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Speech and Crime

Published online by Cambridge University Press:  20 November 2018

Kent Greenawalt
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Abstract

What kind of constitutional standards are applicable to communications likely to cause listeners to commit crimes? An examination of the tension between the highly protective approach to advocacy of crime taken by the Supreme Court in Brandenburg v. Ohio and the provisions in many criminal codes that make those who encourage criminal violations generally punishable for solicitation is followed by an analysis of the penological reasons for punishing crime-causing communications and of the relevance to such communications of the justifications for freedom of expression. After an account of the Supreme Court decisions dealing with this subject and a summary critical examination of interpretive approaches to the First Amendment, the author suggests standards for constitutional appraisal of prohibitions of communications that may cause crime. The central proposals are that most statements of fact and value be accorded virtually absolute protection; that dominantly situation-altering utterances, such as agreements, offers of agreement, and orders, be treated as outside the scope of First Amendment protection; and that simple encouragements to commit specific crimes, a kind of action-inducing communication, be granted a degree of protection that depends heavily on context, with criteria like those contained in Brandenburg applicable to public ideological solicitation but with much less restrictive standards applicable to private solicitation.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 5 , Issue 4 , Fall 1980 , pp. 645 - 785
Copyright
Copyright © American Bar Foundation, 1980 

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References

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2 I typically use “speaker” and “listener” to include “writer” and “reader” when no distinction between oral and written communication is indicated.Google Scholar

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10 It would, for example, be ludicrous to punish a supervisor for criticizing a subordinate, even if it could be shown that the criticism so inflamed the subordinate that he assaulted a fellow worker hours later.Google Scholar

The point made in the text also applies to noncommunicative actions that may fortuitously cause crimes.Google Scholar

11 E.g., the murder committed by a direction to step to the right, a step that carries the unaware victim over a cliff.Google Scholar

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16 I am using the terms “solicit,”“incite,” and “counsel” interchangeably. In different jurisdictions one or another of these terms may be employed. In some usages, the terms may have slightly different connotations. “Incitement,” for example, may suggest an emotionally charged appeal to immediate action or be used to connote encouragements with a substantial likelihood of success. See Feinberg, Joel, Limits to the Free Expression of Opinion, in Joel Feinberg & Hyman Gross, eds., Philosophy of Law 135 (Encino, Cal.: Dickenson Publishing Co., 1975). My general usage of these terms is not meant to carry any such implication.Google Scholar

17 See, e.g., Hale, supra note 14, at 613.Google Scholar

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22 See Model Penal Code § 5.02, Comment 2 (Tent. Draft No. 10, 1960); LaFave & Scott, supra note 12, at 415. Some courts refused to consider solicitation of more trivial misdemeanors to be criminal. For a powerful argument against punishing most solicitations, see Francis Wharton, Treatise on Criminal Law 5 2691 (7th ed. Philadelphia: Kay & Brother, 1874) (1st ed. Philadelphia 1846).Google Scholar

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27 In many jurisdictions a bare “agreement” to commit a crime is punishable. See LaFave & Scott, supra note 12, at 476–77.Google Scholar

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29 Wash. Rev. Code Ann. § 9A.28.030(1) (1977).Google Scholar

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31 Model Penal Code § 5.02(1) (1962). For recent revisions containing similar provisions, see, e.g., N.Y. Penal Law 88 100.00-. 10 (McKinney 1975 & Cum. Supp. 1979–80); Tex. Penal Code Ann. tit. 4, § 15.03(a) (Vernon 1974).Google Scholar

32 Parker's Case, 73 Eng. Rep. 410 (Q.B. 1560).Google Scholar

33 Hale, supra note 14, at 617.Google Scholar

34 For an incitement case analogous to Parker's Case, 73 Eng. Rep. 410 (Q.B. 1560), see Rex v. Sheppard (1919) 2 K.B. 125; cf. Reg. v. McDonough, 47 Crim. App. 37 (1962).Google Scholar

35 See Model Penal Code § 5.01(3) & Comment 18 (Tent. Draft No. 10, 1960). See, e.g., Ariz. Rev. Stat. Ann. § 13–1001(A)(3) (1978).Google Scholar

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39 Model Penal Code § 2.04(3)(a)(1) (Tent. Draft No. 1, 1953).Google Scholar

40 Model Penal Code §§ 2.06(3)(a)(i), 5.02(1) (1962).Google Scholar

41 There are two other possible theories of liability under the model code. One is that A is aiding or attempting to aid B to commit a crime. § 2.06(3)(a)(ii). It might be said that B has a general disposition to have informers killed and that A aids him by identifying one; but it is stretching the notion of assistance to reach a situation in which A assumes that B has not yet decided to commit a crime and A's information in no way helps B commit that crime but gives him a wish to do so.Google Scholar

A second theory is that A is liable directly for the murder of C if B acts, or for attempted murder if B does not. Under the model code, if C dies, A has caused his death purposely, and the intervening action of B does not immunize A under the causation provisions of the code, which make one liable for consequences embraced by one's purpose regardless of the nature of those consequences. § 2.03. If B does not act against C, A has nonetheless acted with the purpose of causing C's death “without further conduct on his part,” and the model code thus makes him liable for attempt. § 5.01(1)(b). Traditional principles of responsibility, however, suggest that one is not directly liable when the immediate cause of death is the deliberate and informed intervention of a responsible third person, see H. L. A. Hart & A. M. Honore, Causation in the Law 292–95 (Oxford: Clarendon Press, 1959), and since the model code's causation section has been adopted in relatively few revisions, these traditional principles might bar liability in most jurisdictions for both murder and attempt.Google Scholar

42 This example assumes that B already knows that his wife is committing adultery and that A knows that B knows. Otherwise, A's comments might be an attempt to convey factual information that would give B an incentive to attack C. Of course, A's comments may indirectly convey information about A's attitudes toward B's situation; this is why l have included the qualification “in the ordinary sense.”Google Scholar

43 In Rex v. Phillips, 102 Eng. Rep. 1365 (K.B. 1805), the court held that the defendant could properly be convicted for attempting to provoke another to commit the misdemeanor of sending him a challenge to fight a duel. But in that case, defendant's letter expressed a desire (or at least willingness] to fight a duel, so it actually encouraged the response of a challenge.Google Scholar

44 Hale, supra note 14, at 616. 1 suppose a modern translation would be “It makes no difference to me,” or “Do what you want, as far as I'm concerned.” Of course, if the permission were given by one in authority with a duty to discourage the act, he might well be liable.Google Scholar

45 See Scott, , supra note 21, at 298–300.Google Scholar

46 See generally Model Penal Code § 2.04, Comment (Tent. Draft No. 1, 1953). LaFave & Scott, supra note 12, at 507–12; 1 Russell, supra note 18, at 153–56; Smith & Hogan, supra note 18, at 120–22; Williams, supra note 19, at 366–80.Google Scholar

47 Model Penal Code § 2.04(3)(b) (Tent. Draft No. 1, 1953).Google Scholar

48 Model Penal Code § 2.06 (1962).Google Scholar

49 See, e.g., N.Y. Penal Law § 115.00 (McKinney 1975 & Cum. Supp. 1979–80).Google Scholar

50 See LaFave & Scott, supra note 12, at 418; Scott, supra note 21, at 298–99.Google Scholar

51 Model Penal Code §§ 5.01, 5.02, & Comments (Tent. Draft No. 10, 1960). See, e.g., Fla. Stat. Ann. § 777.04(5) (West 1976); III. Rev. Stat. ch. 38, § 8–4(a) (1979). The model Code actually permits liability for the speaker who intentionally encourages action that might constitute a crime of recklessness without intending that the substantive crime be committed, so long as he is reckless about that possibility; but this is a subtlety of very limited relevance for our purposes.Google Scholar

52 Indeed, most even impose strict liability for certain harmful consequences, but there are powerful reasons against such liability and no one has suggested it is appropriate in this context.Google Scholar

53 § 2.02(c) (1962).Google Scholar

54 § 2.02(d) (1962).Google Scholar

55 See Hart & Honore, supra note 41, at 292–95.Google Scholar

56 See Model Penal Code § 250.1, Comment (Tent. Draft No. 13, 1961).Google Scholar

57 § 2.03 (1962).Google Scholar

58 § 210.3. Or negligent homicide if he were only negligent. § 210.4. Compare note 41 supra. Google Scholar

59 See § 2.03, Comment (Tent. Draft No. 4, 1955). For jurisdictions following the model code, see, e.g., Ariz. Rev. Stat. Ann. § 13–203 (1978); Pa. Stat. Ann. tit. 18, § 303 (Purdon 1973).Google Scholar

60 Model Penal Code § 211.2 (1962).Google Scholar

61 § 250.2(1962).Google Scholar

62 “A violation does not constitute a crime” and imprisonment is not a permissible penalty for it under the model Code structure. § 1.04(5) (1962).Google Scholar

63 The jury must also consider the unjustifiability of the risk, but this problem cannot be discussed without attention to the value of communication.Google Scholar

64 If the charge is “reckless endangerment.” of course the jury would not have to determine actual consequences.Google Scholar

65 This argument against punishing A also applies to situations in which A's reckless act does not involve communication but risks an intentional criminal act by B. (Say, A, indifferent to C's safety, brings him to a bar where he knows that B, C's sworn enemy, often can be found, and B kills C at the bar.) This argument against punishing A does not apply in any situation in which A's communication risks a damaging but innocent act by B. It is, in short, a general argument for the traditional causal limitations on liability that happens to have application to most communications whose recklessness or negligence inheres in the likelihood that a listener will perform a harmful act.Google Scholar

66 I put aside the question whether terms like “abusive” and “insulting” are sufficiently precise to afford significant warning.Google Scholar

67 See Hale, , supra note 14, at 617.Google Scholar

68 Williams, supra note 19, at 365–66.Google Scholar

69 Model Penal Code § 5.02(1) (1962). See also LaFave & Scott, supra note 12, at 419–20.Google Scholar

70 Compare LaFave & Scott, supra note 12, at 419, with Smith & Hogan, supra note 18, at 214 (agreeing that incitement to conspire could be punished but doubting that incitement to incite or to aid could be punished).Google Scholar

71 § 5.02(1) (1962).Google Scholar

72 See § 2.06(3) (1962). This section is not entirely free from ambiguity on this point, but its import is as indicated. If A solicits B to solicit C who commits the crime, B is plainly C's accomplice, and A is plainly B's accomplice. A is legally accountable for B's conduct, and B's conduct renders him liable for the substantive offense. A is also liable for the substantive offense.Google Scholar

73 Such reasoning proved persuasive in Great Britain when Parliament in 1977 abolished liability for solicitation to conspiracy. 2 The Public General Acts and General Synod Measures of 1977, ch. 45, Criminal Law Act 1977, para. 5(7). See Commission, Law, Inchoate Offences: Conspiracy, Attempt and Incitement, Working Paper No. 50. para. 44 (London: Her Majesty's Stationery Office, 1973) (also same reproduced in 6 The Law Commission Working Papers 1–64: Collected Edition (Abingdon, England: Professional Books, Ltd., 1977)).Google Scholar

74 An argument for permitting a practice is consequentialist if it is based on a good effect of the practice. In traditional utilitarian theory a persuasive moral argument in favor of a practice had to show the tendency of the practice to promote happiness or diminish unhappiness. But one may believe in the importance of justifying particular social practices in terms of their consequences without subscribing to the view that all desirable consequences concern happiness and without rejecting all nonconsequentialist arguments as invalid. Nor does acceptance of a view that the dominant justifications for liberty of expression are consequentialist necessarily lead one to think society should recognize only a weak right of expression, one that can be balanced away whenever stronger contrary justifications appear. One may believe, with John Stuart Mill (see On Liberty, in Three Essays 23–68 (World Classics ed. London: Oxford University Press, 1912) (1st ed. of On Liberty 1859)) that purported contrary justifications are delusory or without much force, and that governments, or the public generally, cannot be trusted to determine their force fairly in particular instances. Thus one who begins at a consequentialist starting point may come to favor a practical principle establishing a social right to absolute liberty of expression (though any such position must treat some communications as not expression in the relevant sense).Google Scholar

75 For excellent modern discussions, see Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 877–86 (1963); Feinberg, supra note 16, at 135–51; T. M. Scanlon, Jr., Freedom of Expression and Categories of Expression, 40 U. Pitt. L. Rev. 519 (1979).Google Scholar

76 See Mill, , On Liberty, supra note 73. When Mill asserts that governmental suppression of ideas rests necessarily on a false assumption of infallibility he overstates his case; suppression may be based on a cynical skepticism about the truth of any ideas, or on a calculation that, fallible as it is, the government's assessment of truth is likely to be more accurate than that of a dissident minority, or on the belief that, whatever their truth, certain ideas that are destructive of social order should be silenced.Google Scholar

77 See also the reformulation of Mill's position with an emphasis on the necessary conditions for progress in J. B. Bury, A History of Freedom of Thought 191–92 (2d ed. London: Oxford University Press, 1952).Google Scholar

78 The grounds of this skepticism are complex. Imperfections in the market, most notably the concentrated power of the mass media, may be seen as interfering with the discovery of truth. See, e.g., C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 974–81 (1978). At a fundamental level, doubt may be raised whether exposure to various points of view really does lead people to greater understanding of truth or whether people simply accept as true beliefs that are dominant socially or that serve unconscious, nonrational needs. See id. at 976–77. Even more fundamentally, it may be questioned whether humans are even in a position to judge what sorts of institutions promote the search for truth, since they cannot be confident that what they now believe is more true than other sets of beliefs. See, e.g., Benjamin S. DuVal, Free Communication of Ideas and the Quest for Truth: Toward a Teleological Approach to First Amendment Adjudication, 41 Geo. Wash. L. Rev. 161, 191–94 (1972). Most fundamentally of all, the idea of objective truth may be challenged, a view that is most common in respect to judgments of value.Google Scholar

Most of these doubts raise basic questions about human understanding. I cannot undertake anything like a satisfactory response here, but I should indicate the lines 1 believe such a response would take. The argument for liberty of expression can survive a substantial dose of skepticism about objective truth. As Emerson has put it, “The essential point is that the process is necessary for reaching the best social decision, regardless of whether ultimate values are concerned in absolute or relative terms.” Thomas I. Emerson, Colonial Intentions and Current Realities of the First Amendment, 125 U. Pa. L. Rev. 737, 741 (1977). Given the provisional nature of many beliefs and the multiple variables that affect changes in belief, perhaps we can never be absolutely confident in labeling one belief as truer than another (or one social decision as better than another) or be certain that the apparently truer belief (or better decision) would not have emerged in a regime of widespread or selective repression. But the absence of certainty and of controlled experimental evidence available in the pure sciences should not preclude us from making informed judgments on the evidence that is available. Whatever the source of human beliefs in matters of religion, ultimate moral values, and political ideology, humans are able to benefit from rational assessment of available evidence on narrower questions. See Wellington, Harry H., On Freedom of Expression, 88 Yale L.J. 1105, 1130–31 (1979). And if the notion of truth is expanded, an individual's discovery of ultimate and more mundane beliefs that best suit him can itself be treated as an advance in understanding. For this reason, I would treat DuVal's argument that the justification for freedom of speech lies in the importance of allowing beliefs to be modified, see DuVal, supra. at 203–9, as within a broadly conceived notion of truth discovery.Google Scholar

The argument about imperfections in the market has troubling implications for many First Amendment issues but is of limited importance for the subject of this article.Google Scholar

79 See note 78 for a sketch of the objections the statement in text would meet and the manner in which a defense of it could be mounted.Google Scholar

80 Of course, the line between truth discovery and interest accommodation is not a sharp one. Determining someone's expressed interest is discovery of a particular truth, and even determining the optimal accommodation of competing interests might be thought to be discovery of a kind of truth, if it were believed that such value judgments can properly be spoken of as true or false. And when discovery of a significant empirical truth (e.g., that capital punishment does not deter) or value (that retribution is an unacceptable basis for punishment) leads to a social decision (to end capital punishment), we can still think of the decision as working an accommodation among affected interests. All I mean to assert here is that there is a significant difference in approach when we seek to find true principles to resolve troubling issues like capital punishment and when we seek to strike some kind of balance among conflicting desires, as when we work out a schedule of household responsibilities.Google Scholar

81 For a forceful account of this rationale for freedom of expression and an argument about its implications, see Vincent Blasi, The Checking Value in First Amendment Theory, 1977 A.B.F. Res. J. 521.Google Scholar

82 See Locke, John, (Second] Treatise of Civil Government and A Letter Concerning Toleration, ed. Charles L. Sherman (New York: D. Appleton-Century Co., 1937) (1st eds. London 1690 and 1689, respectively). Treatise, at 116.Google Scholar

83 See Scanlon, Thomas, A Theory of Freedom of Expression, 1 Philosophy & Pub. Aff. 204, 215–16 (1972).Google Scholar

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85 This argument can be put in secular terms or in terms of what we owe to each other as children of God.Google Scholar

86 Such contempt may be seen as undermining a citizen's obligation to obey the law. See Baker, supra note 78, at 991–92. In this form, the argument is linked to social contract theories.Google Scholar

87 See Baier, Kurt, The Moral Point of View 173 (Ithaca, N.Y.: Cornell University Press, 1958).Google Scholar

88 To say that a fire fighter made a heroic rescue is to imply morally praiseworthy action at considerable personal risk.Google Scholar

89 Evaluations often indicate that something is an effective means to an accepted end. To say that an ordinary automobile is a good car is to imply that it does not need frequent repairs, that it runs at a reasonable rate of speed, etc.Google Scholar

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91 As Steven Shiffrin has said, “the private daily communications of millions of individuals profoundly affect public opinion.” Defamatory Non-Media Speech and First Amendment Methodology, 25 UCLA L. Rev. 915, 932 (1978).Google Scholar

92 Mill discussed an analogous situation in On Liberty, supra note 74, at 69.Google Scholar

93 If a reporter mistakenly writes that a prominent banker is a convicted embezzler, few readers are likely to investigate the statement's truth; even the newspaper's subsequent retraction will not reach all the original readers and may not eradicate in all that do read it the semiconscious impression that something is suspect about that banker.Google Scholar

94 A degree of chilling effect is obviously more tolerable in some domains than in others; and concentrated attention on the problem would demand more precise analysis and categorization.Google Scholar

95 I have been influenced by the seminal work of John Langshaw Austin, especially his lectures published posthumously under the title How to Do Things with Words (Cambridge, Mass.: Harvard University Press, 1962), and by subsequent writings that have elaborated on his themes or criticized his work, or both, including Kuang Tih Fann, ed., Symposium on J. L. Austin 351–468 (New York: Humanities Press, 1969); Mats Furberg, Saying and Meaning: A Main Theme in J. L. Austin's Philosophy (Oxford: Basil Blackwell & Mott, Ltd., 1971); John R. Searle, Speech Acts: An Essay in the Philosophy of Language (London: Cambridge University Press, 1969); Peter Frederick Straw-son, Logico-Linguistic Papers 149–69 (London: Methuen & Co., 1971); H. P. Grice, Logic and Conversation (unpublished lecture notes from William James Lectures at Harvard, 1967); Geoffrey James Warnock, Some Types of Performative Utterance, in Isaiah Berlin et al., eds., Essays on J. L. Austin 68–69 (London: Oxford University Press, Clarendon Press, 1973).Google Scholar

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98 Sometimes an agreement may be little more than a coordination of future plans, e.g., to play tennis, with each party having the option to withdraw for virtually any reason. What each person has really committed himself to do may be to show up at the agreed-upon time or give his partner sufficient advance warning that he will not be there.Google Scholar

99 One view would be that an agreement by A and B to commit a murder carries no real normative force at all. The contrary view would be that one faces a conflict of real moral duties after making the agreement, with the duty not to kill being obviously of greater moral force than the prima facie duty to keep the agreement.Google Scholar

100 I put the point this way to avoid the question whether an ordinary criminal act punishable for reasons unrelated to expression should count as expression if the actor has some expressive purpose. However troublesome borderline cases might be handled, I assume that a theory of freedom of expression will not count as expression all ordinary acts that imply some point of view (a very large category) or will count them as expression in some weaker sense than communications of value and fact.Google Scholar

101 See Richard Mervyn Hare, The Language of Morals (2d ed. New York: Oxford University Press, 1964).Google Scholar

102 Some denial of respect and frustration of personality may be involved whenever desired action is prohibited or punished, but people generally suppose constraints on their actions are more reasonable than constraints on their expressions of view. Constraints on action-inducing statements of fact approach constraints on action.Google Scholar

103 See generally Lillian R. BeVier, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 Stan. L. Rev. 299, 326–27 (1978).Google Scholar

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105 Patterson v. Colorado, 205 US. 454, 462 (1907).Google Scholar

106 See, e.g., Hugo LaFayette Black, A Constitutional Faith 44–63 (New York: Alfred A. Knopf, 1968).Google Scholar

107 See Black, Hugo L. & Cahn, Edmond, Justice Black and First Amendment “Absolutes”: A Public Interview, 37 N.Y.U.L. Rev. 549, 557–59 (1962).Google Scholar

108 Compare Zechariah Chafee, Free Speech in the United States 3–35, 497–516 (Cambridge, Mass.: Harvard University Press, 1941), with Leonard Williams Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (New York: Harper & Row, Torchbook, 1963).Google Scholar

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111 Id. at 174–75. It is possible, of course, that as prudent men the critics wanted to concentrate on reforms that were feasible, but even so, the infrequency of a broader attack is significant. Those who approached the issue of freedom of expression from the perspective of liberty of religious conscience also failed to argue against the government's interest in suppressing seditious libel. Locke, for example, acknowledged rather vaguely that “no opinions contrary to human society, or to those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate.” A Letter, supra note 82, at 210.Google Scholar

112 See, e.g., James Madison, Address of the General Assembly to the People of the Commonwealth of Virginia, Jan. 23, 1799, in 6 Gaillard Hunt, ed., The Writings of James Madison 333–34 (New York: G. P. Putnam's Sons, 1900–1910); Jefferson to James Madison, June 7, 1798, in 7 Paul Leicester Ford, ed., The Writings of Thomas Jefferson 266–67 (New York: G. P. Putnam's Sons, 1892–99). States, of course, were not restricted by the First Amendment and remained free to have a crime of seditious libel.Google Scholar

113 See generally Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 Sup. Ct. Rev. 109.CrossRefGoogle Scholar

114 Act for the Punishment of Certain Crimes (Sedition Act), ch. 74, § 2, 1 Stat. 596 (1798) (expired 1801 by its terms).Google Scholar

115 New York Times v. Sullivan, 376 U.S. 254, 276 (1964).Google Scholar

116 See notes 13–17 supra, and accompanying text.Google Scholar

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118 As late as 1859, Mill could write that only in respect to religious liberty had freedom of expression been advanced as a general principle. Mill, On Liberty, supra note 74, at 13.Google Scholar

119 See Emerson, , supra note 78, at 740–45.Google Scholar

120 Locke, A Letter, supra note 82, at 172, 186–87.Google Scholar

121 Id. at 205.Google Scholar

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125 1 Worthington Chauncey Ford, ed., Journals of the Continental Congress, 1774–1789, at 108 (1774) (Washington, D.C.: Government Printing Office, 1904). The importance the framers attached to expression as a check on arbitrary government is developed in Blasi, supra note 81, at 529–44.Google Scholar

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130 J. B. Bury makes the same point in A History of Freedom of Thought, supra note 77, at 188.Google Scholar

131 The phraseology is Bury's, written in 1913. Id. at 1. A similar idea is found in Benedict de Spinoza, A Theologico-Political Treatise, in 1 The Chief Works of Benedict de Spinoza, trans. R. H. M. Elwes, 258 (New York: Dover Publications, 1951) (essay first published anonymously in Hamburg, 1670).Google Scholar

132 See 2 Joseph Story, Commentaries on the Constitution of the United States, ed. Melville M. Bigelow, § 1880 (5th ed. Boston: Little, Brown & Co., 1891). But see the contrary comment of Bigelow. Id. at 639 n.(a).Google Scholar

133 2 Thomas M. Cooley, Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union, ed. Walter Carrington, 886 (8th ed. Boston: Little, Brown & Co., 1927).Google Scholar

134 See Annot., 32 L.R.A. 829 (1896).Google Scholar

135 171 N.Y. 423, 64 N.E. 175 (1902).Google Scholar

136 It provided that “every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”Id. at 430–31, 64 N.E. at 178.Google Scholar

137 Id. at 426–27, 64 N.E. at 176–77.Google Scholar

138 Id. at 428–29, 64 N.E. at 177.Google Scholar

139 Id. at 431, 64 N.E. at 178. The court's catalog of varieties of unprotected speech included libel, lottery advertisements, blasphemy, obscenity, and matter “injurious to society according to the standard of the common law.”Id. Google Scholar

140 Chafee, supra note 108, at 39, 51–52. There were roughly 2,000 prosecutions under the act.Google Scholar

141 249 U.S. 47 (1919). The three cases were under advisement at the same time; Schenck was decided a week before the other two.Google Scholar

142 249 U.S. 204 (1919).Google Scholar

143 249 U.S. 211 (1919).Google Scholar

144 249 U.S. at 51.Google Scholar

145 Id. Google Scholar

146 Though the opinion itself does not explicitly deal with the question (perhaps because the Justices had not reached agreement), the implication is that defendants had to have a subjective illegal purpose. Specific intent needed to be proved in a case like Schenck both because of the statutes's willfulness requirement and because such an intent is an element of the inchoate crime of conspiracy.Google Scholar

147 249 U.S. at 208.Google Scholar

148 249 U.S. at 214.Google Scholar

149 See Chafee's account, supra note 108, at 51–79.Google Scholar

150 249 U.S. at 51.Google Scholar

151 Id. at 52.Google Scholar

152 See generally Elliot L. Richardson, Freedom of Expression and the Function of Courts, 65 Harv. L. Rev. 1, 6–24 (1951).Google Scholar

153 See generally Masses Publishing Co. v. Patten, 246 F. 24, 38 (2d Cir. 1917); Chafee, supra note 108, at 24–27; Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 Stan. L. Rev. 719, 724, 737 (1975).Google Scholar

154 249 U.S. at 209. Given the posture of the case, the Supreme Court did not review the evidence. See id. at 206; Chafee, supra note 108, at 83.Google Scholar

155 Chafee speaks of Holmes “biding his time until the Court should have before it a conviction so clearly wrong as to let him speak out his deepest thoughts about the First Amendment.” Chafee, supra note 108, at 86.Google Scholar

156 Correspondence between Holmes and Judge Learned Hand suggests this account. See Gunther, supra note 153, at 735–41, 758–60.Google Scholar

157 250 U.S. 616, 624 (1919).Google Scholar

158 Id. at 621.Google Scholar

159 Id. at 627. The troublesome question of whether one intends a consequence that one knows is a highly likely result of what one does but not something one seeks is illuminatingly discussed in its connection to Abrams in Chafee, supra note 108, at 129–35.Google Scholar

160 250 U.S. at 628.Google Scholar

161 Id. at 627.Google Scholar

162 Id. at 630.Google Scholar

163 Id. Google Scholar

164 268 U.S. 652, 672 (1925).Google Scholar

165 274 U.S. 357, 372 (1927). Whitney was convicted for organizing a group to engage in advocacy of criminal syndicalism. The Brandeis opinion is a concurrence because she had not claimed the absence of clear and present danger in the courts below.Google Scholar

166 268 U.S. at 673.Google Scholar

167 274 U.S. at 371.Google Scholar

168 249 U.S. at 52.Google Scholar

169 On the other hand, it is possible that not having had experience with a peacetime draft. Holmes meant only that the language of the Schenck leaflet would if distributed in peacetime not be taken to intend, or be likely to produce, the violation of any legitimate statute.Google Scholar

170 250 U.S. at 630.Google Scholar

171 274 US. at 376–78.Google Scholar

172 249 U.S. at 206.Google Scholar

173 250 U.S. at 627 (emphasis added).Google Scholar

174 274 U.S. at 376.Google Scholar

175 In addition to the passages from Frohwerk, Whitney, and Abrams, quoted in the text, Holmes spoke in Gitlow of the possibility that despite the absence of any chance that the vague manifesto would start a “present conflagration,” it would have been a different question if publication “had been laid as an attempt to induce an uprising against government at once.” 268 U.S. at 673. But he then raised a doubt whether such a publication could be the basis for punishment if “too remote from possible consequences.”Id. Google Scholar

176 251 U.S. 466 (1920).Google Scholar

177 Pierce v. United States, 252 U.S. 239 (1920), decided shortly after Schaefer, further demonstrates the extent to which an apparently simple notion like false reports can be expanded to abhorrent ideas. In Pierce, “falsification” by distributors of a socialist pamphlet consisted in misinterpretation of complex historical facts, such as the cause of World War I, and assertedly mistaken predictions of future events, rather than knowing misstatements of simple facts. See generally Chafee, supra note 108, at 51.Google Scholar

178 251 U.S. at 483.Google Scholar

179 See especially Holmes's dissent in Abrams, 250 U.S. at 626–29.Google Scholar

180 274 U.S. at 378.Google Scholar

181 249 U.S. at 206.Google Scholar

182 250 US. at 627.Google Scholar

183 Wechsler, Herbert, chief author of the ALI Model Penal Code, has criticized Holmes's position in precisely this respect. Herbert Wechsler, Principles, Politics, and Fundamental Law: Selected Essays 35–36 (Cambridge, Mass.: Harvard University Press, 1961).Google Scholar

184 274 U.S. at 378.Google Scholar

185 Masses Publishing Co. v. Patten, 246 F. at 24 (2d Cir. 1917). The majority said speech was punishable under the Espionage Act “if the natural and reasonable effect of what is said is to encourage resistance to a law, and the words are used in an endeavor to persuade to resistance.”Id. at 38.Google Scholar

186 244 F. 535 (S.D.N.Y. 1917). rev'd, 246 F. 24 (2d Cir. 1917).CrossRefGoogle Scholar

187 See Gunther, , supra note 153, at 725.Google Scholar

188 244 F. at 540.Google Scholar

189 Id. Google Scholar

190 Id. at 542.Google Scholar

191 In one respect, at least, Hand's approach may be less protective of speech. Hand did not mention any condition of imminence and apparently would have permitted punishment of counseling of a crime to be committed some time after the speech. (But compare Chafee. supra note 108, at 46–50, who advances the oversimpslified view that the common law of incitement required speech to “approach dangerously near success.”Id. at 50.) If Holmes's requirement that a speaker create or intend an imminent danger applied even to explicit counseling, he might have protected some speech that Hand would have left unprotected. Hand made no mention of the gravity of the crime, so presumably he thought explicit counseling of minor crimes was not constitutionally protected, but on this point Brandeis's Whitney opinion takes a similar position.Google Scholar

192 Gunther, supra note 153, at 149.Google Scholar

193 Id. at 729. The oration is that found in William Shakespeare, The Tragedy of Julius Caesar, act 3, sc. 2.Google Scholar

194 Taken literally, Hand's comment in correspondence with Holmes that “Debs was guilty under any rule conceivably applicable,” Gunther supra note 153, at 758. indicates considerable latitude to go beyond the face of the words. Gunther attributes these words to tact rather than conviction. Id. at 739.Google Scholar

Chafee, who referred to the Marc Antony problem in correspondence with Hand, id. at 773, asserted that Hand believed his test would make Antony punishable. Chafee, supra note 108, at 49–50. But he does not explain the basis for this conclusion. Perhaps the assumption is that any ambiguity in Antony's literal words is removed by the manner in which they are spoken.Google Scholar

195 268 U.S. 652 (1925).Google Scholar

196 The majority said, “We may and do assume that freedom of speech and of the press–-which are protected by the First Amendment from abridgment by Congress–-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”Id. at 666. It was not yet clear that the scope of the speech limitation was essentially the same for states as for the federal government; indeed Justice Holmes suggested in dissent that perhaps the states had more latitude than the federal government. Id. at 672. But since in no subsequent case has the majority relied on such a distinction and more modern decisions appear to preclude it, we shall assume that for most purposes at least, the restraints are identical.Google Scholar

197 Id. at 654.Google Scholar

198 Id. at 671. The Court treats these two tests as equivalent.Google Scholar

199 Id. The Court's attempt to distinguish Schenck and related cases is less than straightforward. Although the Espionage Act prohibition of behavior that causes refusal of duty or obstructs the recruiting service is not literally cast in terms of specified prohibited language, undoubtedly the main way to cause refusal of duty and a major way to obstruct recruitment is by speech, so Congress must have considered whether language to that effect should be forbidden. It is highly misleading to treat cases under the Espionage Act as involving legislative inattentiveness to instances of speech and to conclude that this inattentiveness warrants a stricter constitutional test. The implausibility of the Gitlow majority's attempted distinction simply confirms the probability that most members of the Court were willing to accept clear and present danger language only when the test did not appear very stringent and wished to jettison that conceptual framework when it came to embody the unpalatable libertarian conclusions of Holmes and Brandeis.Google Scholar

200 Id. at 667.Google Scholar

201 Id. at 670.Google Scholar

202 Id. at 669.Google Scholar

203 274 U.S. 357.Google Scholar

204 Chafee advances the doubtful proposition that Whitney is marginally less deferential to the legislature than Gitlow. See Chafee, supra note 108, at 351. In Fiske v. Kansas, 274 U.S. 380 (1927), decided the same day as Whitney, the Court did strike down a conviction under a state criminal syndicalism law, on the ground that the only evidence about the doctrines of the group (the IWW) for which Fiske was soliciting failed to establish any advocacy of illegal action, and thus wholly failed to show that Fiske had violated the statute.Google Scholar

205 283 U.S. 359 (1931).Google Scholar

206 In finding “no reason to doubt the validity of the second and third clauses of the statute as construed by the state court to relate to … incitements of violence,”id. at 369, the Court continued its acceptance of the notion that general revolutionary incitement is punishable, since that is the sort of incitement for which a red flag would be typically used, not incitement to specific illegal acts.Google Scholar

207 299 U.S. 353 (1937).Google Scholar

208 301 U.S. 242, 242 (1937).Google Scholar

209 Id. at 256.Google Scholar

210 The state court had said that to be convicted Herndon must have contemplated forcible action, but that it was sufficient if he intended an insurrection to occur whenever he might reasonably expect his influence to continue. Id. at 261–62. The Supreme Court majority interpreted this language, contrary to its apparent import and the view of the dissenters, as permitting conviction if the defendant “should have contemplated” that his words might contribute in the distant future to forcible resistance. According to the majority, the jury is effectively licensed “to create its own standard in each case.”Id. at 262, 263.Google Scholar

The force of the majority's criticism would be diminished but not eliminated if a jury were required to find a specific intent to cause forcible resistance.Google Scholar

211 319 U.S. 583 (1943).Google Scholar

212 Id. at 586, 590.Google Scholar

213 322 U.S. 680 (1944).Google Scholar

214 Id. at 683.Google Scholar

215 Id. at 687.Google Scholar

216 Id. at 694.Google Scholar

217 Id. at 686–87.Google Scholar

218 325 U.S. 478 (1945).Google Scholar

219 See plurality opinion of Roberts, J., id. at 486–87.Google Scholar

220 See concurring opinions of Justices Black and Rutledge, id. at 495, 498.Google Scholar

221 Id. at 501–4.Google Scholar

222 303 U.S. 444 (1938).Google Scholar

223 308 U.S. 147 (1939).Google Scholar

224 Chief Justice Hughes's unanimous opinion in Lovell leaves unclear whether the defect in the local permit system was that officials had arbitrary power to determine which messages might be distributed or whether an across-the-board prohibition on distribution would also be improper, though the Court's reliance on Grosjean v. American Press Co., 297 U.S. 233 (1936), which invalidated a license tax on the organized press, suggests the latter.Google Scholar

225 308 U.S. at 162.Google Scholar

226 310 U.S. 296 (1940).Google Scholar

227 Id. at 308.Google Scholar

228 Id. at 309–10.Google Scholar

229 Id. at 311.Google Scholar

230 315 U.S. 568, 569 (1942).Google Scholar

231 Id. at 573.Google Scholar

232 Id. at 571–72.Google Scholar

233 340 U.S. 315 (1951).Google Scholar

234 Id. at 330.Google Scholar

235 Id. at 321 (Douglas, J., dissenting).Google Scholar

236 Id. at 320.Google Scholar

237 See dissenting opinions of Justices Black and Douglas. Id. at 321, 329.Google Scholar

238 See Edwards v. South Carolina, 372 U.S. 229, 232–33 (1963).Google Scholar

239 See Gregory v. City of Chicago, 394 U.S. 111 (1969). And see the standard of the Illinois Supreme Court in that case, cited in Justice Black's concurring opinion. Id. at 121.Google Scholar

240 337 U.S. 1 (1949).Google Scholar

241 Id. at 22.Google Scholar

242 Id. at 25.Google Scholar

243 Id. at 35.Google Scholar

244 343 U.S. 250 (1952).Google Scholar

245 Id. at 267 (Black, J., dissenting).Google Scholar

246 Id. at 284–85 (Douglas, J., dissenting).Google Scholar

247 Thornhill v. Alabama, 310 U.S. 88, 105 (1940).Google Scholar

248 See Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); Int'l Brotherhood v. Hanke, 339 U.S. 470 (1950); Int'l Brotherhood of Teamsters v. Vogt, 354 U.S. 284 (1957).Google Scholar

249 See Thomas Irwin Emerson, The System of Freedom of Expression 445 (New York: Random House, 1970). See also Dennis v. United States, 341 U.S. 494, 529 (1951) (Frankfurter, J., concurring).Google Scholar

250 See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439 (1911) (boycotts based on union lists of employers as “Unfair” and “We don't patronize.”Id. at 420).Google Scholar

251 323 U.S. 516(1945).Google Scholar

252 Id. at 530.Google Scholar

253 Id. at 534–35.Google Scholar

254 314 U.S. 252 (1941).Google Scholar

255 Id. at 264 (quoting Schofield, Freedom of the Press in the United States, 9 Publications Am. SOC. Soc'y, 67, 76).Google Scholar

256 See Pennekamp v. Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 367 (1947); Wood v. Georgia, 370 U.S. 375 (1962). In the Wood case, however, much of Chief Justice Warren's majority opinion read as if the attempt to influence the grand jury may actually have been beneficial.Google Scholar

257 314 U.S. at 263.Google Scholar

258 In the Bridges case, which involved newspaper editorials and a publicized telegram to the secretary of labor, the state's theory of punishment was the “reasonable tendency” of the publications to interfere with the administration of justice. 314 U.S. at 272. Thus, intent was not made a crucial element; and it was in fact doubtful if the publications were intended to affect the judges' disposition of the cases before them, id. at 273, though in dissent Justice Frankfurter had no difficulty concluding that one editorial and the publication of the telegram were attempts to coerce the court. Id. at 300, 303. In Pennekamp, the majority again seemed to assume that the editorials there involved had not been published with the specific intent to affect particular pending cases, 328 U.S. at 347–48. Justice Frankfurter, this time concurring, spoke of the dangers of “extraneous factors psychologically calculated to disturb the exercise of an impartial and equitable judgment,” and stated, “It is the focused attempt to influence a particular decision … that justifies the corrective process.”Id. at 366. In Craig v. Hurney the state court had made an explicit finding that defendant had attempted to interfere with the outcome of a pending case. 331 U.S. at 370.Google Scholar

It is possible that the order in which these cases arose has affected the unimportance the majority has attached to intent. But another reason why intent has not emerged as a central inquiry, as was proposed in Justice Frankfurter's Pennekamp concurrence, may be the difficulty of defining an improper intent in this context. If a pending case is used as an illustration of the injustices of the present administration of justice, would a subsidiary hope that the outcome of the case might be affected suffice to establish improper intent? And assuming that rational analysis focused on the proper outcome of a particular case (as is found in law review articles) is protected, how would proper intent to affect the deliberations of a particular case be distinguished from improper intent to do so?Google Scholar

259 341 U.S. 494 (1951).Google Scholar

260 Id. at 496.Google Scholar

261 In a subsequent case, Justice Harlan commented for the majority, “We intimate no views as to whether a conspiracy to engage in advocacy in the future, where speech would thus be separated from action by one further remove, is punishable under the Smith Act.” Yates v. United States, 354 U.S. 298, 324 (1957).Google Scholar

262 341 U.S. at 511–12.Google Scholar

263 183 F.2d 201 (1950).CrossRefGoogle Scholar

264 341 U.S. at 508.Google Scholar

265 Id. at 510 (quoting United States v. Dennis, 183 F.2d at 212).Google Scholar

266 See 183 F.2d at 212.Google Scholar

267 If countervailing speech has its full chance and is unsuccessful, that is, if after a full airing of the issues many people still wish to disobey the law, this may be taken as some evidence that the social wrong to which the evil of illegal action responds may actually be great enough to warrant that evil. At least people have had the opportunity to act deliberately after hearing all sides. Cf. DuVal, supra note 78, at 169–70.Google Scholar

It might be responded that little occasion arose for countervailing speech within a disciplined party organization like that of the Communists and that outsiders were not even made aware what ideas had to be combated. This response states an important truth about secret persuasion, but its applicability here is limited. Outsiders did have sufficient information of what the Communists were teaching and sufficient access to party members, who were part of the general public reachable through ordinary media, so that countervailing communication was feasible, however blinded to it the eyes of members may have been by party loyalty. In any event, if the special secretive nature of the party was a basis for dropping the imminency requirement, the consequence should have been a limited exception to imminency, not a general abandonment of it.Google Scholar

268 341 U.S. at 551.Google Scholar

269 Id. at 570. Indeed it is almost a ridiculous exercise for a court to determine how likely a Communist revolution is 5 or 10 or 20 years from now, when it has no effective way of estimating what will happen to the economy, what concessions will be made to the immediate social demands of radical groups, what will happen in other countries to affect the relations between Communist governments and the United States, and other important matters.Google Scholar

270 Id. at 568.Google Scholar

271 But see id. at 575, a passage suggesting that advocacy of force or violence may be punished. But if Jackson thought individuals alone could be punished for advocating Communist doctrines, it is puzzling why he placed so much emphasis on conspiracy in his opinion.Google Scholar

272 Id. at 573.Google Scholar

273 If A has a constitutional right to say X, it would seem to follow, given the right of freedom of association implicit in the First Amendment, that A could not be punished for agreeing with B that A will say X, or for agreeing with B that both A and B will say X. Perhaps if the organization is so large and of such a nature that the danger is greatly increased that speeches saying X will cause some serious harm, then the conspiracy could be punished, although isolated speakers saying X could not. But this would not appear to be a simple product of the law of conspiracy, but of some sort of test of danger, which Jackson eschewed formulating in Dennis. Perhaps he had some such notion in mind but he did not state it clearly, and it would sharply reduce his apparent divergence from the plurality.Google Scholar

274 A majority of the Court had shortly before used an explicit balancing approach, weighing the reasons for regulation against the probable interference with speech, in American Communications Ass'n v. Douds, 339 U.S. 382 (1950), a case involving indirect interference with speech. That decision had upheld § 9(h) of the Taft-Hartley Act, which barred a union from the benefits of the act unless its officers had filed affidavits that they were not members of the Communist party and its affiliates and did not believe in the violent overthrow of the government.Google Scholar

275 341 US. at 524–25.Google Scholar

276 Id. at 525.Google Scholar

277 Id. at 581.Google Scholar

278 354 U.S. 298 (1957).Google Scholar

279 Id. at 326. The trial judge had said the following:Google Scholar

Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government … can constitute no basis for any finding against the defendants.

The kind of advocacy … upon which your verdict must be reached is not merely … a propriety but a duty to overthrow … the Government … by force and violence. Id. at 314–15. The trial court had also stated that defendants had to have a specific intent to accomplish overthrow of the government. In the Supreme Court's view this language did not make adequately clear, as the instructions in Dennis had done, that the advocacy must be directed at “promoting unlawful action.”Id. at 318. The majority opinion said:Google Scholar

We think that the trial court's statement that the proscribed advocacy must include the “urging,”“necessity,” and “duty” of forcible overthrow, and not merely its “desirability and propriety,” may not be regarded as a sufficient substitute for charging that the Smith Act reaches only advocacy of action for the overthrow of government by force and violence. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something. Id. at 324–25. In defense of the trial court's instruction, it might be said that if someone is told he has a duty to participate in the forcible overthrow of the government, that signifies that he should perform illegal actions when the time arises. If all the Supreme Court opinion demanded is an explicit urging that listeners perform illegal actions at some future time, it is hard to distinguish that from what is clearly implied in advocacy of the “‘duty’ of forcible overthrow.” But Justice Harlan may have meant that the advocacy must be more closely linked with action, either in the sense of recommending specific action or in the sense of being more positively directed to producing action among listeners.Google Scholar

280 Id. at 327.Google Scholar

281 Id. at 340.Google Scholar

282 367 U.S. 203 (1961).Google Scholar

283 367 U.S. 290 (1961).Google Scholar

284 367 U.S. at 232.Google Scholar

285 Id. at 234.Google Scholar

286 Justice Goldberg was replaced by Justice Fortas, and Justice Clark was replaced by Justice Marshall.Google Scholar

287 Commentators rightly perceived less reliance on “clear and present danger” as a sort of all purpose tool for First Amendment problems. See, e.g., Harry Kalven, Jr., “Uninhibited, Robust, and Wide-Open”–-a Note on Free Speech and the Warren Court, 67 Mich. L. Rev. 289, 297 (1968); Frank R. Strong, Fifty Years of “Clear and Present Danger”: From Schenck to Brandenburg–-and Beyond, 1969 Sup. Ct. Rev. 41.Google Scholar

288 See generally Laurence H. Tribe, American Constitutional Law 718–22 (1978). Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 871–75 (1970).Google Scholar

289 E.g., Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258 (1967).Google Scholar

290 Compare Elfbrandt v. Russell, 384 U.S. 11 (1966), and Keyishian v. Board of Regents, 385 U.S. 589 (1967). with Cole v. Richardson, 405 U.S. 676 (1972).Google Scholar

291 See Gunther, Gerald, Reflections on Robel: It's Not What the Court Did but the Way That It Did It, 20 Stan. L. Rev. 1140 (1968).CrossRefGoogle Scholar

292 See, e.g., NAACP V. Button, 371 U.S. 415 (1963); Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963). Strong has suggested a link between clear and present danger and the Court's demand for a close connection between government action and legitimate government purpose. See Strong, supra note 287, at 68–80.Google Scholar

293 376 U.S. 254 (1964).Google Scholar

294 Id. at 270.Google Scholar

295 E.g., Memoirs v. Massachusetts, 383 U.S. 413 (1966).Google Scholar

296 385 U.S. 116 (1966).Google Scholar

297 Id. at 120.Google Scholar

298 Id. at 116, 133.Google Scholar

299 394 U.S. 705, 705, 706 (1969).Google Scholar

300 395 U.S. 444, 449 (1969).Google Scholar

301 Id. at 447.Google Scholar

302 Cases are sometimes miscited from ignorance, but one cannot believe the Justices were unaware of a central feature of one of the Court's best-known cases. The most charitable explanation is that one or more Justices did not want to overrule Dennis, so a compromise was reached. They swallowed an unpalatable principle but retained room for future maneuver by having Dennis cited; the other judges swallowed the citation but got support for the principle they wanted.Google Scholar

303 395 U.S. at 456–57.Google Scholar

304 416 F.2d 165 (1st Cir. 1969).Google Scholar

305 Id. at 192–93.Google Scholar

306 Id. at 175.Google Scholar

307 id. at 177.Google Scholar

308 Id. at 167, 171.Google Scholar

309 Id. at 172.Google Scholar

310 Id. at 173.Google Scholar

311 Id. at 176.Google Scholar

312 Id. at 179.Google Scholar

313 Id. at 178.Google Scholar

314 Id. at 184.Google Scholar

315 414 U.S. 105, 107, 109 (1973).CrossRefGoogle Scholar

316 Broadrick v. Oklahoma, 413 U.S. 601, 618 (1973).Google Scholar

317 Miller v. California, 413 U.S. 15 (1973).Google Scholar

318 403 U.S. 15 (1971). Only Justices Brennan, Marshall, and Stewart remain from the Cohen majority, and there may be some doubt about how accurately that case represents the views of a present majority.Google Scholar

319 Id at 26.Google Scholar

320 E.g., Gooding v. Wilson, 405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court did uphold restrictions on the daytime broadcast of certain offensive words.Google Scholar

321 In an opinion dissenting from the remand of Rosenfeld v. New Jersey, 408 U.S. 901, 905 (1972), Justice Powell indicated his belief that even if retaliation is unlikely a state may penalize “the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience.” See also Williams v. District of Columbia, 419 F.2d 638, 646 (D.C. Cir. 1969) (en banc). The Pacifica case, 438 U.S. 726, does establish that offense to sensibilities is an adequate basis for prohibiting the daytime broadcast of some words.Google Scholar

322 See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar, 433 U.S. 350 (1977); In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978).Google Scholar

323 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).Google Scholar

324 Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 455–56. Compare the different treatment in In re Primus, 436 US. 412 (1978), of a letter indicating the availability of legal services, when the writer had political and ideological goals.Google Scholar

325 Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). Much of the opinion is for the Court but the analysis referred to was subscribed to by only four Justices.Google Scholar

326 Id. at 61.Google Scholar

327 Id. at 70.Google Scholar

328 438 U.S. at 743.Google Scholar

329 Young v. American Mini Theatres, Inc., 427 U.S. at 85–86 (Stewart, J., dissenting). See also id. at 76–78 (Powell, J., concurring); FCC V. Pacifica Foundation, 438 U.S. at 761–62 (Powell, J., concurring); id. at 763 (Brennan, J., dissenting).Google Scholar

330 My views on this are stated in some greater detail in Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 1013–20 (1978). An example of a more reductionist account of First Amendment interpretation is found in Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. Rev. 1 (1971), treating the accumulated decisional law as irrelevant.Google Scholar

331 Since constitutional amendment requires ratification as well as proposal, the views of those in the states who voted to ratify the First Amendment should count as well as the views of those in Congress who voted to propose it.Google Scholar

332 See Dworkin, Ronald, Taking Rights Seriously 81–130 (London: Gerald Duckworth & Co., 1977).Google Scholar

333 The importance of this kind of analysis has been emphasized in Charles L. Black, Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969); Dworkin, supra note 332, at 105–23; John H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980); Louis Lusky, By What Right? A Commentary on the Supreme Court's Power to Revise the Constitution (Charlottesville, Va.: Michie Co., 1975).Google Scholar

334 See Greenawalt, Kent, Policy, Rights, and Judicial Decision, 11 Ga. L. Rev. 991, 1030–33, 1035–53 (1977). In a review of Charles Black's book, supra note 333, Vince Blasi suggests how much Black's structural approach leaves open. Blasi, Book Review, 80 Yale L.J. 176, 183 (1970) (reviewing Charles L. Black, Jr., Structure and Relationship in Constitutional Law).Google Scholar

335 See note 78 supra. Google Scholar

336 In Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964), the Court said, “For speech concerning public affairs is more than self expression; it is the essence of self government.” See also New York Times v. Sullivan, 376 U.S. 254, 270 (1964); Harry Kalven, Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191.Google Scholar

337 Meiklejohn, Alexander, Political Freedom: The Constitutional Powers of the People (New York: Harper & Bros., 1960); Bork, supra note 330, at 20–35. Meiklejohn took the position that such speech should enjoy absolute protection, by which he meant to preclude assessment of the dangerousness of speech but not to preclude punishment for incitement to crime. Meiklejohn, supra, at 22.Google Scholar

338 Judicial authority to invalidate regulations regarding “other speech” would depend on what authority courts have under more general provisions, such as the Ninth Amendment and due process clauses of the Fifth and Fourteenth Amendments, to strike down legislation.Google Scholar

339 Meiklejohn recognized that religious speech is protected, see Alexander Meiklejohn, What Does the First Amendment Mean? 20 U. Chi. L. Rev. 461, 464 (1953), but did not grasp the full significance of that acknowledgment. Religious speech plays no part in Bork's analysis.Google Scholar

340 Having initially referred to protection for “explicitly political” speech, supra note 330, at 20, Bork then talks about “explicitly and predominantly political” speech. Id. at 26. His effort thus to bring the category of protected speech within manageable dimensions would place outside the First Amendment speech that is explicitly about public affairs but not dominantly so.Google Scholar

341 Chafee has made the point, “The truth is that there are public aspects to practically every subject.” Zechariah Chafee, Jr., Book Review, 62 Harv. L. Rev. 891, 900 (1949) (reviewing Alexander Meiklejohn, Free Speech: And Its Relation to Self-Government).CrossRefGoogle Scholar

342 Meiklejohn plainly was not relying on a supposed intent of the framers, saying, “We are free to change [the meaning of the Constitution]… by interpretation,”supra note 337, at 7.Google Scholar

343 Chafee, Review, supra note 341, at 898. Since the original Bill of Rights limited only the federal government, the problem for state regulation might be viewed as whether the proposers and ratifiers of the Fourteenth Amendment conceived a distinction between political and nonpolitical speech in terms of federal restraint on the states. I am aware of no evidence that they did so.Google Scholar

344 See Bork, , supra note 330. One argument that Bork advances for his position is that other justifications for liberty of expression, notably individual self-development and happiness, apply to nonspeech activities and that, therefore, constitutional protection cannot extend to speech alone on those bases. Id. at 24–25. The fallacies with this reasoning are that speech may well be thought to promote development or happiness in different ways (or more consistently) than nonspeech activities, that speech may be thought generally not to possess the offsetting disadvantages of many other activities, and that legislatures may be thought particularly likely to forbid speech with insufficient reason. In other words, substantial justifications could exist for affording explicit constitutional protection to expression even if the basic justifications for liberty of expression coincided with the basic justifications for permitting a broader range of liberty generally.Google Scholar

345 Meiklejohn, Alexander, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245.CrossRefGoogle Scholar

346 Bork recognizes as much. Supra note 330, at 26–27.Google Scholar

347 Meiklejohn, supra note 345, at 256.Google Scholar

348 Id. at 257.Google Scholar

349 Id. at 262.Google Scholar

350 Id. at 258–59 (term quoted from Justice Holmes in Schenck, 249 U.S. at 52).Google Scholar

351 Meiklejohn said that the verbal attack of a private defamation “has no relation to the business of governing.”Id. at 259. But if falsity is put aside, that view is obviously at odds with what he said about novels. Surely a claim that a particular individual is dishonest can affect our view of human reality as much as a fictitious portrayal of a dishonest person, and Meiklejohn argued that the latter is close enough to “the business of governing” to be protected. Of course, there may be good reasons for affording fictional portrayals more absolute protection than damaging statements about real persons, but these reasons do not rest on the comparative closeness of the two kinds of communications to the process of governance.Google Scholar

352 New York Times v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).Google Scholar

353 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).Google Scholar

354 For somewhat fuller accounts, see Greenawalt, supra note 330, at 1017–20; id., supra note 334, at 1035–53.Google Scholar

355 If our society became substantially calmer and more unified, some forms of speech that are now properly prohibited might then properly be brought within the scope of constitutional protection.Google Scholar

356 See Linde, Hans A., “Clear and Present Danger” Reexamined: Dissonance in the Brandenburg Concerto, 22 Stan. L. Rev. 1163, 1180 (1970).Google Scholar

357 See id. at 1181. Repeal of statutes directed against unpopular groups is particularly difficult because legislators who propose repeal have little politically to gain and sometimes much to lose, as opponents portray them as sympathizers with hated opinions.Google Scholar

358 Barenblatt v. United States, 360 U.S. 109, 126 (1959). According to Emerson's formulation of the balancing test, “the court must, in each case, balance the individual and social interest in freedom of expression against the social interest sought by the regulation which restricts expression.” Emerson, supra note 75, at 912. Fried has pointed out that the interests to be balanced can be formulated at various levels of generality and that, despite some of the Court's language, the focus will seldom, if ever, be at the level of greatest particularity. Charles Fried, Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test, 76 Harv. L. Rev. 755 (1963).Google Scholar

359 Among the authors examining and criticizing the ad hoc balancing approach are DuVal, supra note 78, at 172–78; Laurent B. Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1429–38 (1962); Melville B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 Calif. L. Rev. 935, 939–42 (1968).Google Scholar

360 See, e.g., NAACP V. Alabama, 357 U.S. 449, 463 (1958). Gerald Gunther has commented on a number of Justice Harlan's opinions that employed a balancing approach without undervaluing expression. See Gunther, Gerald, In Search of Judicial Quality on a Changing Court: The Case of Justice Powell, 24 Stan. L. Rev. 1001, 1004–14 (1972). Not all these opinions fall easily into the category of ad hoc balancing. See also the often quoted suggestions of Herbert Wechsler, Symposium on Civil Liberties, 9 Am. L. Sch. Rev. 881, 887 (1941), and Paul A. Freund, The Supreme Court of the United States: Its Business, Purposes, and Performance 44 (Cleveland: World Publishing Co., Meridian Books, 1961), that the clear and present danger test amounts to little more than a rubric for balancing.Google Scholar

361 Gunther has commented favorably that “Justice Harlan strove for unifying principles that might guide future decisions.”Supra note 360, at 1014.Google Scholar

362 My colleague Louis Henkin probingly analyzes various ways in which the Court may balance in constitutional cases. Infallibility Under Law: Constitutional Balancing, 78 Colum. L. Rev. 1022 (1978).CrossRefGoogle Scholar

363 See Nimmer, , supra note 359, at 944–48.Google Scholar

364 Categorical balancing obviously does not eliminate judicial imposition of values or uncertainty about the resolution of borderline cases (see Shiffrin, supra note 91, at 961). but it does constrain and focus the range of choice, afford more predictability about many cases, and give judges a basis for invalidation other than a determination that the political branches have not wisely balanced competing interests on a particular occasion.Google Scholar

365 On the importance of having First Amendment rules that can be simply administered, see Linde, supra note 356, at 1182.Google Scholar

366 See sec. IV.B.1 supra. Google Scholar

367 See sec. IV.B.5 supra. Google Scholar

368 The benefits or harms must appear to be within the speaker's control. It is not enough that speaker and listener both believe that the speaker, say, a priest or psychiatrist, possesses special insight into what will be good or bad independently for the listener.Google Scholar

369 In social contexts in which it is mutually understood that an explicit benefit or harm will follow the listener's performance or nonperformance, a request could be treated like an inducement. Suppose A, an important criminal, has five times asked B to commit crimes without offering an explicit inducement. Each time upon B's successful completion A gives B $1,000. When A asks B the sixth time to commit a crime, his request is like an explicit inducement.Google Scholar

370 An order by a work supervisor issued in respect to a matter that had absolutely nothing to do with work responsibilities would not be an order in this sense.Google Scholar

371 State v. Blyth, 226 N.W.2d 250, 263 (1975).CrossRefGoogle Scholar

372 As when someone is told by a friend “You should stop working so hard,” and he responds “I agree.”Google Scholar

373 I do not mean that after a series of exchanges between two persons the precise point at which an agreement was formed must be identified, so long as the existence of an agreement by the end of the exchanges is plain.Google Scholar

374 Arguably the ability of either party to withdraw from the proposed crime without embarrassment should count in favor of First Amendment protection. But when two parties seriously coordinate their activities to mutual purpose or advantage, that should constitute punishable action even if the right of each to disengage is understood.Google Scholar

375 Model Penal Code § 5.02, Comment 1 (Tent. Draft No. 10, 1960).Google Scholar

376 The District of Columbia Court of Appeals has reached this result in a series of cases, though without pinpointing this precise rationale. In Riley v. United States, 298 A.2d 228, 233 (D.C. Ct. App. 1972), involving solicitation to commit sodomy, the court said, “We know of no authoritative holding which extends First Amendment protection to a solicitation to commit an act lawfully prohibited by statute.” In District of Columbia v. Garcia, 335 A.2d 217, 224 (D.C. Ct. App. 1975). it explained a distinction between advocacy of sodomy as socially beneficial and solicitation to sodomy, which “implies no ideological motivation but rather is the act of enticing or importuning on a personal basis for personal benefit or gain.” In United States v. Moses, 339 A.2d 46, 52 (D.C. Ct. App. 1975), involving a conviction for solicitation for the purpose of prostitution, the court said, “We have here a communication the sole purpose of which is to arrange a purely commercial exchange, i.e., services for money. That type of dialogue is in no sense an attempt to express social concerns or grievances publicly.” Deciding prior to the Supreme Court's extension of the First Amendment to protect drug advertisements, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the court of appeals concluded that solicitation for prostitution could be punished even though prostitution itself was not a crime. (Almost all sexual acts prostitutes might consummate were criminal, however.)Google Scholar

In Moses, 339 A.2d at 52 n.7, the court acknowledged that “prostitution and solicitation therefore may connote … a reaction to real or imagined social ills, and in that sense may somehow express a desire for adjustments in social policies.” Even if the person who offers himself up for a criminal sexual act does so for explicitly political reasons and without monetary profit (or even personal pleasure), he presumably may be punished. If that is correct, the court of appeals opinions do not quite manage to explicate clearly the crucial feature of the three cases.Google Scholar

377 For a philosophical treatment of coordination by means of concordant mutual expectations created without agreement, see David K. Lewis, Convention: A Philosophical Study (Cambridge, Mass.: Harvard University Press, 1969).Google Scholar

378 Distinctions between offers and preliminaries in this context might differ to some extent from the distinctions drawn by the law of contracts, which concern situations in which the law should enforce agreements and are somewhat responsive to special policies about commercial relations. For example, an offer to commit a criminal act (e.g., prostitution) might be considered an offer in this context even if it did not include some important details (e.g., price) that would necessarily have to be specified before a valid offer could be made to enter into a binding contract if the proposed transaction were legal.Google Scholar

379 See, e.g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 US. 748 (1976); Bates v. State Bar, 433 U.S. 350 (1977).Google Scholar

380 Dennis v. United States, 341 U.S. 494, 581 (1951).Google Scholar

381 See sec. IV.B.6 supra. Google Scholar

382 Model Penal Code § 5.02, Comment 4 (Tent. Draft No. 10, 1960).Google Scholar

383 See sec. III.A.2 supra. Google Scholar

384 If the circumstances are such that liability for recklessness or negligence is appropriate, then, of course, serious intent to cause the result would not be required.Google Scholar

385 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).Google Scholar

386 Many state legislatures adopting new penal codes have broadly treated solicitation to crime as punishable, apparently assuming that Brandenburg does not foreclose that position. See, e.g., Ala. Code § 13A-4–1 (1978); Fla. Stat. Ann. § 777.04(2) (West 1976).Google Scholar

387 Emerson, supra note 249, at 75.Google Scholar

388 Id. at 404.Google Scholar

389 The application of the distinction to other First Amendment problems and its underlying conceptual basis are criticized in John P. Yacavone, Emerson's Distinction, 6 Conn. L. Rev. 49 (1973).Google Scholar

390 Scanlon, supra note 83.Google Scholar

391 Scanlon, supra note 75, at 530–37Google Scholar

392 Scanlon, supra note 83, at 209.Google Scholar

393 Id. at 212–13.Google Scholar

394 Id. at 215.Google Scholar

395 Id. at 216.Google Scholar

396 Id. at 217.Google Scholar

397 See Rawls, John, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).Google Scholar

398 Scanlon did recognize that people do not always live up to their own standards of rationality, supra note 83, at 215, but apparently disregarded the possible relevance of that fact for his conclusions.Google Scholar

399 Scanlon's own criteria of rationality and autonomy are relatively weak. See id. at 215–16.Google Scholar

400 Id. at 216–17.Google Scholar

401 It might be thought that a society of rational autonomous persons would set up social institutions so that the possibility of rational antisocial behavior would be foreclosed by punishment of action that disserves the general welfare. But there is no reason to suppose this would uniformly he possible or desirable. One obvious barrier would be the different perspectives people would have about what is rational and what is antisocial, possibilities that Scanlon's weak conditions of rationality admit. Even were this difficulty overcome, rational antisocial behavior would not be foreclosed.Google Scholar

It serves the general welfare for people to pay taxes, but the material welfare of any one person is served by his not paying his own taxes. So long as his decision to pay or not to pay does not strongly influence the decisions of others, it will serve his material self-interest not to pay, however many others pay. Recognizing this reality, society punishes nonpayment of taxes. But trying to enforce the law effectively against all transactions that it covers would be prohibitively expensive and damaging to independent values. It is, for example, hard for the government to assess how much a person has received in tips. And persons closely familiar with the workings of tax agencies may have much more sophisticated ideas about the kinds of tax cheating likely to remain undetected. Such information would obviously be relevant to a rational person trying to decide how much of his taxes to pay. It would be rational for lawmakers to try to limit the availability of such information, as well as to limit persuasion to cheat.Google Scholar

In an article published after this piece was written, Robert Amdur forcefully advances a very similar criticism. Scanlon on Freedom of Expression, 9 Philosophy & Pub. Aff. 287, 298–99 (1980).Google Scholar

402 Scanlon acknowledged the possible justification for proscribing the dissemination of highly dangerous facts, like a simple method of producing nerve gas, id. at 211–12, but he did not then recognize how far that concession undercut the force of his argument. He drew a distinction between expression that points out “good reasons for action” and expression that provides people “with the means to do what they wanted to do anyway,”id. at 212, believing that autonomous decision is impaired if the agent is precluded from examining the reasons for and against action, id. at 215–18, but is not impaired if the agent is simply unable to carry out his desires. But what at one level is a good reason for action may at another level be information about a means by which the listener can do what he wants to do. If A urges B to cheat on his income taxes, telling him that cheaters are rarely caught and indicating which methods of cheating reduce the possibility of discovery, A may be providing crucial information to someone who has previously decided he would happily cheat if he could avoid punishment; but even if B had never thought through that issue he surely has decided he would like to save money and A's persuasion indicates a means for his doing so. Besides revealing the great difficulty of Scanlon's distinction, this example partially illustrates the extent to which our thought about what actions are worth performing is conditioned by our understanding of what realistically is possible. Whether one is defining the requisites of autonomous decision or determining the constraints on expression a rational, autonomous person might accept, one cannot justify a sharp distinction between information about means of doing things and arguments for and against doing things. Thus if one concedes that some means information is so dangerous it can be suppressed, we cannot rule out on principle the possibility that some dimensions of persuasion may also be suppressed. Apparently Scanlon now agrees with this point. Scanlon, supra note 75, at 534–35.Google Scholar

403 Scanlon, supra note 83, at 213.Google Scholar

404 Since most people are more disappointed when they make strenuous attempts to persuade and fail than when their unexpressed wishes are unfulfilled, a speaker's persuasion not only alerts the listener as to what actions will disappoint the speaker, but it is also a way in which potential disappointment is increased.Google Scholar

405 Real listeners are also often influenced simply by the force of a speaker's personality independent of their view of the message and any reasonable assessment of the speaker's likely disappointment. But perhaps the rational autonomous person imagined by Scanlon would not have such a response.Google Scholar

406 Wellington, supra note 78, at 1124–25.Google Scholar

407 DuVal, supra note 78, at 212.Google Scholar

408 id. at 206.Google Scholar

409 A person who is profoundly skeptical might simply believe that no judgment is more correct than another in some areas and that, therefore, he might as well stick with the judgments that he has. A person aware of his own weaknesses might wish to counter his own susceptibility to being persuaded by bad reasons. See Scanlon, supra note 75, at 524–28.Google Scholar

410 One who has been raised since childhood to believe that God is the source of moral values and has concluded that to him the psychological pain of accepting a different view would outweigh any advantages might wish to be shielded from exposure to opposing views.Google Scholar

411 The relevant passage is in DuVal, supra note 78, at 205–6.Google Scholar

412 Emerson, supra note 249, at 405.Google Scholar

413 The standard for trial judges and judges on appeal should not be whether jurors could reasonably find the required intent if they believed facts introduced by the prosecution, including inflection of voice, etc., but whether the prosecution's evidence, if believed, effectively precludes any other interpretation. Thus the standard for ascertaining serious intent would be somewhat stricter than that applicable to private nonideological solicitation. The danger of mistaken jury assessments also exists in that context, particularly since many defendants will be disreputable persons, but the threat to interests in expression is much less.Google Scholar

414 414 U.S. 105, 107 (1973).Google Scholar

415 416 F.2d at 177–78.Google Scholar

416 See People v. Most, 171 N.Y. 423, 64 N.E. 175.Google Scholar

417 These are considered in sec. VII.D.3 infra. Google Scholar

418 Robert Bork has argued that “advocacy of law violation does not qualify as political speech” protected by the First Amendment since it “is a call to set aside the results that political speech has produced.”Supra note 330, at 31. See BeVier, supra note 103, at 310. My main reason for rejecting this conclusion is my view that First Amendment protection is not limited to political speech but extends to all subjects of vital human concern, including the morality and desirability of law violation. But even if Bork's initial premise about coverage were granted, the conclusion would not follow. One's urging of violation of law on certain occasions and in certain ways may be considered, by the person involved and others, not as an overall rejection of democratic political processes but as a useful component of them. See Rawls, supra note 397, at 382–91. Bork's comments impliedly reject this possibility without examination. Further, supposing the intent of every advocate of law violation could be construed in the way Bork suggests, the speech could still be political in nature (which he does not deny) and could be of significant value for participants making political decisions. Bork does not really explain why explicitly political expression that may contribute substantially to the operation of democratic political process can summarily be put outside the First Amendment because of the nonparticipatory attitude of the speaker.Google Scholar

Essentially the same reasons (with the exception of the possibility that some law violation may be seen by participants as contributing to democratic political processes) underlie my rejection of Bork's suggestion that revolutionary advocacy is also unprotected. Supra note 330, at 31. For a more developed statement of the position that such advocacy is not protected, see Carl A. Auerbach, The Communist Control Act of 1954: A Proposed Legal-Political Theory of Free Speech, 23 U. Chi. L. Rev. 173 (1956).CrossRefGoogle Scholar

419 Hans Linde has suggested a line of criticism rather different from those considered in the text. Linde, supra note 356. Because of the importance of clear guidance to legislatures he proposes the rule that “the first amendment invalidates any law directed in terms against some communicative content of speech or of the press, irrespective of extrinsic circumstances either at the time of enactment or at the time of enforcement, if the proscribed content is of a kind which falls under any circumstances within the meaning of the first amendment.”Id. at 1183. Linde's main point, that general proscriptions on revolutionary advocacy or “group defamation” should be held invalid without investigation of linkages of such speech to supposed dangers, may well be sound. But the application of his standard to the major concerns of this article is puzzling. On the one hand, Linde assumes that incitement is not always unprotected, id. at 1185, and that proscriptions of incitement fall subject to his standard. On the other, he suggests that attempts to cause unlawful action may be punished and that verbal attempts to do so may be punished if some test of danger is met. Id. What is difficult to understand is how a general legislative prohibition on all attempts that is understood to include verbal encouragements can possibly be viewed as more protective of interests in expression than an explicit prohibition of encouragements to commit crimes. Nor is it easy to see why a test of danger can appropriately be employed when a court passes on applications of the first sort of statute but not when it passes on applications of the second sort.Google Scholar

420 Indeed, if one is concerned with the dangers of falsification of evidence, such a limitation may be thought even more appropriate for private solicitations than for public ones.Google Scholar

421 To be more precise, the actual likelihood of success was great, but the likelihood ascertainable to the speaker or a reasonable observer was slight. It is the latter likelihood that is typically relevant for legal purposes.Google Scholar

422 A crime like simple trespass, which may be technically against property but causes no loss or harm to property, would not threaten property in this sense.Google Scholar

423 Thus a crime committed in the open by a great mob most of whose members cannot be identified by the police on hand would not be included.Google Scholar

424 Admittedly the line is a difficult one between action that causes direct damage to property (blowing up plant equipment) and the economic loss caused by an illegal strike, but the social sense of a significant difference is reflected in the seriousness of the penalties imposed on violators. The penalties that can be imposed for draft and tax refusal have often been severe, but the point has been to retain a serious deterrent to noncompliance and to reflect societal condemnation of those who do not carry their fair share of burdens; the penalties do not indicate the degree of damage that is done by each instance of violation.Google Scholar

425 Since encouragements to open crimes that do not threaten harm to persons or property will almost invariably be ideological, it makes sense to afford such encouragements uniform protection, avoiding the necessity of distinguishing those few cases in which encouragements are wholly non-ideological.Google Scholar

426 See Givhan v. Western Line School Dist., 439 U.S. 410, 415–16 (1979).Google Scholar

427 See generally Frederick Schauer, “Private” Speech and the “Private” Forum: Givhan v. Western Line School District, 1979 Sup. Ct. Rev. 217.CrossRefGoogle Scholar

428 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 457 (1978) (dealing with a lawyer's personal solicitation of business); cf. Greer v. Spock, 424 U.S. 828, 842 (1976) (Powell, J., concurring) (on face-to-face persuasion of military personnel).Google Scholar

429 In classified advertisements, persons may encourage illegal actions that will benefit them in some specific, but nonmonetary, way. For these purposes, such advertisements would be commercial solicitation.Google Scholar

430 See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar, 433 U.S. 350 (1977); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). Justice Powell's majority opinion in Ohralik says, “We … have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.” 436 U.S. at 456.Google Scholar

431 Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973).Google Scholar

432 This particular point may not apply to personal classified advertisements, which I suggest should be treated as commercial for this purpose. See note 427 supra. Google Scholar

433 Not a great deal turns on this judgment. Public advertising of one's willingness to commit a crime would ordinarily increase the chances of punishment when the illegal act took place. And such advertisements seem likely only with respect to criminal actions that are very difficult to detect or very rarely prosecuted. Advertisements proposing other crimes would not flourish even if the advertisements were immune from prohibitions.Google Scholar

434 For example, a mainly white Rotary Club to which a black activist urges the appropriateness of racial violence against whites.Google Scholar

435 It may be arguable whether the crucial factor should be that the message is communicated to a representative sample of the public or that its content is actually available to a still wider audience. Suppose, for example, that Rotary Club members were sworn to secrecy about everything said during their meetings, or members of a faculty were bound to treat as confidential comments made by individual members at meetings. When a speaker addresses a limited but not specially selected audience, at least the opportunity for countervailing discussion among members exists though the preservation of complete confidentiality would bar other persons in the public from learning what was said and would preclude public officials from forestalling substantive evils that might be caused by the speech. In reality, the content of a message, as distinguished perhaps from the particular speaker, is unlikely to remain immured from the scrutiny of a larger public view if the audience is largely unreceptive, since unsympathetic listeners will alert others to the dangers they perceive. So we can treat as public any communication to a substantial audience that is not preselected for receptivity.Google Scholar

436 That is to say, a leader's secret urging to group members to commit certain crimes might be treated as public if the group's public statements espoused the commission of such crimes.Google Scholar

437 If others know the individuals who are members of the group, or at least the rough class from which most members are drawn, then it will be simpler to engage in countervailing communication against the views propounded by the group, if these are also known.Google Scholar

438 A subtle point is whether seriousness is to be judged from the point of view of the speaker's actual perspectives or those apparent to the listener. Or, to put the issue in practical context, should independent evidence be admitted to show that the speaker does not really take seriously an ideological appeal he makes with apparent seriousness? Probably the message communicated to the listener should control.Google Scholar

439 Givhan v. Western Line School Dist., 439 U.S. 410, 415–16 (1979).Google Scholar

440 See, e.g., Police Dept. v. Mosley, 408 U.S. 92, 95 (1972); Lloyd Corp. v. Tanner, 407 U.S. 551, 578 (1972) (Marshall, J., dissenting); Young v. American Mini Theatres, Inc., 427 U.S. 50, 72, 84 (1976) (Powell, J., concurring; Stewart, J., dissenting); FCC V. Pacifica Foundation, 438 U.S. 726, 755, 762 (1978) (Powell, J., concurring; Brennan, J., dissenting); Lehman v. City of Shaker Heights, 418 U.S. 298, 308 (1974) (Brennan, J., dissenting). A close examination of these and other relevant opinions creates doubt that many of the justices have yet achieved a coherent philosophy about content distinctions.Google Scholar

441 See DuVal, supra note 78, at 212.Google Scholar

442 Cf. Shiffrin, supra note 91, at 955 (“any assessment of the legal regulation of communication must begin with the recognition that government does have power to restrict expression because of its content”).Google Scholar

443 Compare Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), with In re Primus, 436 U.S. 412 (1978). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 68–69 (1976) (in plurality opinion of Stevens, J.); FCC V. Pacifica Foundation, 438 U.S. 726, 745–48 (1978) (plurality opinion of Stevens, J.).Google Scholar

444 See note 429 supra. Google Scholar

445 See generally sec. III supra. Google Scholar

446 As with respect to earlier discussion of the strict standard for judging intent, the jury would be left free to resolve simple factual disputes, such as whether A did or did not utter a particular remark. But the prosecution's evidence, if believed, would have to leave no possible inference other than A's intent to assist or cause the crime.Google Scholar

447 See generally Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929 (1973).CrossRefGoogle Scholar

448 For a recent decision not involving criminal penalties but reflecting strong approval of security arrangements, see Snepp v. United States, 444 U.S. 507 (1980).Google Scholar

449 See United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), on the appropriateness of injunctive restraint on the publication of information deemed highly dangerous.Google Scholar

450 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).Google Scholar

451 403 U.S. 15 (1971).Google Scholar

452 The Court's decision in FCC V. Pacifica Foundation, 438 U.S. 726 (1978), provides some support for the position that offense alone may be sufficient for criminal punishment.Google Scholar

453 Lewis v. City of New Orleans, 408 U.S. 913 (1972) (concurring opinion). Perhaps there are no general epithets, e.g., “pig,”“bastard,”“wop,”“nigger,” that should be expected to provoke officers to violent response, but there remain more pointed personal remarks, e.g., “Your wife is a whore who fucks anyone,” to which even well-trained officers might not be expected to remain impervious.Google Scholar

454 I am assuming that potential addressees are limited to those to whom a particular epithet would be particularly offensive.Google Scholar

455 I put aside the question whether words that deeply wound other people should be proscribable on that ground alone if they can be adequately defined.Google Scholar

456 Although such a claim of unawareness might not have been a defense under traditional law, the threat to open communication is substantially increased if persons can be punished for uttering words that they are unaware have a potential for causing violence. As far as the Constitution is concerned, it should be sufficient for punishment if the defendant knew the propensity of the words he used, even if at the time of speaking he was in such a rage he did not consider their likely effect.Google Scholar

457 343 U.S. 250 (1952).CrossRefGoogle Scholar

458 395 U.S. at 447.Google Scholar

459 Another possible distinction of arguable constitutional relevance is that words provoking crimes against third persons may ordinarily have more ideational content.Google Scholar

460 Feiner v. New York, 340 U.S. 315 (1951).Google Scholar

461 On the problems of administering any standard that permits police to stop speech because of a hostile audience reaction, see DuVal, supra note 78, at 216–18.Google Scholar

462 See 416 F.2d 165, 184 (1st Cir. 1969) (Coffin, J., dissenting); David B. Filvaroff, Conspiracy and the First Amendment, 121 U. Pa. L. Rev. 189 (1972); Note, Conspiracy and the First Amendment, 79 Yale L.J. 872 (1970).Google Scholar

463 341 U.S. 494, 561 (1951) (concurring opinion).Google Scholar

464 354 U.S. 298, 324 (1957).Google Scholar

465 Of course it might be objected that as a matter of penal policy one inchoate crime should not be piled on top of another, pushing liability so far back from the ultimate substantive offense, but this objection is not properly viewed as grounded in liberty of expression in general or the First Amendment in particular.Google Scholar

466 See Filvaroff, , supra note 462, at 200; Note, supra note 462, at 881.Google Scholar

467 Such virtual certainty might be possible for already written or recorded communication when the conditions of distribution have been fixed.Google Scholar

468 416 F.2d at 186.Google Scholar

469 Id. at 169 nn.7 & 8, 170.Google Scholar

470 See Filvaroff, , supra note 462; Note, supra note 462.Google Scholar

471 See generally Model Penal Code § 5.03, Comment (Tent. Draft No. 10, 1960); § 2.04, Comment (Tent. Draft No. 1, 1953).Google Scholar

472 The only contrary argument would be that it is more difficult to establish the requisite inducement or agreement than the actual solicitation. But this is dubious as a proposition of penal policy and highly strained as a piece of argumentation based on the First Amendment.Google Scholar

473 The analysis is somewhat different if A's agreement with B is that a substantive crime will be accomplished by B, with choice of method left up to B. Then A may be liable for steps B takes, including communications, consistent with the purpose of the agreement. Suppose A and B conspire that B will murder D, and B then incites C to murder D. Whether A is liable for the bare solicitation may be practically unimportant since A has conspired to murder, and conspiracy to murder is ordinarily as severe an offense as incitement to murder; but if B's incitement of C constitutes criminal solicitation and is successful, B is liable for the murder of D, and A should be also since he was indifferent whether B accomplished that result through communication or by other acts.Google Scholar

474 In some jurisdictions conspiracy may be a basis for accessorial liability in instances in which the basic principles of accessorial liability would not by themselves create liability. The ALI model code and many recent statutory revisions wisely reject this possibility. If the basic agreement is to engage in communication, liability that is more attenuated than ordinary accessorial liability should be barred; it would be entirely, or almost entirely, barred by the general conditions for punishment I have suggested, which in many respects are stricter than those applicable to ordinary accessorial liability. If the basic agreement is to accomplish particular criminal results, see note 472 supra, and one party chooses communication as a means to achieve those results, then the liability of other conspirators on a broader basis than accessorial liability would present no First Amendment problem, though it presents a serious problem of penal policy.Google Scholar

475 See generally Phillip E. Johnson, The Unnecessary Crime of Conspiracy, 61 Calif. L. Rev. 1137 (1973).CrossRefGoogle Scholar

476 See Note, supra note 462, at 890.Google Scholar

477 However, prosecutors sensitive to the values of expression might appropriately forgo the advantages of a conspiracy theory in cases involving ideological advocacy.Google Scholar

478 Dissenting from a denial of certiorari in Epton v. New York, 390 U.S. 29, 30 (1968), Justice Douglas doubted whether constitutionally protected public speech could constitute an overt act. In Note, supra note 462, at 894, it is argued that protected public expression cannot constitute an overt act or be used to establish intent.Google Scholar

479 383 U.S. 169 (1966).Google Scholar

480 Cf. Epton v. New York, 390 U.S. at 32 (Douglas, J., dissenting).Google Scholar

481 Stories and pictures are, of course, often the media in which information is transmitted and evaluations are made. Many of the profoundest accounts of the nature of human existence and what men should care about are contained in works of literature. Pictures also can be potent transmitters of factual information and values. One thinks, for example, of war photographs or the compact theology of Michelangelo's Sistine Chapel.Google Scholar

482 Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230 (1915).Google Scholar

483 We need not resolve some of the bothersome theoretical questions about the borderlines of expression that center on the arts. Is an abstract painting or photograph produced solely to give aesthetic pleasure, or a story told only to please listeners, more deserving of protection as expression than a building designed to look attractive, or a drug such as LSD that is thought to produce significant insights for its users? One possible response is that certain media are typically used for expression and that it is inappropriate for government officials to decide whether any particular instance of work in those media constitutes expression. For an interesting (though I think not ultimately successful) argument that pornography is not expression in the relevant First Amendment sense because it is designed to “produce a purely physical effect,” sexual excitement, see Frederick Schauer, Speech and “Speech”–-Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899, 922 (1979). see also Feinberg, Joel, Pornography and the Criminal Law, 40 U. Pitt. L. Rev. 567, 579 (1979).Google Scholar

484 It is conceivable that a person might tell a fictional story to another for the very purpose of causing the latter to commit a crime; such a communication would be treated like utterances that encourage criminal activity but fall short of recommending a specific crime.Google Scholar

485 Cf. Olivia v. National Broadcasting Co., 74 Cal. App. 3d 383, 141 Cal. Rptr. 511 (1977) (apparently assuming network could be liable only if program constituted an incitement or advocacy of violent acts).Google Scholar

486 It may be argued that a general class of communication (e.g., obscenity) is so low in value as expression that considerations that would not justify suppressing other kinds of communication do justify suppressing it (see, e.g., Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973), and Schauer, supra note 483); that television for various reasons is subject to closer regulation than other media (see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)); and that certain portrayals of violence are so dangerous that they may be barred. Whatever the merits of such contentions, they suggest that if the government is to employ the criminal law at all, it must proceed, as it does with obscenity, by explicitly indicating what sort of communication is proscribed and by punishing intentional violation of the proscription.Google Scholar

487 There are some forms of communication that are appropriately made the subject of civil damages though it is doubtful whether they could be constitutionally punished. One thinks of breaches of contractual agreements not to speak about business matters, the torts of interference with contractual advantage and disparagement of business or property, and at least some instances of libel. The damage from these kinds of expression involves, for the most part, commercial disadvantage and not a risk of crime. Possibly, however, the reasoning that might permit civil actions but not criminal penalties for some of this speech would also apply to some instances of crime-causing communications. All that can now be asserted with confidence is that for most instances of crime-causing communications discussed in the article, civil remedies should not be permitted on a more relaxed basis than criminal penalties.Google Scholar

488 I assume the performer is a responsible actor. Even then I do not mean to suggest that in particular instances in which a speaker is very influential and performers are weak characters easily moved, giving the speaker a more severe sentence would always be inappropriate, only that explicit gradation could not make him alone guilty of a crime or guilty of a more serious crime.Google Scholar

489 Rules against lawyers soliciting clients are based partially on the similar fear that the potential client may be pressured into entering the lawyer-client relationship. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 477 (1978). In these instances the persons who suffer harm are the solicited actors rather than third persons.Google Scholar

490 However, other forms of communication are less likely to carry the implicit threat of violence that may be a partial historical explanation for the signal effect of picketing.Google Scholar

491 I pass over the independent constitutional arguments against such liability, which are particularly strong if the reason for the boycott is ideological.Google Scholar

492 Perhaps, however, if listeners make a decision influenced by the speaker but independent of what they think other potential shoppers may do, it is arguable that the speaker (who is aiming to persuade large numbers to stay away) is liable for creating a group boycott but that some of those who are influenced to stay away are not participating in one.Google Scholar

493 Comment, Brandenburg v. Ohio, a Speech Test for All Seasons? 43 U. Chi. L. Rev. 151 (1975). DuVal, supra note 78, at 257–58, also takes the position that employee speech should be subject to no greater restraints than the speech of ordinary citizens.CrossRefGoogle Scholar

494 The government may, however, have power to reduce the access of speakers to special personnel. See Greer v. Spock, 424 U.S. 828 (1976).Google Scholar

495 See Parker v. Levy, 417 U.S. 733 (1974), reasoning criticized in Comment, supra note 493, at 181–86.Google Scholar

496 A student's duty to keep peace and order under campus regulations is more nearly analogous to an ordinary citizen's duties than is the student's responsibility not to cheat. It is doubtful that a state university would have to tolerate a student who kept urging other students to cheat but whose communications were not punishable under Brandenburg or the standards suggested here.Google Scholar

497 I agree with Linde's suggestion that more focus is needed on the First Amendment as it constrains legislative action, Linde, supra note 356, at 1174–86, though I do not think his proposed approach to criminal encouragements is acceptable. See note 419.Google Scholar

498 Shiffrin has suggested that “first amendment methodology is rooted in general balancing principles which sometimes counsel ad hoc approaches and other times dictate rules of general application.” See Shiffrin, supra note 91, at 917.Google Scholar