[SPAM] RE: The law of "attempt" and imminence in Brandenburg

[Robert Sheridan]

Humbach, Prof. John A. wrote:

"... However, when a speaker solicits another to commit a crime *with 
the speaker*, the solicitation is part and parcel of the speaker's own 
attempt to *do* a criminal act--i.e., partakes of conduct and is not 
mere speech. It is therefore essentially no different from saying, for 
example, "gimme the crowbar" to an accomplice during the course of a 
break-in..."

***

I'm not sure that this interesting proposition quite gets us out of the 
woods, such as if the speaker haranguing the excited crowd says, 
"Workers of the world!  Unite with me to overthrow the capitalist order, 
violently if necessary.  Let us march on Washington and let our feelings 
show.  Who is with me?  You have nothing to lose but your chains.  Cast 
off those chains and let us march!" 

The speaker is located in Brandenburg, Ohio.

rs

> Well, I would have thought that Brandenburg superseded Yates, Scales and Noto on the doctrinal point that there is an "imminence" requirement, even if it did not overrule them as holdings. But I agree that Williams certainly gives a lot of reason to doubt this conclusion.
>
> Eugene makes a great point in suggesting that the distinction turns on whether the proposed transaction is "with the speaker." This does indeed seem to represent a genuine fault line dividing the cases. What, though, is the constitutional significance of the "with the speaker" distinction? Maybe it's this: In soliciting crimes that don't involve the speaker, a person is not doing anything other than what anybody does in uttering "pure speech." However, when a speaker solicits another to commit a crime *with the speaker*, the solicitation is part and parcel of  the speaker's own attempt to *do* a criminal act--i.e., partakes of conduct and is not mere speech. It is therefore essentially no different from saying, for example, "gimme the crowbar" to an accomplice during the course of a break-in.
>
> On this analysis, Phipps should have had the benefit of the imminence requirement.
>
> Does this make any sense?
>
> John A. Humbach
> Professor of Law
> Pace University School of Law
> 78 North Broadway
> White Plains, New York 10603
> 914-422-4239
>
> Personal website: humbach.net
> ________________________________________
> From: Rosenthal, Lawrence [rosentha at chapman.edu]
> Sent: Saturday, January 30, 2010 3:25 PM
> To: Humbach, Prof. John A.; Renz, Jeff; conlawprof at lists.ucla.edu
> Subject: RE: The law of "attempt" and imminence in Brandenburg
>
> Yates, Scales, and Noto reject the view that the First Amendment imposes an "imminence" requirement with respect to punishing advocacy of illegal conduct.  Brandenburg does not purport to overrule any of these cases, and the approach taken in that trilogy was reaffirmed as recently as Williams.
>
> As I read Yates, Scales, and Noto, speech can be punished as a form of criminal solicitation when the speaker specifically intends to produce unlawful conduct, with independent judicial review required to ensure that the speech cannot be fairly characterized as a mere statement of belief as opposed to an effort to produce unlawful action, imminently or in the future.  To that extent, I agree that the First Amendment constrains the law of criminal solicitation, and to that extent as well Debs and Schenck are no longer good law.  To be sure, Professor Volokh's "Crime Facilitating Speech" article frets that a test that turns so much on intent may deter some valuable speech, but thus far, it appears to me that the Supreme Court has not found this argument warrants anything more than independent appellate review of the evidence supporting a finding of specific intent to produce unlawful conduct.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Humbach, Prof. John A.
> Sent: Sat 1/30/2010 11:45 AM
> To: Renz, Jeff; conlawprof at lists.ucla.edu
> Subject: The law of "attempt" and imminence in Brandenburg
>
>
>
> I'm still trying to understand the First Amendment status of crimes like criminal solication (and since I'm teaching it Monday afternoon, I'm feeling a little urgency).
>
> Jeff says correctly that neither Debs nor Schenck has been overruled. But does this mean that, in 2010, we can still expect that the Court might allow laws to punish words having a mere "tendency and intent" to produce criminal acts, even if that "tendency" is so remote that no crimes are "imminent"?
>
> I would have thought that, after Brandenburg, the answer was clearly no. In 2002, moreover, the Court in Ashcroft v. FSC reconfirmed the "imminence" requirement (citing Brandenburg) when it rejected the "whet the appetite" argument against virtual child pornography.
>
> However, in 2008, the United States v. Williams case seems to say the "important distinction [is] between a proposal to engage in illegal activity and the abstract advocacy of illegality," specifying that a "proposal" includes a "recommendation" to an illegal act "with the intent of initiating" the act. As I read Williams, such a "proposal" can be criminalized even though there is no chance that the words in the proposal will actually lead to any illegal act--and even if no illegal act would even be factually possible. (In the case of the Williams statute, a proposal to transfer child pornography could be severely punished even if there were no child pornography that could be illegally transferred. The mere words, or words-plus-intent, were punished.)
>
> Of course the analogy to the Model Penal Code law of attempt should be apparent (as my colleague, Audrey Rogers, has written at length). And this raises an interesting possibility: Using the law of attempt (which punishes intent-plus-futile-efforts alone), the post-Brandenburg Court could effectively go back to Schenck, Debs and even Whitney by upholding bans on words having a mere "tendency and intent" (without imminence) as an *attempt* to produce some illegal result.
>
> Because nothing prevents the penalties for attempt from being as severe as those for consummated crimes, the law of attempt could serve as a highway around Brandenburg. While this is a result that I would greatly dislike, I fear that United States v. Williams may have already paved the way.
>
> Phipps is would be an obvious example of such a case and possibly, too, the claims being made against John Yoo.
>
> John A. Humbach
> Professor of Law
> Pace University School of Law
> 78 North Broadway
> White Plains, New York 10603
> 914-422-4239
>
> Personal website: humbach.net
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Renz, Jeff [Jeff.Renz at mso.umt.edu]
> Sent: Friday, January 29, 2010 4:58 PM
> To: conlawprof at lists.ucla.edu
> Subject: "Imminence" in Brandenburg
>
> Let me first note that neither Debs nor Schenk have been overruled and that I know that counsel in pending appellate cases in which there is a "speech crime" issue fear the two, to try to avoid triggering a discussion of either, and focus on Brandenburg.
>
> My sense of Phipps is that there was more than advocacy taking place.  Phipps was selling tax evasion kits.  Setting aside other violations of the law, this does not differ too much from one sending plans for a bomb to another along with encouragement that the recipient assemble and activate it.
>
> The distinction then may be advocacy on the one hand, protected by Brandenburg, and, on the other hand advocacy + means to carry out the crime.
>
> Prof. Jeffrey T. Renz
> School of Law
> The University of Montana
> 32 Campus Drive
> Missoula, Montana  59812
> 406-243-5127
>
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 28 Jan 2010 15:30:03 -0800
> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> To: "'CONLAWPROFS professors'" <Conlawprof at lists.ucla.edu>
> Subject: RE: "Imminence" in Brandenburg
> Message-ID:
>         <E7AAEC684F9E3641B8CFC2B9A0BD965AC1A6783044 at UCLAWE2K7.lawnet.lcl>
> Content-Type: text/plain; charset="iso-8859-1"
>
>         It's certainly true that Brandenburg did not entirely (or perhaps even largely) invalidate the law of aiding or abetting, criminal solicitation, or conspiracy.  At the same time, it doesn't seem to me to follow that they have no effect on the constitutional boundaries of such laws.  I take it, for instance, that we'd agree that Schenck and Debs are no longer good law (or would Prof. Rosenthal contend that they are still constitutional)?  Yet Schenck involved a conviction for conspiracy to cause and attempt to cause insubordination, and might well today be treated as a solicitation matter (since the Court took the view that the defendants were intending to cause others to commit a crime).  Debs involved causing and inciting and attempting to cause insubordination, disloyalty, munity, and refusal of duty, as well as obstructing and attempting to obstruct recruiting and enlistment -- again, the theory being that the defendant was intending to cause others to commit a cr!
>  ime.
>
>         Likewise, though Hess v. Indiana involved a disorderly conduct prosecution, can it really be that if the government had simply pled the case as a solicitation case, the prosecution would have been constitutional?  The trial court, after all, found that Hess "was intend[ing] to incite further lawless action on the part of the crowd" -- which might well constitute solicitation -- but the Court concluded that even if "We'll take the fucking street later [or again]" constituted "advocacy of illegal action at some indefinite future time," the speech remained protected.  (The Court did say that "the uncontroverted evidence showed that Hess' statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action"; so perhaps the constitutional limit on solicitation is that the statement must be directed to a particular group of persons, but this would indeed be an important constitutional limit.)
>
>         We can come up with plenty of other examples.  Say someone says "All of us should infringe copyright any chance we get."  That's "advocacy of action," to quote the post below, rather than just "mere statement[] of belief" -- is that really constitutionally unprotected under Brandenburg, if the prosecution rests on some broad state law solicitation theory?  Or aiding and abetting:  Say a newspaper reporter publishes an article about copyright infringing sites, which includes the names of some such offshore sites, and there's evidence that the reporter is actually a foe of copyright law and might therefore want people to use such infringing sites.  Can that really be punishable on an aiding and abetting theory, if the jury concludes that the reporter had the intent of helping people commit criminal copyright infringement?  What if the relevant aiding and abetting law requires a mens rea of mere knowledge rather than purpose (some states and some federal circuits take t!
>  his vie!
>
>  w) -- would the reporter be punishable as an aider of copyright infringement simply based on a finding that he knew it was very likely that some people who read the article would use the information to infringe copyright?
>
>         Perhaps Prof. Rosenthal's theory is that all this speech is indeed punishable, as solicitation or aiding and abetting, because it goes beyond "mere statement[] of belief."  If so, I'd like to hear more about this.  But if there are constitutional constraints on such punishment, I'd like to hear just what they might be.
>
>         I should add, by the way, that I appreciate that the line between punishable solicitation and protected speech is not well understood, and neither is the line between punishable aiding and abetting and protected speech (though I tried to deal with the latter question in my Crime-Facilitating Speech article, http://www.law.ucla.edu/volokh/facilitating.pdf).  I just don't think that the line that seems to be proposed by the post below is the right line.
>
>         Eugene
>
>   
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
>> bounces at lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
>> Sent: Wednesday, January 27, 2010 8:25 AM
>> To: Humbach, Prof. John A.; CONLAWPROFS professors
>> Subject: RE: "Imminence" in Brandenburg
>>
>> As the recent holding in Williams suggests, Brandenburg did not modify the law of
>> aiding or abetting, criminal conspiracy, or criminal solicitation, all of which permit
>> liability based on an actor's statements urging the commission of unlawful acts
>> without any requirement of imminence.  At most, the decisions in Yates, Scales
>> and Noto indicate that the First Amendment prohibits liability based on mere
>> statements of belief, unaccompanied by advocacy of action now or in the future,
>> but Brandenburg does not purport to overrule any of those cases.  The First
>> Amendment problem in Brandenburg and Hess, I have always believed, arose
>> from the fact that the statutes at issue did not proceed on a theory of aiding and
>> abetting, criminal solicitation, or conspiracy, but instead made advocacy itself the
>> crime.
>>
>> I do not know what the evidence established in Phipps, but I suspect that the law
>> of aiding and abetting provides a far sounder basis to uphold the conviction than
>> the court's claim that Brandenburg's imminence test was satisfied.  Yates, Scales
>> and Noto make clear that imminent unlawful conduct is not always required to
>> impose liability for a defendant's advocacy of unlawful conduct.
>>
>> Larry Rosenthal
>> Chapman University School of Law
>>
>> ________________________________
>>
>> From: conlawprof-bounces at lists.ucla.edu on behalf of Humbach, Prof. John A.
>> Sent: Wed 1/27/2010 7:28 AM
>> To: 'CONLAWPROFS professors'
>> Subject: RE: "Imminence" in Brandenburg
>>
>>
>>
>> Well, I think Hess said some "indefinite" future time, which may imply an even
>> greater degree of contingency than "unknown" future time.
>>
>> But the question I have is what verbal formulations would best capture the
>> relationship between issues like this one and the whole law of criminal solicitation
>> in general, which I presume is not under any particular First Amendment cloud.
>> The New York Penal Law, for example, talks of one who "importunes or otherwise
>> attempts to cause such other person to engage in such conduct."
>>
>> I'm guessing that the whole answer may be what Scalia wrote in United States v.
>> Williams: "Many long established criminal proscriptions--such as laws against
>> conspiracy, incitement, and solicitation--criminalize speech (commercial or not)
>> that is intended to induce or commence illegal activities.  See, e.g., ALI, Model
>> Penal Code ? 5.02(1) (1985) (solicitation to commit a crime); ? 5.03(1)(a)
>> (conspiracy to commit a crime)." Does Brandenburg constitute a qualification of
>> (or, worse, is it superseded by) this principle, reaffirmed in 2008?
>>
>> Ideas?
>>
>> John A. Humbach, Professor of Law
>> Pace University School of Law
>> 78 North Broadway
>> White Plains, New York 10603
>> Tel. 914-422-4239  -- jhumbach at law.pace.edu
>> personal homepage: humbach.net
>>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
>> bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>> Sent: Monday, January 25, 2010 5:14 PM
>> To: 'CONLAWPROFS professors'
>> Subject: "Imminence" in Brandenburg
>>
>> Any thoughts on this opinion decided today, U.S. v. Phipps, 2010 WL 254983 (5th
>> Cir.)?  In particular, I wonder whether it's consistent with Brandenburg and Hess
>> v. Indiana to hold that this speech incites "imminent lawless conduct" -- isn't it
>> more like the advocacy of illegal conduct at some unknown future time, which
>> doesn't satisfy the "imminence" requirement, according to Hess?  (I set aside the
>> question whether the speech could be restricted on other grounds.)
>>
>> Eugene
>>
>>
>>
>>
>> For over twenty years, Phipps has operated self-styled "educational programs
>> dedicated to teaching others how to eliminate their debt and live within their
>> means." Despite notice from the United States Postal Service ("USPS") that both
>> of his prior, similarly structured endeavors were considered illegal pyramid
>> schemes, Phipps created the instant program, Life Without Debt ("LWD").
>> Members were encouraged to contribute between $2,000 and $100,000; Phipps
>> claimed that a larger contribution would engender larger returns. As with prior
>> schemes, members were required to recruit two new members prior to receiving
>> any payments; they also received educational literature and tapes with anti-
>> income tax messages. Notably, Phipps told participants that the income received
>> through LWD would not need to be reported to the IRS. Phipps himself did not
>> report any of his LWD income to the IRS.
>>
>> During his ten years of operating LWD, Phipps received notices from the states of
>> Georgia, Oklahoma, and Maryland that LWD constituted a pyramid scheme, and
>> he may be subject to civil or criminal enforcement actions as a result. Indeed, six
>> LWD members were arrested in Florida for felony and misdemeanor promotion of
>> and participation in an illegal lottery. Despite these warnings that his activities
>> might be illegal, Phipps continued to recruit new members through mass mailings,
>> teleconference calls, and seminars in major cities. Phipps sent periodic small
>> payments to members to encourage them to remain in the program, recruit new
>> members, or reinvest in larger payment plans. Though Phipps marketed LWD as
>> a compound-leveraging investment program that would generate large sums of
>> money for its investors, less than nine percent of LWD's approximately 31,000
>> participants made a net profit above their initial investment. Phipps "earned"
>> $4,606,396 from LWD, $1,381,683 of which wa!
>>  s "participation income," and $3,224,782 of which he paid to himself under aliases
>> within the scheme.
>>
>> A jury found Phipps guilty of mail and wire fraud and aiding and abetting, corrupt
>> endeavor to obstruct and impede the due administration of the internal revenue
>> laws, and income tax evasion. [FN1] Phipps was sentenced to 210 months
>> imprisonment, to be followed by three years of supervised release. Phipps was
>> also ordered to pay $1,402,446 in restitution. Phipps now appeals the sufficiency
>> of the evidence to support his convictions and whether his sentence was properly
>> calculated....
>>
>> Phipps alleges that his tax evasion advocacy was protected by the First
>> Amendment. This allegation is without merit. Telling his adherents that he did not
>> report his LWD income to the IRS and encouraging them to do the same place
>> Phipps' speech within the sphere of proscribed speech likely to incite or produce
>> "imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); see
>> also United States v. Kelley, 864 F.2d 569, 577 (7th Cir.1989) (rejecting First
>> Amendment protection of "more than mere advocacy" where defendant told clients
>> to keep tax shelter information secret from the IRS and received commissions
>> from sales); United States v. Buttorff, 572 F.2d 619, 624 (8th Cir.1978) (rejecting
>> First Amendment protection of activity that went "beyond mere advocacy of tax
>> reform" in explaining to others how to avoid income tax liability). Phipps has not
>> shown that his behavior advising and advocating tax evasion to LWD participants
>> should be entitled to First Amendment !
>>  protection....
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as private.
>> Anyone can subscribe to the list and read messages that are posted; people can
>> read the Web archives; and list members can (rightly or wrongly) forward the
>> messages to others.
>>
>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as private.
>> Anyone can subscribe to the list and read messages that are posted; people can
>> read the Web archives; and list members can (rightly or wrongly) forward the
>> messages to others.
>>
>>
>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as private.
>> Anyone can subscribe to the list and read messages that are posted; people can
>> read the Web archives; and list members can (rightly or wrongly) forward the
>> messages to others.
>>
>>     
>
>
>
> ------------------------------
>
> Message: 2
> Date: Fri, 29 Jan 2010 14:43:38 -0500
> From: "Miller, Darrell (mille2di)" <mille2di at ucmail.uc.edu>
> To: "Conlawprof at lists.ucla.edu" <Conlawprof at lists.ucla.edu>
> Subject: Outsourcing Legislation from WH to the House of
>         Representatives
> Message-ID:
>         <4DEA66FECAF51547840CE95566B4C46D1C63CC8AE3 at UCMAILBE3.ad.uc.edu>
> Content-Type: text/plain; charset="us-ascii"
>
> >From Politico, full link here: http://www.politico.com/news/stories/0110/32192_Page2.html
>
> Cantor criticized Obama for last year's "outsourcing of the legislative activity from the White House to Nancy Pelosi here in this House," which he said has resulted in "a bill shift and an agenda shift way to the left and outside the mainstream of this country."
>
> To me, this seems like a fairly gross exploitation of people's ignorance of our system of divided government, and an indictment of partisan gerrymandering which makes this kind of statement politically resonant.
>
> Darrell A.H. Miller
> Assistant Professor of Law
> University of Cincinnati College of Law
> PO Box 210040
> Clifton Avenue & Calhoun Street
> Cincinnati, OH 45221-0040
> v: 513-556-0133
> f: 513-556-1236
> e: darrell.miller at uc.edu<mailto:darrell.miller at uc.edu>
>
> faculty page:
> http://www.law.uc.edu/faculty/profiles/miller.php
>
> SSRN:
> http://ssrn.com/author=1107305
>
> -------------- next part --------------
> An HTML attachment was scrubbed...
> URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20100129/1a7df8a3/attachment-0001.htm>
>
> End of Conlawprof Digest, Vol 75, Issue 15
> ******************************************
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
>
>