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. 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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A TEST FOR CRIMINALLY INSTRUCTIONAL SPEECH By Leslie Kendrick*
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
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Law Review Virginia
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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A Testfor Criminally Instructional Speech
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
'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
Id. at 1103.
Law Review Virginia
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)).
1. 8-9 e. BeVier. Robert Bork. Opinion.U." first. are the FirstAmendment worthemphasizing. First.'2 second. ifthatis whatbeinghuman mainly is than about.g. S.g. at poses.Neutral Principles 47 SomeFirst Amendment Problems.S. Undertheconception theFirst of all expression untila demonenjoysa presumption protection state interest that stratedharmor othercompelling contravenes presumption. Stan. Post. Rev."Althoughthisapproach.Franklyn Haiman. of condone the protection criminal speech forprophylactic purof Amendment workhere. FreeSpeechPremises certainassumptions about the purposesof As an initialmatter. Hustler Magazinev.S. the rangeof expression that valuableto political discourseis expansive. Dep't of Justice. seemsparticularly important findthe testbest taithanattempt rationalize to loredforsuchspeech. Deliberation..and less controversially.").J.html (last August 2005). 12See.whatcouldbe moreimportant a Amendment protects nurtures and First that it?"). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 299. as of and thatexpression such is worthy protection.2005] A Testfor Criminally Instructional Speech 1977 intargeting gress has passed a law. http://www.g.not narrow.usdoj.300 (1978). comprehensive approach.18 U. Report the of at Information.LillianR. Ind. 601. highly or it need not speech-protective. governance .regardless its perceived"value" to civic This approachcan reston either tworationales: of discourse. e.. of crime-facilitating thisNote focusesexlargercategory speech.'0 rather the Thus.C. For Volokh.L.20 (1971).based is on either bothrationales.L. C. Amendment Political Into of First and and Speech:An Inquiry theSubstance Limits 30 H. instruction. both specifically criminally structional speech.The see.. clusively upon criminal B. Falwell. This content downloaded on Wed. "o a more see note1. e. The Constitutional of Concept PublicDiscourse: Outrageous 13 See Robert and Democratic 103 Harv.. 681 (1990) ("[A]ll speech is potentially relevant democratic to self. Rev.thisNote assumesthatFirstAmendment shouldextendto as much protections as of expression possible."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.'Because suchspeechis at specialriskof crimiit to nalization. /bombmakinginfo. generally supra For an opposing viewof theFirst Amendment.L. 1997 on 'See. ? 842(p)(2) (2000).and therefore should be as construed broadlyas possible. and Principle..gov/criminal/cybercrime Availability Bombmaking accessed 26.
'4 category criminally speech recarefuldistinctions. conspirators. thenbecomes an exercisein balancing Line-drawing the potential harmof such speech againstits potential value. it Furthermore." the two ultimately seem to coalesce. Prea recipefora bombposes the same potential harmto sosumably it cietywhether occursin a novel or on a website. a conversation guish instructions a handbook. of wherein the defendant claimsas an issue of factthathis speechwas notunprotectedcriminal but some othervariety fully expression protected Amendment. It is importantthatcertaincrime-facilitating uses because we all have asspeech has legitimate sumptionsabout what legitimateuses are and why the First Amendmentprotects them. Meanwhile.These assumptions traceback to a largerconceptionof whattypesof generally speech the FirstAmendmentprotectsand why. arguesthat of instructional regulation criminally speechneed not be based on such distinctions. law from conthe the ceptofaidingand abetting. of thisNote recognizes thatregulation speechis notjust a Third. 91:1973 based on the use or Second. This content downloaded on Wed. Instead.an anarchist website. FirstAmendment it issue.a simpleand reasonedapproachcan be derivedfrom criminal and. 14Professor Volokh's section on "single-use" and "dual-use" crime-facilitating demonstrates the various purposes which such speech can speech comprehensively serve. supra note 1.This conception. at 1126-27. also Suchprosecutions mayinvolve facial bytheFirst in to thestatute questionon FirstAmendment challenges grounds. mostprosecutions speech undercriminal of statutesprompt FirstAmendment a defense some kind. rather.morespecifically.While Professor Volokh distinguishes the issue of "use" fromthatof "value. this Note eschews distinctions under the First "value" of certain types of communications of instructional The Amendment. mustbe possible to distinIt quires drawing betweencopresentedin.in turn. law enforcement and a true-crime novel. is also an issue forthe criminal law.usuallyhas to something say about whyspeech has value in our society. say. 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. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .If we wantto and nottheformer.1978 Law Review Virginia [Vol. Any speech that does not have the protection the First of is Amendment underthe criminal potentially open to regulation law.See Volokh. 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.
ofasserting the believes suchspeechis beyond scope Greenawalt 58 Language (1989)." ingthings. abetting but terhas been outlawedby some stateand federalstatutes. things. This content downloaded on Wed. One typehelps to bringabout an actual criminal speech. 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. the early " He rationale. A C. "ways doregulation and KentGreenawalt. The latcriminal and as such has longincurred penalties. is unknown. of such statutes Thus. When the "conduct"in between is speech. 16 See 18U." pure speech. and to contribute criminal activity forthatreasonlackFirst tionally Amendment protection.S.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.Professor Amendment ofFirst protection. in of These twotypes has notyetresulted) thecommission a crime. the constituin instructional of speech resulting an actual tionality criminally of whilethe constitutionalitythe other crimeis considered settled. this inquiryis about distinguishing question whichintenwhichis protected. not Crime. instruction. type doctrine The aidingand abetting providesa suitablemodel for instructional all speech. receiveverydifferent treatment instructional of criminally speech of theformer a form aidingand is law. while offering criminal does not result(or The other.06(1962). the Courthas neversquarelyaddressedthe constitutionality Supreme underthe FirstAmendment. theUses of Speech. actor This to to musthave intended contribute the underlying offense. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .16 of crimidecisionon the part was intent requirement a deliberate In in nal lawyersand legislators the twentieth century.C. be guilty aidingand abetting. The CIS Test: Basic Overview kindsof criminally instructional There are at least two different offense. undercurrent Conceptually.at bottom. and "speech-acts. ? 2 (2000)." is of features aidingand abetting its One of themostimportant an To of mensrea requirement.ModelPenalCode ? 2. 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.
.1980 Law Virginia Review [Vol.2d401. The tatedits commission.Criminal 579(2d ed.21 The drafters ing originally a with proposedthatliability dependupon whether person.. 20 See Bonnie.. 1997). (1985)."' Other circuits. in some sortassociatehimself thathe participate it as in something he wishesto bring that he seek by his about.Tent. supra Model Penal Code ? 2.that referred as havto actionto make it succeed. mostfamously Learned Hand.04(3)(b). 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..DraftNo.1938). Law sionoftheoffense. for As articulated requirement aidingand abetting.402(2d Cir. however.g.1940)("Guiltas an accesnot a of sory depends.S. thecontext of and abetting. thisstandard thatthe aider "in by Judge required withthe venture. 24 ModelPenalCode ? 2. United v.at 580. knowingly. States Peoni."24 v.see also Model Penal Code ? 2.. the for thepurchase madeifhe is advised that is of purpose ").required ing This difference-between onlya mens rea of knowledge.the drafters jected the provision.06 in Model Penal Code and Commentaries: Draftand Revised Official 295 Comments.100F. see also Bonnie. e. same questionsparkedintense the debatedurof the drafting the Model Penal Code.. 613. 619 (1949).Richard Bonnieetal. F. note18.""This is commonly a "stake in the venture. note18.06(1962).91:1973 some federal circuits a crafted stringent intent partof the century. attachesto someone criminal liabilityonly aiding 1 isSee. . after floordebatetheAmerican elected to require a Instead. 21 336 U. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . buton aiding and assisting perpetrators The sellermaynotignore purpose which the .637(4thCir..06(1962).."22 requirement "substantial" of facilitation was an attemptto offsetthe lower mens rea standardof a but Law Institute reknowledge.at 580.wherethe SupremeCourt in an quoted JudgeHand's formulation the courseof adopting intentstandard.. 22 This content downloaded on Wed.. on 'having stake'in theoutcome thecrime. supra 23 See ModelPenalCode ? 2.2d635. J.20 A fewyearslater. UnitedStates.23 mensrea of intent."acting that[another] or knowledge personwas committing had the purthe facilisubstantially pose of committing crime. 112 19 See Backun United States. 1 (1953)..19 having an interest the success of the crimeand merelyhavingknowlin edge of its probablecommission-wassettledforfederalcriminal law in Nye & Nissen v.
(2d Cir. 402 United States Peoni. certainly to shouldbe insufficient to convict someonewhohas not. of the Drawingon thefeatures aidingand abetting. Speech that fails to merit FirstAmendment underthe testis open to regulation protection law. speaker has a III. 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.100F. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . by offense been committed. offense been committed. 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."25 intent so crucialevenwherethere an underlying ofmoreso whenwe are considering it criminal fense.2005] A Testfor Criminally Instructional Speech 1981 who is an accomplicein a literalsense-who shareswiththeprinin cipal an interest the criminalventureand. shouldbe even wherethereis no underlying offense all. If mereknowlat liability is edge or recklessness not enoughto convictsomeone who has it contributed an actualcrime. in Judge Hand's in thathe wishesto bring words.speaker has a with II. 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. the bythecriminal The CIS testwouldrequire following: has offense beencommitted. with a speaker a I. he The CIS testappliestherequirements mensrea and actualocof currence(or highlikelihood)of harmto a wide variety situaof tions.1938).2d401. This content downloaded on Wed."participate[s] it as something If is is about.We can imaginea scenarioin whicha speakerhas giveninformationdirectlyto a principal with the purpose that the 25 v. proposalbea low formulates test for when criminally instructional speech should lack constitutional protection.
a mirror withthe same information or ifitspurposewereto educatereadersin the abstract.This is slightly different from classicaidingand abetof the but ting. Some law's basic concern mensrea intoFirstAmendment for are thatmensrea inquiries themselves quite difficult might object or complicated. and theprincipal a the information commit crime. The CIS testprovides unlessthe thatsuch speech is protected the FirstAmendment by Thisis.The extentthatit is an objectionto the criminal for and our law criminal requiresmensrea inquiries manycrimes. of a testthatfocuseson the subjective intent the speakerrather thantheobjective harmposed byhisor herspeech.supranote 1. 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. So longas thewebsite'sauthors notintendanyoneto use did therecipesto breakthelaw. and some audiencemember used theinformation commita crime. rePart III of the testaddressesscenariosthatare the farthest In the movedfrom classicaidingand abetting paradigm. use but no one has put it to criminal (yet). It The CIS testis at once quite simpleand quite complicated. 26 See Volokh.1982 Law Review Virginia [Vol.In contrast. if a websitecontaining recipesforpipe bombswouldbe criminal its makersintendedthe recipesto be used againstlaw enforcement wouldbe legal but site agents. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . because it preserves keyelements aidingand abetof and ting-a mensrea ofintent thecommission an actualcrimea it is unprotected underPart II of the test. a commit crime. at 1185. suchsituawithcriminal tions.their speechwouldbe protected.Underthistest. This content downloaded on Wed.This is classicaidingand abetto underPartI of thetest. is thecriminal because it is in no waynovel:It merely imports simple law. a for speakerintends it to be used to commit crime. even simof to exercisethe FirstAmendment to freedom expresply right sion.clearly.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.26 thatis an objection theCIS testonlyto the to but law in general. 91:1973 thenhas used information put to criminal be use.
society the mostpartseemscomfortable test theCIS testis nottheonlyFirst Amendment to consider mens rea. 29 See Volokh. Courtsthatwould readilyconvicta defendant supfor confounded when the defenplyinga handgunfindthemselves to dant'scontribution a crimeis speech-based. years. 128 F. 839 (D. 1996).In addition.Y. Times Co. 279-280 (1964) (requiring "actual an malice" standardfordefamation suitsbrought public officials).In addition. the not however. to First Amendment At thesame time.A. Defamation law distinguishes between reputationalharms withmalice or recklessness and those committed committed with test some othermensrea.taking by detourthrough FirstAmendment doctrine thatultimately threatens to weakenprotections othertypesof speech.the conceptof aidingand abetting couldpoextendto speech publishedby one personand thenutiltentially ized by anotherentirely unknownto the speaker.courtshave difficulty speechthataids and abets. by 28 v. Md. These courts. 836. 395 U. 1997).often or glossedas an "intent" similar thatproposedin the CIS test. Paladin Enters. at 1191 the testas an "intent(describing Brandenburg plus-imminence-plus-likelihood test"). doctrine and the FirstAmendment become deeplyconfused. for in an age ofmassmedia.2005] A Testfor Criminally Instructional Speech 1983 for withthat. forbetter worse. Sullivan. 444. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .2 The Brandenburg forincitement allows of the criminalization politicaladvocacywhenit "is directed into or producing imminent lawlessactionand is likelyto incite citing or producesuchaction.S.447 (1969)."28 The requirement the speechbe "dithat rectedto" inciting violenceis. such a reseriously(as is quirement evidencethatthe conceptof mensrea is no stranger law. has of While the doctrine aidingand abetting clear and well estabis whentheyencounter lished. 376 U. This content downloaded on Wed. often Whilejudicialincitement have failedto takethisininquiries tentrequirement will be shownbelow). Brandenburg Ohio. means. discussedinfraSectionIV.29 to requirement.940 F. concerned that the First Amendment must enter the analysis often reachtheir decisions thewrong a somehow. recent in portant. 3 See Rice v. supra note 1.3d 233 (4th Cir. 254. rev'd. v. in itbut because the relationship betweenthe aidingand abetting self. CIS testis complicated.S. Supp.30 27 See N.. This further in has grownmore imdoctrine complication aidingand abetting and moreconfounding.
ModelPenalCode ? 2.S. 91:1973 Stillmoreuncertainty besetscriminally instructional speechthat lacks an underlying While few cases have addressedthis offense. EmpireStorage& Ice Co.g.as is the importance regulating itproperly.Admittedly. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .S. Griswold Connecti31 This content downloaded on Wed.1984 Law Review Virginia [Vol..at In leastone case theSupreme v. is II. No less a speech protectionist Black made thisargument Giboneyv. 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. 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.the future regulation the category advancescontinue make information to moreaccesTechnological sible to increasing numbersof people. temptation reguthe to anyprevious late instructional of speech is high. typeof speech. At the same time.C.Part of thisNote lays the groundwork a defenseof the test by for II betweenthe FirstAmendshowingthatthe current relationship mentand aidingand abetting doctrine misaligned. functions more as quent rationalebeingthatsuch communication actionthanas speech. of lies withit. ? 2 (2000).18U. in & 32Giboney Empire Storage Ice Co.336U. thefact"[t]hat'aiding See. v.e."32In general.fears about terrorism increasethepressure regulatedissemination to of information.: in "It rarelyhas been suggested thatthe constitutional freedom for and pressextends immunity speechor writing used as its to speech an integral statute.This speech-act allowssuchspeech rationale to be exemptedfromFirstAmendment the reviewwithout strict that would accompany content-baseddiscrimination scrutiny than Justice againstpure speech.. partof conductin violationof a valid criminal We rejectthecontention now. Ratherthanjustifying of thetestin theabstract thenapplying to particular and it cases. 490. Courtseemedto sayotherwise.31 beSpeech thataids and abets a crimehas long been considered theboundaries First of themostfreAmendment yond protection.06(3)(a)(ii)(1962).498 (1949).In suchan environment. The complications instructional surrounding criminally speech dictatethe structure therestof thisNote.
may consistently thespirit theFirst defendant did available Id.1994).regardless whether assistance "The first does not provide a defenseto a criminal amendment out because the actoruses wordsto carry his illegal chargesimply purpose.is punishableas a principal. This content downloaded on Wed.The Court notexplicitly that say phyof sicians' convictions voidon First were Amendment regardless thevalidity grounds with nor oftheunderlying to statute. "[W]hoeverwillfully if directly by performed him or anotherwould be an offense againstthe United States.842 (9th Cir.37 F." at 482.C. is guilty an accomof his tooktheform speech.for Rescue. 667 F.If the defendant willfully of as in he another the commission an offense. Id. also anyone 35 of wouldrender guilty an offense. Court of contract spectrum the with of Amendment.S. language becauseit is clear seemsto have fallen theFirstAmendment perhaps by wayside. represents Court's and inm abetting. Barnett."33 this statute The federal accomplice liability supports understandaction. and from On thewhole.Gen.Under betweenspeech and criminal of the relationship ing an act to be done which causes 18 U.Bethe (1958).C. statute assisting for married ingand abetting couplesin violating 381 Ann. not. 34 18U.2005] A Testfor Criminally Instructional Speech 1985 out of and abetting' an illegalact maybe carried through speechis no bar to itsillegality. him donebyhimdirectly of This definition "causes" clearlyencompassesspeech-based aided or assisted to contributions crime. 36 United Statesv. an one who directly another commit to an induces procures" or commands. is safeto ute. 1982).S.656(D.which fore the statement "theState that this madetheexpansive invalidating statute.3d646. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .abets. from restoftheopinion is statthattheCourt's the realobjection to theunderlying it it.S. knowledge. the saythat Giboney. ? 2. ? 2(a) (2000). Nat'lOrg. Women Operation v. U. counsels. Courtconsidered physicians' Conn. Cir."3'Annotationsto thestatute explainthattheterm"causes" not as intent punish a principal only to makesclearthelegislative and commits offense one who "aids."36 under Connecticut's aidthe defendant convictions cut. of plice. 35 v?2. did it attempt squareitsstatement theroutine in conanduncontroversial and criminalizationinstructional of speech aiding abetting from Griswold of This texts other thantheteaching contraceptive methods. Stat. if but whocausesthedoingof an actwhich offense.notto theaiding abetting arising charges to usualapproach aidrather thanGriswold.C.2d 835. 479(1965).? 53-32 forbade use ofcontraception.
a briefexplication the inciteillustrate inwill show how it errs.1986 Law Virginia Review [Vol.761 F.2d 569.C. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Anyperson or or under. the EighthCircuitaddressed nevertheless convicted.finding amendment the Next. ? 7206(2)(2000). United States v. 26 572 F. in invokedtheFirstAmendment puzzling ways. 604 F. UnitedStatesv. claim. United States v. Buttorff mentdoctrine tax of for volved the prosecution defendants aidingand abetting states: fraud under26 U.. Raymond. 373 (1927) (Brandeis. 38 U. 217 (4th Cir. they thata numberof employeessubsetax-evasion techniques taught The used on theirfederalincometax returns. ? 7206(2).C. affidavit. aids in.91:1973 and Problem A.. 43 See id.the defendants On appeal. however. internal any arising or which frauduis ofa return. under. 1979). J. Kelley.con(citingWhitney California.S. This content downloaded on Wed. Iowa.7The statute counwho.or advisesthepreparation presentation revenue the nection with matter laws. felony. At themeetings. 42 Id. 570 (8th Cir. other document. 551 (9th Cir. 39 Buttorff. 41 Id. shallbe guilty a of lentor is falseas to anymaterial matter..39 defendants quently At these fraudulent were indictedforaidingand abetting filings. 274 U.41 of theconvictions offreespeechand assembly prohibit protections thesedefendants"42 of The court'sdiscussion the constitutional questionbegan with in The courtcitedJustice Brandeis'sobservation some hesitation.A samplecase will of how the analysisworks.2d at 622. at 623. 2000)..First. 37 572 F.769 F. of v. in consels. Moss.43 Whitney 228 F.3d 804..2d 549. 40Id. willfully or assists or procures. 816 (7th Cir. California thatthe freedom speechis not absolute. 357. Freeman. Incitement theButtorff courtshave of In a number aidingand abetting cases. 1985). .S. v.it asked "whether first questionto thejury. 1985).2d 619. 1978)."40 convicthe two issues... 622 (8th Cir.38 for in held The defendants Buttorff a seriesofmeetings employees of a John Deere plantin Dubuque.. defensebut were raised a FirstAmendment trial.S. United States v. courtupheldthe aidingand abetting to that the evidence had been sufficient send the tions. curring)).2d 215. see also United Statesv.
. Miller v.. Traditionally.The the of courtdid not acknowledge oddity first determining on guilt and abetting and thenaskingwhether conviction aiding for aiding is and abetting constitutionally barred. at 447). v..D. In addition. These include incitement (e. obscenity(e. 418 U.Y. 323. be a partof thatpublicopinionwhichis the in finalsource of government a democratic state."44 Finally.g. Inc.S.For the mostpart. incitement one ofthefewtypesofspeechthatdo not as recognized In FirstAmendment v. the Id. (citingBrandenburg Ohio..g.2005] A Testfor Criminally Instructional Speech 1987 in Co. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .the courtsettledon incitement. 24 (2d Cir. 44 46 47 395 U. 1917).the Court has recognized level of protection. v. othertypesof speech thatmerita middling privatelibel including (e.advocacyof ideas particular type and actions-even advocacyof law-breaking-isprotected speech The Supreme Court. SupremeCourthas distinguished advocateslaw violationand speechwhichincitesimminent merely the lawlessactivity. 15. in(that as structions evadingincometax). Incitement Criminal and Instruction Distinguished To anyonefamiliar with incitement the doctrine."45 courtmade clearthatitwouldtesttheaiding it and abettingconvictions-which had alreadyupheld on their own terms-against the Brandenburg incitement standard.244 F.. true threat(e.413 U. Patten.g.315 U.S. Brandenburg.S.47 Brandenburg Ohio.. but thatwords"whichhave no purport to counseltheviolaPatten tionof law cannot. California. 571-72 (1942)). 395 U. Observing the betweenspeechwhich cently. Id. 535. Id. Gertz v. 1917)).g.has under the FirstAmendment..Nor did it explainwhythe constitutional its incitement is the appropriate test standard. 568. 540 (S. merit protection.S.. 23 (1973)). at 624 (quoting Masses Publ'g Co. B. doctrine not addressedthe typeof speech involvedin Buttorff is. and fighting words (e.N.g.46 court therefore The upheld convictions. Chaplinsky New Hampshire.however. rev'd.S. Robert Welch.246 F.howthat "[m]orereever. thenJudgeLearned Hand's statement Masses Publishing v. 444 (1969)). 45 v. 344-46 (1974)).The courtconcludedthatthe defencability incited severalindividuals acto dants'"speechesand explanations thatviolatedfederallaw" and thuswere unprotected the by tivity the defendants' First Amendment. EighthCircuit's has willseem rather the conclusion strange. This content downloaded on Wed. Incitement bestdescribed a on is of advocacy. appliwas simply assumed.
5 worksdifferently.1988 Law Review Virginia [Vol. of the in Brandeis regulated the interest averting harm. therebe timeto expose through discus"[I]f explained to sion the falsehoodand fallacies. thethird prongoftheBrandenburg suggests. 705. v.As Justice in Whitney. 50Whitney California.""48 special constitutes incitement. Criminally to is function not to encouragelisteners commitcertain primary Watts v. imminent to or producing lawlessactionand is likely inciteor proset of circumstances That duce such action." exceptin a special "wheresuch advocacyis directedto inciting set of circumstances. remedy be appliedis morespeech.S. CitizensConsumerCouncil. Va.. 395 See Brandenburg. the speech intends and is likelyto spurimmeit createsa dangerofharmthatno intervening diateviolent action. State Bd. 357. of Pharmacy Va.377 (1927) (Brandeis.S. 49 v. 707 (1969)). This speechcan be will speechor influence have timeto intercept.394 U. and originalspeech and the listener's the likelihoodthat the speech produced the action diminishes.g.425 U. to if By contrast. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . the decisionto act is likely be a product factors. 5i See id. 748. after listener received impact theshort just to otherinencouragement act in a certain way.S. in the has forcible term.concurring)..thelongertheregulation such speechextendsbeyondthe the timeof its utterance.S. to and fluences intervene. and commercialspeech (e.770 (1976)).S. of Thus. 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.. This content downloaded on Wed. is Persuasivespeech will have its most incitement time-sensitive. 48 395 U. a of that cause it is considered uniquely dangerous is to which likely cause harmin theimminent future.. moreit comes to look like an unreasonon able restriction purespeech..The causal connectionbetween the of many different actionbecomes attenuated. In the long term. Onlyan is Incitement unprotected becan emergency justify repression. at 447. 274 U. United States.49 instructional frominciteCriminally speech differs importantly As formulation ment."50 form advocacy.J. avertthe evil by the processes to the ofeducation. 91:1973 to SupremeCourt foundit unconstitutional "forbidor proscribe advocacyoftheuse offorceor oflaw violation. Its instructional speech. U. at 447.however.
."). is because the ingforces influencing listener's place. regarding 3Stewart McCoy. This content downloaded on Wed. on theother in hand. two the of speech oftenare intertwined. It suppliesthemnotwithintent but out a pre-existing or motivation withthe tools to carry intention. othersto evade income soughtto advancehis ideas and encourage v. United Statesinvolved meetings of Communist at which"a smallgroupof members organizations were not only taughtthat violentrevolution was inevitable. . 54Yatesv."54 Simithey in often larly. demonstrating to report wages.551 (9thCir."53 of and Realistically..incitement instructional speechhave In more in commonthan thisanalysissuggests. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . U.1978)("[E]ach [defendant]. the plied a listener usedto commit crime.a taxprotestor sorts. listener.1985)("Freetaxes.see also United of violations thetaxlawsat seminars conof counseled he man. opinion denial J. the intent irrelevant. speaking largegroups to by 55572F. theintervening hearda different the time.however.the speech did not supplythat intentin the first information is as usefulsix months that lateras it speechprovided was whenthelistener heardit.the numberof intervenspeech and actionis irrelevant.")." Speech in thesecircumstances be to can a muddleof advocacyand instruction. course. as one couldnotshowthatone piece of advocacy supjust withthe intent commit crimemonths to a later. 993. 537U. chainof causation tracing speaker be broken. that "Whiletherequirement the consequencebe 'imminent' jusis does tifiedwithrespectto mere advocacy. For this reason. 354 States.If. but were also taughttechniquesforachieving thatend.331-32(1957).2d619. ofcertiorari). recipe different forbombmaking to his recipes construct deday every and tooktipsfrom the backto theparticular structive would device.52As Justice Stevensrecently noted. instance. of persons.2d549. United 623(8thCir. One couldnotsaythat particular this words played rolein had a speaker's thecriminal had action.He urgedthe improper of how filing returns. 52 If. ducted. Yatesv.995 (2002) (Stevens. F. 761 States Freeman. 298. regardless howmuch v.S. practice.the same justification adhere to some speech thatperforms teaching not necessarily a function. the speakermight and concriminal and tribute bothto listeners' intent to their means. speakersbothpropound as types of the necessity certainacts and give advice on theirsuccessful For commission. instructions thesolemeansthelistener were the the speaker's chain causation of remain of would time intervened.2005] A Testfor Criminally Instructional Speech 1989 actsbut to tellthemhow to do so. the amount of time that passes between Likewise. speakerssuchas thedefendants Buttorff givetechniand cal information also encouragetheirlisteners use thatinto formation breakthelaw.S.. Instead. intact.
forexample. 5926 U.. Raymond. induces or procures abets.or procures. law violation. the specific who "[w]illfully or assists aids 26 U. under.C.Thus. 57See Bose Corp. Why criminal attachesto "coununderaidingand abetting law. 505-06 (1984). criminalize Both of thesestatutes matter. ? 7206(2) (2000). claim. ing and abetting"as a formof accomplice liabilityis usually The generalfederalaiding and broader than its name suggests. ? 2. At thetriallevel."59 speechthat"counsels" in instructs it.merelyadvocating claiming charges.C. e.56 the appellatelevel.Brandenburg complicatesthe prosecutionof aiding and in cases. contours accomplice liability infect aidingand abetting the "Aidshouldnot incitement inquiry. liability seling"or otheradvocacyonlywhenit (1) is done withthe intento tion of contributing law violationand (2) actuallydoes so.S. United States v. ? 7206(2). 485.C.761 F.g.1990 Law Virginia Review [Vol.. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .228 F.of a return. .466 U. This content downloaded on Wed. 18 U. fraudulent returns. revenuelaws. F.or or whichis fraudulent is falseas to any material otherdocument. abetting where "causes" includes"aids. well as thatwhich as to of contributed the filing if the defendants' speech intentionally reof tax were guilty aidingand abetting. advisesthepreparation presentation in.91:1973 because of thespecialnatureofFirstAmendment Furthermore."" Similarly.S.S.commands." doctrine? does thisnotrunafouloftheincitement Because. ? 2 (2000). ConsumersUnion. Free572 man. they theirinstructional speech was combinedwith gardlessof whether "advocacy." "Advocacy" itselfcould be criminalunder Section or 7206(2) as "counseling" "advising. counsels.defendants thesecases typically abetting raise a First Amendmentdefense to the aiding and abetting thattheywere.1 (7th Cir. encompassesany speech or action statute.57 compelscourts of considerthe character the defendants' speech at everylevel of litigation. the of law thatgoverns aidingand abetting tax fraud.S. review. 808 n.punishes anyone or or counsels..C.the courtmustmake a that reviewoftherecordof anyfindings implicate fullindependent to This specialrequirement theFirstAmendment.3d 804. determine that the of Nevertheless. If 56 See. theinternal affidavit. 5818 U. rather thanwillfully helpingindividuals changesto the tax system tax At commit fraud..S.2d at 622. that "causes" a criminaloffense. 2000). Buttorff.2d at 551. v..in Buttorff..
is protected theFirstAmendment. 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. 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. both. is unprotected. speech mayqualifyas protected But once there is an underlying advocacy under Brandenburg. contributed thatcrime to even "advocacy"thatintentionally crime.Defendants mere advocacy. to lawlessactionand speechthataids and abetsbothintends foster by actuallydoes so.Brandenburg has no place in theanalysis. Finally.2005] A Testfor Criminally Instructional Speech 1991 the thereis no underlying crime. can no longersalvagethespeech. contrast. is not likelyto do so. by protected. motivational. too. or both. completely terlawlessactionand is likelyto do so. is unprotected the FirstAmendment law. This means that.. 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.and if theycan raise a reasonable doubt about thentheyshouldnotbe convicted. In each case.. dant'sspeech Regardlessof by or it whether was instructional. bothintends fosto Incitement. It is unprotected. 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.as and faces penaltiesunder the criminal a soon as a courthas established defendant's guiltforaidingand the defenthereis no longerany question of whether abetting. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .
2d 835. a handful caseshaveavoided Buttorff a under 26 v.2d 1183(9thCir.2d 1275. 899 States Rowlee. defense beenrightly had excluded.63 Ninth Circuitreached thisconclusionin dicta in UnitedStatesv.1990)(upholding conviction the U. found a First that Amendment nedy Thisdiscussion focused casesthat on has conflate incitement aidand misguidedly of mistake." In thatcase.1983).62 is Unintended C. 572 This content downloaded on Wed. cases whereinstructions In seem desirable.S. thatthe adin therecordindicates even ifintent existed. 1982) (rejecting "specioussyllogism" First with and for mailAmendment defense a defendant of charged aiding abetting selling of on order instructions themanufactureillegal drugs). Incitement's Consequences of test To speechprotectionists. for and convictions aidingand of the (rejecting invocation Brandenburg upholding of UnitedStatesv. application the incitement here even ifincorrect. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Not even national security criminalizing within thisnarrowcategory.61 therefore incoherent.at 622-23. Barinterstate paraphernalia). concern unlessit fits certainly speech no withprotecting public fisc. 63 See id. "Nothing imminent lawcontemplated vocacypracticed thesedefendants by can justify less action.1990) protection). however. F. Freeman." counts. F. 91:1973 not because the FirstAmendment would be warranted. whether such activity protected the is by tingand thenconsiders FirstAmendment.842 (9th Cir. F. the defendants but to siteintent aid in tax fraud. of the failedto establish elements the crime. 62 61 See Buttorff. might or are givenat seminars in publications longbeforethecommission of a crime. ? 7206(2)whilecriticizing trialcourt instructing juryto consider the for issue" of First and bothelements the crimeand the "duplicative unnecessary of v. F. where 761 the thejury's consideration.An opinionlike Butwhichfirst the affirms defendants' guiltforaidingand abettorff.howeverlaudable.C. United the See but ingandabetting.On twoother tax Kenin others filling fraudulent forms. but because the government has protectsaiding and abetting.1992 Law Review Virginia [Vol. F. 64713F. thecourtwenton to remark that.the offending speech should always fail the "immiThe and nence" prongof Brandenburg thusbe protected.2d at 623-24. 1428(9thCir.2d1423. abetting transportationwagering the as 667 nett. at 552.1280(2d Cir.2d at 551. can justify the is for basedon theFirst Amendment a legitimate matter ofthecriminal a defense act. out defendants actually had assisted Judge Id. Dahlwere foundto lack the requistrom. 896 Amendment UnitedStates Mendelsohn.
228 v. would inquiry penalty require further 66 572 Buttorff. at 552.815 (7thCir.manycourts as and find thatthespeechin questionactually qualifies incitement the FirstAmendment.2dat624."). 69 761F."68Similarly. States Moss. F.2d569. Freeman. mostcases..2d215. violating may "incitedseveralindithe Buttorff courtfoundthatthe defendants that violated federallaw."70 Here "imminent" in orderto createthepossibility the speech that "quiteproximate" the test..United States v.3dat815(emphasis 228 added).3d804. F.1996).604F.3d 155.1985). of the But Dahlstrom represents exceptionalapplication incitecourts In mentdoctrine.UnitedStates Kelley. v. 761 217 (4thCir. F. Ratherthandeal with do not let it standin the way of conviction. Freeman.1985). without be prosecuted Thus. pur65 Id. 70 Id. see also id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .2000). is also highly speech protective.UnitedStatesv."65 Dahlstrom on fused to convictthe defendants aiding and abettingif their Whilethisanalystandard.1979). 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. ("Even ifthedefendants knewthata taxpayer actually who perwouldbe acting the amendment the formed actionstheyadvocated illegally. 98 769 Fleschner. activities UnitedStatesv.2d 549.then-Judge Kennedyfoundthat there the had "incited" was a questionof factas to whether defendant While therewas evidencethatthe defenviolationsof tax law.551-52(9thCir.Such modifications in questionmight satisfy Brandenburg undermine traditional its of theincitement however. F.69 dant's speech was mere advocacy.2dat 551-52. 67See United v. first a before criminal a couldbe enforced. F.67 one case. doctrine. States Raymond.158-59(4thCir."[t]herewas [also] substantial evidenceof Freeman'suse of wordsof incitement quite proximate becomes to the crimeof filing false returns. F. This content downloaded on Wed. afterinvoking Brandenburg."66 ferred in criminal syndicalism have reachedthe same conFive otherappellatecourtdecisions In Circuit defenclusion. in seen as a good thing and ofitself. statusof criminally instructional theunsettled speech." even thoughtheir viduals to activity lawless activity renot incitethe typeof imminent speech "[did] to cases.571-72(8thCir. speechhad not also mettheincitement and thiscould be it sis is flawed.2005] A Testfor Criminally Instructional Speech 1993 courtthussuggested thatitwould have reThe more.
theFourthCircuit and abetting thatthe FirstAmendment conviction. tent. 217 (4th Cir. 72 414 U.274 U. As JusticeBrandeis said. 1985). a courtadthey FirstAmendment claimsimply quoting at dresseda defendant's by the fromButtorff's incitement In another. 1996).1994 Law Review Virginia [Vol."73Encouragements lawless action are precisely to what the does protect.2d 569. in order to finddefendants guiltyof incitement. 357. Indiana. courtswere able to dismiss the politicaladvocacy a greatdeal ofspeechthatis currently imminence factor. it The nence provisionor by attenuating into meaninglessness. eitherby ignoring immithe mustdistort the Brandenburg test.2d 215.in distinguishing between testback intotrueBrandenburg and incitement. speech underBrandenburg 73 769 F.3d 155. 98 75See United Statesv. 158 (4th Cir. Fleschner. Alternatively."71scenario in whichtherewouldbe no timeto avertthe "emergency" "imof is to tax minent" code violations difficult imagine. "[i]f there be time to expose the to discussion falsehoodand fallacies. 1979). In one case.S. protected sucha regime wouldbe subjectto punishment.S. concurring)(emphasis added). Moss. claiming prolaws" but not tects "critical. will thatadvocateslawlessness notbe regulated thebasis ofconon extreme undercertain conditions. 74 See United States v.571 (8th Cir.. longas they so within cerstandard Brandenburg stay The entirepointis thateven speech tain permissible parameters. 604 F.71 the of reproduced of not Such flawedapplications Brandenburg onlyfailto address 71Whitneyv. might considering have come out without imminence an component. court length analysis. 105. one can imaginesuch a regimesimply readingUnited Statesv. courts Thus. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .the remedyto be applied is more A can speech. 108-09 statement "'We'll (1973) (holdingthatan antiwar protestor's streetlater" (or "We'll take the fucking streetagain") was protected take the fucking standard). of but abstract. is the import revised dangerof such distortion clear:Courtsmight cases. This content downloaded on Wed. California.7 or Brandenburg itself. F.. J.74 verbatim Kelleycourt'sconstrual Brandenburg. 91:1973 pose. by affirmed aiding an Kelley.In thistax fraudcase. avertthe evil by through the processes of education. Onlyan emergency justify repression. can imagine One by how Hess v. If.. 377 (Brandeis.. discussions existing of violations current to "speech whichurgesthe listeners commit law. except of doctrine These misinterpretationsFirstAmendment as ramify become precedentfor new cases.
They also demonstrate confusion are and thatcan ariseifsuchprinciples notappliedcarefully consisbut Each case shouldinvolvea detailedfactual tently. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .speaker has II. 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. he is guilty and abetting. thecriminal a with offense been committed.For the sake of clarity category criminally thatfollows. above. III.speaker has with a I. Wherea criminal and direct to theprincipal direct of his relationship knowledge plansshouldbe heldliableforaidingand abetting upona showthathisinstructions in thecommission of assist ingof hisintent offense. patternedafterthe standardemcases. the between the First Amendmentand the conceptualrelationship law need not be complex. by This content downloaded on Wed. aiding If legislatures decide to regulate instructional criminally speech. in the discussion the restating proposedtestmay be helpful: a offense beencommitted.When a speaker intendshis criminal in to and of wordsto contribute a crime. Similarly. inquiry. enforcing freespeechrights pursuing wouldbestprotect suchlaws.C. they factdo so.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. CIS articuployedin aidingand abetting lated in Section I. the by they can avoid endangering First Amendment following in closelythe model of aiding and abetting. THE CIS TEST the The appellatedecisionscitedin PartII illustrate logicof apand abetting doctrine cases of speechto traditional aiding plying the based aiding and abetting. The three-part test.courts by a demandingfactual inquiry. providespracticalguidanceforboth and courtsin dealingwiththe problemsposed by the legislatures of instructional speech.
theywillbe protected. might the it the test tentand likelihood. or wherethespeakerdoes notknowtheprincipal wherean offense the likelihoodprongin Part III is not committed.those instructions about the violentcrime would have no likelihoodof bringing they The thatthe speakerintended facilitate. 91:1973 offense been committed. 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. adIn of theforegoing discussion theaidingand abetting the dition.totse. See really at tainerrors?" http://www.com/anarchy/index. up before recommend sources to checking attemptingconstruct device. on would be less than if effect some speech.http://www.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. This content downloaded on Wed.. there wereno likelihood requirement the to The test. speaker has a III.righto. resembles Brandenburg without 76 Some commentators that of in much thebombmaking information available say is "Does theAnarchist Cookbook conbooksoronline faulty.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"). These requirements dedoctrine's aidingand abetting temptto extendthe traditional into mandofan underlying offense moreattenuated circumstances. e.html Nov.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. also fromanother context in its focuson inlook familiar since.76 likelihoodprongalso to function makingconviction of more diffiservesthe prophylactic has not occurred. number on websites have grown thatreview accuracy information other the of websites. If servesto protect speech in cases of impossibility. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .1996 Law Review Virginia [Vol.g. but that effect ing at all.com/en/badideas/ka_fucking_boom/partialreviewol70773 html. shouldbe clear from The reasonsforthe test'sfocuson intent doctrine. testrequiresan actual crimein PartsI and II and the at"highlikelihood"of a crimein Part III.in essence. because of hurting anyone. any many multiple See. Ken Shirriff.2. Furthermore.
to and it is reassuring notethattheSupremeCourthas alreadyapproved a First Amendmenttest with intentand likelihoodreIt more conceptually accurate-and perquirements. Furthermore.The websitecontains onlythe recURL." 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.imaginethateach of these websitesexistsbut has not yetbeen used by anyonein makinga bomb. however. is. incitement analysis a habitofturning theimminence on and addressing intent question The and likelihood analysis cursorily.This is in some waysa positivesign:The imwiththe incitement minenceprongwas the onlyreal problem test." thisspeakercriminally siteis called "www. of the recipeguilty aidingand abetting? thatthe Imagine.com?" iftherecipeappears What withthe comment. "Use thisto kill cops!"? Alternatively. 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. the protective-tounderstand testas an haps also constitutionally thana modification inof aidingand abetting rather of outgrowth of citement. 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. and abetting a form criminally is instructional Aiding difdoctrine developedforan entirely speech. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 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.whiletheincitement the has ferent kindof expression. Is thepersonwho posted unoffending ipe and has a neutral.but at a website called recipe Is liable?Whatifthe "www.instead." This is notto say thattheCIS testdrawsa perfect easy line.com.2005] A Testfor Criminally Instructional Speech 1997 imminence element. and thatsomeonearrested detonating bombin front a for a of Imagine station to directs authorities thewebsitefrom whichhe obpolice tainedtherecipeforthebomb. aidingand abetting attempts reasonable-doubt standardon both.forkillingcops. still appears withoutcomment.copkiller.
it Under the CIS In will test.In upon will situations whereno crimehas been committed. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 91:1973 These are difficult questions.Applying approachesto criminally could be simCIS testto themshowshowjudicialdecisionmaking the plifiedand improved analythough use of aidingand abetting sis. speaker's liability he to to whether intended contribute a crimeof thattype.or ifthereis notsufficient as And obviously. liability depend the his upon whether speakercommunicated messageforthepurto pose of contributing someone else's crime. not. are even non-existent. on the wrongcriteria. To throw our hands up and declareit all protected because the line is hardto drawwould be no moreequitablethandeclaring all criminal. If he did evidencethathe did. PartII of the CIS testdeals withso-called and abetting" situations wherethereis nota close relation"aiding This content downloaded on Wed.thenhe is not. the defendant of is innocent untilthe elements his crimeare provenbeyondreasonabledoubt. situations the will depend where a crimeis committed. THE FUTURE OF CRIMINALLY INSTRUCTIONAL SPEECH Part II of thisNote demonstrated problemsof prosecuting the and abetting and clarified the standardthat speech-basedaiding shouldgovernsuch cases. othersas unthatthetestis too vague or based Some willsuggest derprotective.whilethe speech in manyof thesescenot nariosis protected. by liability be governed the speaker'sintent. A. all of it shouldbe. The speaker fewcases treating thesescenarios with illustrate difficulties exthe the instructional isting speech.1998 Law Review Virginia [Vol. maybe criminally liable. first but some ofthediffiPartIV appliesthetestto cases thatdemonstrate instructional culties posed bycriminally speech. PaladinEnterprises As mentioned above.If the speaker ina he tendedto facilitate crime. That standard addressedin Part I of is the CIS test.and no testcan make themeasy.Parts II and III of the test are designedto handle or situations wherethe connections betweenspeakerand listener and incident more attenuated. IV. in everyarea of the criminal law. CIS TypeII: Rice v. Part V addressesthese objections. The CIS testassumesthat. Some willobjectto the CIS testas overprotective.
3d at 239.rangingfrommainstream news reportsand blockbuster moviesto online recipesfor explosives.Paladin by had aided and abettedin the murders. at 838-39. at 839. 940 F. arguing by ment. parties stipulated certain which ultimately proved 940 F. publishing two books. knewandintended Hit it that to thecase's disposition disastrous Paladin. death suit againstpublishing Paladin was a wrongful company Paladin Enterprises its President. This content downloaded on Wed. 1997).JaniceSaunyear-oldTrevorHorn and shot his mother. relation Perry rea. The textof Hit Man can be viewed at http://ftp. Second. so thatHorn would obtain the two milliondollars his son had received in a medical malpracticesettlement.Paladinstipuand to latedthat after to commit murders. stipulated that had"nospecific it a to that knowledge" Perry planned commit crime. Supp. 79 See 940 F. 128 F. and his nurse.78 plaintiffs killer JamesPerry. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . at 838. ders.81 Paladinwas decidedon a motion summary for Both judgment. to Paladin himself. and distributing Man andSilencers.3d 233 (4th Cir.die.8o Paladin moved forsumthatit was protected theFirstAmendmary judgment. Paladin Enterprises. H ("SilencMan") and How To Make a Disposable Silencer. As partof thiscase's settlement Paladin agreed to cease publicationof agreement.83 Paladinstipulated in publishing. fortwo books. eightPerrystrangled MildredHorn. followed he ofthebooks'instruccarrying many tions. JamesPerrycontracted der Horn's ex-wifeand disabled son.net/mirror/hitman/. that.79 the Accordingto the plaintiffs. contract who had used thetwobooks to plan by in the killings and followedtheirinstructions painstaking detail. The were survivors threeindividuals of murdered ers"). 836 (D.2005] A Testfor Criminally Instructional Speech 1999 shipbetweena speakerand his audience. the Hit ordered agreeing Perry in Man andSilencers Paladin's from mail-order and catalogue. withLawrence Horn to murSupp.82 Paladinmade certain Furthermore. 1996).See Paladin.128 F. 80Paladin. Md.Perhaps the best exampleof such speech-and the inadequaciesof the current in Inc. bothbooks. regarding stipulations to crucial facts.This typeof speech can take many forms. and Peter Lund. in itsmens First. 82 83Id. Id. marketing. Supp. Hit Man: A TechnicalManual for Independent Contractors ("Hit Vol. that outthemurders. rev'd.77 approachto it-is presented Rice v. 77 78 81Id.
In otherwords. 91:1973 wouldbe used bycriminals commit thepublications to murder and intended attract to thatitsmarketing suchindividuals.87 of unprotected speech under which Hit Man could gory to be lawless activity conceivably placed is incitement imminent. 89 Id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . at 841-49.. at 847 (internal citations omitted). [N]othing HitMan and Silencers as to couldbe characterized a command immediately murder the three victims. have stipulated the nothappenin thiscase sincetheparties to committed theseatrocious a factthatJames murders year Perry in the after receiving books. at838.urged and anticipated Paladin's motion. thecourtwould "conduct underBrandenburg" therefore.""88 This approach. HitMan failedthe"imminence" the musthave intended immiUnderBrandenburg. This content downloaded on Wed. and that. at840. Horn.AdoptingPaladin's reasoning. unsurprisingly. 85 Id.unlessHit Man and Silencer into fell charges. one of the few categoriesof constitutionally unprotected speech... Defendants nentlawlessaction. at 841. Id. the books were fully reprotected of theirintentor theirconnection a criminal to gardless event. rilyrejected fighting The courtfoundthat"the onlycatebel.85 to This rationale bothits whyPaladinwas willing stipulate explains intent and the books' materialassistancein Perry's own criminal the crime.'4 strategy Paladin made suchincriminating because it believed stipulations that the First Amendmentofferedfull protectionagainst all Paladin arguedthat. its analysis of whetherthe book [was] protectedby the First Amendment undertheBrandenburg standard. Defendants musthave intendedthat JamesPerrywould go out and murder Mildred Trevor and Janice Saunders Thatdid Horn.89 84 86 See id.86 district courtidentified of fivecategories constitutionally unprotected speech and summaof the applicability four:obscenity. 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. under the FirstAmendment."). by 87Id. liwords. and commercial speech. 88Id.2000 Law Review Virginia [Vol. led by courtto applythe threeprongsofBrandenburg to the district and that test: find. immediately.
Judge Luttig analysis all of from each.UnitedStatesv. because it methodically comprehensively and precriminal conduct.3dat 257-62. Kelley.2d215.1997). at 243. Paladin 91 joinedJudge Judges opinion. after with almost four already having openedtheopinion pagesof This content downloaded on Wed.3d233(4thCir.1996).United 9 this from also digresses doctrinal to In partoftheopinion.90 As we have seen.2d549.g.On appeal. 1985). 93Id. F. however. book published a in 1983and purchased and read in 1992can in no waybe said to have in "incited"a murder 1993.604F.quoting liberally pages. at 256.2005] A Testfor Criminally Instructional Speech 2001 Unlike manyothercourtsthathave applied the incitement test to criminally courtin Paladin at instructional speech..."93 in How was Judge in of Luttigable to make thisargument light the imminence Unlike the courtsin the tax fraudcases.forfive go through ninechapters HitMan. 92 See id. JudgeMichael Luttigof theFourthCircuit.he criticized Brandenburg and substituted anotherformof the incitement test.1979). F. 761 v. UnderBrandenburg.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.2d569. v.9" the pasIn 90 at 849. F. F. Wilkins Williams and both Rice v. whenJudgeLuttigaddressedincitement directly.Instead.the district least appliedit correctly. Fleschner. 98 769 F.3d 155. Luttig's 128 Enters. incitement the analysishas proved to manipulation cases involving in instrucsusceptible criminally tionalspeech. States Raymond. example of speechwhich.217(4thCir.3d 804.551-52(9thCir.94 Rather. "this book constitutes archetypal the cacy. reversedand remandedthe case fortrial. v. finds paresand steelsits audienceto specific no preserve theFirstAmendment. Id.United Statesv.815-16(7thCir. States Moss.. The courtaccordingly defengranted dant'smotion summary for judgment.571 (8thCir."92 suggests rejection the incitement and an endorsement the speech-actparaof analysis used to justify criminalization aidingand of the digmtraditionally Yet he abetting. requirement? he did not insistthatthe speech in questionactuallyqualifiedas imminent underBrandenburg.United States Freeman. foundthatHit Man squarelyqualifiedas such. 128F.United 228 e..1985).speakingfora unanimous panel. JudgeLuttigrecourt'sportrayal Hit Man as protected of advojected the district he wrote. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .158-59(4thCir.2000). 94 See.
in wholeor in part. consequently. PaladinEnters."97That passage represents potentialconflation of a a instructional criminally speech(speech "preparing groupforviolent action") and unprotected incitement (speech "steelingit to such action"). 98Paladin. 96 367U. 97 Id."). to direct Id.by subjecting to the demandsof prosecutions "imminence"and "likelihood" requirements Brandenburg's whenever predicate the conduct takes. He found that Hit Man failed to nally instructional in constitute "mereadvocacy.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.JudgeLuttig read theNoto formulation "approvas as thatconflation that and.96 pre-Brandenburg thatdifferentiated between "the mere abstractteachingof Communist and "preparing groupforviolent a it actionand steeling to theory" such action. neededto emphasize Hit 131 We that Man was not abstract but and see teaching was aboutpreparation steeling."rootedthisfinding SupremeCourt and declaredthespeechunprotected. per riam opinion. Rice.It is difficult escapethesensethat Judge Luttig lieves expostulation this somehow makes casefor the incitement. 97v. 290(1961).S. he emphasizes importance hisbook. argument. at 297-98. demanding ing" exactly instructional criminally speechbe unprotected. at 1325).See Rodney Deliberate Intent (1999) ("Thiswas ourticket.the form speech.99 of This criticism the inappositenessof Brandenburg of largely in tracksthe earlierdiscussion SectionII.523 U. at 235-39. precedent (Noto).Judge Luttig deliberately decisionin Noto v. 1074(1998) (No. But JudgeLuttigrebootsponded to this problemmuch differently. 99 at 265. United a case States.B. 128F.S. also BriefforRespondents 3.2002 Law Review Virginia [Vol. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .3dat263-64. in Smollaputforth Notoargument oraland the Professor Rodney its in written and Smolla. Id. 91:1973 invoked SupremeCourt's the sage above. essentially by Noto into an entireSupremeCourt doctrine crimion strapping speech. This content downloaded on Wed. bequotation.
because courts must apply existing precedent."? to of Of course.2005] A Testfor Criminally Instructional Speech 2003 had strong incentive follow to Practically speaking. Paladin and thedistrict courtwerecorrect thatthe Hit FirstAmendment fully protects Man. required Maryland as wellas theintent under heightened Amendment First standard. protected judgment Under the CIS test.he quitesensibly hedgedon theBrandenburg question. the for If to CIS testwere the clear standard. reasonable apartfrom jurycould find Paladinpossessed intent the that under law. Noto should controlratherthan Brandenadvocacy burg. and (1) is therean underlying (and obviously to was thisspeechintended assistin suchan offense? Fromthis (2) Paladin'sstipulations werea disaster.. is the issue.One stillhas the sense thatJudgeLuttigwould have been more comfortable incitement if were leftout altogether.evenunderthelooserstandard civilliability. this He 00 is important notethatJudge Luttig disagreed that"[w]holly a insisted Paladin'sstipulations.In theabsenceof a clearruleaboutwhattestapplies to suchspeech. Paladin stillwould have claimed but absoluteprotection neverwould have made such stipulations.The lower courtrecognizedthis.Butthere Id. required any is a difference between whata jurycouldfind whata jury likely find." at 253. it is highly thatany commercial house would unlikely publishing make such an intentpart of its businessplan. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . offense therewas). 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.thecase couldnotproceedin thisway. thatits publications assistedin committing underlying the offense and thatit intended themto contribute suchoffenses. This content downloaded on Wed.. stipulated It both standpoint. F.neither trialcourtnorthe appeals court the was quiteright. at least if foundthatit was not"mereadvocacy"and made a case forwhy. but not underBrandenThe questions underPartII ofthe CIS testshouldhave been burg. JudgeLuttig sucha course. Supp. thata "federalcourtsitting diversity in cannotcreate emphasizing new causes of action"and thuscannot"createanother of category to It with lastprediction. 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.But ple.at 838-39.. and it is equally thattheplaintiffs could have successfully suchan unlikely imputed intent Paladin. he but all his from sides.
is more like the publicationof a witspeech that is not criminally (It on ness's name thandirections how to killhimor her. therebymakingelaborate rationalizations unnecesA clear rule would also help litigants.e."10' thatthe lower court. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Courttook for the forgranted thattheFirstAmendment notextendto "thepublidid or cationofthesailingdates oftransports thenumber and location of troops.Brandenburg would be preservedforits original fying like purpose. Supp.S. Minnesota. Douglas con- U. The establishment of sary. The Hit Man case illustrates of an incitement standard. The example is technically one of crime-facilitating instructional.i. however. the CIS test.2004 Law Review Virginia [Vol.suggests In lacksprotection.was uncomsuggests fortablewiththe incitement analysisand yet feltbound by Suto Courtprecedent employit. instance.and the concomitant from Brandendisentanglement and more doctrinally satisburg. 91:1973 This unprotected speech. or is it constitutionally The SupremeCourthas neverrecprotected? and thushas never speechas a category ognizedsuchinstructional itsconstitutionality.speechthataids and abetsmurder. CIS TypeIII: Instructional No Speechwith Underlying Offense Aiding and abettingrepresentsonly that part of criminally instructional tied actionand speechmostproximately to a criminal thusmosteasilypunishable.wouldresultin morepredictable outcomes. This content downloaded on Wed. The establishment a clear of preme testforcriminally instructional whatstanspeechwouldtellcourts dard to use. Near v. inquiries and wouldreliably turnon the culpaof rather thanon a givencourt'smanipulation bility thedefendant. United States.Shouldsuch"purespeech"be regulated. 716 (1931). bothwhya is clear standard needed and whythe CIS testshouldbe thatstandard.) It is stilluseful. B."'02 Justice And in Dennis v. The more difficult questionis how to instructional that is not linked to any treat criminally speech knowncriminal action. might This thatsuch pronounced upon suggest that The sparsecommentary does exist. at 842.howspeech is protected. 940 F. 102283 101Paladin. thatvariousJustices have at timesassumedthatit ever. 697..defendants Paladin wouldknowat the outsethow to defendthemselves.like the appeals court.as an indication a generalattitude of towardall crime-facilitating speech.
S.training and perhapsthe exercises. U. publicfiles. 106 107 Id. U. UnitedStates. whilethe Courthas withheld on judgment the conof instructional stitutionality criminally speech. to of of and otherseditious solute. these legislatures end. the First Amendment protectssuch instructional speech. 298 (1957). theywere also taught techniques achieving Finally. 537 McCoyv. dissenting).'04 Court upheld convictions of the leaders of Communist meetingsat which "a small werenotonlytaught thatviolent revolution was groupofmembers but for that inevitable. to sayingthatthe and Courthad "not yet considered whether.the teaching methods terror conduct shouldbe beyond pale alongwith the and obscenity immorality. 08 at 995. artof street The freedom speakis notabthelike. 993(2002).S. the Amendment of the of assassination the President. Yates v. 103 U..103 in the Similarly. filching documents of the from of the the and warfare. at 995.I wouldhaveno doubts. UnitedStates. 105 104 354 U.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. discussedbelow. 494.in a much more recentcase. if so to whatextent.Congressand state have passed laws criminalizing Cases involving it. planting bombs. 203. J. This content downloaded on Wed.S."''7He also statedthat "ongrange planningof criminal enterpriseswhichmayincludeoral advice. the Sudecisionreversing premeCourtdeclinedreviewof a NinthCircuit a conviction under an Arizona law that prohibits advisinggang on members gangpolicyand practices.' Justice Stevensappended an individual statement the denial of certiorari. Scalesv. Id.233 (1961) (describing factual 367 the circumof stances Yates). Stewart."'08 significant In addition. of materials-involves speech thatshouldnot preparation written be glibly characterized mere'advocacy'and certainly create as may publicdanger."'05 341 581(1951)(Douglas. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .S.
U.C. connection a committed to The statutehas at least two facialproblems. in teachings the no criminal conduct.2d 934.S."109 statute thusoutlawsType III criminal withno instruction. Facilitating "CivilDisorders"Under FederalLaw Under 18 U. crime. ? 231(a)(1) on as FirstAmendment overbroad..or even negligent evenwhensuchteachings resulted had aboutfirearms. or in furtherance a civildisorder.2006 Law Review Virginia [Vol. knowing havknow or intending thatthe same will be unlawfully ing reason to for This of.a particulartype of civil disorder. Whereas18 U.S.C.S. ? 231(a)(1) (2000). ? 231(a)(1). 937 (7th Cir."o ? 231(a)(1) would punish knowing.Putting two problemstogether revealsa instruction statutethatwould criminalize givenwithrecklessness or negligence towarditspotential furtherance some unspecified.C.reckless. application. makingof firearm explosiveor incendiary or or any device.or particular mensreaSecond.therequired merely kindof civildisorder. any "knowingor having reason to know or intending"-is fatally a flawed.C. 111411F.C. 1969). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .it is vague at about the "civildisorder" issue.. of 18 event.. 1"0 109 This content downloaded on Wed. ? 231(a)(1) failsthe CIS hypothetical an test and constitutes impermissibly overbroad regulationof speech. NationalMobiIn to lizationCommittee End theWarin VietNam v. it is forbidden teach or demonto or strate"to any otherperson.S.themembers of the Chicago Seven challenged18 U. 1."' by responded construing 18 U. speech crime. ? 2 requires mensrea ofintent find to of a speakerguilty contributing a committed to 18 U. See supranote 34 and accompanying text. It is unclearwhether defenthe dantmustforesee(or have reasonto foresee)his contribution a to civil disorder.C. 91:1973 statutes to providean opportunity applytheCIS testand to witness thedangers otherapproaches criminally of to instructional speech. grounds unconstitutionally pointmensrea requirement would criminalize out thatthe statute's ing such as the teaching self-defense marof and activities.S. legitimate The SeventhCircuit tialartstechniques.As written..S. The lowercourtsthathave addressedthisstatute have evinced with some discomfort itsmensrea requirement. Foran. employed use in. the use.First.
future poses twodangers: Id.C. ("But [petitioner's or argument] ignoresthe 'knowing. proscription. higher ? 231(a)(1) remainson the books withan apparentmens rea reof or quirement "knowing havingreason to know or intending. at 1121-22. havingreasonto knowor ina This retending"-as requiring mensrea of intent.11 The defendants were membersof the Black AfroMilitant Movement who taught othershow to assembleexplosivedevices ("BAMM") in preparation "the comingrevolution. havingreason to know or intending' of language of the statute.18 U. 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.""' In upholdingthe convictions.11"2 spectacular of "or" as "and" saved the statutefromthe facial interpretation challenge. As a result.as one of themput it. 114 116 117Id.S. same courts are reluctant let a poorlydrafted to statutestandin the way of a In conviction.Second.1121 (5th Cir.""4 for There was no evidence ofplans by the groupto instigate revolution. both cases.in practice.2d 1119. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .in theory.The requirement intentof course 'narrows 112 thescope of the enactment exempting or innocent inadvertent conduct from its by (citations omitted)).4.""7 These cases suggesttwo conclusions. 115 Id. 1972). "whendantswere awaiting ever it came.""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. at First. the courtspreserved statuteand althe to lowed prosecutions continueby imposinga mens rea much thanrequiredon the statute's face. ? 231(a)(1). FifthCircuit rejecteda similar challengeto convictions under 18 U. at 1122-23.2005] A Testfor Criminally Instructional Speech 2007 or thestatute's language-"knowing. least some courtsfindit important have a mens rea of intentfor to instructional the criminally speech. In United the Statesv. defenthis the such an event."' 113 461 F.C. at 1122-23 n." The statute thisform in that convicfirst. Id. Id. This content downloaded on Wed. Featherston.S.
S.App. 91:1973 tionswillfollowitsplain language. (2001).Rev. Id.amongother thatparticipation a criminal in adviceor direction theconduct. A Recent StateLaw Case Under A more recentcase. Also. mensrea. theCIS testat theveryleastwouldadd structure to inquiries. 928 626 (9th Cir."121 McCoy was datthemother one gangmember of and thereby came intocontact ing withthe teens at a barbeque and anothergathering. theirdefectsand leavingthemon the books.Ct. ? 231(a)(1) suggest place forPart a III of the CIS test. increasegraffiti "tagging" 118282 F.allegedly of had givenadviceon at leasttwooccasionsto members a teenage Tucson gangcalled the "Bratz" or "Traviesos.3d 119 120 122 121282F. willhave a chilleffect permissible on speech. intent imminence entangled. a former gang. at 628.119 provided in streetgangincludes. If anything. Realistically. McCoy. thanpatching to wereCongress pass a version thestatute of thatrequired mens a the CIS test would demand that courtsconsider rea of intent. test will no towardcertaintypesof change lawmakers'and judges' attitudes but and behavior. ing Prosecutions under18 U.648(Ariz.2d647.C. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .a class twofelThe Arizona statute underwhichhe was indicted ony. Statev. and remain and standard. financing "[f]urnishing of a criminalsyndicate'saffairs with the intentto management the promoteor further criminalobjectivesof a criminalsyndimemberof a California cate.Stat. rigor their 2. Dean McCoy was indictedin Arizona SuperiorCourt on Jerry in one countofparticipating a criminal street gang. a for to in establish treasury bail money. Ann."' thatsuch insuggests are no more structured now than theywere in the early quiries thereis more confusion over the appropriate 1970s.? 13-2308(A)(3) Ariz."120 McCoy.courtsshouldstrike down statutes such as 18 U.122 McCoy adtheirgangby electing visedgangmembers formalize to to officers.and second. or things.3d at 628.Under the CIS test.S. This content downloaded on Wed. Stewart. 2002).2008 Law Review Virginia [Vol. P.thatthemereexiswithitsoverbroad tenceof the statute.C. McCoy v.1996). ? 231(a)(1) as facially rather overbroad. defendants intent had towarda specific criminal whether goal and whetherthat goal was likelyto occur.
to developfriendly relationships othergangs. 130See id. F. recruit to new members.2dat 649."129 The courtrejectedthe intent-based of insteadwithMcCoy that paradigm theArizona courts. beat and expel disloyal to current and withsome members.at 649-50. McCoy."126 Because the prosecution had providedsufficientevidencefora juryto find thatMcCoy spoke withsuchan inhis Amendment. Disfor McCoy trict Courtforthe Districtof Arizona. 928P.12' Arizona SuperiorCourt convicted An McCoy and sentenced himto fifteen the Arizona Court of Appeals afyears. 128 282F. 126 127 Id. wordswerenotprotected theFirst by thenfileda petition habeas corpusin the U. whichwas later affirmed the NinthCircuit. at 630-31."'125 sion of a criminal act. at 631 ("Far from a specific intent further to demonstrating illegalgoals. to on In 123 124 282 McCoy. notingthatthe statuteonlyproscribed advice "whenit is given'withthe spoken intent promoteor further criminal to the objectivesof a criminal "Wordsspokenwiththeintent cause thecommisto syndicate.124 In convicting McCoy. appelthe but. This content downloaded on Wed.28In by the habeas corpuspetition."' fact. 125 Statev.3dat 633.S. Id."). view. The Arizona Court of Appeals disagreed. See id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions ." the courtsaid. 129 Id.claimingthat the statute was unconstitutionally overbroad and criminalizedprotected speech. and the Arizona SuperiorCourt denied a petition refor firmed.127 tent."130 The district Brandenburg courtendorsedBrandenburg on review. agreeing was the propertest forhis behavior.2005] A Testfor Criminally Instructional Speech 2009 theirterritory. "are not protected the by FirstAmendment. 131Id. explicitly. at 630. the Arizona courtsfocusedupon the intent requiredby Section 13-2308of the Arizona code. to moreclosely profile mereabstract the of of McCoy'sspeechappears fit advocacy lawlessness.3dat 628-29. The district courtgranted the petition. district the court granting defendant's this articulatedrationale [of the Arizona courts] "measure[d] to whether againstSupremeCourtprecedent determine McCoy's conviction was reasonable. McCoy broughta FirstAmendment challenge. late courtpurported hingeitsconsideration intent.
"'13Hence. McCoy. 282F. see 28 U. 132 133 134 Ariz."139 suggestedthat "ong He a of criminalenterprises-which range planning may include oral of and perhapsthe preparation written advice. "[b]ecauseMcCoy's speechto theBratz. at 995. ? 2254(d) (2000).'34 The courtconcludedthat. 91:1973 were focusednot at all upon the court'sfindings however. Stat. quence be 'imminent' justified the same justification adhereto some speech does not necessarily that performs teachingfunction. tice Stevens said that "[w]hile the requirement that the conseis withrespectto mere advocacy.3dat 632. 537 U.opinion regarding denial of Id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Brandenburg analysis. Stewartv. Rev. as determined the SupremeCourt of the United States.training exercises." and when" theyshoulddecide to expandtheirop"if erationsin the ways McCoy advised. JusticeStevens appended a statement the denial of certiorari.. 136 137 certiorari).S. 993 (2002) (Stevens.. circuit whether the objectivesof a McCoy intendedto "further criminal criminal whether but rather "anyonewould act upon syndicate. 138Id.C. This content downloaded on Wed. the NinthCircuit's immiturnedon Brandenburg's ultimately inquiry nenceprong."as requiredforthe by of from undertheAntistateconvictions granting habeas petitions terrorism Effective Death Penalty Act of1996..The courtfeltso strongly about Brandenburg's relevance thatit overturned statecourts'rulings "an unreasonas the able application clearlyestablished of Federal law. Id.J. Whenthe Courtdeniedreviewof the by Ninth Circuit decision in McCoy.S.138 to thecircuit however.Ann.136 and At least one SupremeCourtJustice disagreedwiththisanalysis the lowerfederalcourts.137 to Justice Stevens observed thatthe "harshsentence a relatively minor offense" reason was for forthe Courtto refuseto considerreinstating convicthe enough As court's Justion.2010 Law Review Virginia [Vol."'33 courtfoundthatit was unlikely The thatanyonewould have done so and thatMcCoy merely advised the gang members followcertainprocedures"at some timein to the future. 135Id. it was protectedby the First Amendment. at mostadvocatedlawlessnessat some indefinite future time.and did not incitelawlessness. ? 13-2308(A)(3) (2001)."'32 on [hisspeech]imminently.. 139 Id. at 993.
18 U.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. ifso to whatextent. suchactivity said. standard apply. Congresspassed an amendment the Antiterrorism Death PenaltyAct ("AEDPA") that criminalizes and Effective of instructional broad categories criminally speech.as theNinthCircuit thesematabout exactly thiscase. therewas seriousdisagreement of difference ters. the This case succinctly demonstrates level of confusioncurof instructional courts' understanding criminally rently plaguing courts Not onlydid theArizonaand federal disagreeabout speech.C.S. A Recent to In 1999.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. Id. wouldat leasthave had to conthentheArizonacourts conviction. In (not.but the McCoy's mens rea and and the SupremeCourt the Arizona courts. inquiries FederalLaw Case Under 3. ? 842(p)(2) (2000). lowerfederalcourts. more standard thatrequired form an agreed-upon to constitutional and moredemanding structured findings. the dangerposed by his speech."140 the and Amendment considered whether. This content downloaded on Wed.'42SenatorDiof in first the amendment the aftermath anne Feinstein proposed 140 141 142 Id. on whether theinquiry themostcrucialelements: McCoy intended his criminal and howlikely speechwas to do so to facilitate activity.This disagreement may indicatean underlying too betweenstateand federalcourts severeforanytestto opinion But if the CIS testwere in place at the timeof McCoy's remedy."'41Justice reasoning certainabout the NinthCircuit'serroras the NinthCircuithad of been abouttheerror theArizonacourts. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .how imminent was). First and concludedthat"denial of such instructional speech" protects of in certiorari thiscase shouldnotbe takenas an endorsement the Stevensappeared as of the Courtof Appeals.
Dep't of Justice. with or be or of.usdoj.2012 Law Review Virginia [Vol. available at homes.26.information by '43See 143 Cong.'45The resulting mended a few changesto the languageof the FeinsteinAmendWhen the shootingsat Columbine High School again ment.Rocky MountainNews. It for (2) Prohibition. BigBook ofHomemade See U. wellas additional devices theshooters' and at their Bomb Summary.26.426-29(1997).or to distribute anyperson.html (last accessed Aug.shtml 24. Signs to KillingsObvious. theintent theteaching.427(1997). destructive a or a weaponofmassdestrucdevice. enacted withinfour witha statutory response.'" at ing the amendment thattime. Harrisand DylanKlebold.com/shooting/0502why10. anymeans. by pertaining in wholeor in destructive the or device. demonstration. See Jefferson County. that or weaponofmassdestruction. Rec. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 147The Columbine a as attack.'47 Congresswas ready The amendment. Ragnar's for for (1990)andRagnar YourArsenal Secure and Weapons: Building Keeping (1992). shallbe unlawful anypersona the or to teachor demonstrate making use ofan explosive.Congressrequiredthe Attorney on and Generalto preparea report thenecessity.or a weaponof mass destruction. constiinformation building on bombsand other of tutionality restricting Departmentof Justicestudyrecomexplosives. 11.2005). to tion.Harris's pipe & In links anarchy to websites. usedexEric HighSchoolshooters. in pertinent of months theColumbine part: provides shootings.gov/criminal/cybercrime/bombmakinginfo.cnn. 11. This content downloaded on Wed.'46 in the thrust issue into the spotlight 1999. 144 The booksdiscovered inMcVeigh's wereRagner Homemade Benson. http://denver. (last achttp://www. feasibility. possession A C-4A Recipe Survival: Recipe Survival Benson. 1999.May 2. that or to (B) to teachor demonstrate anypersonthemaking use of an explosive. (A) or destructive device. Policefound totalofseventy-six explosive plosives wellas gunsin their in at as cars devices theschool.2005).S.cd/Pages/BOMBSTEXT his with website discussed experiments building cessedAug. 91:1973 discovered the 1995 Oklahoma Citybombing. Sheriff. manufacture use of an explosive. MikeAnton Lisa Ryckman."'' wheninvestigators instructions that TimothyMcVeigh had relied on bombmaking Ratherthanpassthe from books and perhapsalso from internet. part.rockymountainnews.com/SPECIALS/2000/columbine. Inof 1997Reporton theAvailability Bombmaking at formation. Rec. See bombsandprovided Hindsight.2005). in furtherance a of or an activity constitutesFederalcrime violence. Co.at (last accessedSept. information used for. 146 See 143 Cong. http://www. to distribute anymeansinformation to.
explosive. Id. ? 842(p)(2)(A) formaterial The posted on his website.whichAustinclaimednot to have writBank events.C. Aug. old and living at withhis mother thetimeof his aryears eighteen rest. Austin.The first requirement 49 Statesv. Austinwas charged under18 U. ? 842(p)(2) (2000). "5'See David Rosenzweig. This content downloaded on Wed.S.C. Cal."1 ten but to have mirrored fromanotherwebsite. Man Gets 1 Year for How-To on Explosives. 2005). web The originalraisethefist. the Sherman Austin.or weapon of mass destruction.The defendant.2005] A Testfor Criminally Instructional Speech 2013 the or to..Aug. for or is not clear thatanyonewas likelyto use the instructions that themto be used. 26. to demonstraknowing or information or infurtherance an activity conthat for. The first testbecause it onlyrequiresthe has but partof the statute no likelihood requirement. was withor without CIS test. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .org/ReclaimGuide/reclaim. No. United prosecution the of part(A) and illustrates complexity prosecuting pure speech. Austin."152' Too littleinformation available to is 18 U.shtml (last accessed Aug.www. bombmaking of Under properapplication the CIS test. was under underthe statute. though It not impossible. 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.S. CR-02-884-SVW(C.D."'containedsectionson "Police Tacticsand How To Defeat Them" and "DefensiveWeapons" thatincluded instructions.com site has been shutdown.it is doubtful. tion. Times. 152 148 149United States v.148 a Part (B) of thisprovision would be unacceptable underthe CIS mensrea of knowledge. pertaining in wholeor in part. of. of stitutes Federalcrime violence. at B3. 2003). site expressed viewsand includeda "Reclaim Guide" withinAustin'sanarchist International Fund and World structions disrupting for Monetary The guide. its mensrea to conforms the demandsof the CIS test. 2003.raisethefist. The Reclaim Guide is "5o available forviewingat http://forbiddenspeech. manufacture use of an destructive device. thatAustincould be convicted his activities. 4. that suchperson intends use theteaching. L.com.A. 5.
571-72 (1942). The Court has used the low-valuerationaleto to and denyconstitutional protection fighting words"'5 obscenity"6 153Id. Austinacceptedtheoffer. cannotentirely movetheriskof. Low-ValueSpeechas an Alternative Paradigm In confronting instructional criminally speech. "'5 See 156 154 Id. jail and fourmonths a halfway butpresiding Judge StephenWilsonrejectedtheagreement. This content downloaded on Wed. 15.and (4) it is underprotecvague. JudgeWilsonagain rejectedit and of JudgeWilson's imposeda sentence one yearin federalprison.315 U.'53 at agreement a secondhearing.91:1973 or of make a completeassessment either Austin'sintent thelikely use ofhiswebsite others. The fedor subjective in in Austina plea of fourmonths eral prosecutor thecase offered in house. When the prosecutorreturnedwith the same proposed D. 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.thereis a strong it to denyFirstAmendment tendency protection assimilating to by low-valuespeech.'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. 568. V. Chaplinsky New Hampshire. saying was not "takingthe case seriously thatthe prosecution enough" and orderedthefederal to prosecutor clear theproposedplea barin gain withFBI and JusticeDepartmentofficials Washington.(3) tive ofspeech.C. 23-24 (1973) (denyingconstitutional See Millerv. A. California. protection to defendantwho mailed unsolicitedmaterialsdepicting sexuallyexplicitacts to California residents).2014 Law Virginia Review [Vol. by and The saga of Austin'sprosecution showshow unpredictable can suchinquiresas to intent facilitation be. v.suchsubjectivity.S. 413 U.Adoptionof the CIS testmayalleviate. of it is overprotective speech.S.These criticisms includethe arguments are modelsthewrongdoctrinal itsrequirements too (2) paradigm.
generally problematic to instructional so speech. This content downloaded on Wed. 425 U. This leaves open thepossibility in and negative that positive See Gertzv.160 the or words. 770 (1976). wherethe Courtfoundthat"certain New Hampshire. 323. at 572. libelous. at 574.Inc."161 itselfimpliessome of the doctrine's This presentation difficulthatsuchspeechis unprotected the ties. Citizens ConsumerCouncil."163 has the Thus. Courtsuggests becontent and makes no contribution to cause it has no meaningful as discourse-the speech might well be nonsense. particularly in itsapplication criminally has its roots in dicta in Chaplinsky The low-valuedoctrine v. 420 U. 344-46 (1974). 491 (1975) (providing to who publishedthe name of a rape victimobtainedfrompubprotection a reporter lic records).. Id.418 U. 159 See Va.from outset. v.' certaindiscloand suresof private The lowspeech.the doctrine exuded a dual focuson value. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions ."all of profane.2005] A Testfor Criminally Instructional Speech 2015 for and to providelesserprotection privatelibel.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. the Amendment. Yet. Cohn. the Court first assertsthe low linsky wordsbutlaterseemsto testthembased on their value of fighting the of likelihood "provok[ing] averagepersonto retaliation. Id.At first.S. Va. 748. 157 constitutional See Cox Broad.571-72(1942). 469.S. 568.S. RobertWelch.S.'58 commercial is value doctrine. and would be however. State Bd.butthatthey pose a negative positive the is It thusbecomes unclearwhether doctrine founded rality. thattherealproblem notthatthewordslack is Courtthensuggests riskto "orderand movalue.Because public to such expressiondoes not contribute the goals of the First it need not be affordedany protection. The analysis "fighting has negative as the confirms ambiguity. Id.159 information. Corp.the tion."'62 social value" or thatit on the premisethatthe speechhas "slight of words"in Chapsocial value. of Pharmacy v. 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. 160 15s 161 162 163 315U.
doms. v. "low-value" label is a misnomer. U. 747.where jectivity perhapsmostpronounced the obscenity reasonable people disagreestrongly about both the value of the the speech and the harmit poses. in is district court Such an approach suggested at leastone relevant case. 535 U. SMU L. 15. in The that as itturns for out.762 (1982).Thissuggests another inwhich yet way for collateral Courtmight speech: ban consequences. Theory Low-Value Speech.167 Similarly..Thus. but 15. 348 (1995) (arguing to theextent so-called that "lowvalue"categories reguare that are causeharm notbecausethey presumed be and to "it be lated.").2016 Law Review Virginia [Vol.and obscenity.S.S. omitted)).S. later terpretation was rejected categorically the Court. expressions protecting. 167 Miller California.On thecontrary." (internal citations the Rather. v. 91:1973 the areas. The of 48 See Jeffrey Shaman. pornographic lacksseriousliterary. category might a and Court on said..24 (1973). should becausethey lowincommunicative value").. of expressions the same kindthatdo have valuable elementsare materialthat "taken as a whole.libel. supra 166 . 413 U. protected.'" Anotherproblemwiththe low-value ing speech of testis thesubjectivity anyassessment "socialvalue." Thissubof in is cases.297. weapons. child suggested NewYorkv. wellas itsproduction. Court 458 childpornography be might low-value speech. scientific tected. 164 M. doctrine foundedon an assumption is that no worth certain have virtually content Yet. such as fighting words. or value" is unproartistic. For some observers.25 (1971).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. regardless explicitly itsharmful is used and to consider here woulddrastically it of itsvalue. political.Thisis thecase forobscenity not." at 249. self-governance.. Inc.at 681("[A]llspeech potentially See Post. 234. California. the to thesexualabuseofchildren. U.butthatinAshcroft Free Speech v.166 had the that information beenobtained the instructions weapons-making (despite fact UnitedStatesv. 403 165 Cohen relevant democratic is to note13. Rev.its application criminally instructional speechhas parThe ticulardifficulties. by did is Coal. the in disguising Court'sreal interest regulatbased on harm. Id. 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..Ferber pornography.while that which has a modicumof such value is prois defamation privateindividuals less proof tected."Ferber Ashcroft upheld prohibition thedistribution sale ofchild becausetheseactswere'intrinsically related' as pornography.S.This rationale rarely for the consideration further research widen scopeofthis Note.251 (2002) ("Ferber notholdthatchildpornographyby someworks this in the definition without value. Courtrecognized have significant value. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . where a court enjoined publicationof nuclear This content downloaded on Wed. The Progressive.
value of yetit is clearthat. supranote 11. e. Inc. reality intent inquiry practically impossible. is and Aidingand abetting themosteasilyrestricted leastconstiof form criminally instructional tutionally problematic speech. 990 interests. Gertz Robert Welch. ? 1864 (2000) (discussing"tree spiking"law and criminalizing use of an "injuriousdevice" on federalland "withthe intent obstruct harass the harto or of vesting timber").regardless itspolitical content.D. While it is easy to say that criminal intentshould govern in criminal the is liability.And in the aidingand abetting.C. 170 See.340(1974). Wis.PoliticalFreedom:The Constitutional Powersof the People (1960). B. a listener followed instructions. politicalnature Assuming thepresenceoftherequisite she for intent. criminalizing The factthat aiding-andthe speech is not whatwe are tracking.'69 the liticalexpression. 169 168 v. BeVier.S. See 18 U. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . the of her speechwould become irrelevant.AlexanderMeiklejohn.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. the with for resultthatthe speakerwas prosecuted aidingand abetting. double as valuable politicalexpression abetting speech also might to of If is immaterial the definition the offense itsprosecution. Supp.'68 present problemforcrimiinstructional Consideran environmental who activist speech.. at 299.. Bork.S. The Vagueness an Intent Test of Some critics of might pointout thatapplication an intent-based has its own inherent testforcriminally instructional speech problems.supra note 11. 1979). This content downloaded on Wed. or inthis is true forthe most easily identifiable type of criminally structional speech. wouldbe convicted the of of criminal content herspeech. speech'spoliticalcontent argue forpromight if In her tection. the low-valueanalysishas littleplace in the of conceptualization thelarger category. contrast. 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.g.170Under a lowthe value analysis.418U. typeofspeechmostuniversally as recognized the within ambitof FirstAmendment protection. (W. The most obvious responseis that many othercriminaloffromthe public domain) on the basis of national security 467 F. at 20. 323.
advocate and incite the use of violence authoritiesand political figuresincludingthe presidentof against law enforcement USA.Hit Man On-Line: A TechnicalManual forIndependentContractors."I do share (more or less) Mr.C.Afintent get awaywithpubcan terall.com/parazite/files. 154 (1959). 91:1973 As Brennannoted. from behavhas our circumstance notprevented society outlawing in of ior thatwe believe is wrong.a.Someone who publishes reporting harmful information orderto exercisehis expressive in potentially 147. Overprotection too Some might arguethattheCIS testrestricts little speech. This content downloaded on Wed.""' That inquiry one explore and for whichit is withwhichthe criminal law is quite familiar equipped. at (last accessed Oct. 172 171Smith California. 361 U. For a site pushingthe boundarybetween see protectedexercise of free expressionand unprotectedcriminalinstruction.. Both of these are certainly possibilities.S.The difficulty an intent inquiry in simply anycontext requiresus to make inquiries the mostdisciand rigorous concern thereafor withutmost waypossible. a speakerwho lacks criminal the exact same information whicha criminally-minded for lishing on The testthushas no effect the availabilpersonis prosecuted. This fileand all information thissite (a.g. of thateither elements thetestwill the Still. ? on the 842(p)(2)(A) . alreadynoted. 2005) (protesting censorshipby mirroring Sherman Austin's Reclaim page while also stating.critics might predict or be so difficult prove thatit will be worthless. C..S. "Parazite" website at http://members. Austin's political views. So SUE me FBI CLOWNZ! readersplease notify police"). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .it fensesalso requireintentinquiries. First.fortunecity.k. Justice as to "has been some timenow sincethelaw vieweditself impotent is the actual state of a man's mind. 25.net/mirror/hitman/ to Amendment right post the book online)..die. it willhave a to of ill-advised effect encouraging of imputations conslippery-slope but structive intent. See. e. Parazite) is violating18 U.2018 Law Review Virginia [Vol.'72 information. and I do condone.html (last accessed materialincludingHit Man and Oct. they That are also possibilities witha host of othercriminal offenses. 2005) (claiming a First http://ftp. 24.it is practically impossible thatwould notinterdevisea testwitha lowerintent requirement ferewithlegitimate practices. ityofdangerous The problem is withthisobjection thata morerestrictive regime would inevitablycriminalizespeech at the heart of the First to as Amendment. v. plined sonabledoubtstandard.
but we are probably correct regarding magazinesmore as vehiclesfora general in gun 173 See WilliamGurstelle. and theintent likelyto be actualized. criminally speechis partof political discourse. is thenthe loses itsprotection.173 Less obviously. who will not let theirteenagers video games but will parents play give themfreereinwiththe family copy of BackyardBallistics. it is difficult distinguish but to this might who reportssimilarinformation the in person froma reporter course of a news story.2005] A Testfor Criminally Instructional Speech 2019 freedom seem frivolous. When thatdiscoursespillsover intoan actual intent to breakthe law. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .Most it can be educational.thespeechin questionitself a role in contributing A thegoals oftheFirstAmendment.and power. BackyardBallistics(2001). It involves in sex. it is possiblethatSherman But Austin's speech decision to link to bombmaking recipes reflectedhis political stancetowardthe WorldTrade Organization morethanan actual desireto attackpolice or anyoneelse. fundamental.We mighthold some of these aspectsof gun culturein low esteem.as well as moremundaneinterests outpolitics. door recreation and mechanicaldesign. instructional manypublications. good deal ofwhatmanypeoas ple would characterize "low-value.Teachersand producers chilfor obviously. has to Second. method for no particularreason is hard to differentiate from An to Agatha Christie. in some cases. dren's televisionhave long understoodthat the best way to get in children interested scienceis to blow something There are up." dangerousspeech actually has politicaland cultural In aspectsthatshouldnot be discounted. alone shooting people. someone who postsa poisoning Similarly. parallelto gunculture. instructional also has itscultural Criminally speech aspects. This content downloaded on Wed.criminally instructional speech supportssubculturesnot unlikethose dedicatedto extreme sportsor otherhighriskactivities. Less controversially.is a veryapt one: The culture a involves greatdeal surrounding and gunpublications guns more than shooting let things. approachthatattempted screenall potenharmful information wouldrestrict greatdeal ofspeechthat a tially we generally recognizedas protectedand. The whileit maynot salvage thistypeof speech in some people's eyes. inan in terest "backyard ballistics" can simply a libertarian imexpress and pulse to do whatone wantswithone's property resources.
Google searchofbombmakwebsiteswill uncovera similarly textured subculture.Speech."'74 under which"conductthat posed a systemof speech regulation amountsto 'advice' or 'persuasion'would be protected."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. The freedom messages ofspeechshouldbe one ofourmostrobust but rights. succeed in finding such a ventureor not. to put it bluntly. on First. people who communicate dangerous withcriminal intent deserveto be punished. Crime. themostpractical level.The SystemofFreedom of Expression75 (1970). and courts.and the Uses of Language 85 (1989). ing Again."176 174 175 176 Kent Greenawalt.manipulate to allow convictions. committing D. clear standard it A is that is currently the preferableto the de facto criminalization norm. Laurence H. thisdoes not make a gun or bombfetish cultural the of equivalent a penchant Keats.we are alreadydoingit. The pointis simply for thatpeople can be interestedin criminal without instruction in necessarily beinginterested crimes. Tribe. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . This content downloaded on Wed. criminal inintentionally considering concludesthat"the justifications freespeech.AmericanConstitutional Law 837 (2d ed. Second.then why criminalize any speech at all? Thereare a fewresponses.. Underprotection If the above is true. Emerson. Thomas I. do for struction.2020 Law Review Virginia [Vol. not reach communications are simplymeans to get a crime that ProfessorThomas Emerson has prosuccessfully committed. Legislatures pass laws criminalizing pure speech. even whentheythink incitement the doctrine standsin theirway.. itshouldnot extendto wordsthatseek a stake in a criminal whether venture. 91:1973 thanas inherently manualsthatdo not worldview dangerous killing A merit FirstAmendment protection. Professor Kent Greenawalt. conduct thatmoves into the area of 'instructions' 'preparations' or would And Professor LaurenceTribe has said that"the law need not. 1988). Scholarsotherwise they concernedto protect freeexpression have takena similar stance.
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. and Ariz. Adoptionof the CIS test. objection. In ShermanAustin's prosecutionvividlyillustrates of eflightof the unpredictability courtsand the possible chilling some speech protectionists would argue fectsof any regulation. Moreover.withits intent and wouldbring much-needed structure clarity hood requirements. to an underdeveloped potentially potent This content downloaded on Wed. this danger.S. Refusing implement clear for standard such speech does not mean thatit will not be proseor cuted.C.Even moreintractably. ? 842(p). justthatitwillnotbe prosecuted CONCLUSION of This Note has argued for the recognition the categoryof of instructional and theinstitution theCIS testto speech criminally It evaluatesuchspeechundertheFirstAmendment. for instructional thatall criminally speechshouldbe protected proreasons. phylactic This is a compelling level. ? 13-2308existat the federaland the statelevel.At a normative seekoccurshouldnotdeterus from aboutwhatmight predictions whatthe properstandard shouldbe. to understand ing statutes like 18 U. 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. 18 U. crimeof aidingand abetting for to of willcontinue involveprosecutions some forms criminally have no defendants instructional conditions. but area oflaw. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . speech.Undercurrent to a idea how bestto defendthemselves. Stat.C. predictably fairly. Rev. in standardcan cause harmwhen applied by judges uninterested of therights tax evadersand WorldTrade Organization protestors. ? and morepractically.S. 231(a)(1). however.
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