Crime-Facilitating Speech

Interesting law-review article on crime-facilitating speech.

Posted on September 14, 2005 at 8:54 AM • 47 Comments

Comments

GrainneSeptember 14, 2005 10:06 AM

Is this another step in towards censoring the Internet for the USA?
------
The problem is not to do with the source i.e. crime-facilitating speech, but as he says himself:
“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��?
Where there is a will there is a way. The only way to prevent these crimes is through police investigative work etc. that focuses on the criminal rather than the broader scope of ‘bad things that we need to keep secret’.

Clive RobinsonSeptember 14, 2005 10:12 AM

I have not read all 108 pages, but I feel uncomftorbal about making crimes out of peoples right to speak out, irrespective of if I agree or disagree with what they are saying.

Like a knife free speach is of more use as a tool of construction than of destruction. To limit this right simply because you feel that it might (possibly) be used to facilitate some action you disaprove of by a third party is not just stupid it's almost gaurentead to have the oposit effect both in the short term and the long term.

As has been pointed out before,

"The price of freedom is eternal vigalance"

and

"Seldom are freedoms lost in one go"

HarrySeptember 14, 2005 10:15 AM

What a loaded term. Naming this "crime-facilitating speech" indicates that the primary purpose of such speech is to facilitate criminal activity. The term itself ranks right up there with the statements to ban encryption because "you don't need it if you have nothing bad to hide."

RampoSeptember 14, 2005 10:20 AM

@Harry:

'What a loaded term. Naming this "crime-facilitating speech" indicates that the primary purpose of such speech is to facilitate criminal activity.'

Nonsense, sir! Naming speech as "profane speech" does not indicate that the primary purpose of that speech was profanity: it may merely be a side-effect of the utterer's emotional state, habits or upbringing.

"Crime-facilitating" is merely an adjectival description of the relevant attribute (in terms of being the cause of a desire to ban) of the utterance.

ReadItSeptember 14, 2005 10:25 AM

The note lays out numerous examples of crime-facilitating speech and then indicates that any law restricting any one of these examples would necessarily restrict the others. It also states that the supreme court has never judged on this topic directly.

It certainly doesn't call for any restrictions.

Ed FeltenSeptember 14, 2005 10:26 AM

Before you all complain about Volokh's terminology or his presumed knee-jerk overregulation of speech, please read his article. He has a proper respect for free speech and especially for the value of speech that some call anti-social.

If you don't want to read his (admittedly long) article, there's a three-paragraph summary on my blog.

Clive RobinsonSeptember 14, 2005 10:41 AM

@Rampo

One persones profane speach is another persons method of communicating their emotional state.

I oftan use the expression "Oh Sugar" instead of the more obvious *****, however they both express an emotion outside of the basic meaning of the words.

I feel very nervous when peole hang emotive lables on things, at the very least it smacks of Political Correctness and we are probably all aware of the PC Mafia that uses the fear of PC indiscretions to gain political and pecunery advantage in the work place (yes I deliberatly used the emotive PC label hopefully to convay the point inofensivly).

Freedom of expression, may be unplesant to some, however, I will defend peoples right to do it, even though I might find it unpleasent or offensive. It is afterall a clear indicator of a dynamic culture, not a static one.

Likewise I will also defend peoples right to complain on an individual basis about the speach of others. I will also stand their and assist them to make a face to face complaint. Likewise I also expect those I might have offended to complain to me directly, they have the right to have their views considered by me.

What I cannot condone though is those that assume they have the moral high ground and therfore assume they are entitled to inflict their view and dictate others behaviour. In all cases that I am aware of where this has been tried publicaly (Mary Whitehouse etc) they have initially been sucessfull but ultimatly end up as figures of ridicule, marganlized and brought out to provide entertainment in tragic sort of way.

Mike SherwoodSeptember 14, 2005 10:59 AM

The idea that laws can stop the flow of information is incredibly naive. Trying to ban information only spreads its distribution. The internet makes spreading the information much easier, as can be observed with the result of banning the "Hit Man" book.

A long time ago, one of my friends got a copy of the Anarchists Cookbook just because there was discussion of banning it. When I saw it, I thought that book has got to be a disinformation operation. There are so many critical errors that the reader would be better off not having it.

There is academic merit to discussing the issue. I hope nobody takes it further than that. Many laws that fail to recognize the reality of the situtation and are based on good intentions end up getting twisted to do harm to those they are supposed to protect.

pdf23dsSeptember 14, 2005 11:13 AM

Ed,

Volokh took a lot of flack recently for a few articles that, according to a lot of people, underhandedly reinforced a bunch of myths about homosexuals and gave a few arguments that could be used by others to argue for restrictions on homosexual intimacy. This sort of thing seems to be a pattern for him, and gives some evidence that his intentions may not be pure.

pdf23dsSeptember 14, 2005 11:27 AM

On the other hand, basing one's opinion on a two-or-three word summary of the article and responding as if comments speculating on the comment were informed somehow risks making a fool of oneself.

RvnPhnxSeptember 14, 2005 11:31 AM

@pdf23ds
Point taken.

In other news, I've posted a reply to a fellow by the ID of "Rational Thinker" on Ed Felton's related blog. Essentially my argument is this: the speech is one matter, what it is being used for is another--it is all about autonomy.

Davi OttenheimerSeptember 14, 2005 11:52 AM

Whew, this is a thick document to digest, but the meaty bit seems to be nicely summarized here (please pardon my citation of a document that says it is not to be cited):

"Part III.G provides a suggested rule: that crime-facilitating speech
ought to be constitutionally protected unless (1) it’s said to a person or a small group of people when the speaker knows these few listeners are likely to use the information for criminal purposes, (2) it’s within one of the few classes of speech that has almost no noncriminal value, or (3) it can cause extraordinarily serious harm (on the order of a nuclear attack or a plague) even when it’s also valuable for lawful purposes."

See page 104 for details...

Nestor BurmaSeptember 14, 2005 12:17 PM

To go a little step further, should be outlaw speech altogether ? And writing too ?
-- Nb

Fred PageSeptember 14, 2005 12:24 PM

I actually found this article rather helpful. Basically, it notes that there is a large area of law for which there is no unifed test, and suggests a test for that area of law. This is typical of work in legal theory.

I think that the third prong of his proposed test is an uneccessarily chilling of speech. For example, I would think that this would ban any useful discussion of nuclear warfare. I agree with the other two prongs of his test. (For those that can't find the test, it's the section Summay: Combining the building blocks)

Fred PageSeptember 14, 2005 12:50 PM

"To go a little step further, should be outlaw speech altogether ? And writing too ?"

I gather we aren't using the same definition of speech. For a legal article, Black's Law dictonary is a standard.

To put it plainly, not all speech is protected. Yelling "Fire" in a crowded theatre is not a protected form of speech.

The legal interpretation of the issue identified in this article is presently unclear, and inconsistant. The author has proposed a legal test. Do you have a recomendation for a different test?

linnenSeptember 14, 2005 1:08 PM

You do realize this would affect most radio talk show hosts? Almost all in the mold (both sences of the word) of Limbaugh and Liddy?

Fred PageSeptember 14, 2005 1:13 PM

"You do realize this would affect most radio talk show hosts? Almost all in the mold (both sences of the word) of Limbaugh and Liddy?"

Their speech passes test prong #1, since it is not to a small number of people. It passes test prong #2 since there is non-criminal use (in this particular case, entertainment). Prong #3 is the only one they could fail, which is the one I disagree with. Taken broadly, if one of them proposed a plausible mass-scale attack on the U.S., that speech could fail prong #3.

Davi OttenheimerSeptember 14, 2005 1:58 PM

@ Fred

I agree with your analysis of radio talk shows, but I am having a hard seeing how someone could prove that a "speaker knows these few listeners are likely to use the information for criminal purposes".

The recent AryanFest (Volksfront) rally in Cascade Locks, Oregon featured language with every kind of "call to arms" against America imaginable. Edgar Steele, lawyer for the Aryan Nations, clearly knows how to toy with the line. Here's an example:

"I cannot advocate a violent revolution or I would be disbarred. But, that's exactly what the likes of William Wallace, Thomas Jefferson and George Washington would do today if they were still among us. I like to think that, if we were to bring them back to life today, tomorrow they would buy a road map, a bazooka and a red Cadillac Convertible, then set out for Washington, DC."

So, I see a small number of people...

linnenSeptember 14, 2005 2:16 PM

I realize it is classed as 'entertainment'. However, and IANAL, using it as a defense, like 'I was just joking', does not pass the smell test.

A better classification would be 'political commentary', but then the 'joking' CYA would fail.

mlmSeptember 14, 2005 3:27 PM

Did this learned scholar take a look at the secretions of television, journals and politician's speeches which oh so well reflect and inspire only good and pure deeds?

The only difference seems to be that he wants to suppress speech not coming from high up down to us subjects.

Hypocrits!

Fred PageSeptember 14, 2005 3:35 PM

@Davi

Perhaps I was looking at Prong #1 too narrowly. Here's an example of what I envision Prong #1's covering:
Xavier pays Yolanda $1,000 for the following materials:
1) Internal maps of Company Zero's headquarters.
2) Specifications for, and instances of keys for those headquarters.
3) Information as to the number and types of guards, as well as their schedules and typical behaviour at those headquarters.
4) Information on how to deactivate or evade passive and active sensors after hours for those headquarters.

Yolanda has no evidence, awareness, or knowledge that Xavier works for any company associated with Company Zero. Furthermore, Xavier requests additional materials Yolanda can't provide, such as :
5) Superuser passwords for all internal systems.
6) Information about the internal servers.

Eventually (after a robbery), Xavier is arrested as a primary suspect. The above information is found during the investigation. The question is, can Yolanda use a 1st amendment defense against aiding and abetting robbery? The answer that this 1st prong gives (which is well-supported by case law) is no.

David Leo ThomasSeptember 14, 2005 4:05 PM

I think it probably should come down to about what the Grokster case did:

If the speach was advertised as enabling of a crime and that crime is committed using said speech, then whoever advertised it thusly might fairly be called accessory. Otherwise, providing something to people isn't a crime, particularly not information.

As I said in a different thread, if you sell a screwdriver and someone uses it for a burglary, you generally should not be held accountable - that's ridiculous. However, if you sold your screwdriver advertising it as "Perfect for breaking and entering!" that may be another matter...

DavidSeptember 14, 2005 4:05 PM

Does anyone find it ironc that many of the people that direct action ("power brokers" to use a coined phrase) are often ones that speak behind closed doors, plan behind closed doors and hide from the spotlight.

An example was W.R. Hearst who was known to have stated that he "created" the Spanish American War with the columns in his newspaper (yes, those were public, but the support, and planning was being driven behind the scenes).

I could say the same of many muslum 'religious' leaders who speak behind closed doors, or the same of any cult here (think scientology).

Its not knowledge (good or bad) that we should be afraid of (or ban), its the use of said knowledge for evil that needs to be checked.

Roy OwensSeptember 14, 2005 4:26 PM

Why don't we start with "injustice-facilitating speech" and disallow 'de jure' injustice in the judiciary and in all law enforcement and corrections?

This smells to me like a lawyerly scam of the most insidious kind.

Fred PageSeptember 14, 2005 4:34 PM

@Anonymous

I don't think so... but if they published a description of the targets that would harm the U.S. most, or the types of bombs that were most dangerous, they might.

For that matter, taken broadly enough, one could argue that #3 could ban:

Any text describing fusion or fission (most high-school physics texts, for example).
Any description of how stars work (this is fusion).
Any description of nuclear power plants.
How to destroy the Earth (see http://ned.ucam.org/~sdh31/misc/destroy.html)

stevemcSeptember 14, 2005 6:06 PM

An interesting example of "crime facilitating speech" occurred this past month in a city north of Seattle, where two sex offenders' exact street addresses were published on a government website to provide "community notification" of sex offenders in their midst.

Posing as an FBI agent, a man who'd gotten the information from the website went to the address -- and shot both men in the head. Is the government responsible for this "crime facilitating speech"?

The public discussion now is whether community notification would have been facilitated with a less specific (e.g., street/neighborhood, not exact house address) notification.

Making attributions of implied intent or effect around speech always makes me nervous when there's a lawyer involved. American society has an unfortunate tendency to turn the grayest areas of life into black-and-white law, e.g. the Terry Schiavo mess. So, I'd usually prefer to see labels like dumb, abhorrent, or irresponsible applied to speech rather than "illegal."

Article on the case mentioned:
http://seattletimes.nwsource.com/html/localnews/...

Davi OttenheimerSeptember 14, 2005 6:40 PM

@ stevemc

Interesting case. It seems someone thought that publishing sex offenders' addresses is a way of reducing risk for others who might be exposed, but they did not anticipate a risk calculation that led to the violent preemptive or retribution attack.

DylanSeptember 14, 2005 8:26 PM

All in all, for someone thinking of a career in crime, the paper is a veritable one-stop-shop of places to go to get started.

The paper provides a long list (the first few pages are mostly footnotes) of web references, and paper references to sources that provide exactly the sort of information that could be considered crime-facilitating.

I don't see how anyone could argue that this document is advocating the stifling of free speech, when it is one of the most wide-ranging pieces of free speech I've seen for a long while.

BB.September 14, 2005 10:49 PM

times 14.9.2005 bb fullwise approves volohk stop crimethinkers doublepluswarned invited attendance to joycamp stop volohk rewrite newspeak upsub antereport stop

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end message

Jakob DamkjaerSeptember 15, 2005 4:41 AM

But on the other hand, this provides the legal basis with wich to impeach both bush and turdblossom.

karl rowe because he preformed the Crime-facilitating speech that allowed the nowac et al to preform the crime of revealing the secret identity of Valeri Palme and bush because he preformed the Crime-facilitating speech that induced the US to engage in an illegal war.

However, some censureship is proper. The last time I saw a propper application was when a scientific paper analysing the vulnerability of the US milk production to ricine mass poisoning. There they did not disclose detalis in the published paper. That would have been criminal.

But not publishing the paper would have been wrong as well.
It was wrong as well, when a department of agriculture scientist was prohibiteted from speaking at a conferance on the subject of the superbugs the giant industrialised pig farms cause to ocour near to them as they use too much antibiotics to increase profitablilty.

Somewhere in between those two lies consideration of the conflicting arguments affecting the public interest.

jammitSeptember 15, 2005 12:19 PM

I think, but I may have gone too far already. I can see how "kill the president" could be used against you if the pres had been killed or an attempt to kill had been made, but only if your actions caused the attack. If I pulled the trigger, or ordered someone else to pull could I be the bad guy. Even if I order some guy to do it, my involvement seems kind of "iffy". I won't be held accountable for some nut job holed up in a book depository somewhere. Yelling "fire" in a crowded theater is an attack on people, yelling "theater" in a firehouse is just funny.

Clive RobinsonSeptember 15, 2005 2:13 PM

Having had the oportunity to read a little more of it (108 pages does take a bit of chewing and digesting ;)

A thought occurs to me, If the person speaking "crime-facilitating speech" was addressing a private group, would they effectivly be commiting an act of conspiracy?

Also what is the litimus test for "Crime-Facilitating", for instance, would discussing how to stop a first term president gaining office for a second term be regarded as a crime... and if so by whom and why.

To elaborate a little if I say concocted a very belivable but untrue story about the first term Pres and delivered it as a speach to "Media Barrons" who then released it the day before critical elections where to be held, I would certainly be guilty of one or two civil offences but criminal ?

If however I spoke about assasination and how to go about it in the specific case then I would most likley be guilty of conspiracy and treason, which are criminal offences.

But what about the areas in between?

So where is the line drawn and by whom, if by case law then effectivly it is going to be very inoffective, as intelegent motivated people will always be able to skate on the thin edge with effectivly impunity, it's only going to be the inocent (letting off steam) and those not legaly adroit who are going to be prosecuted by any prospective "crime-facilitating speech" laws....

thanraxSeptember 15, 2005 4:00 PM

Prong #3 would seem to prohibit discussions of disease-spread, epidemiology, etc. even if performed by people of demonstrably good intentions (doctors, epidemiologists).

Or is the government going to be in the job of issuing prior approvals (or denials)? Reminder to self: Ask Dr. Felten about that.

A few other areas also affected by prong #3:
- chemicals, chemical transport (think chlorine gas)
- demolition (how to bring down big buildings)
- IP and DNS security (bringing down the internet in 15 secs or less)
- pollution research (how people die from long-term low-level exposure in air and water)

I'm sure you can think of many more.

George BooleSeptember 16, 2005 1:12 AM

One thing I haven't figured out yet...

Is the author suggesting an AND or an OR function between the 3 prongs?

It's not clear from the quoted fragments, and I don't feel up to wading through 108 pages.

F McGowanSeptember 19, 2005 1:45 PM

You guys really scare me, but nowhere near as much as our courts do these days.

1. The first comment calls full dislcosure and the right to encrypt "quaint and outmoded concepts." What rights *do* I have to protect my own data from tampering, in this brave new world?

2. No one responded to the remark about talk show hosts Limbaugh and Liddy except to agree. Have you listened to what they say or only what is said about them? I have listened to Limbaugh as often as possible since he went national in 1988 and I cannot recall him ever advocating breaking the law. I don't recall Liddy doing so, either, though his show is no longer availble in my area and I was never able to catch him reliably.
If you can cite a verifiable case where eiher *did* advocate breaking the law, please do so.

3. @G. Poole - Professor Kolokh says the First Amendment exception will be triggered when "one of these three conditions is satisfied." In that case, a court willing to interpret his guidelines as broadly as Congress has interpreted the "Interstate Commerce Clause" of the U.S. Constitution, any speech that can be seen as facilitating crime in *any* sort of way will be forbidden. Indeed, the Roe v. Wade decision cites "an emanation of the penumbra" of a specified right as the underpinning of a new "Constitutional right," if I recall correctly. For that reason, Professor Kolokh's modest proposal absolutely terrifies me.

4. Can we find some example for non-protected speech *other* than "yeling 'Fire!' in a crowded theater," please? Here's one - a political ad placed by a "special interest group" within 60 days of a federal general election is prohibited. From what I've observed in our legal system successful challenges to prohibitions on pornography, lewd song lyrics and Nazis (among others) being able to spew forth in public, as "protected speech," I can't see that much else is currently forbidden other than threatening the U.S. president.

5. @Jammit - As far as ordering someone else to carry out a murder, that is what Charles Manson was convicted of doing. He is still in jail.

Given the recent extremely artful re-interpretation of "public use" as "public good" that enabled that Connecticut town to exercise eminent domain over private property so it could be given to a private entity for redevelopment (and be subject to higher taxation), I don't think you should rule out willful misinterpretation of the guidelines.

IANAL, but I can see this getting completely out of hand given the increasing willingness of our courts to make it up as they go along.

Ari HeikkinenSeptember 19, 2005 6:55 PM

In my opinion, even more important than defining what crime-faciliating speech might be would be generally defining what is atleast not.

Fred PageSeptember 21, 2005 9:53 AM

@F McGowan

"Can we find some example for non-protected speech *other* than "yeling 'Fire!' in a crowded theater," please?"

- I mentioned this because it's part of the decision of a famous supreme court case on the issue (i.e., one that I remember without looking it up). It's been over a decade since I took a course on the subject. Other obvious categories: Death threats, Aiding and Abetting, Obstruction of Justice, Criminal Facilitation, Perjury, Slander.

Fortunately, Mr. Volokh's legal scholorship far exceeds mine, even if this paper were his only work. There are over twenty examples of upheld limitations to freedom of speech by page 8. There appear to be hundreds in this paper.

"...I don't think you should rule out willful misinterpretation of the guidelines."
You are assuming that there are guidelines. In the absence of an admendment to the U.S. constitution on the freedom of speech (which, other than the 1st amendment, does not exist), the only guidelines on the application of that sentance "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." are case law from the same or a higher court. Attempting to pass a Federal Law to create a constitutional guideline is meaningless, since the constitution trumps federal law. Unlike most countries, engaging in a treaty defining anything about freedom of speech is simuarly meaningless, since in the U.S., constitutional law trumps international treaties (which in turn trump federal law).

In other words, other than case law, there are no guidelines. According to this author (and he provides plenty of evidence to back up his claim), the case law is inconsistant; I.e. there are no clear guidelines.

This document is suggesting a set of consistant guidelines for a particular area of law. Presumably, he's hoping that 1 or more judges/justices will read it, and be persuaded to his line of argument. If this occurs, it may start to become case law.

Fred PageSeptember 21, 2005 11:55 AM

@F McGowan

"Can we find some example for non-protected speech *other* than "yeling 'Fire!' in a crowded theater," please?"

When you read the above referenced article, you'll find over 100 examples, many of which were upheld. I think that in comparision, my limited legal scholorship is pointless.

However, here goes:
Slander
Obscenity
Aiding and Abetting
Obstruction of Justice

F McGowanSeptember 21, 2005 2:08 PM

@Fred Page: Thanks for the responses.
I admit not reading the entire article, but I did read a large part. I knew there were other limits on speech, but *everyone* seems to quote Justice Holmes (I think...) with the theater thing rather than finding anything else to say.

Though IANAL, I am aware that the Constitution and case law constitute the only real constraints on federal judges. However, I reiterate that our judges seem to want to make it up as they go along and overstep themselves rather frequently these days. The majority of the U.S. Supreme Court appear to have willfully mistinterpreted "public use" in Amendment 5 to mean "public good" in the recent eminent domain case.

The Constitution says that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior..." Surely usurpation of Congress's legislative authority would be other than "good Behavior" for a jurist, justifying impeachment and removal from office. Congress has the duty to keep the courts within their rightful sphere and the authority, as well. The process was made difficult to keep it from being used to destroy the intended judicial independence but we seem to have forgotten that it was made *possible* to provide the intended balance.

Short of Congress actually removing federal judges at all levels for overstepping their authority, there is *no* limit on judicial authority.

I will not hold my breath waiting for Congress to do its duty in taking such steps and the resulting heat.

Filias CupioSeptember 21, 2005 10:16 PM

Personally, I lost faith in the Supreme Court when they upheld the laws which allow assets to be seized if the authorities believe (or claim to believe) that they were bought with profits from illegal drugs or used for drug smuggling. I understand these laws are written such that the authorities need prove nothing to seize the assets, and they can only be regained by suing (with a different standard of proof from criminal cases.)

A typical abuse is "We claim we found a joint* in your car, so we're seizing it. Plead guilty to possesion-for-personal-use and we'll give it back. Otherwise you lose the car, or spend more than it is worth in court trying to get it back."

* marijuana joint, not universal joint.

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