Law Commons^™

Speech As Conduct: Generally Applicable Laws, Illegal Courses Of Conduct, “Situation-Altering Utterances,” And The Uncharted Zones, Eugene Volokh

ExpressO

In many recent free speech controversies -- over crime-facilitating speech, hostile environment harassment, child custody decisions, doctors’ recommending medical marijuana to their patients, pro-jury-nullification advocacy, and more -- defenders of the speech restriction have argued that the speech isn’t really speech, but is instead tantamount to conduct. Sometimes people argue that there’s no First Amendment problem when speech is restricted under a generally applicable law that covers both speech and conduct. Sometimes they argue that speech may be punished if it’s “an integral part of conduct in violation of a valid criminal statute.” Sometimes they argue that the speech should …

Crime-Facilitating Speech, Eugene Volokh

ExpressO

Many recent free speech controversies -- over Patriot Act subpoenas, contract murder manuals, encryption and decryption algorithms, contributory copyright infringement, publication of abortion providers’ names, discussions of gaps in security systems, certain kinds of invasion of privacy lawsuits, online term paper mills, and more -- turn out to be special cases of a general problem: Should there be a new First Amendment exception for speech that gives criminals information that can help them commit crimes? And, if so, how broad or narrow should this exception be?

Surprisingly, scholars have almost entirely ignored these broad questions, and the Supreme Court has …