April 25, 2014

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Recommended Reading: Crime-Facilitating Speech

Eugene Volokh has an interesting new paper about Crime-Facilitating Speech (abridged version): “speech [that] provides information that makes it easier to commit crimes, torts, or other harms”. He argues convincingly that many free-speech cases pertain to crime-facilitating speech. Somebody wants to prevent speech because it may facilitate crime, but others argue that the speech has beneficial effects too. When should such speech be allowed?

The paper is a long and detailed discussion of this issues, with many examples. In the end, he asserts that crime-facilitating speech should be allowed except where (a) “the speech is said to a few people who the speaker knows are likely to use it to commit a crime or to escape punishment”, (b) the speech “has virtually no noncriminal uses”, (c) “the speech facilitates extraordinarily serious harms, such as nuclear or biological attacks”. But don’t just read the end – if you have time it’s well worth the effort to understand how he got there.

What struck me is how many of the examples relate to computer security or copyright enforcement. Many security researchers feel that the applied side of the field has become a legal minefield. Papers like this illustrate how that happened. The paper’s recommendations, if followed, would go a long way toward making legitimate research and publication safer.

Comments

  1. Ima Fish says:

    I’ve got a better idea. How about NEVER banning such speech. Example (a) would already be “illegal” in the sense it could show an intent to commit a crime. For example, making prostitution illegal does not make speech a crime, even though men ask for sex for money. It’s the results of the speech that’s illegal, not the speech itself.

    And why should either (b) or (c) be illegal when no actual crime is being committed? I find it hard to believe that any rational person would be in favor legislating thought crimes.

  2. 1984 George Orwell says:

    Re: Thought Crime… this concept has been around for a long time and has recieved much thought and discussusion in the book 1984 by George Orwell, which by chance or historical forces is comming to pass here in the great US of A. Sad day.

  3. Rational Thinker says:

    It is simplistic to claim all speech should be allowed. There has to be limits as to what a person can say. Only an imbecile would advocate people being able to send letters threatening a person’s life. If you tell someone you’re going to kill them, can you be arrested for that? Of course you would.

    I think what many who advocate uninhibited free speech are really advocating is anarchy, ala, anything goes.

    That’s always a recipe for disaster.

  4. RvnPhnx says:

    @Rational Thinker
    Apparently you haven’t taken a practical law class lately (or have otherwise forgetten such knowledge), as in the case of a spoken or written threat it is not the speech itself that is illegal–it is the demonstrated intent to do harm and using that demostration of intent to coerce another individual into doing something that they normally would not do. In other words, it is not your use of autonomy that is illegal–it is your attempt to limit the autonomy of another individual that is illegal.
    Also to be noted, in the case of “profane speech” it is not actually the speech itself that is the base issue–as it may very well be something that would be appropriate in another time, place, or manner–but it is that the delivery of said speech may cause others to forgo some element of their autonomy (always a shaky case to begin with–the exception of sexual harrassment granted as being a special case). This in fact is a little known motivation behind allowing profanity laws to exist at all–and is even more important as more individuals and groups attempt to mold profane speech to cover just about anything that they see as objectionable (not the difference: objectionable is not always profane).

  5. WhyNow? says:

    How many instances have their been of people delivering speeches that fall under the 3 categories summarized in paragraph 2, where prosecution was muddled because of legal fuziness about free speech?

    How many instances have their been of people writing letters threatening a person’s life who could not be successfully prosecuted?

    Volokh discusses a few cases on page 228. I think most of these cases have been obscure and perhaps only tracked by the legal cognoscenti.

    In general, people who have engaged in speech encapsulating the 3 categories discussed and who make the news, will have colorful criminal records and are on the run. So why is this being debated at this point? We can pass such a law when acts seem to mandate it. Creating a theoretical threat (especially at this time) and legislating for it only allows the weak and unethical to abuse it to their advantage in order to silence voices they don’t like. It is not as if US citizen Maulvis are foaming and issuing fatwas.

    Consider Tom Clancy. As we all know, he is far-out right-wing, pro neocon, and most of his fiction delves with US strategy executed by his superhero and how it trumps cunning adversaries. In the spirit of hypothesizing, let us conjure up an author with similar hypnotic literary skills wrote fiction in this genre that (i) discussed failed US foreign policy pinning the blame on people who deserve it, and (ii) the outcomes were the US suffering massive losses and the adversaries triumphing every time, and (iii) the fiction described the utter inadequacy of the emergency response system / bureaucracy (a la NOLA/Katrina). A Clancy clone who opts for victory on the other side in his fiction would be discussing very realistic US operational strategy and its failures. Such books will not sell anywhere as much as Clancy’s. So where would it put the author? In direct violation of (c) as described, and arguably of (a).

    IMO, we should leave the first amendment as it stands. We should also definitely separate discussions of free speech as it relates to copyrights, encryption etc. from expressed anti-US sentiment and vitriol. Parsing the guarantees and limits of free speech (even with clearly honorable intentions as Volokh and others likely intend) and legislating AT THIS SENSITIVE TIME will be exploited by the weak minded looking at every underhanded way of channelizing mass hysteria to subvert liberty. We should legislate on the issue only when we have a more credible executive and judicial branch, if at all!

  6. Edward W. Felten says:

    WhyNow,

    I don’t think Volokh is advocating legislation at this point. My take on his article is that he is aiming at cases where crime-facilitating speech runs afoul of some existing law, but the defendant raises a First Amendment free speech defense. He wants a theory that says when such a defense should succeed.

    It’s not a question of changing the First Amendment. The issue is more that the courts haven’t given us a coherent theory of when crime-facilitating speech should be protected; and Volokh argues for a particular theory in the hope of influencing future courts, and future theorists.

  7. Paul J says:

    More than that, I think Volokh is trying to clear the air a bit and cite reasons and situations where proposed legislation to deal with such speech is a bad idea, and thereby hopefully keep such proposed legislation from becoming law.

  8. relativism says:

    @RvnPhnx

    Hmm. Speech always remains free, but if it is undesirable speech we call it something else, and then ban the something else. What’s the difference? Rational Thinker’s point remains – whatever legal niceties we might employ, it remains “simplistic to claim all speech should be allowed”.

  9. hawk1234 says:

    As I was a am radio/nut a FCC Lic. is’nt required for walky talkys,and Has’nt
    been needed for many years .The FCC did away with it many years ago.for
    23 an 40 channel citizen band under certain wattage units (4.5 and below)

    Old term( handle was named WENDY)

    Hawk

  10. takahiro katagiri says:

    In Japan , the criminal that inventing psychopath by detective is done and never investigated .
    In Japan , these criminals controled mass communications , and never advertise by mass communications . I think the way to stop these crime , is to speech on various kinds of communication and advertise .
    This is a case of N city in Japan .

    Now I am being telephone-wire tapping and male is looked by illegal method and when post comment or contact by internet telephone line is suddenly cut , so safe contact is very difficult ( maybe need cipher ) , and many obstruction will proof this exist of criminals .

    Please look and advertise these crime , and protect human right .