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.

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.

Copyright and the First Amendment

Suppose someone hauls you into court for reading a poem or emailing a story to friends. You'd expect the First Amendment would protect you - and, usually, it would. However, if the poem you're reading or the story you're sending is protected by copyright, you still might get sued for doing exactly what would otherwise have been protected.

Copyright is authorized by Article I section 8 of the Constitution:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Technically, one would expect the First Amendment to override any conflicting parts of the original Constitution, just as the Eleventh and Twenty-First Amendments did. However, when James Madison proposed the Bill of Rights, he said it was almost completely unnecessary and would change almost nothing. Moreover, the first American copyright law was passed by the First Congress one year after the Bill of Rights. Therefore, the First Amendment and the Copyright clause cannot contradict each other.

The book is not the author's property; otherwise, copyright would last forever. Rather, as the Supreme Court said in Harper and Row v. Nation Enterprises, "copyright supplies the economic incentive to create and disseminate ideas... 'the ultimate aim is, by this incentive, to stimulate [the creation of useful works] for the general public good.'" In other words, while the First Amendment prevents government from impeding "uninhibited, robust, and wide-open" debate, copyright stimulates it by giving authors an incentive to write. If it restricts your right to freely speak the author's exact words, it "does not impede First Amendment goals because the public purpose has been served - the public already has access to the idea or the concepts." You can simply say "Read N.'s book - I agree with every word of it!" (If you don't, you can still make fair use of it for "criticism" or "comment.")

However, what if your friends don't have access to the book? In 2004, Presidential candidate John Kerry said he supported the Vietnam War. However, James Davis posted online a 1971 book Kerry had written against the war. To protect his image, Kerry had Davis's website taken down as a copyright infringement. Even outside of politics, the long terms of copyright have left many works unavailable. Many copyright holders been lost or refused permission for republication! Currently, there is no recourse except (sometimes) a long lawsuit.

Courts have said this does not matter, since you are free to use the ideas found in the book, essay, or story. For example, Suntrust v. Houghton Mifflin allowed Alice Randall to publish a parody of Gone with the Wind, holding that it made transformative use of Michell's work. However, this is not enough. If Davis had just published a summary of Kerry's book, voters would have dismissed it as unfairly biased. Without the original text (and with Kerry probably publishing a competing summary), who could decide? Fortunately for Davis, the First Amendment protects not just ideas but also expressions. If the State of California must allow Cohen to say "[obscenity] the Draft" when he could have expressed his opposition to it in many other ways, then "governmental bodies may not prescribe the form or content of individual expression." If a particular expression (copyrighted work) is not available, the government has no business keeping people from making it available. Copyright is supposed "to promote the Progress of Science and useful Arts" and fill the marketplace of ideas; why should we allow authors to use it to empty that marketplace and retard the progress of knowledge?

Indeed, Suntrust hints that any use for "purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research" is fair use, saying that thanks to the First Amendment, "any use of a copyright is permitted to fulfill one of the important purposes listed in the statute." Clearly, the republication of Kerry's book could be called "news reporting," and republication of orphaned works could be called "scholarship." Unfortunately, courts do not apply the fair use doctrine in this manner. For example, Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., after finding that the defendant excerpted the plaintiff's articles "for the purpose of news reporting", denied fair use protection on the grounds that "Comline's infringing abstracts are 'not in the least 'transformative.''"

If we let people republish works not available, it would not strip any profits from the author; if the work is not available, the author is not getting any profits in the first place. Indeed, the Republican Party would probably have been quite happy to pay Kerry royalties for reprinting his book. Similarly, as Google is scanning orphaned works, it is putting money away to pay copyright holders when they are located. The principle beneficiary, however, is the public: "the ultimate aim is, by this incentive, to stimulate [the creation of useful works] for the general public good."

The Needless Fairness Doctrine

"I think," said ex-President Clinton, "we need to have either more balance in [radio] programs or some opportunity for people to offer counter-veiling opinions." Until 1987, the FCC agreed with him: they required "that public issues be presented by broadcasters and that each side of those issues be given fair coverage." For example, when Red Lion Broadcasting opposed Mr. Cook for reelection, the FCC told them to give Mr. Cook equal time to respond. Red Lion sued, and the Supreme Court upheld this "Fairness Doctrine" as constitutional.

In a famous (or perhaps infamous) essay, Prof. Jerome A. Barron argued that newspapers should also be under this Fairness Doctrine. For "expression already uttered... first amendment case law furnishes considerable help. But what of those whose ideas are too unacceptable to secure access to the media?" The "marketplace of ideas," Barron says, is being censored - not by the government but by a few corporations in control of the few surviving newspapers, seeking their own profit at the expense of "uninhibited, robust, and wide-open" debate. Trying to reach economies of scale without offending customers, they represent only the most common viewpoints in the most restrained terms without letting anyone else speak or even respond when the newspaper criticizes them. The government must act, Barron concludes, to ensure a press truly free to every citizen.

However, Barron is wrong: the Fairness Doctrine is not necessary for a free press. When the First Amendment says, "Congress shall make no law... abridging the freedom of speech or of the press," it implies that freedom of the press will exist if Congress simply does nothing - otherwise, the Founders (or the framers of the Fourteenth Amendment which applied it to the states) would have said, "Congress must make all laws necessary and proper to ensure the press is free to everyone." To the contrary, throughout the 1790's, newspapers printed quite partisan attacks without leaving any room for response.

Barron replies that the current situation is different: "Many American cities have become one newspaper towns," leaving no other outlet. Costs prohibit people from setting up other newspapers. However, this was actually truer in the Founding era than it is today. Few of the minuscule newspapers back then turned a profit, and it's actually more easy now to photocopy something at Kinko's than it was then to buy a printing press. Things have gotten even easier since Barron wrote his article: the Internet has been invented. When the Ron Paul campaign thought the mainstream media was ignoring them, they could just put up banners saying, "Google Ron Paul"! I recently started this blog, giving myself a worldwide platform for free. If Barron is concerned about people finding these alternate sources, he need only look at Google or at the "comments" section now found even in the New York Times, which allows people to link to rebuttles elsewhere. The Internet's near-nil costs allow people to cater to the smallest nitch audiences; any remaining problems are merely due to the difficulty of winning people's attention. Therefore, since the Web affords an adequate forum for reply, the Fairness Doctrine is needless.

Fortunately, the Supreme Court says that the Constitution forbids extending the "Fairness Doctrine" beyond broadcast media. "Half the people might publish and the other half read," the RED LION court said. But "no one has a First Amendment right to... monopolize a radio frequency." "The problem of interference is a massive reality. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast... Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them." When the government grants someone this privilege, the Court said, it can impose conditions - such as the Fairness Doctrine. But, the Fairness Doctrine "rests upon the unique physical limitations of the broadcast medium." Since cable television is not limited to a finite number of frequencies, the Court refused to impose the Fairness Doctrine on it. Whatever Barron may say about market limitations, there are no scientific limitations on the number of newspapers. Therefore, when the Supreme Court struck down the "right of reply" for newspapers, it did not even think it necessary to explain how they were clearly different from broadcast television.

Free speech is still uninhibited, robust, and wide-open. Indeed, the Internet has quite possibly made it freer than ever. We don't need a government to mandate a "right of reply" and spawn a chilling bureaucracy to determine what's a legitimate reply or when a reply is demanded. As long as the American people demand free speech, then speech will be free. If free speech ever perishes from our free country, it will be due to the people.

The Thesis of this Blog

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...
--The thirteen united States of America

This is the thesis statement of this blog. In other words, there are two sources for government power:

1. Everyone's inalienable rights. Anyone can protect these, the government just as much as anyone else. Even if there was no constitution or law, I could stop someone from murdering you because you have the right to life. The government can't redefine your rights any more than I can, but, unless it's somehow forbidden to do so, it can protect them just as much (probably better) than I can.
2. The consent of the governed. If someone tries to cut your chest open, he'll (we hope) be arrested for assault. But if you've tell your surgeon he can remove your appendix, he's allowed to cut your chest open - he's got your permission. Similarly, when everyone agree that the government may do something, it may do that. When all the people¹ put this agreement in writing, it's called a social contract, or a constitution.

What this means is that the government can't simply do anything it wants. "The powers not delegated to the [government]... are reserved... to the people." Whenever the government wants to do anything, it needs to prove whether the action is protecting inalienable rights, or whether we the people have allowed it to do the action.

In this blog, I plan to try to determine what powers the US government legitimately has, as well as try to determine whether some specific actions were legitimate. I know I'm not going to get everything perfect; even the Supreme Court justices often disagree with each other. That's why the Court has nine justices, not just one, and that's why I'd appreciate your responses in the comment threads.

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^[1]Actually, not quite everyone agreed to the US constitution; I'll probably post about this later. But, when I'm commenting on US political events, I'm generally going to assume the Constitution is a valid social contract - it's convenient, and nearly everyone now agrees it's valid, so not assuming it's valid would be impractical.