VOLOKH at law.ucla.edu
Mon Feb 25 10:14:50 PST 2008
I appreciate Howard's point (though I'd like to note that
Stevens's opinion in Stewart v. McCoy was an opinion respecting the
denial of certiorari, in a case in which the Ninth Circuit held that the
instructional speech *was* protected). But I wonder what people think
about the proper result in such cases. I'd written about this in my
Stanford "Crime-Facilitating Speech" piece,
http://www.law.ucla.edu/volokh/facilitating.pdf, where I criticized the
Paladin Press case but more broadly suggested that the issue comes up in
lots of cases; here's a subset:
(a) A textbook, magazine, Web site, or seminar describes how
people can make bombs (conventional or nuclear), make guns, make drugs,
commit contract murder, engage in sabotage, painlessly and reliably
commit suicide, fool ballistic identification systems or fingerprint
recognition systems, pick locks, evade taxes, or more effectively resist
arrest during civil disobedience.
(b) A thriller or mystery novel does the same, for the sake of
(c) A Web site or a computer science article explains how
messages can be effectively encrypted (which can help stymie law
enforcement), how encrypted copyrighted material can be illegally
decrypted, what security flaws exist in a prominent computer operating
system, or how computer viruses are written.
(d) A newspaper publishes the name of a witness to a crime,
thus making it easier for the criminal to intimidate or kill the
(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.
(f) A Web site posts people's social security numbers or credit
card numbers, or the passwords to computer systems....
(k) A newspaper publishes information about a secret subpoena
... and the suspects thus learn they are being targeted ....
(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....
Any thoughts on what the proper rule would be here? Would it be
permissible, for instance, to punish all such speech under a generally
applicable "aiding and abetting" or "criminal facilitation" law that
allows the punishment of people who help others commit crime, knowing
that their actions are providing such help? (Some jurisdictions do
require merely knowledge as a mental state here, and not purpose.)
Would it be permissible to do so whenever the speakers are found by the
jury to have the purpose of helping people commit crimes?
Note that nearly every example I give above is based on a real
incident, and often on a real prosecution, civil lawsuit, or threatened
prosecution or lawsuit.
Howard Schweber writes:
> What I do find perfectly plausible is the continued
> resuscitation of the Clear and Present Danger test in the
> form of the "teaching" and "counselling"
> exceptions that began in Stewart's opinion in Stewart v.
> McCoy, and the 4th Circuit Paladin Press case. The
> conviction of Al-Timmimi, for example was upheld in part
> because he instructed two young men on how to get to
> Afghanistan. Or there is U.S. v. Coronado (environmental
> activist providing a description of the method for construction of a
> bomb) and U.S. v. Featherstone (African-American militants,
> this one's from back in the early 1970s). And there's a case
> about giving instruction in the art of gang organization,
> too, but I can't think of it.
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