Criminal conspiracy as free expression.

• Author: Redish, Martin H.

1. Introduction

   There are a variety of expressive forms or subjects that have never been thought to implicate the First Amendment's guarantee of free expression. (1) For example, no serious scholar has suggested that speech involved in the creation or implementation of a scheme to defraud consumers or to engage in an antitrust violation is deserving of even the slightest constitutional protection. (2) The same is true for perjury, blackmail, espionage, and a host of other activities, which seem to involve the use of language and communication. (3) Simply as a matter of common sense, it would seem, both the scholarly and judicial worlds have chosen summarily to exclude these categories of communication from the First Amendment's protective scope. They have, instead, been relegated to the category of "low value speech." (4) It is important, however, to temper these "intuitionist" (5) insights with the humility that should come from the fact that at least two types of expression, which historically resided in the very same constitutional oblivion--defamation and commercial speech--have, in modern times, been accorded substantial constitutional protection. (6) These two First Amendment success stories represent victories for principled analysis over intuition in constitutional law. In light of these important First Amendment transformations, it is worth thinking about whether any other areas of expression that have been tossed on the junk heap of First Amendment doctrine simply as an intuitive matter deserve thoughtful reconsideration through the lens of principled constitutional analysis. (7)

   In this article, we attempt to do just that for one of those areas of communication: criminal conspiracy. By ignoring the negative intuitionist response to criminal conspiracy on the part of both courts and scholars and instead reasoning in a principled manner from both core premises of free speech theory and analogous applications of First Amendment doctrine, we seek to establish that at least certain expressive elements of traditional criminal conspiracy are, in fact, deserving of substantial constitutional protection. This does not mean that criminal conspiracies should be rendered constitutionally immune from governmental regulation or punishment. It does mean, however, that government should be required to alter its treatment of criminal conspiracies to accommodate what should be seen as important free speech interests intertwined in the average conspiracy. We believe that in order for criminal conspiracies to lose the First Amendment protection normally afforded to communication, they must involve a distinct, non-expressive, overt act which is intertwined with the communication. Once such an overt act takes place, the communication is appropriately viewed as part and parcel of the act, and therefore no longer appropriately conceptualized as pure expression. (8) However, absent proof of such an overt act, government should be constitutionally precluded from punishing what is nothing more than pure communication between individuals.

   The likely reflexive response of many to our suggested approach to conspiracy is that there could not possibly be any First Amendment value in speech designed to plan a criminal act, and even if there were such a value, the obvious societal harm inevitably flowing from such speech categorically outweighs any such benefit. It is certainly possible to set up a constitutional structure that would reach this conclusion. However, it is not the one our society has adopted in shaping First Amendment law. For example, the Supreme Court has extended significant constitutional protection to expression openly advocating criminal acts, (9) and it is widely accepted, both that speakers may defame public figures with full constitutional protection and that self-styled Nazis possess a First Amendment right to march in full regalia down the streets of a town populated by concentration camp survivors. (10) From a narrow, purely intuitive perspective, we suppose, both of these conclusions may be questioned. However, the courts have reached these conclusions not by use of reflexive intuitionism, but rather by resort to a more thoughtful and reasoned intellectualized approach, grounded in a commitment to free expression, which goes beyond emotional reflex to consider whether protecting the expression in question furthers more long range constitutional values. By use of a similar resort to principled analysis, we believe, one should reach the very same conclusion concerning the level of First Amendment protection appropriately extended to criminal conspiracies when they are unaccompanied by an overt non-expressive act.

   In the first section of this article we briefly describe the history and doctrine of criminal conspiracy, pointing out problems which have been recognized with conspiracy law wholly unrelated to free speech concerns. (11) In the next section, we examine the foundational argument against First Amendment protection for conspiracy, originally fashioned by Professor Kent Greenawalt, that such activity is appropriately conceptualized as pure conduct, rather than expression. (12) We explain the key fallacies in this argument, demonstrating why conspiracies unaccompanied by non-expressive overt acts are as much pure communication as are many categories of fully protected expression. (13) The following sections explore alternative bases on which to categorically exclude criminal conspiracies from First Amendment protection, including arguments grounded in the inherently private nature of the expression, the communication's inherent worthlessness, its often non-political nature, its danger of causing harm, and the original understanding of the words "freedom of speech" at the time of the First Amendment's framing. (14) The next section applies relevant First Amendment doctrine--specifically, the clear-and-present danger test and its progeny--finding that many conspiracies which could be criminally punished under current law actually merit substantial constitutional protection. (15) We then articulate how we believe the First Amendment should be applied to criminal conspiracies in order to reconcile the need to protect what we deem the legitimate expressive value in this form of communication with society's legitimate interests in preventing criminal acts. (16) The final section briefly concludes.

2. The Law Of Criminal Conspiracy: History, Doctrine, And Theory

   The crime of conspiracy is a powerful weapon in the prosecution's arsenal that continues to enjoy widespread use throughout the United States. (17) Most states and the federal government have criminalized conspiracy, either by statute or at the common law. Many jurisdictions have different laws against conspiring to commit different crimes. For instance, some make it illegal to conspire to distribute illegal drugs, and others provide blanket prohibitions on conspiring to commit any crime. The generally accepted common law definition of a criminal conspiracy is "an agreement between two or more persons to commit an unlawful act or to commit a lawful act by unlawful means." (18) As an inchoate offense, conspiracy permits the government to indict groups of confederates who have not yet committed any crime apart from merely agreeing to break the law at some future time. (19) Despite its long history, criminal conspiracy is notably vague and has been the subject of much scholarly and judicial criticism. (20) Nevertheless, courts have consistently upheld the use of conspiracy as a cornerstone of criminal law. (21)

   1. Evolution of Modern Conspiracy Law

      The law of criminal conspiracy originated near the turn of the thirteenth century. (22) Originally, it essentially functioned as a precursor to modern actions for malicious prosecution, only criminalizing those agreements made to initiate or maintain a false lawsuit. (23) Criminal procedure at the time created a setting in which false accusations could be brought more safely and effectively by a group working together than by an individual working alone. (24) As a result, in order to combat malicious indictments most effectively the law was fashioned to collectively punish all those who worked together to bring about such a false accusation and the law of criminal conspiracy was born. (25) Conspiracy arose not as a common law crime against agreements for any criminal purpose, but rather as a statutory offense to remedy the specific criminal objective of false accusation brought about through collaboration. (26) As originally formulated, a conspiracy could not be prosecuted unless the falsely accused was indicted and subsequently acquitted. (27) In other words, conspiracy was not initially an inchoate offense at all, since no one could be charged with it until the criminal objective, which was the conspiracy's aim, had been fully realized.

      While the law of criminal conspiracy began as a statutory offense punishing only those groups that had successfully completed one of a narrowly defined list of offenses, (28) it did not remain that way for long. Eventually, the requirement that a conspiracy must not be punished until it had achieved its criminal objective was relaxed. (29) By permitting prosecutions for conspiracies, which had not yet broken any law in pursuit of their objective, the emphasis shifted from punishment of the object of the conspiracy to punishment of the agreement itself. (30) The remaining major expansion of conspiracy was from a small set of specific statutes each of which outlawed agreements with a particular objective, to a common law crime of agreements with any unlawful objective. (31)

      Modern criminal conspiracy law is comprised of a combination of both statutes and common law. Most states and the federal government have enacted one or more criminal conspiracy statues which outlaw agreements to achieve specifically enumerated objectives. (32) The language still embraced by...