified criminally tionalspeech as partof a largercategory called "crime-facilitating Volokh defines speech."'Professor crime-facilitating speechas any thatprovidesinformation in the commission a of speech helpful The a of crime.2 category encompasses wide variety activities: proinstructions,3 viding bombmaking holding seminarson how to committax fraud,4 of exposingthe identities undercover agents,5 the names of crimevictims6 witnesses,' or publishing distributing
2

'Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095,1103 (2005).

Id. at 1097. See, e.g., United States v. Fleschner,98 F.3d 155, 158 (4th Cir. 1996) (rejectinga First Amendmentdefense against tax fraudcharges); United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) (same); United States v. Freeman,761 F.2d 549, 552 572 (9th Cir. 1985) (same); United States v. Buttorff, F.2d 619, 624 (8th Cir. 1978) (same). But see United States v. Raymond,228 F.3d 804, 808 n.1 (7th Cir. 2000) (enjoining the sale of an "abusive tax shelter"informational program,but notingthat criminalprosecutionwas declined "because the Government was concerned that a criminal of underthe prosecution the appellantswould implicatethe appellants'rights FirstAmendment"). v. Agee, 452 U.S. 280,286 (1981). 5 See 50 U.S.C. ? 421(c) (2000); Haig 6 See Cox Broad. thatthe First Corp. v. Cohn, 420 U.S. 469, 496, 497 (1975) (finding bars sanctionsforthe media's release of a rape victim'sname whenthat Amendment was a matterof public record); Hyde v. City of Columbia, 637 S.W.2d information 251, 263 (Mo. Ct. App. 1982) (allowinga tortaction to proceed when the abduction name foundnot to be a matter publicrecord). victim's of Racing Ass'n, 787 F.2d 463, 465 (9th Cir. 1986) (find7 See Capra v. Thoroughbred in of ing that a publicationwhich revealed the identity participants federalwitness judgmentunderFirstAmendment); protection programwas not entitledto summary Times MirrorCo. v. Super. Ct., 244 Cal. Rptr. 556, 559 (Ct. App. 1988) (finding no
3 4

Id. at 1103.

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1976

Law Review Virginia

[Vol. 91:1973

and watersupplysystems, even flashing one's maps of municipal to to headlights alertotherdrivers a speed trap.8 instructional Criminally speech is just one part of this larger of crime-facilitating speech. Some crime-facilitating category technical"how-to"information, such as how to speech provides make a bomb or evade incometaxes. This is criminally instrucnontionalspeech.Otherkindsof crime-facilitating speech supply information committingcrime. a technical on For example, newsa or which publishthe name of a crimevictim witness, paper might use thatperson.The someonemight to locate and retaliate against does not tell anyone to use the information that in newspaper muchless explainhow to do so. Nevertheless, speech its manner, aid someone in committing crime and thus a mightmaterially as one's headspeech.Similarly, flashing qualify crime-facilitating thatthereis a police vehicle warnsotherdrivers customarily lights that or speed trapahead. This is communication helps to facilitate it is not how-to but It information. does not explain law violation, that theyshould stop speedingand not resume to otherdrivers a untiltheyhave passed the policemanahead. It is simply signal ifthey lead themto take suchactionon their know thatmight own, itsmeaningand choose to followit. These are examplesof crimecriminal instruction. speechthatdo notconstitute facilitating Professor thatthesedifferent Volokh is correct Although types criminal instrucof speech all help facilitate crimes, distinguishing tion fromother formsof crime-facilitating speech makes sense and On both analytically practically. an analytical level, different invoke different varietiesof crime-facilitating speech legal doca issues that trines:Publishing witness'sname implicates privacy a publishing recipefora Molotovcocktaildoes not. On a practical instructional level, public discussionof criminally speech (albeit thatcategory speechas itsown entity. of Recentattreats limited) has focused criminal to on instructention crime-facilitating speech has produceda study, and Contion: the Departmentof Justice
a namewhendoingso increased his Amendment to First privilege report witness's of risk harm). No. Statev. Walker, 1-9507supranote 1, at 1102n.40(discussing 8 See Volokh, a Amendment 03625(Williamson (Tenn.)Cir.Ct.Nov.13,2003)(accepting First Cty. of for to "RadarTrap"bedefense obstruction justice up charge holding sign reading sidetheroad)).

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governance . Report the of at Information.g..S.S. 1997 on 'See. Rev. Rev.thisNote assumesthatFirstAmendment shouldextendto as much protections as of expression possible.18 U. This content downloaded on Wed.C. comprehensive approach. at poses.20 (1971). The Constitutional of Concept PublicDiscourse: Outrageous 13 See Robert and Democratic 103 Harv. Undertheconception theFirst of all expression untila demonenjoysa presumption protection state interest that stratedharmor othercompelling contravenes presumption. seemsparticularly important findthe testbest taithanattempt rationalize to loredforsuchspeech. clusively upon criminal B.The see. are the FirstAmendment worthemphasizing.usdoj.L.gov/criminal/cybercrime Availability Bombmaking accessed 26. "o a more see note1. 681 (1990) ("[A]ll speech is potentially relevant democratic to self. C.Neutral Principles 47 SomeFirst Amendment Problems. 8-9 e. ? 842(p)(2) (2000). e.regardless its perceived"value" to civic This approachcan reston either tworationales: of discourse. Hustler Magazinev. Opinion.and therefore should be as construed broadlyas possible. e.whatcouldbe moreimportant a Amendment protects nurtures and First that it?"). of crime-facilitating thisNote focusesexlargercategory speech. as of and thatexpression such is worthy protection. generally supra For an opposing viewof theFirst Amendment. highly or it need not speech-protective. ifthatis whatbeinghuman mainly is than about.and less controversially. http://www." first.U.J. S. and Principle. Falwell. of condone the protection criminal speech forprophylactic purof Amendment workhere. instruction. both specifically criminally structional speech. Post."Althoughthisapproach. Ind.Franklyn Haiman.'Because suchspeechis at specialriskof crimiit to nalization. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .. 12See.1.L. For Volokh. FreeSpeechPremises certainassumptions about the purposesof As an initialmatter. First."Speech Acts" and the FirstAmendment has been arguedthatthe mostdefining of characteristic whatit (1993) ("It often meansto be human [our]symbol-creating symbol-transmitting is and And capability. Dep't of Justice.'2 second.L.html (last August 2005).not narrow. 601. 299. /bombmakinginfo.LillianR.2005] A Testfor Criminally Instructional Speech 1977 intargeting gress has passed a law.'0 rather the Thus. BeVier.based is on either bothrationales... Stan.").g.300 (1978). Deliberation.. the rangeof expression that valuableto political discourseis expansive. Robert Bork.g. Amendment Political Into of First and and Speech:An Inquiry theSubstance Limits 30 H.

See Volokh. supra note 1." the two ultimately seem to coalesce. 14Professor Volokh's section on "single-use" and "dual-use" crime-facilitating demonstrates the various purposes which such speech can speech comprehensively serve. it Furthermore.While Professor Volokh distinguishes the issue of "use" fromthatof "value. Meanwhile. rather.morespecifically. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . say. also Suchprosecutions mayinvolve facial bytheFirst in to thestatute questionon FirstAmendment challenges grounds.1978 Law Review Virginia [Vol.'4 category criminally speech recarefuldistinctions. 91:1973 based on the use or Second. law from conthe the ceptofaidingand abetting. of thisNote recognizes thatregulation speechis notjust a Third. the does it mean thatwe becriminalize latter lieve the novel has more to contribute our societyand thatthe to FirstAmendment it privileges over the website?This Note does not make thatkind of determination. of wherein the defendant claimsas an issue of factthathis speechwas notunprotectedcriminal but some othervariety fully expression protected Amendment. This content downloaded on Wed. law enforcement and a true-crime novel. Intuitions about whereto drawtheline in such cases could be based on assumptions about the value of certain typesof speech and its importance the goals of the First to Amendment.These assumptions traceback to a largerconceptionof whattypesof generally speech the FirstAmendmentprotectsand why.This conception.If we wantto and nottheformer. mostprosecutions speech undercriminal of statutesprompt FirstAmendment a defense some kind.in turn. this Note eschews distinctions under the First "value" of certain types of communications of instructional The Amendment.usuallyhas to something say about whyspeech has value in our society. FirstAmendment it issue.a simpleand reasonedapproachcan be derivedfrom criminal and. Any speech that does not have the protection the First of is Amendment underthe criminal potentially open to regulation law. It is importantthatcertaincrime-facilitating uses because we all have asspeech has legitimate sumptionsabout what legitimateuses are and why the First Amendmentprotects them. conspirators.an anarchist website. arguesthat of instructional regulation criminally speechneed not be based on such distinctions. a conversation guish instructions a handbook. Prea recipefora bombposes the same potential harmto sosumably it cietywhether occursin a novel or on a website. at 1126-27. is also an issue forthe criminal law. thenbecomes an exercisein balancing Line-drawing the potential harmof such speech againstits potential value. mustbe possible to distinIt quires drawing betweencopresentedin. Instead.

instruction.ModelPenalCode ? 2. ofasserting the believes suchspeechis beyond scope Greenawalt 58 Language (1989). the constituin instructional of speech resulting an actual tionality criminally of whilethe constitutionalitythe other crimeis considered settled. not Crime. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . "ways doregulation and KentGreenawalt. uses of the KentGreenawalt Professor provides bestexplication this to that subject are ofspeech utterances" describe to theterm types "situation-altering of law the under civiland criminal becausethey are.2005] A Testfor Criminally Instructional Speech 1979 This Note acknowledges this relationshipbetween the First Amendment and the criminal law and attempts draw on both to areas." is of features aidingand abetting its One of themostimportant an To of mensrea requirement. and to contribute criminal activity forthatreasonlackFirst tionally Amendment protection. is unknown. the Courthas neversquarelyaddressedthe constitutionality Supreme underthe FirstAmendment. The CIS Test: Basic Overview kindsof criminally instructional There are at least two different offense. theUses of Speech. abetting but terhas been outlawedby some stateand federalstatutes.at bottom. the early " He rationale. When the "conduct"in between is speech. undercurrent Conceptually. while offering criminal does not result(or The other. actor This to to musthave intended contribute the underlying offense. ? 2 (2000).S.Professor Amendment ofFirst protection." pure speech. things. receiveverydifferent treatment instructional of criminally speech of theformer a form aidingand is law. type doctrine The aidingand abetting providesa suitablemodel for instructional all speech. One typehelps to bringabout an actual criminal speech.16 of crimidecisionon the part was intent requirement a deliberate In in nal lawyersand legislators the twentieth century. and "speech-acts. this inquiryis about distinguishing question whichintenwhichis protected.C. of such statutes Thus. A C. be guilty aidingand abetting. This content downloaded on Wed. in of These twotypes has notyetresulted) thecommission a crime." ingthings. That docregulating formsof criminally to betweenconduct a effort distinguish trinerepresents deliberate is to thathappensto contribute a crimeand thatwhich so boundup as in a criminal activity to be part of it.06(1962). 16 See 18U. The latcriminal and as such has longincurred penalties.

06 in Model Penal Code and Commentaries: Draftand Revised Official 295 Comments. 112 19 See Backun United States."22 requirement "substantial" of facilitation was an attemptto offsetthe lower mens rea standardof a but Law Institute reknowledge. supra 23 See ModelPenalCode ? 2. the for thepurchase madeifhe is advised that is of purpose ").the drafters jected the provision. 613.2d635. same questionsparkedintense the debatedurof the drafting the Model Penal Code. 20 See Bonnie."acting that[another] or knowledge personwas committing had the purthe facilisubstantially pose of committing crime.. United v. F.. 22 This content downloaded on Wed.DraftNo. attachesto someone criminal liabilityonly aiding 1 isSee.wherethe SupremeCourt in an quoted JudgeHand's formulation the courseof adopting intentstandard. The tatedits commission. for As articulated requirement aidingand abetting.. after floordebatetheAmerican elected to require a Instead. 21 336 U.1938). buton aiding and assisting perpetrators The sellermaynotignore purpose which the .Tent..S. J."24 v. supra Model Penal Code ? 2..21 The drafters ing originally a with proposedthatliability dependupon whether person. 1997).see also Model Penal Code ? 2. 1 (1953).g... 619 (1949)."' Other circuits. note18.1940)("Guiltas an accesnot a of sory depends.required ing This difference-between onlya mens rea of knowledge. in some sortassociatehimself thathe participate it as in something he wishesto bring that he seek by his about.""This is commonly a "stake in the venture. (1985). knowingly. see also Bonnie.04(3)(b). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .1980 Law Virginia Review [Vol.06(1962). note18.100F. mostfamously Learned Hand.19 having an interest the success of the crimeand merelyhavingknowlin edge of its probablecommission-wassettledforfederalcriminal law in Nye & Nissen v.23 mensrea of intent. Law sionoftheoffense.Criminal 579(2d ed.that referred as havto actionto make it succeed. Thus theModel Penal Code demandsthatthe aider have "thepurpose of promoting facilitating commisor the The intent was and significant feature requirement a deliberate in theformulation aidingand abetting of In doctrine. 24 ModelPenalCode ? 2.402(2d Cir.2d401. States Peoni.06(1962).91:1973 some federal circuits a crafted stringent intent partof the century. .. on 'having stake'in theoutcome thecrime.20 A fewyearslater.. thecontext of and abetting. e. thisstandard thatthe aider "in by Judge required withthe venture. UnitedStates.637(4thCir.at 580.Richard Bonnieetal... however.at 580.

the bythecriminal The CIS testwouldrequire following: has offense beencommitted. Wherea criminal no direct to theprincipal no direct and of relationship knowledge hisplansshouldbe heldliableonlyupona showing (1) hisinof tent that instructions inthecommission a criminal his assist of offenseand (2) a clearconnection between typeof offense the he intended foster thetype and to committed theprincipal."participate[s] it as something If is is about.speaker has a with II. 402 United States Peoni. certainly to shouldbe insufficient to convict someonewhohas not. Speech that fails to merit FirstAmendment underthe testis open to regulation protection law.100F. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . of the Drawingon thefeatures aidingand abetting. shouldbe even wherethereis no underlying offense all. speaker has a III.We can imaginea scenarioin whicha speakerhas giveninformationdirectlyto a principal with the purpose that the 25 v. This content downloaded on Wed."25 intent so crucialevenwherethere an underlying ofmoreso whenwe are considering it criminal fense. Whereno criminal criminal instructions shouldbe held liable onlyupon a giving of to of showing (1) his intent assistin thecommission a crime and (2) a high likelihood hisspeechwillfacilitate crime that a of thetype intended. offense been committed. in Judge Hand's in thathe wishesto bring words.1938). by offense been committed. (2d Cir. with a speaker a I. he The CIS testappliestherequirements mensrea and actualocof currence(or highlikelihood)of harmto a wide variety situaof tions. If mereknowlat liability is edge or recklessness not enoughto convictsomeone who has it contributed an actualcrime.2005] A Testfor Criminally Instructional Speech 1981 who is an accomplicein a literalsense-who shareswiththeprinin cipal an interest the criminalventureand.2d401. proposalbea low formulates test for when criminally instructional speech should lack constitutional protection. Wherea criminal direct to and of relationship theprincipal direct knowledge his and abetting plansshouldbe heldliableforaiding upona showof hisintent thathisinstructions in thecommission assist of ing thecriminal offense.

because it preserves keyelements aidingand abetof and ting-a mensrea ofintent thecommission an actualcrimea it is unprotected underPart II of the test. is thecriminal because it is in no waynovel:It merely imports simple law. Some law's basic concern mensrea intoFirstAmendment for are thatmensrea inquiries themselves quite difficult might object or complicated.1982 Law Review Virginia [Vol. So longas thewebsite'sauthors notintendanyoneto use did therecipesto breakthelaw. suchsituawithcriminal tions.In contrast. a for speakerintends it to be used to commit crime. 26 See Volokh.clearly. 91:1973 thenhas used information put to criminal be use.We also can imagand is criminalized ting in to ine a situation whicha speakerhas suppliedinformation a moregeneralaudiencewiththe purposethatit be put to criminal to has use. and some audiencemember used theinformation commita crime. use but no one has put it to criminal (yet). This content downloaded on Wed. a mirror withthe same information or ifitspurposewereto educatereadersin the abstract. if a websitecontaining recipesforpipe bombswouldbe criminal its makersintendedthe recipesto be used againstlaw enforcement wouldbe legal but site agents. The CIS testprovides unlessthe thatsuch speech is protected the FirstAmendment by Thisis.26 thatis an objection theCIS testonlyto the to but law in general. of a testthatfocuseson the subjective intent the speakerrather thantheobjective harmposed byhisor herspeech. It The CIS testis at once quite simpleand quite complicated. and theprincipal a the information commit crime.Underthistest. even simof to exercisethe FirstAmendment to freedom expresply right sion.This is slightly different from classicaidingand abetof the but ting. rePart III of the testaddressesscenariosthatare the farthest In the movedfrom classicaidingand abetting paradigm.their speechwouldbe protected. speaker the to who disseminated information a wide audience without inas thewriter a crime of tentthatitbe putto criminal purpose(such renovel or a chemistry textbook)would not be held criminally to even if some audiencemember used the information sponsible.a speakerhas suppliedinformation potential. at 1185.The extentthatit is an objectionto the criminal for and our law criminal requiresmensrea inquiries manycrimes. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . a commit crime.supranote 1.This is classicaidingand abetto underPartI of thetest.

376 U. 128 F.taking by detourthrough FirstAmendment doctrine thatultimately threatens to weakenprotections othertypesof speech. discussedinfraSectionIV. 1997). 444.S. Sullivan. Supp. Times Co.often or glossedas an "intent" similar thatproposedin the CIS test. Md.447 (1969).940 F.. often Whilejudicialincitement have failedto takethisininquiries tentrequirement will be shownbelow). 29 See Volokh.3d 233 (4th Cir. has of While the doctrine aidingand abetting clear and well estabis whentheyencounter lished. Defamation law distinguishes between reputationalharms withmalice or recklessness and those committed committed with test some othermensrea.A. the not however."28 The requirement the speechbe "dithat rectedto" inciting violenceis. to First Amendment At thesame time.In addition.30 27 See N. by 28 v. years. such a reseriously(as is quirement evidencethatthe conceptof mensrea is no stranger law. 839 (D. means. in itbut because the relationship betweenthe aidingand abetting self. concerned that the First Amendment must enter the analysis often reachtheir decisions thewrong a somehow. 1996).courtshave difficulty speechthataids and abets. society the mostpartseemscomfortable test theCIS testis nottheonlyFirst Amendment to consider mens rea. 836. for in an age ofmassmedia. recent in portant. doctrine and the FirstAmendment become deeplyconfused. Courtsthatwould readilyconvicta defendant supfor confounded when the defenplyinga handgunfindthemselves to dant'scontribution a crimeis speech-based. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . at 1191 the testas an "intent(describing Brandenburg plus-imminence-plus-likelihood test").Y. Brandenburg Ohio.2005] A Testfor Criminally Instructional Speech 1983 for withthat. This further in has grownmore imdoctrine complication aidingand abetting and moreconfounding. 279-280 (1964) (requiring "actual an malice" standardfordefamation suitsbrought public officials). CIS testis complicated. rev'd.29 to requirement. 3 See Rice v.In addition. Paladin Enters. forbetter worse.the conceptof aidingand abetting couldpoextendto speech publishedby one personand thenutiltentially ized by anotherentirely unknownto the speaker. This content downloaded on Wed.2 The Brandenburg forincitement allows of the criminalization politicaladvocacywhenit "is directed into or producing imminent lawlessactionand is likelyto incite citing or producesuchaction.S. v. 254. 395 U. These courts. supra note 1.

No less a speech protectionist Black made thisargument Giboneyv. At the same time.06(3)(a)(ii)(1962).at In leastone case theSupreme v. 91:1973 Stillmoreuncertainty besetscriminally instructional speechthat lacks an underlying While few cases have addressedthis offense.e.. CIS TYPE I: AIDING ANDABETTING Both state and federallaw routinely a criminalize certainsegment of criminally instructional that which "willfully" speech: "aids" or "abets" the commissionof an underlying offense.498 (1949).ModelPenalCode ? 2. is II.: in "It rarelyhas been suggested thatthe constitutional freedom for and pressextends immunity speechor writing used as its to speech an integral statute.the future regulation the category advancescontinue make information to moreaccesTechnological sible to increasing numbersof people.g. result a society which The is in potentially dangerous technicalknowledge(such as bombmaking is instructions) more at easily imparted-and that prospectis more frightening-than time. 490. The complications instructional surrounding criminally speech dictatethe structure therestof thisNote. partof conductin violationof a valid criminal We rejectthecontention now. typeof speech. ? 2 (2000). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . temptation reguthe to anyprevious late instructional of speech is high. of lies withit.31 beSpeech thataids and abets a crimehas long been considered theboundaries First of themostfreAmendment yond protection."32In general. v.as is the importance regulating itproperly.S. functions more as quent rationalebeingthatsuch communication actionthanas speech.fears about terrorism increasethepressure regulatedissemination to of information.This speech-act allowssuchspeech rationale to be exemptedfromFirstAmendment the reviewwithout strict that would accompany content-baseddiscrimination scrutiny than Justice againstpure speech..336U.S.18U.1984 Law Review Virginia [Vol. Courtseemedto sayotherwise. in & 32Giboney Empire Storage Ice Co.C. Ratherthanjustifying of thetestin theabstract thenapplying to particular and it cases.Part of thisNote lays the groundwork a defenseof the test by for II betweenthe FirstAmendshowingthatthe current relationship mentand aidingand abetting doctrine misaligned.Admittedly. Griswold Connecti31 This content downloaded on Wed. EmpireStorage& Ice Co. thefact"[t]hat'aiding See.In suchan environment.

is punishableas a principal.regardless whether assistance "The first does not provide a defenseto a criminal amendment out because the actoruses wordsto carry his illegal chargesimply purpose.? 53-32 forbade use ofcontraception.3d646.Gen. "[W]hoeverwillfully if directly by performed him or anotherwould be an offense againstthe United States. knowledge. Id.842 (9th Cir.S. 1982).If the defendant willfully of as in he another the commission an offense. not.which fore the statement "theState that this madetheexpansive invalidating statute.Under betweenspeech and criminal of the relationship ing an act to be done which causes 18 U. of plice. represents Court's and inm abetting. U.S.656(D.2d 835. is safeto ute. may consistently thespirit theFirst defendant did available Id." at 482. and from On thewhole. him donebyhimdirectly of This definition "causes" clearlyencompassesspeech-based aided or assisted to contributions crime. if but whocausesthedoingof an actwhich offense. Courtconsidered physicians' Conn.C. ? 2.1994). 35 v?2. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 36 United Statesv. an one who directly another commit to an induces procures" or commands. This content downloaded on Wed. counsels. statute assisting for married ingand abetting couplesin violating 381 Ann.2005] A Testfor Criminally Instructional Speech 1985 out of and abetting' an illegalact maybe carried through speechis no bar to itsillegality.C. 667 F. is guilty an accomof his tooktheform speech. 34 18U.37 F."36 under Connecticut's aidthe defendant convictions cut. Women Operation v. did it attempt squareitsstatement theroutine in conanduncontroversial and criminalizationinstructional of speech aiding abetting from Griswold of This texts other thantheteaching contraceptive methods.The Court notexplicitly that say phyof sicians' convictions voidon First were Amendment regardless thevalidity grounds with nor oftheunderlying to statute. 479(1965).C."3'Annotationsto thestatute explainthattheterm"causes" not as intent punish a principal only to makesclearthelegislative and commits offense one who "aids.S. also anyone 35 of wouldrender guilty an offense. the saythat Giboney. Nat'lOrg. Court of contract spectrum the with of Amendment. ? 2(a) (2000).notto theaiding abetting arising charges to usualapproach aidrather thanGriswold. from restoftheopinion is statthattheCourt's the realobjection to theunderlying it it. Cir.Bethe (1958). Stat.abets.for Rescue. Barnett. language becauseit is clear seemsto have fallen theFirstAmendment perhaps by wayside."33 this statute The federal accomplice liability supports understandaction.

1985).761 F. 40Id. 39 Buttorff. 217 (4th Cir.con(citingWhitney California. courtupheldthe aidingand abetting to that the evidence had been sufficient send the tions. ? 7206(2). see also United Statesv. in consels. 373 (1927) (Brandeis. Freeman. 42 Id. 2000). .. 26 572 F.C.2d at 622. United States v.38 for in held The defendants Buttorff a seriesofmeetings employees of a John Deere plantin Dubuque.. 37 572 F..the defendants On appeal.. Kelley. internal any arising or which frauduis ofa return. Buttorff mentdoctrine tax of for volved the prosecution defendants aidingand abetting states: fraud under26 U. of v. 622 (8th Cir. aids in. At themeetings. shallbe guilty a of lentor is falseas to anymaterial matter..3d 804. United States v. 1978).S. Moss. claim.. 43 See id. 604 F. 274 U. felony. 1985). 357.39 defendants quently At these fraudulent were indictedforaidingand abetting filings.First. other document. 38 U. Anyperson or or under.2d 549. 551 (9th Cir. however.2d 215.A samplecase will of how the analysisworks."40 convicthe two issues. in invokedtheFirstAmendment puzzling ways. Raymond.a briefexplication the inciteillustrate inwill show how it errs. J. 570 (8th Cir. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . California thatthe freedom speechis not absolute.7The statute counwho.43 Whitney 228 F..1986 Law Virginia Review [Vol.S.769 F.or advisesthepreparation presentation revenue the nection with matter laws. curring)).41 of theconvictions offreespeechand assembly prohibit protections thesedefendants"42 of The court'sdiscussion the constitutional questionbegan with in The courtcitedJustice Brandeis'sobservation some hesitation. UnitedStatesv. Incitement theButtorff courtshave of In a number aidingand abetting cases. 41 Id. defensebut were raised a FirstAmendment trial. affidavit. v. 816 (7th Cir.it asked "whether first questionto thejury. willfully or assists or procures. United States v.C. This content downloaded on Wed. at 623.91:1973 and Problem A.S. they thata numberof employeessubsetax-evasion techniques taught The used on theirfederalincometax returns. under.2d 569.2d 619. 1979).finding amendment the Next.. Iowa. the EighthCircuitaddressed nevertheless convicted. ? 7206(2)(2000).

These include incitement (e. the Id..g. incitement one ofthefewtypesofspeechthatdo not as recognized In FirstAmendment v."45 courtmade clearthatitwouldtesttheaiding it and abettingconvictions-which had alreadyupheld on their own terms-against the Brandenburg incitement standard. Traditionally. doctrine not addressedthe typeof speech involvedin Buttorff is. v.howthat "[m]orereever. 323.315 U.. 395 U. In addition.g. Id. merit protection.2005] A Testfor Criminally Instructional Speech 1987 in Co.. 444 (1969)). Inc. true threat(e. 535. 1917)..has under the FirstAmendment. Patten.. in(that as structions evadingincometax). 571-72 (1942)). 418 U.46 court therefore The upheld convictions. Brandenburg. California. at 447).. othertypesof speech thatmerita middling privatelibel including (e.For the mostpart. 23 (1973)). Incitement Criminal and Instruction Distinguished To anyonefamiliar with incitement the doctrine. 1917)).S.S. Miller v.the courtsettledon incitement. thenJudgeLearned Hand's statement Masses Publishing v.S. Incitement bestdescribed a on is of advocacy.g. appliwas simply assumed.246 F. obscenity(e.D. at 624 (quoting Masses Publ'g Co. This content downloaded on Wed. 568. 45 v.g. 344-46 (1974)).advocacyof ideas particular type and actions-even advocacyof law-breaking-isprotected speech The Supreme Court. v.244 F."44 Finally. Chaplinsky New Hampshire.S. EighthCircuit's has willseem rather the conclusion strange.S. B.g.47 Brandenburg Ohio. and fighting words (e. (citingBrandenburg Ohio..Y. rev'd. Id. 44 46 47 395 U. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .413 U. be a partof thatpublicopinionwhichis the in finalsource of government a democratic state. 15. Observing the betweenspeechwhich cently.Nor did it explainwhythe constitutional its incitement is the appropriate test standard.N. 24 (2d Cir.The courtconcludedthatthe defencability incited severalindividuals acto dants'"speechesand explanations thatviolatedfederallaw" and thuswere unprotected the by tivity the defendants' First Amendment.The the of courtdid not acknowledge oddity first determining on guilt and abetting and thenaskingwhether conviction aiding for aiding is and abetting constitutionally barred.the Court has recognized level of protection. Robert Welch. Gertz v.. but thatwords"whichhave no purport to counseltheviolaPatten tionof law cannot. SupremeCourthas distinguished advocateslaw violationand speechwhichincitesimminent merely the lawlessactivity.however. 540 (S.

The causal connectionbetween the of many different actionbecomes attenuated. and commercialspeech (e. and originalspeech and the listener's the likelihoodthat the speech produced the action diminishes. of Thus.S.however. the decisionto act is likely be a product factors.S. of Pharmacy Va.377 (1927) (Brandeis. Onlyan is Incitement unprotected becan emergency justify repression..770 (1976)).1988 Law Review Virginia [Vol. at 447. 91:1973 to SupremeCourt foundit unconstitutional "forbidor proscribe advocacyoftheuse offorceor oflaw violation. of the in Brandeis regulated the interest averting harm. after listener received impact theshort just to otherinencouragement act in a certain way. In the long term. This content downloaded on Wed. State Bd. 48 395 U. 274 U.S.. test Brandenburg providesthe current fordistinguishincitement: Speech is ing protectedadvocacy fromunprotected to unlessit is (1) intended inciteviolenceor lawlessness protected to and is (2) likely incitesuchaction(3) in theimminent future. 357.394 U. in the has forcible term. 748.. Its instructional speech. 395 See Brandenburg. moreit comes to look like an unreasonon able restriction purespeech.S. the speech intends and is likelyto spurimmeit createsa dangerofharmthatno intervening diateviolent action. This speechcan be will speechor influence have timeto intercept. therebe timeto expose through discus"[I]f explained to sion the falsehoodand fallacies.thelongertheregulation such speechextendsbeyondthe the timeof its utterance.J.S. 50Whitney California. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 49 v.5 worksdifferently. to if By contrast.As Justice in Whitney. 705. United States.."50 form advocacy. imminent to or producing lawlessactionand is likely inciteor proset of circumstances That duce such action. remedy be appliedis morespeech." exceptin a special "wheresuch advocacyis directedto inciting set of circumstances.concurring). avertthe evil by the processes to the ofeducation. CitizensConsumerCouncil. v.425 U. a of that cause it is considered uniquely dangerous is to which likely cause harmin theimminent future. 707 (1969)). U. is Persuasivespeech will have its most incitement time-sensitive. at 447. Criminally to is function not to encouragelisteners commitcertain primary Watts v.""48 special constitutes incitement. to and fluences intervene. 5i See id..g. Va. thethird prongoftheBrandenburg suggests.49 instructional frominciteCriminally speech differs importantly As formulation ment.

2d619. United 623(8thCir. the speakermight and concriminal and tribute bothto listeners' intent to their means.If. ofcertiorari). It suppliesthemnotwithintent but out a pre-existing or motivation withthe tools to carry intention. Instead. recipe different forbombmaking to his recipes construct deday every and tooktipsfrom the backto theparticular structive would device. on theother in hand. One couldnotsaythat particular this words played rolein had a speaker's thecriminal had action.2005] A Testfor Criminally Instructional Speech 1989 actsbut to tellthemhow to do so..the speech did not supplythat intentin the first information is as usefulsix months that lateras it speechprovided was whenthelistener heardit. 54Yatesv.").52As Justice Stevensrecently noted. For this reason. U.see also United of violations thetaxlawsat seminars conof counseled he man. that "Whiletherequirement the consequencebe 'imminent' jusis does tifiedwithrespectto mere advocacy. but were also taughttechniquesforachieving thatend.1985)("Freetaxes. of persons. . instance. United Statesinvolved meetings of Communist at which"a smallgroupof members organizations were not only taughtthat violentrevolution was inevitable.1978)("[E]ach [defendant]. the intent irrelevant.S. 761 States Freeman. speakerssuchas thedefendants Buttorff givetechniand cal information also encouragetheirlisteners use thatinto formation breakthelaw..331-32(1957). demonstrating to report wages.He urgedthe improper of how filing returns. theintervening hearda different the time. the plied a listener usedto commit crime. speakersbothpropound as types of the necessity certainacts and give advice on theirsuccessful For commission. 354 States. instructions thesolemeansthelistener were the the speaker's chain causation of remain of would time intervened.551 (9thCir. ducted."53 of and Realistically. course. as one couldnotshowthatone piece of advocacy supjust withthe intent commit crimemonths to a later. othersto evade income soughtto advancehis ideas and encourage v.the same justification adhere to some speech thatperforms teaching not necessarily a function.incitement instructional speechhave In more in commonthan thisanalysissuggests. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . regardless howmuch v.").a taxprotestor sorts.995 (2002) (Stevens. intact.the numberof intervenspeech and actionis irrelevant. 993.. is because the ingforces influencing listener's place. chainof causation tracing speaker be broken. listener. 537U. 298.S.however."54 Simithey in often larly." Speech in thesecircumstances be to can a muddleof advocacyand instruction. the amount of time that passes between Likewise. opinion denial J. speaking largegroups to by 55572F. regarding 3Stewart McCoy. Yatesv. 52 If. two the of speech oftenare intertwined. practice. This content downloaded on Wed. F.2d549.

Why criminal attachesto "coununderaidingand abetting law.forexample. rather thanwillfully helpingindividuals changesto the tax system tax At commit fraud. revenuelaws. 5818 U. 18 U. . claim.defendants thesecases typically abetting raise a First Amendmentdefense to the aiding and abetting thattheywere..g.C. 505-06 (1984). fraudulent returns. advisesthepreparation presentation in.2d at 622.in Buttorff. If 56 See.S.3d 804. encompassesany speech or action statute.C.1990 Law Virginia Review [Vol. under.S. that "causes" a criminaloffense."" Similarly. v. contours accomplice liability infect aidingand abetting the "Aidshouldnot incitement inquiry. 2000).56 the appellatelevel. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . they theirinstructional speech was combinedwith gardlessof whether "advocacy. ? 7206(2) (2000).or or whichis fraudulent is falseas to any material otherdocument. the of law thatgoverns aidingand abetting tax fraud..S.the courtmustmake a that reviewoftherecordof anyfindings implicate fullindependent to This specialrequirement theFirstAmendment. the specific who "[w]illfully or assists aids 26 U.466 U. ? 2. determine that the of Nevertheless. Free572 man.Brandenburg complicatesthe prosecutionof aiding and in cases.Thus.. At thetriallevel. 5926 U. well as thatwhich as to of contributed the filing if the defendants' speech intentionally reof tax were guilty aidingand abetting.228 F. This content downloaded on Wed. 808 n. ConsumersUnion.of a return."59 speechthat"counsels" in instructs it. liability seling"or otheradvocacyonlywhenit (1) is done withthe intento tion of contributing law violationand (2) actuallydoes so. 57See Bose Corp.. Buttorff..merelyadvocating claiming charges.C. F. theinternal affidavit. criminalize Both of thesestatutes matter.761 F. law violation. Raymond. counsels.2d at 551." "Advocacy" itselfcould be criminalunder Section or 7206(2) as "counseling" "advising.commands. United States v. e.1 (7th Cir.C. ? 2 (2000). induces or procures abets.or procures.." doctrine? does thisnotrunafouloftheincitement Because.S. abetting where "causes" includes"aids.57 compelscourts of considerthe character the defendants' speech at everylevel of litigation. review. 485. ing and abetting"as a formof accomplice liabilityis usually The generalfederalaiding and broader than its name suggests.S.91:1973 because of thespecialnatureofFirstAmendment Furthermore. ? 7206(2).punishes anyone or or counsels.

. motivational. contributed thatcrime to even "advocacy"thatintentionally crime.and if theycan raise a reasonable doubt about thentheyshouldnotbe convicted. too. or both.as and faces penaltiesunder the criminal a soon as a courthas established defendant's guiltforaidingand the defenthereis no longerany question of whether abetting. it is lawless action..'Such a conclusion their intent in of articulated notion reversing this twelve counts aiding Kennedy 6 Then-Judge wherea FirstAmendment had notbeen allowedby the trial defense and abetting of there someevidence. In each case. can no longersalvagethespeech. completely terlawlessactionand is likelyto do so. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Finally.2005] A Testfor Criminally Instructional Speech 1991 the thereis no underlying crime. It. that purpose thespeaker thetenis the or judge:"Where to remote from commission the are of dency hiswords directed ideasorconsequences This content downloaded on Wed. speech mayqualifyas protected But once there is an underlying advocacy under Brandenburg. Where Brandenburg mighthave a place-and where courts whether defendants the shouldbe verycareful-is in determining for do requirements aidingand abetactually meetthe culpability to theirspeech as oftenwillattempt characterize ting. contrast. is not likelyto do so. is unprotected the FirstAmendment law. by protected.Brandenburg has no place in theanalysis. dant'sspeech Regardlessof by or it whether was instructional. Brandenburg Table 1: SpeechClassified ItsMensRea by andItsRelation Crime to Mens Rea No intent to Not likely incite Advocacy Relation Crime to Type Speech of Status Protected Nointent Intent Intent Intent to Likely incite to Not likely incite to Likely incite caused Already Advocacy Advocacy Incitement & Aiding Abetting Protected Protected Unprotected Unprotected mere advocacyeitherdoes not intendto foster To summarize.Defendants mere advocacy. It is unprotected. is unprotected. bothintends fosto Incitement. is protected theFirstAmendment. both. to lawlessactionand speechthataids and abetsbothintends foster by actuallydoes so. This means that.

64713F.2d 1183(9thCir.On twoother tax Kenin others filling fraudulent forms. thatthe adin therecordindicates even ifintent existed. a handful caseshaveavoided Buttorff a under 26 v. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .An opinionlike Butwhichfirst the affirms defendants' guiltforaidingand abettorff. concern unlessit fits certainly speech no withprotecting public fisc. 91:1973 not because the FirstAmendment would be warranted. Dahlwere foundto lack the requistrom. however. where 761 the thejury's consideration.1990) protection). whether such activity protected the is by tingand thenconsiders FirstAmendment." In thatcase. the defendants but to siteintent aid in tax fraud.1280(2d Cir.2d1423. found a First that Amendment nedy Thisdiscussion focused casesthat on has conflate incitement aidand misguidedly of mistake. 63 See id.2d 1275. application the incitement here even ifincorrect. F.62 is Unintended C.2d at 623-24. F. 1428(9thCir.S. 899 States Rowlee. 1982) (rejecting "specioussyllogism" First with and for mailAmendment defense a defendant of charged aiding abetting selling of on order instructions themanufactureillegal drugs). of the failedto establish elements the crime.the offending speech should always fail the "immiThe and nence" prongof Brandenburg thusbe protected.1990)(upholding conviction the U. defense beenrightly had excluded.howeverlaudable." counts. abetting transportationwagering the as 667 nett. for and convictions aidingand of the (rejecting invocation Brandenburg upholding of UnitedStatesv. 62 61 See Buttorff. F. Barinterstate paraphernalia).1983).at 622-23.2d 835. 572 This content downloaded on Wed. can justify the is for basedon theFirst Amendment a legitimate matter ofthecriminal a defense act. ? 7206(2)whilecriticizing trialcourt instructing juryto consider the for issue" of First and bothelements the crimeand the "duplicative unnecessary of v. Not even national security criminalizing within thisnarrowcategory. thecourtwenton to remark that. 896 Amendment UnitedStates Mendelsohn.1992 Law Review Virginia [Vol. at 552. cases whereinstructions In seem desirable. "Nothing imminent lawcontemplated vocacypracticed thesedefendants by can justify less action. Freeman.61 therefore incoherent. F. but because the government has protectsaiding and abetting.63 Ninth Circuitreached thisconclusionin dicta in UnitedStatesv. might or are givenat seminars in publications longbeforethecommission of a crime. F.842 (9th Cir. out defendants actually had assisted Judge Id. Incitement's Consequences of test To speechprotectionists.C.2d at 551. United the See but ingandabetting.

" even thoughtheir viduals to activity lawless activity renot incitethe typeof imminent speech "[did] to cases.1996).2d 549. doctrine."68Similarly.815 (7thCir. 228 v. of the But Dahlstrom represents exceptionalapplication incitecourts In mentdoctrine.United States v. F.551-52(9thCir. 761 217 (4thCir. first a before criminal a couldbe enforced..3d804."65 Dahlstrom on fused to convictthe defendants aiding and abettingif their Whilethisanalystandard.UnitedStates Kelley. Freeman.2005] A Testfor Criminally Instructional Speech 1993 courtthussuggested thatitwould have reThe more. v. speechhad not also mettheincitement and thiscould be it sis is flawed. see also id. would inquiry penalty require further 66 572 Buttorff. This content downloaded on Wed.571-72(8thCir."). F.2dat 551-52. United 68Raymond. the Seventh justified enjoining materials noting thatthe intax-related dantsfrom by publishing was narrowly tailoredso that"it clearlyapplie[d]onlyto junction in thatinciteothersto violatethe tax laws."66 ferred in criminal syndicalism have reachedthe same conFive otherappellatecourtdecisions In Circuit defenclusion. Freeman.then-Judge Kennedyfoundthat there the had "incited" was a questionof factas to whether defendant While therewas evidencethatthe defenviolationsof tax law.manycourts as and find thatthespeechin questionactually qualifies incitement the FirstAmendment.2d215. violating may "incitedseveralindithe Buttorff courtfoundthatthe defendants that violated federallaw. F.2dat624. in seen as a good thing and ofitself.2d569. F.1985).3d 155.1979). mostcases."70 Here "imminent" in orderto createthepossibility the speech that "quiteproximate" the test. States Moss.1985). 69 761F. pur65 Id.604F.2000). F. 98 769 Fleschner. afterinvoking Brandenburg. F. States Raymond. without be prosecuted Thus. 67See United v.69 dant's speech was mere advocacy. ("Even ifthedefendants knewthata taxpayer actually who perwouldbe acting the amendment the formed actionstheyadvocated illegally.3dat815(emphasis 228 added). at 552. statusof criminally instructional theunsettled speech.. is also highly speech protective. 70 Id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Ratherthandeal with do not let it standin the way of conviction.158-59(4thCir. activities UnitedStatesv.67 one case.UnitedStatesv."[t]herewas [also] substantial evidenceof Freeman'suse of wordsof incitement quite proximate becomes to the crimeof filing false returns.Such modifications in questionmight satisfy Brandenburg undermine traditional its of theincitement however.

theFourthCircuit and abetting thatthe FirstAmendment conviction."71scenario in whichtherewouldbe no timeto avertthe "emergency" "imof is to tax minent" code violations difficult imagine. speech underBrandenburg 73 769 F.. California. Indiana. In one case. F. 105. claiming prolaws" but not tects "critical. Moss.2d 215. is the import revised dangerof such distortion clear:Courtsmight cases.S. court length analysis."73Encouragements lawless action are precisely to what the does protect. 158 (4th Cir. 357. Fleschner. This content downloaded on Wed. one can imaginesuch a regimesimply readingUnited Statesv.in distinguishing between testback intotrueBrandenburg and incitement.. by affirmed aiding an Kelley. of but abstract. can imagine One by how Hess v.S. 98 75See United Statesv. 1979).71 the of reproduced of not Such flawedapplications Brandenburg onlyfailto address 71Whitneyv.In thistax fraudcase.. 91:1973 pose. protected sucha regime wouldbe subjectto punishment.274 U. If. tent. 1996). Onlyan emergency justify repression.1994 Law Review Virginia [Vol. concurring)(emphasis added).3d 155. Alternatively. discussions existing of violations current to "speech whichurgesthe listeners commit law. 74 See United States v. 108-09 statement "'We'll (1973) (holdingthatan antiwar protestor's streetlater" (or "We'll take the fucking streetagain") was protected take the fucking standard). "[i]f there be time to expose the to discussion falsehoodand fallacies.571 (8th Cir. 72 414 U. a courtadthey FirstAmendment claimsimply quoting at dresseda defendant's by the fromButtorff's incitement In another. avertthe evil by through the processes of education..2d 569. except of doctrine These misinterpretationsFirstAmendment as ramify become precedentfor new cases. 1985). eitherby ignoring immithe mustdistort the Brandenburg test. in order to finddefendants guiltyof incitement. J. As JusticeBrandeis said. will thatadvocateslawlessness notbe regulated thebasis ofconon extreme undercertain conditions. courtswere able to dismiss the politicaladvocacy a greatdeal ofspeechthatis currently imminence factor.74 verbatim Kelleycourt'sconstrual Brandenburg. 377 (Brandeis. it The nence provisionor by attenuating into meaninglessness. 604 F.the remedyto be applied is more A can speech. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 217 (4th Cir. might considering have come out without imminence an component. longas they so within cerstandard Brandenburg stay The entirepointis thateven speech tain permissible parameters. courts Thus.7 or Brandenburg itself.

Wherea criminal and direct to theprincipal direct of his relationship knowledge plansshouldbe heldliableforaidingand abetting upona showthathisinstructions in thecommission of assist ingof hisintent offense. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Wherea criminal of no direct to and knowledge relationship theprincipal no direct of hisplansshouldonlybe heldliableupona showing (1) hisinof that instructions in thecommission a criminal his oftent assist fenseand (2) a clearconnection between typeofoffense the he intended foster thetype to and committed theprincipal. aiding If legislatures decide to regulate instructional criminally speech. They also demonstrate confusion are and thatcan ariseifsuchprinciples notappliedcarefully consisbut Each case shouldinvolvea detailedfactual tently. thecriminal a with offense been committed. patternedafterthe standardemcases.courts by a demandingfactual inquiry. above. inquiry. enforcing freespeechrights pursuing wouldbestprotect suchlaws. CIS articuployedin aidingand abetting lated in Section I.speaker has with a I.When a speaker intendshis criminal in to and of wordsto contribute a crime. they factdo so. providespracticalguidanceforboth and courtsin dealingwiththe problemsposed by the legislatures of instructional speech. by This content downloaded on Wed. THE CIS TEST the The appellatedecisionscitedin PartII illustrate logicof apand abetting doctrine cases of speechto traditional aiding plying the based aiding and abetting.2005] A Testfor Criminally Instructional Speech 1995 instructional the unique characterof criminally speech but also into pose the dangerofbeingre-imported theclassicadvocacysetkindofunpopular and leveraged againstany ting speech.C.speaker has II. the by they can avoid endangering First Amendment following in closelythe model of aiding and abetting. in the discussion the restating proposedtestmay be helpful: a offense beencommitted. III.For the sake of clarity category criminally thatfollows. he is guilty and abetting. Similarly. the between the First Amendmentand the conceptualrelationship law need not be complex. The three-part test.

there wereno likelihood requirement the to The test. because of hurting anyone. Furthermore. adIn of theforegoing discussion theaidingand abetting the dition. Ken Shirriff.Unless the cult in instanceswhere an offense wordsposed a highprobability statecan showthatthe defendant's This vaguenesscould have a chillof harm. someonewere that instructions had no capability to post inaccurate bombmaking would be protected. any many multiple See. up before recommend sources to checking attemptingconstruct device. This content downloaded on Wed. also fromanother context in its focuson inlook familiar since. might the it the test tentand likelihood.righto.76 likelihoodprongalso to function makingconviction of more diffiservesthe prophylactic has not occurred.com/en/badideas/ka_fucking_boom/partialreviewol70773 html.http://www. These requirements dedoctrine's aidingand abetting temptto extendthe traditional into mandofan underlying offense moreattenuated circumstances. but that effect ing at all. Whereno criminal shouldonlybe held liable upon a criminal instructions giving of of to showing (1) his intent assistin thecommission a crime a high his speechmight facilitate crime a likelihood that and (2) he ofthetype intended.2005) (lastaccessed andconcluding "there that are a instruction manual (analyzing passageoftheclassic in A of four obvious errors a totally useless and recipe one short paragraph").attempts preserve two key elements on of aidingand abetting: actualintent thepartof the speaker (1) as It and (2) as close a relationship possibleto an actualcrime.1996 Law Review Virginia [Vol. If servesto protect speech in cases of impossibility.in essence. or wherethespeakerdoes notknowtheprincipal wherean offense the likelihoodprongin Part III is not committed.totse. See really at tainerrors?" http://www. e. number on websites have grown thatreview accuracy information other the of websites.those instructions about the violentcrime would have no likelihoodof bringing they The thatthe speakerintended facilitate.g. on would be less than if effect some speech. 91:1973 offense been committed..com/anarchy/index.html Nov. resembles Brandenburg without 76 Some commentators that of in much thebombmaking information available say is "Does theAnarchist Cookbook conbooksoronline faulty. speaker has a III.2. shouldbe clear from The reasonsforthe test'sfocuson intent doctrine. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . theywillbe protected. testrequiresan actual crimein PartsI and II and the at"highlikelihood"of a crimein Part III.

" thisspeakercriminally siteis called "www.This is in some waysa positivesign:The imwiththe incitement minenceprongwas the onlyreal problem test. and thatsomeonearrested detonating bombin front a for a of Imagine station to directs authorities thewebsitefrom whichhe obpolice tainedtherecipeforthebomb.whiletheincitement the has ferent kindof expression. of the recipeguilty aidingand abetting? thatthe Imagine.but at a website called recipe Is liable?Whatifthe "www. Conto impose a demanding the test than ceptualizing testas an aiding-and-abetting-type rather an incitement-type helpsensurethatit performs function its of test the truestline possible between"speech" and "speechdrawing act.com.copkiller. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions ." This is notto say thattheCIS testdrawsa perfect easy line.com?" iftherecipeappears What withthe comment. Furthermore. the protective-tounderstand testas an haps also constitutionally thana modification inof aidingand abetting rather of outgrowth of citement." of how do we determine sucha thing whenthespeakerdoes not knowhis listeners and has no idea abouttheir venture? specific plans?Stake in what This content downloaded on Wed. still appears withoutcomment.2005] A Testfor Criminally Instructional Speech 1997 imminence element.The websitecontains onlythe recURL. aidingand abetting attempts reasonable-doubt standardon both. and abetting a form criminally is instructional Aiding difdoctrine developedforan entirely speech. however. is. Whichwebsitesshould be protected?Can speakers ever whentheyare not involvedin the planintent possess meaningful of a specific criminal venture and have no knowledgeof the ning in If contexts whichothersmay choose to use theirinformation? in we are speaking terms "stakein theventure. "Use thisto kill cops!"? Alternatively. to and it is reassuring notethattheSupremeCourthas alreadyapproved a First Amendmenttest with intentand likelihoodreIt more conceptually accurate-and perquirements.forkillingcops.instead. Is thepersonwho posted unoffending ipe and has a neutral.imaginethateach of these websitesexistsbut has not yetbeen used by anyonein makinga bomb. whatif the instructions on an anti-abortion websitebut were appeared used to bomb a police station? Whatiftheywere used by an individual to kill his own family? Finally. incitement analysis a habitofturning theimminence on and addressing intent question The and likelihood analysis cursorily.

PartII of the CIS testdeals withso-called and abetting" situations wherethereis nota close relation"aiding This content downloaded on Wed. Some willobjectto the CIS testas overprotective. first but some ofthediffiPartIV appliesthetestto cases thatdemonstrate instructional culties posed bycriminally speech. situations the will depend where a crimeis committed.In upon will situations whereno crimehas been committed.Applying approachesto criminally could be simCIS testto themshowshowjudicialdecisionmaking the plifiedand improved analythough use of aidingand abetting sis. PaladinEnterprises As mentioned above.thenhe is not.If the speaker ina he tendedto facilitate crime.Parts II and III of the test are designedto handle or situations wherethe connections betweenspeakerand listener and incident more attenuated. are even non-existent. all of it shouldbe. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . liability depend the his upon whether speakercommunicated messageforthepurto pose of contributing someone else's crime.whilethe speech in manyof thesescenot nariosis protected. CIS TypeII: Rice v.and no testcan make themeasy.1998 Law Review Virginia [Vol. 91:1973 These are difficult questions. IV. speaker's liability he to to whether intended contribute a crimeof thattype. The CIS testassumesthat. by liability be governed the speaker'sintent. If he did evidencethathe did. The speaker fewcases treating thesescenarios with illustrate difficulties exthe the instructional isting speech. Part V addressesthese objections. not. A. the defendant of is innocent untilthe elements his crimeare provenbeyondreasonabledoubt. To throw our hands up and declareit all protected because the line is hardto drawwould be no moreequitablethandeclaring all criminal. it Under the CIS In will test. on the wrongcriteria. maybe criminally liable. That standard addressedin Part I of is the CIS test. in everyarea of the criminal law. othersas unthatthetestis too vague or based Some willsuggest derprotective. THE FUTURE OF CRIMINALLY INSTRUCTIONAL SPEECH Part II of thisNote demonstrated problemsof prosecuting the and abetting and clarified the standardthat speech-basedaiding shouldgovernsuch cases.or ifthereis notsufficient as And obviously.

81 Paladinwas decidedon a motion summary for Both judgment.77 approachto it-is presented Rice v.JaniceSaunyear-oldTrevorHorn and shot his mother. that. fortwo books. eightPerrystrangled MildredHorn. contract who had used thetwobooks to plan by in the killings and followedtheirinstructions painstaking detail. marketing. at 838. 128 F.82 Paladinmade certain Furthermore. arguing by ment. Second. the Hit ordered agreeing Perry in Man andSilencers Paladin's from mail-order and catalogue. regarding stipulations to crucial facts.die. Md.83 Paladinstipulated in publishing. bothbooks.Perhaps the best exampleof such speech-and the inadequaciesof the current in Inc. and Peter Lund. As partof thiscase's settlement Paladin agreed to cease publicationof agreement. 79 See 940 F.79 the Accordingto the plaintiffs. 836 (D.128 F.2005] A Testfor Criminally Instructional Speech 1999 shipbetweena speakerand his audience.rangingfrommainstream news reportsand blockbuster moviesto online recipesfor explosives. at 838-39. 940 F. 1997). and his nurse.3d 233 (4th Cir. 80Paladin. The textof Hit Man can be viewed at http://ftp. to Paladin himself.See Paladin. The were survivors threeindividuals of murdered ers"). rev'd.78 plaintiffs killer JamesPerry. publishing two books. at 839. Id. withLawrence Horn to murSupp. death suit againstpublishing Paladin was a wrongful company Paladin Enterprises its President.3d at 239.Paladin by had aided and abettedin the murders. and distributing Man andSilencers. knewandintended Hit it that to thecase's disposition disastrous Paladin. Supp. followed he ofthebooks'instruccarrying many tions. parties stipulated certain which ultimately proved 940 F. relation Perry rea. 77 78 81Id. Paladin Enterprises. This content downloaded on Wed. JamesPerrycontracted der Horn's ex-wifeand disabled son. 82 83Id. H ("SilencMan") and How To Make a Disposable Silencer. in itsmens First. 1996).This typeof speech can take many forms. Hit Man: A TechnicalManual for Independent Contractors ("Hit Vol.Paladinstipuand to latedthat after to commit murders. Supp. stipulated that had"nospecific it a to that knowledge" Perry planned commit crime. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . so thatHorn would obtain the two milliondollars his son had received in a medical malpracticesettlement. ders.8o Paladin moved forsumthatit was protected theFirstAmendmary judgment. that outthemurders.net/mirror/hitman/.

at 847 (internal citations omitted). led by courtto applythe threeprongsofBrandenburg to the district and that test: find. have stipulated the nothappenin thiscase sincetheparties to committed theseatrocious a factthatJames murders year Perry in the after receiving books. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .AdoptingPaladin's reasoning. and commercial speech.In otherwords. at 840-41 ("The FirstAmendment bars the imposition civil liability of on and narrowlylimited Paladin unless Hit Man falls withinone of the well-defined classes of speech thatare unprotected theFirstAmendment.87 of unprotected speech under which Hit Man could gory to be lawless activity conceivably placed is incitement imminent.. 88Id."). one of the few categoriesof constitutionally unprotected speech. and that. Id. immediately. at 841-49. Horn. under the FirstAmendment.. at 841. Defendants nentlawlessaction.urged and anticipated Paladin's motion.2000 Law Review Virginia [Vol.89 84 86 See id. 85 Id. at838. [N]othing HitMan and Silencers as to couldbe characterized a command immediately murder the three victims.. HitMan failedthe"imminence" the musthave intended immiUnderBrandenburg.""88 This approach.'4 strategy Paladin made suchincriminating because it believed stipulations that the First Amendmentofferedfull protectionagainst all Paladin arguedthat. by 87Id. 89 Id. the books were fully reprotected of theirintentor theirconnection a criminal to gardless event. liwords. rilyrejected fighting The courtfoundthat"the onlycatebel. at840. 91:1973 wouldbe used bycriminals commit thepublications to murder and intended attract to thatitsmarketing suchindividuals. thecourtwould "conduct underBrandenburg" therefore. This content downloaded on Wed.85 to This rationale bothits whyPaladinwas willing stipulate explains intent and the books' materialassistancein Perry's own criminal the crime.86 district courtidentified of fivecategories constitutionally unprotected speech and summaof the applicability four:obscenity.unlessHit Man and Silencer into fell charges. Defendants musthave intendedthat JamesPerrywould go out and murder Mildred Trevor and Janice Saunders Thatdid Horn. unsurprisingly. its analysis of whetherthe book [was] protectedby the First Amendment undertheBrandenburg standard.

1997). UnderBrandenburg.2d569. requirement? he did not insistthatthe speech in questionactuallyqualifiedas imminent underBrandenburg.1985).the district least appliedit correctly. foundthatHit Man squarelyqualifiedas such.158-59(4thCir. Fleschner.speakingfora unanimous panel. 1985).94 Rather.3dat 257-62. The courtaccordingly defengranted dant'smotion summary for judgment. 98 769 F. 128F.91 devotedmostofhis opinionto arguing JudgeLuttig thatthe Paladin books are "tantamount legitimately to proscribable nonexpressive conduct"and thus "may [themselves] lebe This argument a of gitimately proscribed.On appeal. F. whenJudgeLuttigaddressedincitement directly. at 256.3d 155.quoting liberally pages.UnitedStatesv. F. incitement the analysishas proved to manipulation cases involving in instrucsusceptible criminally tionalspeech.3d 804.90 As we have seen.."92 suggests rejection the incitement and an endorsement the speech-actparaof analysis used to justify criminalization aidingand of the digmtraditionally Yet he abetting.United Statesv. States Raymond. States Moss. example of speechwhich.3d233(4thCir. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . however. JudgeLuttigrecourt'sportrayal Hit Man as protected of advojected the district he wrote. book published a in 1983and purchased and read in 1992can in no waybe said to have in "incited"a murder 1993. 93Id. F.United States Freeman.551-52(9thCir. because it methodically comprehensively and precriminal conduct.1996). v.604F. "this book constitutes archetypal the cacy.United 228 e.he criticized Brandenburg and substituted anotherformof the incitement test.. 761 v. Id. v.571 (8thCir.2d215. 92 See id. at 243.2000). Paladin 91 joinedJudge Judges opinion.2d549.forfive go through ninechapters HitMan.United 9 this from also digresses doctrinal to In partoftheopinion. reversedand remandedthe case fortrial. JudgeMichael Luttigof theFourthCircuit. Kelley. finds paresand steelsits audienceto specific no preserve theFirstAmendment.g.217(4thCir."93 in How was Judge in of Luttigable to make thisargument light the imminence Unlike the courtsin the tax fraudcases. Wilkins Williams and both Rice v.1979).. 94 See.2005] A Testfor Criminally Instructional Speech 2001 Unlike manyothercourtsthathave applied the incitement test to criminally courtin Paladin at instructional speech..Instead. after with almost four already having openedtheopinion pagesof This content downloaded on Wed.815-16(7thCir. F.9" the pasIn 90 at 849. Judge Luttig analysis all of from each. Luttig's 128 Enters.

the form speech. Rice.3dat263-64.in wholeor in part. He found that Hit Man failed to nally instructional in constitute "mereadvocacy. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .523 U. he emphasizes importance hisbook. argument. 97 Id. PaladinEnters. demanding ing" exactly instructional criminally speechbe unprotected. 1074(1998) (No. 91:1973 invoked SupremeCourt's the sage above.JudgeLuttig read theNoto formulation "approvas as thatconflation that and."). per riam opinion. 128F. at 1325). neededto emphasize Hit 131 We that Man was not abstract but and see teaching was aboutpreparation steeling.See Rodney Deliberate Intent (1999) ("Thiswas ourticket. 98Paladin.2002 Law Review Virginia [Vol. 290(1961).Judge Luttig deliberately decisionin Noto v."97That passage represents potentialconflation of a a instructional criminally speech(speech "preparing groupforviolent action") and unprotected incitement (speech "steelingit to such action")."rootedthisfinding SupremeCourt and declaredthespeechunprotected.96 pre-Brandenburg thatdifferentiated between "the mere abstractteachingof Communist and "preparing groupforviolent a it actionand steeling to theory" such action. 99 at 265. at 235-39.99 of This criticism the inappositenessof Brandenburg of largely in tracksthe earlierdiscussion SectionII. essentially by Noto into an entireSupremeCourt doctrine crimion strapping speech. to direct Id. also BriefforRespondents 3.B. precedent (Noto). United a case States.S. bequotation. 97v. 96 367U. This content downloaded on Wed. in Smollaputforth Notoargument oraland the Professor Rodney its in written and Smolla.S.98 JudgeLuttigthen the did arguedthatthe laterBrandenburg ruling not modify Noto Court's alleged denial of protection for criminally instructional speech: the as itself [T]o understand Court[inBrandenburg] addressing to to speechother thanadvocacy wouldbe to ascribe it an intent to revolutionize criminal in a severalparagraph cuthe law.It is difficult escapethesensethat Judge Luttig lieves expostulation this somehow makes casefor the incitement. Id.by subjecting to the demandsof prosecutions "imminence"and "likelihood" requirements Brandenburg's whenever predicate the conduct takes. But JudgeLuttigrebootsponded to this problemmuch differently. consequently. at 297-98.

and (1) is therean underlying (and obviously to was thisspeechintended assistin suchan offense? Fromthis (2) Paladin'sstipulations werea disaster.evenunderthelooserstandard civilliability.The lower courtrecognizedthis.because courts must apply existing precedent. thata "federalcourtsitting diversity in cannotcreate emphasizing new causes of action"and thuscannot"createanother of category to It with lastprediction. and is to Judge diminished theentertainment of thebook and themultiple both value cateLuttig that of and progoricaldisclaimers warnedof the illegality the actionsdescribed that claimed publisher's the intention thebookbe used "ForInformational Purposes 940 Only!"Paladin. F. and it is equally thattheplaintiffs could have successfully suchan unlikely imputed intent Paladin.neither trialcourtnorthe appeals court the was quiteright.Butthere Id.2005] A Testfor Criminally Instructional Speech 2003 had strong incentive follow to Practically speaking.he quitesensibly hedgedon theBrandenburg question.In theabsenceof a clearruleaboutwhattestapplies to suchspeech. it is highly thatany commercial house would unlikely publishing make such an intentpart of its businessplan. is the issue.. Noto should controlratherthan Brandenadvocacy burg. Even if he could not in good consciencefindthatHit Man incitement undertheBrandenburg he constituted standard. If Paladin had indeedintended assistreadersin murdering to peothenthe company shouldof coursehave been held liable. at least if foundthatit was not"mereadvocacy"and made a case forwhy.One stillhas the sense thatJudgeLuttigwould have been more comfortable incitement if were leftout altogether. JudgeLuttig sucha course.thecase couldnotproceedin thisway.. thatits publications assistedin committing underlying the offense and thatit intended themto contribute suchoffenses." at 253. This content downloaded on Wed. Paladin and thedistrict courtwerecorrect thatthe Hit FirstAmendment fully protects Man. he but all his from sides.. but not underBrandenThe questions underPartII ofthe CIS testshouldhave been burg. required any is a difference between whata jurycouldfind whata jury likely find. the for If to CIS testwere the clear standard. stipulated It both standpoint."? to of Of course. offense therewas). required Maryland as wellas theintent under heightened Amendment First standard. Paladin stillwould have claimed but absoluteprotection neverwould have made such stipulations. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . reasonable apartfrom jurycould find Paladinpossessed intent the that under law. Supp. protected judgment Under the CIS test.But ple.at 838-39. this He 00 is important notethatJudge Luttig disagreed that"[w]holly a insisted Paladin'sstipulations.

This content downloaded on Wed.) It is stilluseful. 102283 101Paladin. 91:1973 This unprotected speech. instance. thatvariousJustices have at timesassumedthatit ever. Minnesota. CIS TypeIII: Instructional No Speechwith Underlying Offense Aiding and abettingrepresentsonly that part of criminally instructional tied actionand speechmostproximately to a criminal thusmosteasilypunishable. might This thatsuch pronounced upon suggest that The sparsecommentary does exist. Douglas con- U. 697.howspeech is protected.wouldresultin morepredictable outcomes. bothwhya is clear standard needed and whythe CIS testshouldbe thatstandard."10' thatthe lower court.defendants Paladin wouldknowat the outsethow to defendthemselves. The example is technically one of crime-facilitating instructional. at 842. Courttook for the forgranted thattheFirstAmendment notextendto "thepublidid or cationofthesailingdates oftransports thenumber and location of troops. The establishment a clear of preme testforcriminally instructional whatstanspeechwouldtellcourts dard to use. The more difficult questionis how to instructional that is not linked to any treat criminally speech knowncriminal action.suggests In lacksprotection. is more like the publicationof a witspeech that is not criminally (It on ness's name thandirections how to killhimor her.as an indication a generalattitude of towardall crime-facilitating speech.was uncomsuggests fortablewiththe incitement analysisand yet feltbound by Suto Courtprecedent employit.S. therebymakingelaborate rationalizations unnecesA clear rule would also help litigants.speechthataids and abetsmurder.e.and the concomitant from Brandendisentanglement and more doctrinally satisburg. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .2004 Law Review Virginia [Vol."'02 Justice And in Dennis v. Supp. 940 F. Near v.Brandenburg would be preservedforits original fying like purpose. The establishment of sary. 716 (1931). however. the CIS test. United States. or is it constitutionally The SupremeCourthas neverrecprotected? and thushas never speechas a category ognizedsuchinstructional itsconstitutionality.Shouldsuch"purespeech"be regulated. inquiries and wouldreliably turnon the culpaof rather thanon a givencourt'smanipulation bility thedefendant. B.like the appeals court.i.. The Hit Man case illustrates of an incitement standard.

UnitedStates.' Justice Stevensappended an individual statement the denial of certiorari. Yates v. the Sudecisionreversing premeCourtdeclinedreviewof a NinthCircuit a conviction under an Arizona law that prohibits advisinggang on members gangpolicyand practices. 08 at 995. J. artof street The freedom speakis notabthelike. 106 107 Id. at 995. these legislatures end. the Amendment of the of assassination the President. UnitedStates.the teaching methods terror conduct shouldbe beyond pale alongwith the and obscenity immorality. 494. publicfiles.S.103 in the Similarly. 103 U."'05 341 581(1951)(Douglas.'04 Court upheld convictions of the leaders of Communist meetingsat which "a small werenotonlytaught thatviolent revolution was groupofmembers but for that inevitable. if so to whatextent. discussedbelow. to of of and otherseditious solute. planting bombs. 298 (1957).I wouldhaveno doubts. whilethe Courthas withheld on judgment the conof instructional stitutionality criminally speech.S. of materials-involves speech thatshouldnot preparation written be glibly characterized mere'advocacy'and certainly create as may publicdanger."'08 significant In addition.S.training and perhapsthe exercises. 537 McCoyv. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . This content downloaded on Wed. to sayingthatthe and Courthad "not yet considered whether.2005] A Testfor Criminally Instructional Speech 2005 instructional in demnedcriminally terms his speechin no uncertain dissent: werea case where Ifthis thosewhoclaimed under the protection First wereteaching techniques sabotage. U. the First Amendment protectssuch instructional speech. Id. 203. Stewart.. U. dissenting). theywere also taught techniques achieving Finally. filching documents of the from of the the and warfare.233 (1961) (describing factual 367 the circumof stances Yates). Scalesv.in a much more recentcase. 993(2002)."''7He also statedthat "[1]ongrange planningof criminal enterpriseswhichmayincludeoral advice.S.Congressand state have passed laws criminalizing Cases involving it. 105 104 354 U.

2006 Law Review Virginia [Vol.C. ? 231(a)(1) (2000). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Facilitating "CivilDisorders"Under FederalLaw Under 18 U.S.First.2d 934. 937 (7th Cir.it is vague at about the "civildisorder" issue... 1. it is forbidden teach or demonto or strate"to any otherperson. or in furtherance a civildisorder.therequired merely kindof civildisorder. ? 231(a)(1) on as FirstAmendment overbroad. Whereas18 U. the use. See supranote 34 and accompanying text. 91:1973 statutes to providean opportunity applytheCIS testand to witness thedangers otherapproaches criminally of to instructional speech.C.C."' by responded construing 18 U. ? 2 requires mensrea ofintent find to of a speakerguilty contributing a committed to 18 U.S. It is unclearwhether defenthe dantmustforesee(or have reasonto foresee)his contribution a to civil disorder.C. 111411F. of 18 event. NationalMobiIn to lizationCommittee End theWarin VietNam v. knowing havknow or intending thatthe same will be unlawfully ing reason to for This of. in teachings the no criminal conduct.S.reckless.Putting two problemstogether revealsa instruction statutethatwould criminalize givenwithrecklessness or negligence towarditspotential furtherance some unspecified. makingof firearm explosiveor incendiary or or any device. 1"0 109 This content downloaded on Wed.S. crime. ? 231(a)(1) failsthe CIS hypothetical an test and constitutes impermissibly overbroad regulationof speech. connection a committed to The statutehas at least two facialproblems.themembers of the Chicago Seven challenged18 U.or even negligent evenwhensuchteachings resulted had aboutfirearms.C.S. U. application..As written. any "knowingor having reason to know or intending"-is fatally a flawed. employed use in.C. ? 231(a)(1). speech crime.a particulartype of civil disorder.. 1969)."o ? 231(a)(1) would punish knowing. The lowercourtsthathave addressedthisstatute have evinced with some discomfort itsmensrea requirement. legitimate The SeventhCircuit tialartstechniques. grounds unconstitutionally pointmensrea requirement would criminalize out thatthe statute's ing such as the teaching self-defense marof and activities."109 statute thusoutlawsType III criminal withno instruction. Foran.S.or particular mensreaSecond.

16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . at First.S.1121 (5th Cir. ("But [petitioner's or argument] ignoresthe 'knowing. both cases.C. 1972). Id. higher ? 231(a)(1) remainson the books withan apparentmens rea reof or quirement "knowing havingreason to know or intending.C. havingreasonto knowor ina This retending"-as requiring mensrea of intent. at 1122-23. FifthCircuit rejecteda similar challengeto convictions under 18 U.The requirement intentof course 'narrows 112 thescope of the enactment exempting or innocent inadvertent conduct from its by (citations omitted)).2005] A Testfor Criminally Instructional Speech 2007 or thestatute's language-"knowing.as one of themput it. at 1121-22.""6 and and facilities law readyto strike transportation communication enforcement operationsat a moments[sic] notice" and asserted that"[t]hewords'clear and present danger'do notrequirethatthe await the fruition planned illegal conductof such of government natureas is hereinvolved.""7 These cases suggesttwo conclusions." The statute thisform in that convicfirst.in practice.11 The defendants were membersof the Black AfroMilitant Movement who taught othershow to assembleexplosivedevices ("BAMM") in preparation "the comingrevolution. at 1122-23 n. same courts are reluctant let a poorlydrafted to statutestandin the way of a In conviction. havingreason to know or intending' of language of the statute. FifthCircuit the referenced (and apparently adopted) the SeventhCircuit'sconof struction thestatute and concluded thatit was "sufficiently definiteto apprisemenof commonintelligence itsmeaning of and apThe courtcharacterized defendants "standing the as plication.Second. 115 Id. This content downloaded on Wed. least some courtsfindit important have a mens rea of intentfor to instructional the criminally speech. As a result. future poses twodangers: Id. In United the Statesv.2d 1119.4. "whendantswere awaiting ever it came.in theory. 114 116 117Id. Id. ? 231(a)(1). Featherston. proscription. defenthis the such an event.18 U. the courtspreserved statuteand althe to lowed prosecutions continueby imposinga mens rea much thanrequiredon the statute's face.11"2 spectacular of "or" as "and" saved the statutefromthe facial interpretation challenge.""' In upholdingthe convictions.""4 for There was no evidence ofplans by the groupto instigate revolution.S."' 113 461 F.

willhave a chilleffect permissible on speech. A Recent StateLaw Case Under A more recentcase.2d647.1996). P. ing Prosecutions under18 U. and remain and standard. mensrea. (2001). 91:1973 tionswillfollowitsplain language."121 McCoy was datthemother one gangmember of and thereby came intocontact ing withthe teens at a barbeque and anothergathering.Ct.3d at 628.C. financing "[f]urnishing of a criminalsyndicate'saffairs with the intentto management the promoteor further criminalobjectivesof a criminalsyndimemberof a California cate.3d 119 120 122 121282F. at 628. Statev. or things. 928 626 (9th Cir.App.Rev.S. Dean McCoy was indictedin Arizona SuperiorCourt on Jerry in one countofparticipating a criminal street gang."120 McCoy.a class twofelThe Arizona statute underwhichhe was indicted ony.allegedly of had givenadviceon at leasttwooccasionsto members a teenage Tucson gangcalled the "Bratz" or "Traviesos.Under the CIS test. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . This content downloaded on Wed. McCoy v. Stewart. increasegraffiti "tagging" 118282 F.S.Stat.amongother thatparticipation a criminal in adviceor direction theconduct. intent imminence entangled. theCIS testat theveryleastwouldadd structure to inquiries.C. ? 231(a)(1) suggest place forPart a III of the CIS test. rigor their 2. defendants intent had towarda specific criminal whether goal and whetherthat goal was likelyto occur. McCoy.648(Ariz.2008 Law Review Virginia [Vol. a former gang. Realistically.and second. Also. If anything. Id. test will no towardcertaintypesof change lawmakers'and judges' attitudes but and behavior. ? 231(a)(1) as facially rather overbroad."' thatsuch insuggests are no more structured now than theywere in the early quiries thereis more confusion over the appropriate 1970s.122 McCoy adtheirgangby electing visedgangmembers formalize to to officers.thatthemereexiswithitsoverbroad tenceof the statute.? 13-2308(A)(3) Ariz.courtsshouldstrike down statutes such as 18 U.119 provided in streetgangincludes. theirdefectsand leavingthemon the books. 2002). thanpatching to wereCongress pass a version thestatute of thatrequired mens a the CIS test would demand that courtsconsider rea of intent. Ann. a for to in establish treasury bail money.

131Id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . the Arizona courtsfocusedupon the intent requiredby Section 13-2308of the Arizona code. See id.at 649-50.12' Arizona SuperiorCourt convicted An McCoy and sentenced himto fifteen the Arizona Court of Appeals afyears. McCoy. F."130 The district Brandenburg courtendorsedBrandenburg on review. recruit to new members."'125 sion of a criminal act.124 In convicting McCoy."' fact. 126 127 Id. to developfriendly relationships othergangs. district the court granting defendant's this articulatedrationale [of the Arizona courts] "measure[d] to whether againstSupremeCourtprecedent determine McCoy's conviction was reasonable. at 630-31. and the Arizona SuperiorCourt denied a petition refor firmed. at 631 ("Far from a specific intent further to demonstrating illegalgoals. 130See id. appelthe but.2005] A Testfor Criminally Instructional Speech 2009 theirterritory. Disfor McCoy trict Courtforthe Districtof Arizona. explicitly. view. 128 282F. Id. 125 Statev."129 The courtrejectedthe intent-based of insteadwithMcCoy that paradigm theArizona courts. The district courtgranted the petition.3dat 628-29.claimingthat the statute was unconstitutionally overbroad and criminalizedprotected speech. "are not protected the by FirstAmendment. The Arizona Court of Appeals disagreed. late courtpurported hingeitsconsideration intent. wordswerenotprotected theFirst by thenfileda petition habeas corpusin the U. notingthatthe statuteonlyproscribed advice "whenit is given'withthe spoken intent promoteor further criminal to the objectivesof a criminal "Wordsspokenwiththeintent cause thecommisto syndicate.")."126 Because the prosecution had providedsufficientevidencefora juryto find thatMcCoy spoke withsuchan inhis Amendment.3dat 633. beat and expel disloyal to current and withsome members. 129 Id. to on In 123 124 282 McCoy. This content downloaded on Wed. agreeing was the propertest forhis behavior.28In by the habeas corpuspetition. whichwas later affirmed the NinthCircuit. to moreclosely profile mereabstract the of of McCoy'sspeechappears fit advocacy lawlessness.S.127 tent.2dat 649. at 630." the courtsaid. McCoy broughta FirstAmendment challenge. 928P.

"139 suggestedthat "[1]ong He a of criminalenterprises-which range planning may include oral of and perhapsthe preparation written advice.S. as determined the SupremeCourt of the United States."'33 courtfoundthatit was unlikely The thatanyonewould have done so and thatMcCoy merely advised the gang members followcertainprocedures"at some timein to the future. at mostadvocatedlawlessnessat some indefinite future time.. Whenthe Courtdeniedreviewof the by Ninth Circuit decision in McCoy."'13Hence.. 136 137 certiorari). 91:1973 were focusednot at all upon the court'sfindings however."'32 on [hisspeech]imminently."as requiredforthe by of from undertheAntistateconvictions granting habeas petitions terrorism Effective Death Penalty Act of1996. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . ? 13-2308(A)(3) (2001).The courtfeltso strongly about Brandenburg's relevance thatit overturned statecourts'rulings "an unreasonas the able application clearlyestablished of Federal law.. ? 2254(d) (2000). Brandenburg analysis.3dat 632.and did not incitelawlessness.training exercises. JusticeStevens appended a statement the denial of certiorari. McCoy. Id. Stewartv.C. circuit whether the objectivesof a McCoy intendedto "further criminal criminal whether but rather "anyonewould act upon syndicate. see 28 U. 139 Id. This content downloaded on Wed. Stat." and when" theyshoulddecide to expandtheirop"if erationsin the ways McCoy advised.2010 Law Review Virginia [Vol. 138Id. at 993.138 to thecircuit however. "[b]ecauseMcCoy's speechto theBratz.opinion regarding denial of Id.J. it was protectedby the First Amendment. the NinthCircuit's immiturnedon Brandenburg's ultimately inquiry nenceprong.137 to Justice Stevens observed thatthe "harshsentence a relatively minor offense" reason was for forthe Courtto refuseto considerreinstating convicthe enough As court's Justion. Rev.S. tice Stevens said that "[w]hile the requirement that the conseis withrespectto mere advocacy.136 and At least one SupremeCourtJustice disagreedwiththisanalysis the lowerfederalcourts.Ann. 537 U. 993 (2002) (Stevens. quence be 'imminent' justified the same justification adhereto some speech does not necessarily that performs teachingfunction. at 995. 282F. 135Id. 132 133 134 Ariz.'34 The courtconcludedthat..

? 842(p)(2) (2000).S.but the McCoy's mens rea and and the SupremeCourt the Arizona courts. therewas seriousdisagreement of difference ters. on whether theinquiry themostcrucialelements: McCoy intended his criminal and howlikely speechwas to do so to facilitate activity.C. This content downloaded on Wed. more standard thatrequired form an agreed-upon to constitutional and moredemanding structured findings.2005] Instructional A Testfor Criminally Speech 2011 characterized materials-involves speechthatshouldnot be glibly as mere 'advocacy' and certainly many create significant public Stevensobservedthatthe Court had "not yet Justice danger. In (not. Id. First and concludedthat"denial of such instructional speech" protects of in certiorari thiscase shouldnotbe takenas an endorsement the Stevensappeared as of the Courtof Appeals. standard apply.This disagreement may indicatean underlying too betweenstateand federalcourts severeforanytestto opinion But if the CIS testwere in place at the timeof McCoy's remedy. the This case succinctly demonstrates level of confusioncurof instructional courts' understanding criminally rently plaguing courts Not onlydid theArizonaand federal disagreeabout speech."'41Justice reasoning certainabout the NinthCircuit'serroras the NinthCircuithad of been abouttheerror theArizonacourts. wouldat leasthave had to conthentheArizonacourts conviction. inquiries FederalLaw Case Under 3.how imminent was). 18 U."140 the and Amendment considered whether. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .The creation to abouttheappropriate all disagreed instructional of the formal of criminally category speech and the of implementation a clear standardcould help to eliminatethis at The CIS testwouldbe particularly effective focusing confusion. Congresspassed an amendment the Antiterrorism Death PenaltyAct ("AEDPA") that criminalizes and Effective of instructional broad categories criminally speech. lowerfederalcourts.'42SenatorDiof in first the amendment the aftermath anne Feinstein proposed 140 141 142 Id. suchactivity said. the dangerposed by his speech. ifso to whatextent.as theNinthCircuit thesematabout exactly thiscase. A Recent to In 1999.

(last achttp://www.at (last accessedSept. enacted withinfour witha statutory response.rockymountainnews. to distribute anymeansinformation to.usdoj. destructive a or a weaponofmassdestrucdevice. 144 The booksdiscovered inMcVeigh's wereRagner Homemade Benson. in pertinent of months theColumbine part: provides shootings. 11. constiinformation building on bombsand other of tutionality restricting Departmentof Justicestudyrecomexplosives.com/shooting/0502why10. 11. (A) or destructive device. Inof 1997Reporton theAvailability Bombmaking at formation. Dep't of Justice.S. demonstration. Ragnar's for for (1990)andRagnar YourArsenal Secure and Weapons: Building Keeping (1992).2005).26. anymeans. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .'45The resulting mended a few changesto the languageof the FeinsteinAmendWhen the shootingsat Columbine High School again ment. Co. that or weaponofmassdestruction. Sheriff. It for (2) Prohibition.2005).Harris's pipe & In links anarchy to websites.shtml 24. Harrisand DylanKlebold. See bombsandprovided Hindsight. See Jefferson County. Rec. 1999. usedexEric HighSchoolshooters.html (last accessed Aug. manufacture use of an explosive. feasibility. This content downloaded on Wed.May 2. 91:1973 discovered the 1995 Oklahoma Citybombing.com/SPECIALS/2000/columbine. theintent theteaching.Rocky MountainNews. that or to (B) to teachor demonstrate anypersonthemaking use of an explosive.426-29(1997). 147The Columbine a as attack.427(1997). to tion. http://denver.'46 in the thrust issue into the spotlight 1999. wellas additional devices theshooters' and at their Bomb Summary."'' wheninvestigators instructions that TimothyMcVeigh had relied on bombmaking Ratherthanpassthe from books and perhapsalso from internet.gov/criminal/cybercrime/bombmakinginfo. 146 See 143 Cong.26. Signs to KillingsObvious.or a weaponof mass destruction.'" at ing the amendment thattime.Congressrequiredthe Attorney on and Generalto preparea report thenecessity.or to distribute anyperson.'47 Congresswas ready The amendment. BigBook ofHomemade See U. by pertaining in wholeor in destructive the or device. available at homes.2012 Law Review Virginia [Vol.cd/Pages/BOMBSTEXT his with website discussed experiments building cessedAug.cnn. MikeAnton Lisa Ryckman. http://www. shallbe unlawful anypersona the or to teachor demonstrate making use ofan explosive. Rec. possession A C-4A Recipe Survival: Recipe Survival Benson. information used for.information by '43See 143 Cong. in furtherance a of or an activity constitutesFederalcrime violence. with or be or of. part.2005). Policefound totalofseventy-six explosive plosives wellas gunsin their in at as cars devices theschool.

5. 4.A. No. The Reclaim Guide is "5o available forviewingat http://forbiddenspeech.The defendant.2005] A Testfor Criminally Instructional Speech 2013 the or to. This content downloaded on Wed. old and living at withhis mother thetimeof his aryears eighteen rest.D.www. 152 148 149United States v. to demonstraknowing or information or infurtherance an activity conthat for. Austinwas charged under18 U. site expressed viewsand includeda "Reclaim Guide" withinAustin'sanarchist International Fund and World structions disrupting for Monetary The guide. Id.."1 ten but to have mirrored fromanotherwebsite.The first requirement 49 Statesv.C. 2003. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . explosive. Aug. The first testbecause it onlyrequiresthe has but partof the statute no likelihood requirement. ? 842(p)(2)(A) formaterial The posted on his website. the Sherman Austin. Austin. ? 842(p)(2) (2000).shtml (last accessed Aug. web The originalraisethefist.or weapon of mass destruction. United prosecution the of part(A) and illustrates complexity prosecuting pure speech. 2005).com.org/ReclaimGuide/reclaim. Man Gets 1 Year for How-To on Explosives. "5'See David Rosenzweig. tion. though It not impossible.raisethefist. 26. thatAustincould be convicted his activities. of stitutes Federalcrime violence.S.S. L.whichAustinclaimednot to have writBank events. its mensrea to conforms the demandsof the CIS test. of.Aug. Austin. for or is not clear thatanyonewas likelyto use the instructions that themto be used.C."'containedsectionson "Police Tacticsand How To Defeat Them" and "DefensiveWeapons" thatincluded instructions. The defensesubmitted Austinactuallyintended who foundthat Austin the assessmentof a clinicalpsychologist of notappearto have seriously considered ramifications" the "d[id] had the Reclaim Guide "and would have been horrified posting someone been injured. manufacture use of an destructive device. 2003).com site has been shutdown. Cal.it is doubtful. Times."152' Too littleinformation available to is 18 U. at B3. bombmaking of Under properapplication the CIS test. was withor without CIS test. that suchperson intends use theteaching. CR-02-884-SVW(C.148 a Part (B) of thisprovision would be unacceptable underthe CIS mensrea of knowledge. pertaining in wholeor in part. was under underthe statute.

413 U. "'5 See 156 154 Id. 571-72 (1942). V. v. saying was not "takingthe case seriously thatthe prosecution enough" and orderedthefederal to prosecutor clear theproposedplea barin gain withFBI and JusticeDepartmentofficials Washington. Austinacceptedtheoffer.'54 difference opinionwiththeJustice of (the Department prosecutor whichhad contributed the drafting theFeinstein of to veryagency involvedin asillustrates degree of subjectivity the Amendment) of like the sessing dangerimposedbytheactivities individuals Ausrebut tin. California. Low-ValueSpeechas an Alternative Paradigm In confronting instructional criminally speech.(3) tive ofspeech. 15. The Court has used the low-valuerationaleto to and denyconstitutional protection fighting words"'5 obscenity"6 153Id.suchsubjectivity.S. When the prosecutorreturnedwith the same proposed D. JudgeWilsonagain rejectedit and of JudgeWilson's imposeda sentence one yearin federalprison. of it is overprotective speech. This content downloaded on Wed.C.These criticisms includethe arguments are modelsthewrongdoctrinal itsrequirements too (2) paradigm.91:1973 or of make a completeassessment either Austin'sintent thelikely use ofhiswebsite others. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . OBJECTIONS This finalPart attempts addressthe mostobvious objections to that:(1) it to the CIS test. jail and fourmonths a halfway butpresiding Judge StephenWilsonrejectedtheagreement. The fedor subjective in in Austina plea of fourmonths eral prosecutor thecase offered in house.S.315 U. by and The saga of Austin'sprosecution showshow unpredictable can suchinquiresas to intent facilitation be. protection to defendantwho mailed unsolicitedmaterialsdepicting sexuallyexplicitacts to California residents).2014 Law Virginia Review [Vol. 23-24 (1973) (denyingconstitutional See Millerv. 568.thereis a strong it to denyFirstAmendment tendency protection assimilating to by low-valuespeech. A.'53 at agreement a secondhearing.Adoptionof the CIS testmayalleviate.and (4) it is underprotecvague. cannotentirely movetheriskof. Chaplinsky New Hampshire.

At first. 469.generally problematic to instructional so speech. wherethe Courtfoundthat"certain New Hampshire. 159 See Va."163 has the Thus."'62 social value" or thatit on the premisethatthe speechhas "slight of words"in Chapsocial value. Citizens ConsumerCouncil. 770 (1976). 344-46 (1974). This content downloaded on Wed. particularly in itsapplication criminally has its roots in dicta in Chaplinsky The low-valuedoctrine v. Corp. 160 15s 161 162 163 315U. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .160 the or words. and would be however.2005] A Testfor Criminally Instructional Speech 2015 for and to providelesserprotection privatelibel.Because public to such expressiondoes not contribute the goals of the First it need not be affordedany protection.571-72(1942). Id. This leaves open thepossibility in and negative that positive See Gertzv. Id.S. Va."all of profane. 420 U. 157 constitutional See Cox Broad. v.the tion.S.' certaindiscloand suresof private The lowspeech. Yet. 323. State Bd. 491 (1975) (providing to who publishedthe name of a rape victimobtainedfrompubprotection a reporter lic records). the Court first assertsthe low linsky wordsbutlaterseemsto testthembased on their value of fighting the of likelihood "provok[ing] averagepersonto retaliation. Cohn. 568. of Pharmacy v.butthatthey pose a negative positive the is It thusbecomes unclearwhether doctrine founded rality. the Amendment. well-defined limitedclasses of speech" made no contribution and narrowly to and thusdid not merit the goals of the FirstAmendment protecThese classesof speechincluded"thelewd and obscene.Inc. The analysis "fighting has negative as the confirms ambiguity. 748. thattherealproblem notthatthewordslack is Courtthensuggests riskto "orderand movalue.the doctrine exuded a dual focuson value.S."161 itselfimpliessome of the doctrine's This presentation difficulthatsuchspeechis unprotected the ties.from outset.159 information.'58 commercial is value doctrine. Courtsuggests becontent and makes no contribution to cause it has no meaningful as discourse-the speech might well be nonsense.418 U. 425 U. libelous. at 574. RobertWelch.and the insulting 'fighting' whichwere foundto be "no essentialpart of any expositionof social value as a step to truth thatany ideas" and "of such slight themis clearly thatmaybe derived from benefit outweighed the by in socialinterest orderand morality.. at 572. Id.S.

297.at 681("[A]llspeech potentially See Post. later terpretation was rejected categorically the Court. 91:1973 the areas. category might a and Court on said. protected.while that which has a modicumof such value is prois defamation privateindividuals less proof tected. 164 M. 747. doctrine foundedon an assumption is that no worth certain have virtually content Yet. 15.166 had the that information beenobtained the instructions weapons-making (despite fact UnitedStatesv. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 413 U.S.. child suggested NewYorkv. self-governance.2016 Law Review Virginia [Vol. Id.. but 15.. doms. U."Ferber Ashcroft upheld prohibition thedistribution sale ofchild becausetheseactswere'intrinsically related' as pornography. 403 165 Cohen relevant democratic is to note13. 234." (internal citations the Rather." at 249. of expressions the same kindthatdo have valuable elementsare materialthat "taken as a whole.Thus.This rationale rarely for the consideration further research widen scopeofthis Note.'" Anotherproblemwiththe low-value ing speech of testis thesubjectivity anyassessment "socialvalue. 348 (1995) (arguing to theextent so-called that "lowvalue"categories reguare that are causeharm notbecausethey presumed be and to "it be lated. wellas itsproduction. Rev.and obscenity.25 (1971).its application criminally instructional speechhas parThe ticulardifficulties. such as fighting words.167 Similarly.Ferber pornography. 535 U.butthatinAshcroft Free Speech v."). in The that as itturns for out. 167 Miller California. Inc.Thissuggests another inwhich yet way for collateral Courtmight speech: ban consequences. the in disguising Court'sreal interest regulatbased on harm.S.S.On thecontrary. Theory Low-Value Speech. U. by did is Coal. in is district court Such an approach suggested at leastone relevant case.. should becausethey lowincommunicative value"). omitted))." Thissubof in is cases..libel. SMU L.where jectivity perhapsmostpronounced the obscenity reasonable people disagreestrongly about both the value of the the speech and the harmit poses. expressions protecting. v. weapons. For some observers. The of 48 See Jeffrey Shaman. pornographic lacksseriousliterary.24 (1973). Courtrecognized have significant value. "low-value" label is a misnomer. scientific tected.Butitis an interesting to whether Courtmight the take a collateral-damage approach highly dangerous for or of suchas instructions biological chemical forms criminally instructional speech. Court 458 childpornography be might low-value speech. the to thesexualabuseofchildren. supra 166 . political. where a court enjoined publicationof nuclear This content downloaded on Wed. or value" is unproartistic.251 (2002) ("Ferber notholdthatchildpornographyby someworks this in the definition without value. regardless explicitly itsharmful is used and to consider here woulddrastically it of itsvalue. The Progressive. factthat is another's makes "low value" a far "one man's vulgarity lyric"'65 too tenuousfoundation whichto restFirstAmendment on freeEven if the low-valuedoctrine's generalproblemsdo not overto whelmit.762 (1982). California. v.S.Thisis thecase forobscenity not.

supranote 11. 170 See.supra note 11. the of her speechwould become irrelevant. at 299. This content downloaded on Wed.S. value of yetit is clearthat. speech'spoliticalcontent argue forpromight if In her tection. the low-valueanalysishas littleplace in the of conceptualization thelarger category.g. Gertz Robert Welch. Wis.PoliticalFreedom:The Constitutional Powersof the People (1960). While it is easy to say that criminal intentshould govern in criminal the is liability.D.. a listener followed instructions. the with for resultthatthe speakerwas prosecuted aidingand abetting.2005] A Testfor Criminally Instructional Speech 2017 because speech about publicfigtectedthanthatof publicfigures to uresis thought have morevalue to oursociety's "freedebate" of Such distinctions an immediate ideas.'69 the liticalexpression. at 20.AlexanderMeiklejohn. or inthis is true forthe most easily identifiable type of criminally structional speech. typeofspeechmostuniversally as recognized the within ambitof FirstAmendment protection. politicalnature Assuming thepresenceoftherequisite she for intent. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . B. (W.340(1974). 990 interests. 1979). BeVier.'68 present problemforcrimiinstructional Consideran environmental who activist speech. Supp. The most obvious responseis that many othercriminaloffromthe public domain) on the basis of national security 467 F. ? 1864 (2000) (discussing"tree spiking"law and criminalizing use of an "injuriousdevice" on federalland "withthe intent obstruct harass the harto or of vesting timber").S.C. is and Aidingand abetting themosteasilyrestricted leastconstiof form criminally instructional tutionally problematic speech. nally her opposition thetimber to whilealso explainindustry expresses loging to a fewpeers how to "spike" treesin orderto obstruct This speech is simultaneously criminal and instruction poging. See 18 U.418U. contrast..And in the aidingand abetting. e. The Vagueness an Intent Test of Some critics of might pointout thatapplication an intent-based has its own inherent testforcriminally instructional speech problems. wouldbe convicted the of of criminal content herspeech. Inc. 169 168 v. criminalizing The factthat aiding-andthe speech is not whatwe are tracking.regardless itspolitical content. 323. Bork.170Under a lowthe value analysis. double as valuable politicalexpression abetting speech also might to of If is immaterial the definition the offense itsprosecution. reality intent inquiry practically impossible.

at (last accessed Oct..C.k. e..The difficulty an intent inquiry in simply anycontext requiresus to make inquiries the mostdisciand rigorous concern thereafor withutmost waypossible. Justice as to "has been some timenow sincethelaw vieweditself impotent is the actual state of a man's mind. See. This fileand all information thissite (a. and I do condone.it fensesalso requireintentinquiries. they That are also possibilities witha host of othercriminal offenses. Overprotection too Some might arguethattheCIS testrestricts little speech. Austin's political views. plined sonabledoubtstandard.fortunecity. 24. advocate and incite the use of violence authoritiesand political figuresincludingthe presidentof against law enforcement USA.g. 2005) (claiming a First http://ftp.S. This content downloaded on Wed.net/mirror/hitman/ to Amendment right post the book online).com/parazite/files.critics might predict or be so difficult prove thatit will be worthless. First.Afintent get awaywithpubcan terall. from behavhas our circumstance notprevented society outlawing in of ior thatwe believe is wrong. For a site pushingthe boundarybetween see protectedexercise of free expressionand unprotectedcriminalinstruction. "Parazite" website at http://members. alreadynoted. C.it is practically impossible thatwould notinterdevisea testwitha lowerintent requirement ferewithlegitimate practices. a speakerwho lacks criminal the exact same information whicha criminally-minded for lishing on The testthushas no effect the availabilpersonis prosecuted.S.. 154 (1959). ? on the 842(p)(2)(A) .die. v. 91:1973 As Brennannoted.a. Both of these are certainly possibilities. So SUE me FBI CLOWNZ! readersplease notify police").2018 Law Review Virginia [Vol. 25. of thateither elements thetestwill the Still. 361 U.'72 information."I do share (more or less) Mr. 172 171Smith California.""' That inquiry one explore and for whichit is withwhichthe criminal law is quite familiar equipped.Someone who publishes reporting harmful information orderto exercisehis expressive in potentially 147. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Parazite) is violating18 U. ityofdangerous The problem is withthisobjection thata morerestrictive regime would inevitablycriminalizespeech at the heart of the First to as Amendment.html (last accessed materialincludingHit Man and Oct.Hit Man On-Line: A TechnicalManual forIndependentContractors. 2005) (protesting censorshipby mirroring Sherman Austin's Reclaim page while also stating. it willhave a to of ill-advised effect encouraging of imputations conslippery-slope but structive intent.

" dangerousspeech actually has politicaland cultural In aspectsthatshouldnot be discounted. inan in terest "backyard ballistics" can simply a libertarian imexpress and pulse to do whatone wantswithone's property resources. parallelto gunculture.2005] A Testfor Criminally Instructional Speech 2019 freedom seem frivolous. When thatdiscoursespillsover intoan actual intent to breakthe law. it is difficult distinguish but to this might who reportssimilarinformation the in person froma reporter course of a news story.Most it can be educational. instructional manypublications.thespeechin questionitself a role in contributing A thegoals oftheFirstAmendment. good deal ofwhatmanypeoas ple would characterize "low-value. method for no particularreason is hard to differentiate from An to Agatha Christie. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . instructional also has itscultural Criminally speech aspects. fundamental. It involves in sex. in some cases. someone who postsa poisoning Similarly.Teachersand producers chilfor obviously. BackyardBallistics(2001). it is possiblethatSherman But Austin's speech decision to link to bombmaking recipes reflectedhis political stancetowardthe WorldTrade Organization morethanan actual desireto attackpolice or anyoneelse. door recreation and mechanicaldesign. Less controversially.and power.as well as moremundaneinterests outpolitics. dren's televisionhave long understoodthat the best way to get in children interested scienceis to blow something There are up. has to Second. criminally speechis partof political discourse.is a veryapt one: The culture a involves greatdeal surrounding and gunpublications guns more than shooting let things. alone shooting people. who will not let theirteenagers video games but will parents play give themfreereinwiththe family copy of BackyardBallistics.but we are probably correct regarding magazinesmore as vehiclesfora general in gun 173 See WilliamGurstelle. and theintent likelyto be actualized.criminally instructional speech supportssubculturesnot unlikethose dedicatedto extreme sportsor otherhighriskactivities. The whileit maynot salvage thistypeof speech in some people's eyes.173 Less obviously. is thenthe loses itsprotection. This content downloaded on Wed. approachthatattempted screenall potenharmful information wouldrestrict greatdeal ofspeechthat a tially we generally recognizedas protectedand.We mighthold some of these aspectsof gun culturein low esteem.

Emerson."17' not treatdifferently crimeof one man who sells a bombto terthe rorists and thatof anotherwho publishesan instructional manual forterrorists how to build theirown bombs out of old Volkson wagen parts. Laurence H. The pointis simply for thatpeople can be interestedin criminal without instruction in necessarily beinginterested crimes.then why criminalize any speech at all? Thereare a fewresponses. Tribe. do for struction. Legislatures pass laws criminalizing pure speech. This content downloaded on Wed. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Thomas I. The freedom messages ofspeechshouldbe one ofourmostrobust but rights. to put it bluntly."'74 under which"conductthat posed a systemof speech regulation amountsto 'advice' or 'persuasion'would be protected. committing D. themostpractical level.2020 Law Review Virginia [Vol. not reach communications are simplymeans to get a crime that ProfessorThomas Emerson has prosuccessfully committed.Speech. and courts. criminal inintentionally considering concludesthat"the justifications freespeech. clear standard it A is that is currently the preferableto the de facto criminalization norm. Google searchofbombmakwebsiteswill uncovera similarly textured subculture. conduct thatmoves into the area of 'instructions' 'preparations' or would And Professor LaurenceTribe has said that"the law need not. on First.AmericanConstitutional Law 837 (2d ed. people who communicate dangerous withcriminal intent deserveto be punished. 91:1973 thanas inherently manualsthatdo not worldview dangerous killing A merit FirstAmendment protection. 1988). even whentheythink incitement the doctrine standsin theirway.we are alreadydoingit.The SystemofFreedom of Expression75 (1970). Scholarsotherwise they concernedto protect freeexpression have takena similar stance. ing Again.manipulate to allow convictions.. thisdoes not make a gun or bombfetish cultural the of equivalent a penchant Keats..and the Uses of Language 85 (1989). Crime. succeed in finding such a ventureor not. itshouldnot extendto wordsthatseek a stake in a criminal whether venture."176 174 175 176 Kent Greenawalt. Professor Kent Greenawalt. Second. Underprotection If the above is true.

18 U. speech. however. to an underdeveloped potentially potent This content downloaded on Wed. 231(a)(1). ? 842(p). Refusing implement clear for standard such speech does not mean thatit will not be proseor cuted.Even moreintractably.C. to understand ing statutes like 18 U.C. ? 13-2308existat the federaland the statelevel. but area oflaw.withits intent and wouldbring much-needed structure clarity hood requirements.S. Stat. this danger. Rev.S. In ShermanAustin's prosecutionvividlyillustrates of eflightof the unpredictability courtsand the possible chilling some speech protectionists would argue fectsof any regulation. in standardcan cause harmwhen applied by judges uninterested of therights tax evadersand WorldTrade Organization protestors. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .At a normative seekoccurshouldnotdeterus from aboutwhatmight predictions whatthe properstandard shouldbe. for instructional thatall criminally speechshouldbe protected proreasons. justthatitwillnotbe prosecuted CONCLUSION of This Note has argued for the recognition the categoryof of instructional and theinstitution theCIS testto speech criminally It evaluatesuchspeechundertheFirstAmendment. Moreover. predictably fairly. and Ariz.Undercurrent to a idea how bestto defendthemselves. ? and morepractically. crimeof aidingand abetting for to of willcontinue involveprosecutions some forms criminally have no defendants instructional conditions.2005] A Testfor Criminally Instructional Speech 2021 is on The best objection notthattheCIS testis too restrictive its Even a well-crafted face but thatit risksa slippery slope effect. phylactic This is a compelling level. Adoptionof the CIS test. has examined instructional case law on criminally the existing speech and concluded thatthe current approachis crippledby generalconfusion over the properstandardand a dangerousrelianceon the inciteand likelimentdoctrine. objection.

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