That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...
--Thomas Jefferson

Tuesday, April 27, 2010

Speech and Crime

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.

Wednesday, April 14, 2010

What Speech Does Your Taxes Fund?

It's income tax day tomorrow. The money that you were going to give to the Institute for the Propagation of the Invisible Alien Theory of Motion is instead taken by the government, who uses it to suppress that theory. For example:

Physics TA, a government agent: Can anyone explain why this cart moves in this way?
Student: Invisible aliens are pushing it! They want it to crash -
TA, paid with your tax dollars: Excuse me; let's watch this expensive demo to explain why you're wrong.

Though the TA probably isn't thinking about freedom of speech, it is at issue here: can the publicly funded university - a government agent - use your tax dollars to speak in favor of one point of view and against another?

Very well; suppose we agree that the TA - a government agent - can shut down discussion of the Theory of Invisible Alien Motion. Can he then shut down discussion of the Theory of Evolution? Or the Theory of Intelligent Design? Arkansas, among many other states, tried to ban evolution from the schools; the Supreme Court overturned the law - but only because it rested on "a particular religious doctrine." In general, they admitted "the State's undoubted right to prescribe the curriculum for its public schools." Similarly, Dover v. Kitzmiller banned Intelligent Design from the schools because it constituted an establishment of religion. Free speech is often mentioned, but not used. Even Meyer v. Nebraska struck down a law prohibiting teaching of foreign languages only because it banned them outright - the Nebraska government was free to do whatever it wanted with publicly funded schools.

Nor are these government powers limited to publicly funded schools. Any program with public funding is subject to government control. It can prevent a family planning clinic from talking about abortion; it can prevent a radio station from editorializing. Very soon, any corporation contracting with the government or receiving any government funds may be "barred from making political expenditures". (True, they could establish affiliate groups to do so with private funds, but those are "burdensome alternatives... expensive to administer and subject to extensive regulations... onerous." For example, they have to use discrete resources.) In general, "when the government appropriates public funds to establish a program, it is entitled to define the limits of that program."

At least to some extent, this principle is vital. We have a Statue of Liberty; must we also have a Statue of Autocracy? We have a National Endowment for Democracy; must we also have a National Endowment for Fascism? Even if we agree to end the National Endowment for Democracy, tear down the Statue of Liberty along with Pleasant Grove's Ten Commandments monument, and rename Washington, District of Columbia, lest supporters of Benedict Arnold and Lief Erikson feel slighted, we are left with a Constitution which compels Federal officials to support a republic above a dictatorship and honesty above perjury. "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect" - but the government, if it is to do anything at all, must be!

Fortunately, there are some checks which would prevent this from sending a pale of government control over all our liberties. The Supreme Court has also ruled that a legitimate government purpose "cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." On this basis, they invalidated laws requiring teachers to list organizations they'd joined or refrain from "'treasonable or seditious' utterances or acts". Public employees may campaign off-the-job, and corporations with government contracts may set up independent organizations to campaign.

Whatever potential these restraints may hold, however, they might not be enough. Even if the government is not allowed to "broadly stifle" liberty, it can still discourage it. For example, the courts recently allowed the University of California to not count high school courses taught with creationist textbooks, in language which would allow them to reject whatever other high school courses they wanted. Similarly, even though a privately funded program is quite free to talk about political editorials, abortion, or anything else, many customers of the federally funded competitor will look no farther and remain ignorant of the other options. If the federal government raises taxes to provide for healthcare, counseling services, or any other program, people will have less money to fund those programs privately. Many people have argued that newspapers and radio shows must give each view ample airtime to avoid drowning anyone out. If a private corporation can risk drowning other voices out by speech, how much more can the government do so by speech and taxes?

However, despite all these problems, the government must have the right to define the scope of the programs it funds. So, the only possible way to avoid drowning out free speech is to severely limit the number or scope of government-funded programs.