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

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NOTE
A TEST FOR CRIMINALLY INSTRUCTIONAL SPEECH By Leslie Kendrick*
INTRODUCTION ..............................................................................1974
I. CRIMINALLY INSTRUCTIONAL SPEECH AND THE CIS TEST... 1975 A. What Criminally Is Instructional 1975 Speech?....................... B. FreeSpeechPremises 1977 ..................................... A C. The CIS Test: Basic Overview ..................................... 1979 II. CIS TYPE I: AIDING AND ABETTING................................... 1984 A. Incitement theButtorff and Problem ..............................1986 B. Incitement Criminal and Instruction .........1987 Distinguished Unintended C. Incitement's Consequences .........................1992

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

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

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

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

A. B. C. D.

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

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

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

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2005]

A Testfor Criminally Instructional Speech

1975

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

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

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

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

Id. at 1103.

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

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

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

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

637(4thCir. 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. note18. e... 22 This content downloaded on Wed. after floordebatetheAmerican elected to require a Instead. 20 See Bonnie. buton aiding and assisting perpetrators The sellermaynotignore purpose which the . 1 (1953). the for thepurchase madeifhe is advised that is of purpose "). thecontext of and abetting. knowingly. J. 24 ModelPenalCode ? 2.S..402(2d Cir.100F.the drafters jected the provision.see also Model Penal Code ? 2.. for As articulated requirement aidingand abetting.Richard Bonnieetal...06(1962).20 A fewyearslater. in some sortassociatehimself thathe participate it as in something he wishesto bring that he seek by his about.that referred as havto actionto make it succeed.Tent. however.1980 Law Virginia Review [Vol.21 The drafters ing originally a with proposedthatliability dependupon whether person.."24 v. 619 (1949).2d401.23 mensrea of intent. supra 23 See ModelPenalCode ? 2.g.DraftNo. States Peoni. The tatedits commission."acting that[another] or knowledge personwas committing had the purthe facilisubstantially pose of committing crime.Criminal 579(2d ed.06 in Model Penal Code and Commentaries: Draftand Revised Official 295 Comments. mostfamously Learned Hand."' Other circuits. see also Bonnie. Law sionoftheoffense. thisstandard thatthe aider "in by Judge required withthe venture. 112 19 See Backun United States. United v. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .required ing This difference-between onlya mens rea of knowledge.04(3)(b)..at 580.2d635.06(1962).19 having an interest the success of the crimeand merelyhavingknowlin edge of its probablecommission-wassettledforfederalcriminal law in Nye & Nissen v. (1985).wherethe SupremeCourt in an quoted JudgeHand's formulation the courseof adopting intentstandard.at 580. ."22 requirement "substantial" of facilitation was an attemptto offsetthe lower mens rea standardof a but Law Institute reknowledge. supra Model Penal Code ? 2. F. attachesto someone criminal liabilityonly aiding 1 isSee. 1997).1938).""This is commonly a "stake in the venture.1940)("Guiltas an accesnot a of sory depends. note18. UnitedStates.. same questionsparkedintense the debatedurof the drafting the Model Penal Code. on 'having stake'in theoutcome thecrime..91:1973 some federal circuits a crafted stringent intent partof the century.. 21 336 U. 613.

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

is thecriminal because it is in no waynovel:It merely imports simple law. This content downloaded on Wed.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. It The CIS testis at once quite simpleand quite complicated. 26 See Volokh. use but no one has put it to criminal (yet). The CIS testprovides unlessthe thatsuch speech is protected the FirstAmendment by Thisis.This is slightly different from classicaidingand abetof the but ting.clearly.supranote 1. a mirror withthe same information or ifitspurposewereto educatereadersin the abstract. and theprincipal a the information commit crime.a speakerhas suppliedinformation potential. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 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.The extentthatit is an objectionto the criminal for and our law criminal requiresmensrea inquiries manycrimes. even simof to exercisethe FirstAmendment to freedom expresply right sion.Underthistest. if a websitecontaining recipesforpipe bombswouldbe criminal its makersintendedthe recipesto be used againstlaw enforcement wouldbe legal but site agents.In contrast. a commit crime.This is classicaidingand abetto underPartI of thetest. a for speakerintends it to be used to commit crime.1982 Law Review Virginia [Vol. 91:1973 thenhas used information put to criminal be use. rePart III of the testaddressesscenariosthatare the farthest In the movedfrom classicaidingand abetting paradigm. and some audiencemember used theinformation commita crime. of a testthatfocuseson the subjective intent the speakerrather thantheobjective harmposed byhisor herspeech. So longas thewebsite'sauthors notintendanyoneto use did therecipesto breakthelaw.26 thatis an objection theCIS testonlyto the to but law in general.their speechwouldbe protected. Some law's basic concern mensrea intoFirstAmendment for are thatmensrea inquiries themselves quite difficult might object or complicated. because it preserves keyelements aidingand abetof and ting-a mensrea ofintent thecommission an actualcrimea it is unprotected underPart II of the test. at 1185. suchsituawithcriminal tions.

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

No less a speech protectionist Black made thisargument Giboneyv. typeof speech. 490. 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.: 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. EmpireStorage& Ice Co.336U. 91:1973 Stillmoreuncertainty besetscriminally instructional speechthat lacks an underlying While few cases have addressedthis offense.In suchan environment.Admittedly.as is the importance regulating itproperly.S.06(3)(a)(ii)(1962).. v. 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.Part of thisNote lays the groundwork a defenseof the test by for II betweenthe FirstAmendshowingthatthe current relationship mentand aidingand abetting doctrine misaligned. Griswold Connecti31 This content downloaded on Wed.18U. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . in & 32Giboney Empire Storage Ice Co. Ratherthanjustifying of thetestin theabstract thenapplying to particular and it cases.S.498 (1949).ModelPenalCode ? 2. functions more as quent rationalebeingthatsuch communication actionthanas speech. is II. Courtseemedto sayotherwise. ? 2 (2000). partof conductin violationof a valid criminal We rejectthecontention now. of lies withit. At the same time."32In general. temptation reguthe to anyprevious late instructional of speech is high. thefact"[t]hat'aiding See.g.e.C..1984 Law Review Virginia [Vol.31 beSpeech thataids and abets a crimehas long been considered theboundaries First of themostfreAmendment yond protection. The complications instructional surrounding criminally speech dictatethe structure therestof thisNote.at In leastone case theSupreme v.fears about terrorism increasethepressure regulatedissemination to of information.the future regulation the category advancescontinue make information to moreaccesTechnological sible to increasing numbersof people.

35 v?2. and from On thewhole. the saythat Giboney. This content downloaded on Wed. 1982).which fore the statement "theState that this madetheexpansive invalidating statute.C.1994).2005] A Testfor Criminally Instructional Speech 1985 out of and abetting' an illegalact maybe carried through speechis no bar to itsillegality. Cir. is guilty an accomof his tooktheform speech. Court of contract spectrum the with of Amendment. Id.842 (9th Cir.S. also anyone 35 of wouldrender guilty an offense."3'Annotationsto thestatute explainthattheterm"causes" not as intent punish a principal only to makesclearthelegislative and commits offense one who "aids.3d646.S."36 under Connecticut's aidthe defendant convictions cut. statute assisting for married ingand abetting couplesin violating 381 Ann.C. Women Operation v.The Court notexplicitly that say phyof sicians' convictions voidon First were Amendment regardless thevalidity grounds with nor oftheunderlying to statute. from restoftheopinion is statthattheCourt's the realobjection to theunderlying it it.notto theaiding abetting arising charges to usualapproach aidrather thanGriswold. not.If the defendant willfully of as in he another the commission an offense.Gen.regardless whether assistance "The first does not provide a defenseto a criminal amendment out because the actoruses wordsto carry his illegal chargesimply purpose. Barnett. Courtconsidered physicians' Conn.Under betweenspeech and criminal of the relationship ing an act to be done which causes 18 U. 34 18U.C. "[W]hoeverwillfully if directly by performed him or anotherwould be an offense againstthe United States. represents Court's and inm abetting. ? 2. language becauseit is clear seemsto have fallen theFirstAmendment perhaps by wayside. Nat'lOrg.? 53-32 forbade use ofcontraception. an one who directly another commit to an induces procures" or commands. U. knowledge.for Rescue.abets.is punishableas a principal.37 F." at 482.S. ? 2(a) (2000). 36 United Statesv. him donebyhimdirectly of This definition "causes" clearlyencompassesspeech-based aided or assisted to contributions crime. 479(1965). is safeto ute. if but whocausesthedoingof an actwhich offense. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 667 F."33 this statute The federal accomplice liability supports understandaction. of plice.656(D. did it attempt squareitsstatement theroutine in conanduncontroversial and criminalizationinstructional of speech aiding abetting from Griswold of This texts other thantheteaching contraceptive methods. counsels.2d 835. Stat. may consistently thespirit theFirst defendant did available Id.Bethe (1958).

? 7206(2)(2000). 570 (8th Cir. 1978). United States v.the defendants On appeal. 1979).con(citingWhitney California.2d 619. 274 U.2d 549. 217 (4th Cir. 1985). under. at 623. 622 (8th Cir. claim. willfully or assists or procures.2d at 622. however. Iowa. in consels. .First."40 convicthe two issues. 26 572 F. 373 (1927) (Brandeis.1986 Law Virginia Review [Vol. Anyperson or or under.3d 804. California thatthe freedom speechis not absolute..or advisesthepreparation presentation revenue the nection with matter laws. 41 Id. defensebut were raised a FirstAmendment trial. shallbe guilty a of lentor is falseas to anymaterial matter. United States v. 357. of v. aids in. 1985). Raymond. Kelley. 43 See id. courtupheldthe aidingand abetting to that the evidence had been sufficient send the tions.. felony.C. Moss.finding amendment the Next.43 Whitney 228 F. the EighthCircuitaddressed nevertheless convicted.. 551 (9th Cir. Incitement theButtorff courtshave of In a number aidingand abetting cases. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . in invokedtheFirstAmendment puzzling ways. v. At themeetings.. see also United Statesv. internal any arising or which frauduis ofa return.S.A samplecase will of how the analysisworks.a briefexplication the inciteillustrate inwill show how it errs. 37 572 F. 42 Id.it asked "whether first questionto thejury. 2000).2d 215.39 defendants quently At these fraudulent were indictedforaidingand abetting filings.C.. Buttorff mentdoctrine tax of for volved the prosecution defendants aidingand abetting states: fraud under26 U.761 F.. 38 U. curring)). J.769 F. Freeman.7The statute counwho. 40Id. affidavit.S. they thata numberof employeessubsetax-evasion techniques taught The used on theirfederalincometax returns. United States v. 39 Buttorff.91:1973 and Problem A. other document.S. 816 (7th Cir. This content downloaded on Wed. ? 7206(2)..41 of theconvictions offreespeechand assembly prohibit protections thesedefendants"42 of The court'sdiscussion the constitutional questionbegan with in The courtcitedJustice Brandeis'sobservation some hesitation. UnitedStatesv.38 for in held The defendants Buttorff a seriesofmeetings employees of a John Deere plantin Dubuque. 604 F..2d 569.

g..however. 44 46 47 395 U. B.S. Id. Traditionally. but thatwords"whichhave no purport to counseltheviolaPatten tionof law cannot. Patten. Id.The the of courtdid not acknowledge oddity first determining on guilt and abetting and thenaskingwhether conviction aiding for aiding is and abetting constitutionally barred. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 571-72 (1942)). (citingBrandenburg Ohio. 24 (2d Cir. be a partof thatpublicopinionwhichis the in finalsource of government a democratic state. SupremeCourthas distinguished advocateslaw violationand speechwhichincitesimminent merely the lawlessactivity.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. v.the courtsettledon incitement. 45 v.2005] A Testfor Criminally Instructional Speech 1987 in Co. Observing the betweenspeechwhich cently.N.47 Brandenburg Ohio. true threat(e..g.howthat "[m]orereever. 323. California.. 568. 23 (1973)). othertypesof speech thatmerita middling privatelibel including (e. at 624 (quoting Masses Publ'g Co. 1917).315 U. and fighting words (e. the Id.S.. 418 U. Robert Welch.S. incitement one ofthefewtypesofspeechthatdo not as recognized In FirstAmendment v.g.413 U.244 F.the Court has recognized level of protection.For the mostpart. v. 15. 535. In addition.g.S. Incitement bestdescribed a on is of advocacy.g.Nor did it explainwhythe constitutional its incitement is the appropriate test standard..D. Brandenburg. at 447)."44 Finally.Y. These include incitement (e. Chaplinsky New Hampshire. in(that as structions evadingincometax). This content downloaded on Wed.246 F. Miller v."45 courtmade clearthatitwouldtesttheaiding it and abettingconvictions-which had alreadyupheld on their own terms-against the Brandenburg incitement standard. merit protection. rev'd. 344-46 (1974)).has under the FirstAmendment. Gertz v. 444 (1969)). appliwas simply assumed. 540 (S.. Inc. doctrine not addressedthe typeof speech involvedin Buttorff is.S.46 court therefore The upheld convictions.. thenJudgeLearned Hand's statement Masses Publishing v. 395 U. Incitement Criminal and Instruction Distinguished To anyonefamiliar with incitement the doctrine. obscenity(e. 1917))..advocacyof ideas particular type and actions-even advocacyof law-breaking-isprotected speech The Supreme Court.

16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . imminent to or producing lawlessactionand is likely inciteor proset of circumstances That duce such action.425 U. thethird prongoftheBrandenburg suggests.S. Its instructional speech. the decisionto act is likely be a product factors. State Bd. CitizensConsumerCouncil.J. 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. the speech intends and is likelyto spurimmeit createsa dangerofharmthatno intervening diateviolent action.thelongertheregulation such speechextendsbeyondthe the timeof its utterance. of Pharmacy Va. 50Whitney California. a of that cause it is considered uniquely dangerous is to which likely cause harmin theimminent future.5 worksdifferently.however." exceptin a special "wheresuch advocacyis directedto inciting set of circumstances. to and fluences intervene.g.394 U.S.S. 357.. 5i See id. v. 274 U. This speechcan be will speechor influence have timeto intercept. 395 See Brandenburg.. Criminally to is function not to encouragelisteners commitcertain primary Watts v.377 (1927) (Brandeis.. of Thus. to if By contrast. Va.. 748. is Persuasivespeech will have its most incitement time-sensitive. United States. 705.""48 special constitutes incitement. This content downloaded on Wed. at 447. U. in the has forcible term. 91:1973 to SupremeCourt foundit unconstitutional "forbidor proscribe advocacyoftheuse offorceor oflaw violation. and originalspeech and the listener's the likelihoodthat the speech produced the action diminishes.concurring). at 447. of the in Brandeis regulated the interest averting harm. moreit comes to look like an unreasonon able restriction purespeech.. after listener received impact theshort just to otherinencouragement act in a certain way.S. 48 395 U. In the long term.1988 Law Review Virginia [Vol.49 instructional frominciteCriminally speech differs importantly As formulation ment.S. avertthe evil by the processes to the ofeducation. 49 v.As Justice in Whitney. remedy be appliedis morespeech. Onlyan is Incitement unprotected becan emergency justify repression. and commercialspeech (e. 707 (1969)).The causal connectionbetween the of many different actionbecomes attenuated. therebe timeto expose through discus"[I]f explained to sion the falsehoodand fallacies.770 (1976))."50 form advocacy.

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

228 F. Raymond.defendants thesecases typically abetting raise a First Amendmentdefense to the aiding and abetting thattheywere.57 compelscourts of considerthe character the defendants' speech at everylevel of litigation.2d at 551..Brandenburg complicatesthe prosecutionof aiding and in cases."59 speechthat"counsels" in instructs it.the courtmustmake a that reviewoftherecordof anyfindings implicate fullindependent to This specialrequirement theFirstAmendment. revenuelaws.466 U. abetting where "causes" includes"aids.1 (7th Cir. law violation. F.S." "Advocacy" itselfcould be criminalunder Section or 7206(2) as "counseling" "advising.91:1973 because of thespecialnatureofFirstAmendment Furthermore. fraudulent returns.g. 808 n. claim. encompassesany speech or action statute.C. criminalize Both of thesestatutes matter. that "causes" a criminaloffense.S.1990 Law Virginia Review [Vol. determine that the of Nevertheless. Buttorff.in Buttorff. United States v.. ? 7206(2) (2000). 57See Bose Corp.. . the of law thatgoverns aidingand abetting tax fraud. counsels." doctrine? does thisnotrunafouloftheincitement Because.or procures.. ? 7206(2). Why criminal attachesto "coununderaidingand abetting law.merelyadvocating claiming charges.S.commands. 5926 U.S.punishes anyone or or counsels.Thus. ? 2 (2000).2d at 622.C. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . v.or or whichis fraudulent is falseas to any material otherdocument."" Similarly. 505-06 (1984). ConsumersUnion.C.. induces or procures abets. e.of a return. the specific who "[w]illfully or assists aids 26 U.56 the appellatelevel.761 F. If 56 See. rather thanwillfully helpingindividuals changesto the tax system tax At commit fraud.S. theinternal affidavit.forexample. ing and abetting"as a formof accomplice liabilityis usually The generalfederalaiding and broader than its name suggests. well as thatwhich as to of contributed the filing if the defendants' speech intentionally reof tax were guilty aidingand abetting. 485. ? 2.3d 804. liability seling"or otheradvocacyonlywhenit (1) is done withthe intento tion of contributing law violationand (2) actuallydoes so. At thetriallevel. review. they theirinstructional speech was combinedwith gardlessof whether "advocacy.C. Free572 man. This content downloaded on Wed. advisesthepreparation presentation in. 18 U. 2000). under. 5818 U.. contours accomplice liability infect aidingand abetting the "Aidshouldnot incitement inquiry.

or both. that purpose thespeaker thetenis the or judge:"Where to remote from commission the are of dency hiswords directed ideasorconsequences This content downloaded on Wed. motivational.Defendants mere advocacy. is unprotected. dant'sspeech Regardlessof by or it whether was instructional. It is unprotected. to lawlessactionand speechthataids and abetsbothintends foster by actuallydoes so.'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.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 . it is lawless action.and if theycan raise a reasonable doubt about thentheyshouldnotbe convicted. speech mayqualifyas protected But once there is an underlying advocacy under Brandenburg. contrast. is protected theFirstAmendment. is not likelyto do so. 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. It.2005] A Testfor Criminally Instructional Speech 1991 the thereis no underlying crime. both.. 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. This means that. In each case. completely terlawlessactionand is likelyto do so.Brandenburg has no place in theanalysis. bothintends fosto Incitement. too. by protected. Finally. can no longersalvagethespeech. is unprotected the FirstAmendment law. contributed thatcrime to even "advocacy"thatintentionally crime.

cases whereinstructions In seem desirable." counts. of the failedto establish elements the crime. Dahlwere foundto lack the requistrom. F. for and convictions aidingand of the (rejecting invocation Brandenburg upholding of UnitedStatesv. where 761 the thejury's consideration. Incitement's Consequences of test To speechprotectionists.2d 1275. thecourtwenton to remark that.2d at 623-24. F. Barinterstate paraphernalia). concern unlessit fits certainly speech no withprotecting public fisc. "Nothing imminent lawcontemplated vocacypracticed thesedefendants by can justify less action.the offending speech should always fail the "immiThe and nence" prongof Brandenburg thusbe protected.On twoother tax Kenin others filling fraudulent forms. F.1992 Law Review Virginia [Vol.63 Ninth Circuitreached thisconclusionin dicta in UnitedStatesv. ? 7206(2)whilecriticizing trialcourt instructing juryto consider the for issue" of First and bothelements the crimeand the "duplicative unnecessary of v. United the See but ingandabetting. 91:1973 not because the FirstAmendment would be warranted.2d 1183(9thCir.1990)(upholding conviction the U. thatthe adin therecordindicates even ifintent existed. 63 See id.2d at 551.62 is Unintended C. 899 States Rowlee. abetting transportationwagering the as 667 nett.C. can justify the is for basedon theFirst Amendment a legitimate matter ofthecriminal a defense act. at 552. Freeman.842 (9th Cir. whether such activity protected the is by tingand thenconsiders FirstAmendment.An opinionlike Butwhichfirst the affirms defendants' guiltforaidingand abettorff. out defendants actually had assisted Judge Id. the defendants but to siteintent aid in tax fraud. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .1990) protection). 64713F.1280(2d Cir.2d 835. 896 Amendment UnitedStates Mendelsohn. 1982) (rejecting "specioussyllogism" First with and for mailAmendment defense a defendant of charged aiding abetting selling of on order instructions themanufactureillegal drugs). F.howeverlaudable. a handful caseshaveavoided Buttorff a under 26 v.S." In thatcase. 62 61 See Buttorff. however. F. defense beenrightly had excluded. found a First that Amendment nedy Thisdiscussion focused casesthat on has conflate incitement aidand misguidedly of mistake.61 therefore incoherent. Not even national security criminalizing within thisnarrowcategory. but because the government has protectsaiding and abetting. might or are givenat seminars in publications longbeforethecommission of a crime. application the incitement here even ifincorrect.at 622-23.2d1423. 572 This content downloaded on Wed. 1428(9thCir.1983).

manycourts as and find thatthespeechin questionactually qualifies incitement the FirstAmendment. activities UnitedStatesv.UnitedStatesv.2d569. of the But Dahlstrom represents exceptionalapplication incitecourts In mentdoctrine. States Moss. at 552.604F. mostcases.Such modifications in questionmight satisfy Brandenburg undermine traditional its of theincitement however. F. F.United States v. 69 761F."65 Dahlstrom on fused to convictthe defendants aiding and abettingif their Whilethisanalystandard."70 Here "imminent" in orderto createthepossibility the speech that "quiteproximate" the test. first a before criminal a couldbe enforced.69 dant's speech was mere advocacy. statusof criminally instructional theunsettled speech.158-59(4thCir. Ratherthandeal with do not let it standin the way of conviction.2dat 551-52.1985).2000). 761 217 (4thCir. 228 v. without be prosecuted Thus. F. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .. pur65 Id." even thoughtheir viduals to activity lawless activity renot incitethe typeof imminent speech "[did] to cases.then-Judge Kennedyfoundthat there the had "incited" was a questionof factas to whether defendant While therewas evidencethatthe defenviolationsof tax law. 67See United v. This content downloaded on Wed. States Raymond. United 68Raymond.1996). doctrine.1985). is also highly speech protective. in seen as a good thing and ofitself.2d 549. afterinvoking Brandenburg. would inquiry penalty require further 66 572 Buttorff."66 ferred in criminal syndicalism have reachedthe same conFive otherappellatecourtdecisions In Circuit defenclusion.571-72(8thCir.2dat624."68Similarly.2005] A Testfor Criminally Instructional Speech 1993 courtthussuggested thatitwould have reThe more.2d215. violating may "incitedseveralindithe Buttorff courtfoundthatthe defendants that violated federallaw. 98 769 Fleschner.67 one case. F.1979).3d804.551-52(9thCir.815 (7thCir. speechhad not also mettheincitement and thiscould be it sis is flawed. F. ("Even ifthedefendants knewthata taxpayer actually who perwouldbe acting the amendment the formed actionstheyadvocated illegally. 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.."). Freeman."[t]herewas [also] substantial evidenceof Freeman'suse of wordsof incitement quite proximate becomes to the crimeof filing false returns.3dat815(emphasis 228 added). see also id. F. v.UnitedStates Kelley. Freeman.3d 155. 70 Id.

If.7 or Brandenburg itself. 377 (Brandeis. courts Thus.the remedyto be applied is more A can speech. 1979). Alternatively.. theFourthCircuit and abetting thatthe FirstAmendment conviction.74 verbatim Kelleycourt'sconstrual Brandenburg. courtswere able to dismiss the politicaladvocacy a greatdeal ofspeechthatis currently imminence factor. Indiana. 72 414 U. claiming prolaws" but not tects "critical.71 the of reproduced of not Such flawedapplications Brandenburg onlyfailto address 71Whitneyv. 105. As JusticeBrandeis said. Fleschner.S. Moss.1994 Law Review Virginia [Vol. "[i]f there be time to expose the to discussion falsehoodand fallacies. it The nence provisionor by attenuating into meaninglessness. concurring)(emphasis added). In one case. F. discussions existing of violations current to "speech whichurgesthe listeners commit law. avertthe evil by through the processes of education. Onlyan emergency justify repression. one can imaginesuch a regimesimply readingUnited Statesv. 108-09 statement "'We'll (1973) (holdingthatan antiwar protestor's streetlater" (or "We'll take the fucking streetagain") was protected take the fucking standard).2d 569.3d 155. court length analysis. of but abstract. is the import revised dangerof such distortion clear:Courtsmight cases. 91:1973 pose. 98 75See United Statesv. longas they so within cerstandard Brandenburg stay The entirepointis thateven speech tain permissible parameters."73Encouragements lawless action are precisely to what the does protect.571 (8th Cir. might considering have come out without imminence an component. in order to finddefendants guiltyof incitement. California.S. This content downloaded on Wed.. a courtadthey FirstAmendment claimsimply quoting at dresseda defendant's by the fromButtorff's incitement In another. protected sucha regime wouldbe subjectto punishment. J. 217 (4th Cir. 357. speech underBrandenburg 73 769 F.. 1985)..In thistax fraudcase. tent. 1996).274 U. can imagine One by how Hess v. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions ."71scenario in whichtherewouldbe no timeto avertthe "emergency" "imof is to tax minent" code violations difficult imagine. 74 See United States v. 604 F. eitherby ignoring immithe mustdistort the Brandenburg test. will thatadvocateslawlessness notbe regulated thebasis ofconon extreme undercertain conditions.in distinguishing between testback intotrueBrandenburg and incitement.2d 215. except of doctrine These misinterpretationsFirstAmendment as ramify become precedentfor new cases. 158 (4th Cir. by affirmed aiding an Kelley.

aiding If legislatures decide to regulate instructional criminally speech.courts by a demandingfactual inquiry. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Similarly. inquiry. the by they can avoid endangering First Amendment following in closelythe model of aiding and abetting. he is guilty and abetting. III. the between the First Amendmentand the conceptualrelationship law need not be complex. THE CIS TEST the The appellatedecisionscitedin PartII illustrate logicof apand abetting doctrine cases of speechto traditional aiding plying the based aiding and abetting. CIS articuployedin aidingand abetting lated in Section I.speaker has II. in the discussion the restating proposedtestmay be helpful: a offense beencommitted. providespracticalguidanceforboth and courtsin dealingwiththe problemsposed by the legislatures of instructional speech. 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. They also demonstrate confusion are and thatcan ariseifsuchprinciples notappliedcarefully consisbut Each case shouldinvolvea detailedfactual tently.For the sake of clarity category criminally thatfollows.C.speaker has with a I. by This content downloaded on Wed. patternedafterthe standardemcases.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. enforcing freespeechrights pursuing wouldbestprotect suchlaws.When a speaker intendshis criminal in to and of wordsto contribute a crime. they factdo so. thecriminal a with offense been committed. The three-part test. Wherea criminal and direct to theprincipal direct of his relationship knowledge plansshouldbe heldliableforaidingand abetting upona showthathisinstructions in thecommission of assist ingof hisintent offense. above.

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

com. the protective-tounderstand testas an haps also constitutionally thana modification inof aidingand abetting rather of outgrowth of citement. Furthermore.copkiller.com?" iftherecipeappears What withthe comment.but at a website called recipe Is liable?Whatifthe "www.instead. still appears withoutcomment.This is in some waysa positivesign:The imwiththe incitement minenceprongwas the onlyreal problem test. and thatsomeonearrested detonating bombin front a for a of Imagine station to directs authorities thewebsitefrom whichhe obpolice tainedtherecipeforthebomb. Is thepersonwho posted unoffending ipe and has a neutral. 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. aidingand abetting attempts reasonable-doubt standardon both. "Use thisto kill cops!"? Alternatively.The websitecontains onlythe recURL. 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." This is notto say thattheCIS testdrawsa perfect easy line.whiletheincitement the has ferent kindof expression." 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.2005] A Testfor Criminally Instructional Speech 1997 imminence element. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . incitement analysis a habitofturning theimminence on and addressing intent question The and likelihood analysis cursorily. of the recipeguilty aidingand abetting? thatthe Imagine. is. and abetting a form criminally is instructional Aiding difdoctrine developedforan entirely speech. however. to and it is reassuring notethattheSupremeCourthas alreadyapproved a First Amendmenttest with intentand likelihoodreIt more conceptually accurate-and perquirements." thisspeakercriminally siteis called "www.imaginethateach of these websitesexistsbut has not yetbeen used by anyonein makinga bomb. whatif the instructions on an anti-abortion websitebut were appeared used to bomb a police station? Whatiftheywere used by an individual to kill his own family? Finally.forkillingcops.

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

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

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

. v. requirement? he did not insistthatthe speech in questionactuallyqualifiedas imminent underBrandenburg. 92 See id.2d569.9" the pasIn 90 at 849.571 (8thCir. F.United 9 this from also digresses doctrinal to In partoftheopinion. JudgeMichael Luttigof theFourthCircuit.On appeal.1985). at 243. 94 See. after with almost four already having openedtheopinion pagesof This content downloaded on Wed. "this book constitutes archetypal the cacy.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. F. example of speechwhich.3d 804.Instead. book published a in 1983and purchased and read in 1992can in no waybe said to have in "incited"a murder 1993. whenJudgeLuttigaddressedincitement directly.forfive go through ninechapters HitMan. Judge Luttig analysis all of from each. however. incitement the analysishas proved to manipulation cases involving in instrucsusceptible criminally tionalspeech. 98 769 F.."92 suggests rejection the incitement and an endorsement the speech-actparaof analysis used to justify criminalization aidingand of the digmtraditionally Yet he abetting. 93Id. Wilkins Williams and both Rice v. 761 v.158-59(4thCir.217(4thCir.g.2d549. v.speakingfora unanimous panel.2000).1997). Kelley. 1985). F.604F.3d 155.2d215. Fleschner.3d233(4thCir. reversedand remandedthe case fortrial. F. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .815-16(7thCir.UnitedStatesv.United 228 e.551-52(9thCir. The courtaccordingly defengranted dant'smotion summary for judgment.he criticized Brandenburg and substituted anotherformof the incitement test.the district least appliedit correctly.90 As we have seen. States Moss.quoting liberally pages. foundthatHit Man squarelyqualifiedas such. Paladin 91 joinedJudge Judges opinion.94 Rather. UnderBrandenburg.1996). finds paresand steelsits audienceto specific no preserve theFirstAmendment. 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. Id.3dat 257-62. because it methodically comprehensively and precriminal conduct.United Statesv. States Raymond.1979). Luttig's 128 Enters.United States Freeman. 128F.. JudgeLuttigrecourt'sportrayal Hit Man as protected of advojected the district he wrote..

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. United a case States.JudgeLuttig read theNoto formulation "approvas as thatconflation that and. also BriefforRespondents 3.the form speech. he emphasizes importance hisbook. 98Paladin.").See Rodney Deliberate Intent (1999) ("Thiswas ourticket. neededto emphasize Hit 131 We that Man was not abstract but and see teaching was aboutpreparation steeling. Rice.by subjecting to the demandsof prosecutions "imminence"and "likelihood" requirements Brandenburg's whenever predicate the conduct takes."rootedthisfinding SupremeCourt and declaredthespeechunprotected. argument.Judge Luttig deliberately decisionin Noto v.It is difficult escapethesensethat Judge Luttig lieves expostulation this somehow makes casefor the incitement. bequotation.B."97That passage represents potentialconflation of a a instructional criminally speech(speech "preparing groupforviolent action") and unprotected incitement (speech "steelingit to such action").99 of This criticism the inappositenessof Brandenburg of largely in tracksthe earlierdiscussion SectionII. to direct Id. in Smollaputforth Notoargument oraland the Professor Rodney its in written and Smolla. 128F. at 235-39. per riam opinion. precedent (Noto). This content downloaded on Wed.S. 1074(1998) (No. at 1325). Id.3dat263-64. 96 367U. 290(1961).2002 Law Review Virginia [Vol. PaladinEnters.96 pre-Brandenburg thatdifferentiated between "the mere abstractteachingof Communist and "preparing groupforviolent a it actionand steeling to theory" such action. essentially by Noto into an entireSupremeCourt doctrine crimion strapping speech. consequently.523 U. 91:1973 invoked SupremeCourt's the sage above. at 297-98.in wholeor in part. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . 97 Id.S. 97v. But JudgeLuttigrebootsponded to this problemmuch differently. 99 at 265. demanding ing" exactly instructional criminally speechbe unprotected. He found that Hit Man failed to nally instructional in constitute "mereadvocacy.

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

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

2005] A Testfor Criminally Instructional Speech 2005 instructional in demnedcriminally terms his speechin no uncertain dissent: werea case where Ifthis thosewhoclaimed under the protection First wereteaching techniques sabotage. U. 203.in a much more recentcase. UnitedStates. 537 McCoyv. dissenting). 106 107 Id. at 995. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . the Sudecisionreversing premeCourtdeclinedreviewof a NinthCircuit a conviction under an Arizona law that prohibits advisinggang on members gangpolicyand practices. the First Amendment protectssuch instructional speech. filching documents of the from of the the and warfare. 494. 298 (1957). This content downloaded on Wed. these legislatures end.' Justice Stevensappended an individual statement the denial of certiorari. the Amendment of the of assassination the President.S. J."''7He also statedthat "[1]ongrange planningof criminal enterpriseswhichmayincludeoral advice. 08 at 995. Scalesv. 993(2002).the teaching methods terror conduct shouldbe beyond pale alongwith the and obscenity immorality. Stewart. Id.233 (1961) (describing factual 367 the circumof stances Yates). of materials-involves speech thatshouldnot preparation written be glibly characterized mere'advocacy'and certainly create as may publicdanger. theywere also taught techniques achieving Finally. if so to whatextent. publicfiles.training and perhapsthe exercises."'08 significant In addition.S. discussedbelow. to of of and otherseditious solute.I wouldhaveno doubts.S. artof street The freedom speakis notabthelike.'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. Yates v. 105 104 354 U. whilethe Courthas withheld on judgment the conof instructional stitutionality criminally speech. planting bombs."'05 341 581(1951)(Douglas.. UnitedStates.Congressand state have passed laws criminalizing Cases involving it. U. 103 U.103 in the Similarly.S.

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

11"2 spectacular of "or" as "and" saved the statutefromthe facial interpretation challenge.S. 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. the courtspreserved statuteand althe to lowed prosecutions continueby imposinga mens rea much thanrequiredon the statute's face. 1972). least some courtsfindit important have a mens rea of intentfor to instructional the criminally speech.C.S. at First. Featherston.The requirement intentof course 'narrows 112 thescope of the enactment exempting or innocent inadvertent conduct from its by (citations omitted)). This content downloaded on Wed. FifthCircuit rejecteda similar challengeto convictions under 18 U.in theory. proscription. Id. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . same courts are reluctant let a poorlydrafted to statutestandin the way of a In conviction. In United the Statesv. defenthis the such an event.C.1121 (5th Cir.11 The defendants were membersof the Black AfroMilitant Movement who taught othershow to assembleexplosivedevices ("BAMM") in preparation "the comingrevolution. havingreasonto knowor ina This retending"-as requiring mensrea of intent.2005] A Testfor Criminally Instructional Speech 2007 or thestatute's language-"knowing. at 1122-23 n. 114 116 117Id. both cases. 115 Id.""' In upholdingthe convictions.4. havingreason to know or intending' of language of the statute. at 1122-23.""7 These cases suggesttwo conclusions." The statute thisform in that convicfirst. As a result.2d 1119. future poses twodangers: Id."' 113 461 F.18 U. ("But [petitioner's or argument] ignoresthe 'knowing.""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.""4 for There was no evidence ofplans by the groupto instigate revolution. ? 231(a)(1). "whendantswere awaiting ever it came.Second. higher ? 231(a)(1) remainson the books withan apparentmens rea reof or quirement "knowing havingreason to know or intending. Id.in practice.as one of themput it. at 1121-22.

? 231(a)(1) suggest place forPart a III of the CIS test. McCoy.Stat.a class twofelThe Arizona statute underwhichhe was indicted ony. intent imminence entangled. increasegraffiti "tagging" 118282 F. and remain and standard. theCIS testat theveryleastwouldadd structure to inquiries. Stewart. Also."121 McCoy was datthemother one gangmember of and thereby came intocontact ing withthe teens at a barbeque and anothergathering. defendants intent had towarda specific criminal whether goal and whetherthat goal was likelyto occur.thatthemereexiswithitsoverbroad tenceof the statute."120 McCoy.Ct. willhave a chilleffect permissible on speech. 91:1973 tionswillfollowitsplain language. ing Prosecutions under18 U. test will no towardcertaintypesof change lawmakers'and judges' attitudes but and behavior. Ann. a former gang. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . financing "[f]urnishing of a criminalsyndicate'saffairs with the intentto management the promoteor further criminalobjectivesof a criminalsyndimemberof a California cate. Id. Realistically. or things.122 McCoy adtheirgangby electing visedgangmembers formalize to to officers.? 13-2308(A)(3) Ariz.amongother thatparticipation a criminal in adviceor direction theconduct.courtsshouldstrike down statutes such as 18 U."' thatsuch insuggests are no more structured now than theywere in the early quiries thereis more confusion over the appropriate 1970s. ? 231(a)(1) as facially rather overbroad. A Recent StateLaw Case Under A more recentcase.2008 Law Review Virginia [Vol.App.3d 119 120 122 121282F.and second.648(Ariz. mensrea.Rev. theirdefectsand leavingthemon the books.Under the CIS test. Statev.S.C.2d647. This content downloaded on Wed. thanpatching to wereCongress pass a version thestatute of thatrequired mens a the CIS test would demand that courtsconsider rea of intent. 928 626 (9th Cir. McCoy v.allegedly of had givenadviceon at leasttwooccasionsto members a teenage Tucson gangcalled the "Bratz" or "Traviesos.3d at 628. Dean McCoy was indictedin Arizona SuperiorCourt on Jerry in one countofparticipating a criminal street gang.S. a for to in establish treasury bail money.1996). rigor their 2. at 628.119 provided in streetgangincludes. (2001). 2002).C. P. If anything.

The Arizona Court of Appeals disagreed. to developfriendly relationships othergangs."'125 sion of a criminal act. explicitly."129 The courtrejectedthe intent-based of insteadwithMcCoy that paradigm theArizona courts. F. wordswerenotprotected theFirst by thenfileda petition habeas corpusin the U. McCoy.").28In by the habeas corpuspetition. McCoy broughta FirstAmendment challenge. "are not protected the by FirstAmendment. at 630. 128 282F. recruit to new members. late courtpurported hingeitsconsideration intent. to moreclosely profile mereabstract the of of McCoy'sspeechappears fit advocacy lawlessness. appelthe but. and the Arizona SuperiorCourt denied a petition refor firmed. 130See id.at 649-50. whichwas later affirmed the NinthCircuit. Id." the courtsaid.3dat 633. Disfor McCoy trict Courtforthe Districtof Arizona. at 631 ("Far from a specific intent further to demonstrating illegalgoals.127 tent.2dat 649."130 The district Brandenburg courtendorsedBrandenburg on review.claimingthat the statute was unconstitutionally overbroad and criminalizedprotected speech. district the court granting defendant's this articulatedrationale [of the Arizona courts] "measure[d] to whether againstSupremeCourtprecedent determine McCoy's conviction was reasonable. See id. agreeing was the propertest forhis behavior.2005] A Testfor Criminally Instructional Speech 2009 theirterritory. 131Id."126 Because the prosecution had providedsufficientevidencefora juryto find thatMcCoy spoke withsuchan inhis Amendment.124 In convicting McCoy. at 630-31.12' Arizona SuperiorCourt convicted An McCoy and sentenced himto fifteen the Arizona Court of Appeals afyears."' fact. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . beat and expel disloyal to current and withsome members. the Arizona courtsfocusedupon the intent requiredby Section 13-2308of the Arizona code. This content downloaded on Wed. notingthatthe statuteonlyproscribed advice "whenit is given'withthe spoken intent promoteor further criminal to the objectivesof a criminal "Wordsspokenwiththeintent cause thecommisto syndicate.S. 126 127 Id. to on In 123 124 282 McCoy. 129 Id. view. The district courtgranted the petition. 125 Statev.3dat 628-29. 928P.

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

more standard thatrequired form an agreed-upon to constitutional and moredemanding structured findings. inquiries FederalLaw Case Under 3. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . suchactivity said. standard apply.The creation to abouttheappropriate all disagreed instructional of the formal of criminally category speech and the of implementation a clear standardcould help to eliminatethis at The CIS testwouldbe particularly effective focusing confusion. Congresspassed an amendment the Antiterrorism Death PenaltyAct ("AEDPA") that criminalizes and Effective of instructional broad categories criminally speech.but the McCoy's mens rea and and the SupremeCourt the Arizona courts. First and concludedthat"denial of such instructional speech" protects of in certiorari thiscase shouldnotbe takenas an endorsement the Stevensappeared as of the Courtof Appeals.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. ifso to whatextent.C. lowerfederalcourts. Id. therewas seriousdisagreement of difference ters.as theNinthCircuit thesematabout exactly thiscase. In (not.'42SenatorDiof in first the amendment the aftermath anne Feinstein proposed 140 141 142 Id. This content downloaded on Wed. the This case succinctly demonstrates level of confusioncurof instructional courts' understanding criminally rently plaguing courts Not onlydid theArizonaand federal disagreeabout speech. on whether theinquiry themostcrucialelements: McCoy intended his criminal and howlikely speechwas to do so to facilitate activity.S. wouldat leasthave had to conthentheArizonacourts conviction."140 the and Amendment considered whether.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. ? 842(p)(2) (2000). 18 U. the dangerposed by his speech. A Recent to In 1999.how imminent was).

Harrisand DylanKlebold. anymeans. Signs to KillingsObvious. 147The Columbine a as attack.426-29(1997).com/shooting/0502why10. in furtherance a of or an activity constitutesFederalcrime violence. in pertinent of months theColumbine part: provides shootings.information by '43See 143 Cong.cnn. by pertaining in wholeor in destructive the or device.cd/Pages/BOMBSTEXT his with website discussed experiments building cessedAug.2005). This content downloaded on Wed. 91:1973 discovered the 1995 Oklahoma Citybombing. 1999. BigBook ofHomemade See U. Policefound totalofseventy-six explosive plosives wellas gunsin their in at as cars devices theschool.'45The resulting mended a few changesto the languageof the FeinsteinAmendWhen the shootingsat Columbine High School again ment. Rec.S."'' wheninvestigators instructions that TimothyMcVeigh had relied on bombmaking Ratherthanpassthe from books and perhapsalso from internet. to tion. that or to (B) to teachor demonstrate anypersonthemaking use of an explosive.'46 in the thrust issue into the spotlight 1999. Co. theintent theteaching. See Jefferson County.26. It for (2) Prohibition. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . usedexEric HighSchoolshooters. Sheriff.gov/criminal/cybercrime/bombmakinginfo. 146 See 143 Cong. wellas additional devices theshooters' and at their Bomb Summary.or to distribute anyperson. MikeAnton Lisa Ryckman.26. manufacture use of an explosive. (last achttp://www.at (last accessedSept. available at homes.com/SPECIALS/2000/columbine.'47 Congresswas ready The amendment. information used for.Rocky MountainNews. Inof 1997Reporton theAvailability Bombmaking at formation.or a weaponof mass destruction. 144 The booksdiscovered inMcVeigh's wereRagner Homemade Benson. destructive a or a weaponofmassdestrucdevice. to distribute anymeansinformation to.'" at ing the amendment thattime.shtml 24.2012 Law Review Virginia [Vol.May 2.427(1997).rockymountainnews. Ragnar's for for (1990)andRagnar YourArsenal Secure and Weapons: Building Keeping (1992).Harris's pipe & In links anarchy to websites.usdoj.html (last accessed Aug. 11.Congressrequiredthe Attorney on and Generalto preparea report thenecessity. enacted withinfour witha statutory response. demonstration.2005). 11. See bombsandprovided Hindsight. Dep't of Justice. Rec.2005). possession A C-4A Recipe Survival: Recipe Survival Benson. with or be or of. (A) or destructive device. constiinformation building on bombsand other of tutionality restricting Departmentof Justicestudyrecomexplosives. part. shallbe unlawful anypersona the or to teachor demonstrate making use ofan explosive. feasibility. http://denver. that or weaponofmassdestruction. http://www.

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

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

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

" (internal citations the Rather.This rationale rarely for the consideration further research widen scopeofthis Note. 15. 348 (1995) (arguing to theextent so-called that "lowvalue"categories reguare that are causeharm notbecausethey presumed be and to "it be lated.S.. Id. doms. 164 M. Theory Low-Value Speech. U. category might a and Court on said.where jectivity perhapsmostpronounced the obscenity reasonable people disagreestrongly about both the value of the the speech and the harmit poses. "low-value" label is a misnomer. omitted)). The of 48 See Jeffrey Shaman.251 (2002) ("Ferber notholdthatchildpornographyby someworks this in the definition without value. but 15.Thus. child suggested NewYorkv. U. 167 Miller California. pornographic lacksseriousliterary. For some observers. or value" is unproartistic..S.S.'" Anotherproblemwiththe low-value ing speech of testis thesubjectivity anyassessment "socialvalue. Rev. wellas itsproduction. 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. 403 165 Cohen relevant democratic is to note13. such as fighting words. weapons.butthatinAshcroft Free Speech v. 747.S.and obscenity. SMU L." at 249.Thisis thecase forobscenity not. the to thesexualabuseofchildren. 91:1973 the areas. Inc.at 681("[A]llspeech potentially See Post. supra 166 . regardless explicitly itsharmful is used and to consider here woulddrastically it of itsvalue.166 had the that information beenobtained the instructions weapons-making (despite fact UnitedStatesv.167 Similarly. Courtrecognized have significant value.762 (1982)..." Thissubof in is cases.its application criminally instructional speechhas parThe ticulardifficulties. in is district court Such an approach suggested at leastone relevant case.. the in disguising Court'sreal interest regulatbased on harm. California. of expressions the same kindthatdo have valuable elementsare materialthat "taken as a whole. scientific tected.").libel. political. v.Ferber pornography."Ferber Ashcroft upheld prohibition thedistribution sale ofchild becausetheseactswere'intrinsically related' as pornography. 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions .2016 Law Review Virginia [Vol.Thissuggests another inwhich yet way for collateral Courtmight speech: ban consequences. Court 458 childpornography be might low-value speech. in The that as itturns for out. The Progressive.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. where a court enjoined publicationof nuclear This content downloaded on Wed. 413 U. self-governance. 535 U. 234.24 (1973). protected.297.On thecontrary. expressions protecting. by did is Coal. doctrine foundedon an assumption is that no worth certain have virtually content Yet. should becausethey lowincommunicative value"). v.25 (1971). later terpretation was rejected categorically the Court.while that which has a modicumof such value is prois defamation privateindividuals less proof tected.

or inthis is true forthe most easily identifiable type of criminally structional speech. contrast. wouldbe convicted the of of criminal content herspeech. See 18 U.'69 the liticalexpression. criminalizing The factthat aiding-andthe speech is not whatwe are tracking.g.S. double as valuable politicalexpression abetting speech also might to of If is immaterial the definition the offense itsprosecution.D. BeVier.418U. B.. Gertz Robert Welch. at 299.C. supranote 11. 169 168 v. speech'spoliticalcontent argue forpromight if In her tection. Inc. The Vagueness an Intent Test of Some critics of might pointout thatapplication an intent-based has its own inherent testforcriminally instructional speech problems. 990 interests. a listener followed instructions.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.'68 present problemforcrimiinstructional Consideran environmental who activist speech. While it is easy to say that criminal intentshould govern in criminal the is liability. 170 See. reality intent inquiry practically impossible. (W. e. value of yetit is clearthat.AlexanderMeiklejohn.regardless itspolitical content. The most obvious responseis that many othercriminaloffromthe public domain) on the basis of national security 467 F. politicalnature Assuming thepresenceoftherequisite she for intent.340(1974). ? 1864 (2000) (discussing"tree spiking"law and criminalizing use of an "injuriousdevice" on federalland "withthe intent obstruct harass the harto or of vesting timber"). 1979). 16 Jan 2013 14:12:25 PM All use subject to JSTOR Terms and Conditions . Supp.S. Wis. Bork. at 20.. the with for resultthatthe speakerwas prosecuted aidingand abetting. This content downloaded on Wed.supra note 11.170Under a lowthe value analysis. 323.PoliticalFreedom:The Constitutional Powersof the People (1960). the of her speechwould become irrelevant. 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. is and Aidingand abetting themosteasilyrestricted leastconstiof form criminally instructional tutionally problematic speech.And in the aidingand abetting. typeofspeechmostuniversally as recognized the within ambitof FirstAmendment protection. the low-valueanalysishas littleplace in the of conceptualization thelarger category.

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

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

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

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

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