NOTE: This will be my last post in my series on the First Amendment. Over the summer, I will be posting on the theory behind government in general. Please keep reading!Say you're driving down the highway and come upon a police speed trap. Being a friendly person, you flash your lights to alert the cars behind you to slow down. Unfortunately, the police arrest you for interfering with their speed trap! "But officer," you protest, "I was just exercising my freedom of speech!"
Or, suppose you're a computer programmer who finds a vulnerability in CD copy protection. You know another programmer, who wrote a program to reformat E-books, got arrested for aiding copyright violation (because his program reformatted away the copy protection). Do you present your research - helping cryptography progress, and probably pushing the music industry to improve - or do you hold back for fear of prosecution? Does the First Amendment protect your speech when you might be aiding crime?
Despite the First Amendment, speech is not totally beyond the realm of regulation. Libel is illegal, just as is shooting a gun at an innocent person (even though the Second Amendment protects your right to shoot a gun.) So, if you use speech to commit a crime, it's still prosecutable - but speech in itself cannot be prosecuted any more than shooting a gun in itself can be prosecuted. This, however, is not enough. Helping someone to commit a crime can be a crime in itself, and anything from a chemistry textbook to a mystery novel can help some criminal to commit a crime. Need we arrest our novelists and censor our textbooks?
One possible solution relies on the concept of mens rea, requiring "that the defendant know the facts making his conduct illegal" - in other words, that the defendant acted "with an intent to commit the crime". This would probably protect the programmer, novelist, and textbook-writer above (they wrote the book or program knowing it might be misused, but they didn't want it to be misused), while still allowing prosecution of someone who explains to criminals how to use this knowledge to commit their crimes. Unfortunately, courts can't read minds, and defendants lie about their intentions. As Prof. Volokh points out in the above-mentioned article, proving mens rea would allow prosecutors to bring in every casual remark the defendant made about how he dislikes the law or the government's actions and leave the jury at the mercy of "our normal tendency to assume the best motives among those we agree with, and the worst among those we disagree with."
To some extent, the Supreme Court has required a showing of mens rea, despite these problems. NAACP v. Claiborne Hardware said that, even though some people were using violence to enforce the NAACP's boycott, the "store watchers" who published the names of boycott violators could not be prosecuted. The government must prove, it said, "that the individual held a specific intent to further those illegal aims" or, possibly, "that he himself authorized or incited" the unlawful conduct. "There is nothing unlawful in standing outside a store and recording names." However, Noto v. United States requires that the speaker be advocating imminent violence, rather than just "the mere abstract teaching... of the moral... necessity for a resort to force and violence." So, even though Noto was "preparing the way for a situation in which future acts of sabotage might be facilitated" and Yates was "advoca[ting] and teaching... forcible overthrow as an abstract principle," they both must go free since they were not instigating concrete, imminent illegal action. As Prof. Volokh points out, most speech, even if it aids crime, clearly does not intend to advocate or aid imminent crime.
Yet, this "imminence" test may be either too wide or too narrow. When Jerry McCoy, a retired gang member, advised another gang on how to better organize themselves for crime, the court freed him because he wasn't advocating any specific imminent crime. On the other hand, while the Supreme Court denied certiorari, Justice Stevens commented that the imminence standard "does not necessarily adhere to some speech that performs a teaching function... Long range planning of criminal enterprises... involves speech that should not be glibly characterized as mere 'advocacy.'" Indeed, when someone writes a paper or computer program, he hopes it will be "imminently" read. Could a judge then cite him for people "imminently" acting on his paper, or at least allow the prosecution to delve into the author's age-old political affiliations to find intent?
Obviously, there are some cases clearly on one side or the other: the chemistry textbook is clearly innocent, and flashing your lights at the speed trap is clearly guilty. Many in-between cases, however, are more difficult. Prof. Volokh concludes that the speaker's intent usually doesn't matter; he proposes deciding based on the speech's potential harm, presentation, or social value. While this may be analagous to the courts' obscenity standard (resting on, among other prongs, the work's social value), it could potentially lead to a virologist being arrested for publishing a general paper about smallpox (an extinct and therefore not-socially-valuable virus) which helped terrorists recreate it. In a country which rightly wants to encourage "uninhibited, robust, and wide-open" discussion, I would hesitate to arrest a speaker with completely innocent intent. Prof. Volokh's criteria would probably help in determining intent, but I believe the issue should turn on the speaker's intent.