Eugene Volokh

Crime-facilitating speech: I'm finally finishing up a rough but distributable draft of my Crime-Facilitating Speech article. There's much that I'm not satisfied with: For instance, it's way too long (100 pages at this point), and I still don't have a clear solution to propose, though I might stick by proposing a few alternatives and explaining the pluses and minuses of each.

…When should speech be punishable because it provides information that facilitates crimes, or other harms? This question arises in many different cases:

…These are not incitement cases: The speech isn?t persuading some readers to commit bad acts. Rather, the speech helps some readers more effectively commit bad acts—acts that they already want to commit.

Surprisingly, the Supreme Court has never squarely confronted this issue, and lower courts and commentators have only recently begun to seriously face it. And getting the answer right here is quite important: Because these cases are structurally quite similar—a similarity that hasn?t been generally recognized—a decision about one of them will affect the results in others. If one of these restrictions is upheld (or struck down), others may be unexpectedly validated (or invalidated) as well.

In this article, I?ll try to analyze the problem of crime-facilitating speech, a term I define to mean

1. any speech that,
2. intentionally or not,
3. makes it easier for some listeners or readers to (a) commit crimes or (b) other harmful acts (such as torts, hostile acts of foreign nations, or suicide), or (c) to get away with committing crimes or harmful acts.

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This is here because the idea of criminalizing speech that is recognized as not inciting crime is disturbing to me. That "intentionally or not" part is particularly bad.