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) When any of the speech mentioned above is suppressed, a self-styled anticensorship Web site posts a copy, not because its operators intend to facilitate crime, but because they want to protest and resist speech suppression or to inform the public about the facts underlying the suppression controversy. (34)
(m) A master criminal advises a less experienced friend on how best to commit a crime, or on how a criminal gang should maintain discipline and power. (35)
(n) A supporter of sanctuary for El Salvadoran refugees tells a refugee the location of a hole in the border fence, and the directions to a church that would harbor him. (36)
(o) A lookout, (37) a friend, (38) or a stranger who has no relationship with the criminal but who dislikes the police (39) warns a criminal that the police are coming.
(p) A driver flashes his lights to warn other drivers of a speed trap. (40)
These are not incitement cases: The speech isn't persuading or inspiring some readers to commit bad acts. Rather, the speech is giving people information that helps them commit bad acts--acts that they likely already want to commit. (41)
When should such speech be constitutionally unprotected? Surprisingly, the Supreme Court has never squarely confronted this issue, (42) and lower courts and commentators have only recently begun to seriously face it. (43) And getting the answer right is important: Because these scenarios are structurally similar--a similarity that hasn't been generally recognized--a decision about one of them will affect the results in others. If a restriction on one of these kinds of speech is upheld (or struck down), others may be unexpectedly validated (or invalidated) as well.
In this Article, I'll try to analyze the problem of crime-facilitating speech, (44) a term I define to mean
(1) any communication that,
(2) intentionally or not,
(3) conveys information that
(4) makes it easier or safer for some listeners or readers (a) to commit crimes, torts, (45) acts of war (or other acts by foreign nations that would be crimes if done by individuals), or suicide, or (b) to get away with committing such acts. (46)
In Part III.G, I'll outline a proposed solution to this problem; but my main goal is to make observations about the category that may be useful even to those who disagree with my bottom line.
The first observation is the one with which this Article began: Many seemingly disparate cases are linked because they involve crime-facilitating speech, so the decision in one such case may affect the decisions in others. The crime-facilitating speech problem looks different if one is just focusing on the Hit Man contract murder manual than if one is looking at the broader range of cases.
It may be appealing, for instance, to categorically deny First Amendment protection to murder manuals or to bomb-making information, on the ground that the publishers know that the works may help others commit crimes, and such knowing facilitation of crime should be constitutionally unprotected. (47) But such a broad justification would equally strip protection from newspaper articles that mention copyright-infringing Web sites, (48) academic articles that discuss computer security bugs, (49) and mimeographs that report who is refusing to comply with a boycott. (50)
If one wants to protect the latter kinds of speech, but not the contract murder manual, one must craft a narrower rule that distinguishes different kinds of crime-facilitating speech from each other. (51) And to design such a rule--or to conclude that some seemingly different kinds of speech should be treated similarly--it's helpful to think about these problems together, and use them as a "test suite" for checking any proposed crime-facilitating speech doctrine. (52)
The second observation, which Part I.C will discuss, is that most crime-facilitating speech is an instance of what one might call dual-use material. (53) Like weapons, videocassette recorders, alcohol, drugs, and many other things, many types of crime-facilitating speech have harmful uses; but they also have valuable uses, including some that may not at first be obvious.
Moreover, it's often impossible for the distributor to know which consumers will use the material in which way. Banning the material will prohibit the valuable uses along with the harmful ones. (54) Allowing the material will allow the harmful uses alongside the valuable ones. This dual-use nature has implications for how crime-facilitating speech should be treated.
Part II then observes that restrictions on crime-facilitating speech can't be easily justified under existing First Amendment doctrine. Part II.A describes the paucity of existing constitutional law on the subject, and Parts II.B, II.C, and II.D discuss the possibility that strict scrutiny, "balancing," or deference to legislative judgment can resolve this problem.
Part III discusses distinctions that the law might try to draw within the crime-facilitating speech category to minimize the harmful uses...