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Crime-facilitating speech.
INTRODUCTION: THE SCOPE OF THE CRIME-FACILITATING SPEECH PROBLEM I. THE USES OF CRIME-FACILITATING SPEECH A. Harmful Uses B. Valuable Uses 1. Helping people engage in lawful behavior generally 2. Helping people evaluate and participate in public debates a. Generally b. By informing law-abiding people how crimes are committed 3. Allowing people to complain about perceived government misconduct. 4. Entertaining and satisfying curiosity 5. Self-expression . C. Dual-Use Materials II. IS CRIME-FACILITATING SPEECH ALREADY HANDLED BY EXISTING FIRST AMENDMENT LAW? A. The Existing Crime-Facilitating Speech Cases B. Strict Scrutiny C. Balancing D. Deference to the Legislature III. POSSIBLE DISTINCTIONS WITHIN THE CRIME-FACILITATING SPEECH CATEGORY A. Distinctions Based on Value of Speech 1. First Amendment constraints on measuring the value of speech 2. Virtually no-value speech a. Speech to particular people who are known to be criminals b. Speech communicating facts that have very few lawful uses 3. Low-value speech? a. Speech relevant to policy issues vs. speech relevant to scientific or engineering questions b. General knowledge vs. particular incidents c. Commentary vs. entertainment and satisfaction of curiosity d. Speech on matters of "public concern ". 1166 B. Distinctions Based on the Speaker's Mens Rea 1. Focusing on knowledge or recklessness that speech will likely facilitate crime 2. Focusing on purpose to facilitate crime a. Crime-facilitating speech and purpose b. Difficulties proving purpose, and dangers of guessing at purpose c. Is intentional crime facilitation meaningfully different from knowing crime facilitation? d. Moral culpability C. Distinctions Based on How Speech Is Advertised or Presented 1. Focusing on whether speech is advertised or presented as crime-facilitating a. The inquiry b. Ginzburg v. United States and the "pandering" doctrine 2. Focusing on whether speech is advertised or presented as an argument rather than just as pure facts D. Distinctions Based on the Harms the Speech Facilitates 1. Focusing on whether the speech facilitates severe harms a. Generally b. Extraordinarily severe harms 2. Focusing on whether the speech is very helpful to criminals E. Distinctions Based on Imminence of Harm F. Distinctions Between Criminal Punishments and Civil Liability G. Summary: Combining the Building Blocks CONCLUSION INTRODUCTION: THE SCOPE OF THE CRIME-FACILITATING SPEECH PROBLEM
Some speech provides information that makes it easier for people to commit crimes, torts, or other harms. Consider: (a) A textbook, (1) magazine, Web site, or seminar describes how people can make bombs (conventional (2) or nuclear (3)), make guns, (4) make drugs, (5) commit contract murder, (6) engage in sabotage, (7) painlessly and reliably commit suicide, (8) fool ballistic identification systems or fingerprint recognition systems, (9) pick locks, (10) evade taxes, (11) or more effectively resist arrest during civil disobedience. (12) (b) A thriller or mystery novel does the same, for the sake of realism. (13) (c) A Web site or a computer science article explains how messages can be effectively encrypted (which can help stymie law enforcement), (14) how encrypted copyrighted material can be illegally decrypted, (15) what security flaws exist in a prominent computer operating system, (16) or how computer viruses are written. (17) (d) A newspaper publishes the name of a witness to a crime, thus making it easier for the criminal to intimidate or kill the witness. (18) (e) A leaflet or a Web site gives the names and possibly the addresses of boycott violators, abortion providers, strikebreakers, police officers, police informants, anonymous litigants, registered sex offenders, or political convention delegates. (19) (f) A Web site posts people's social security numbers or credit card numbers, or the passwords to computer systems. (20) (g) A newspaper publishes the sailing dates of troopships, (21) secret military plans, (22) or the names of undercover agents in enemy countries. (23) (h) A Web site or a newspaper article names a Web site that contains copyright-infringing material, or describes it in enough detail that readers could quickly find it using a search engine. (24) (i) A Web site sells or gives away research papers, which helps students cheat. (25) (j) A magazine describes how one can organize one's tax return to minimize the risk of a tax audit, (26) share music files while minimizing the risk of being sued as an infringer, (27) or better conceal one's sexual abuse of children. (28) (k) A newspaper publishes information about a secret subpoena, (29) a secret wiretap, (30) a secret grand jury investigation, (31) or a secret impending police operation, (32) and the suspects thus learn they are being targeted; or a library, Internet service provider, bank, or other entity whose records are subpoenaed alerts the media to complain about what it sees as an abusive subpoena. (33) (l...See the full content of this document
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