If the ordinary, reasonable and expected results of action X are Y and Z, and it’s legal to perform X if you intend Y but consider Z collateral damage, but illegal to perform X if you intend Z but consider Y collateral damage, that’s a pure thought crime.

Absolutely not.

For instance: X=“Give David Schwartz CPR”, Y=“Save his life”, Z=“Break his ribs”.

It’s obviously legal to give you CPR to save his life, even if I accidentally break your ribs in the process. Conversely, it’s obviously battery if I give you CPR with the intent of breaking your ribs.

Conflating a mens rea requirement for a law restricting some conduct (essentially making the conduct only if done in a particular frame of mind) with criminalizing the frame of mind itself is absurd.

Of course, if you’d like, you can petition the legislature to make all crimes into strict-liability crimes. That would be an unmitigated disaster.

‘possession of instruments of crime’

Does anyone know the letter of this law? Does it proscribe particular instruments (such as weapons) or does anything used in the course of a crime become, de facto, an ‘instrument of crime’, regardless of whether or not it is normally contraband? If it’s the latter, doesn’t the law become a sort of backdoor double indemnity?

‘Criminal use of a communication facility’ has a similar ring. If it weren’t for the first charge, none of the subsequent charges would have meaning. So, really it’s one crime and not three.

Even if my actions are indistinguishable from actions that I would have taken without that intent? That sounds like a pure thought crime.

Ahem?

I think you’re mistaken about the law – if Anarchist Bill knows that crimes were being committed and acted to facilitate their commission, he could be liable as an aider and abettor if his intent was to facilitate the commission of the crime. All the government needs to prove to get him on aiding and abetting is that a crime was committed, Anarchist Bill intended that that crime occur (even though he did not himself commit it), and Anarchist Bill took an affirmative action for the purpose of facilitating the crime. He doesn’t need to know all the details of the crime, just that a crime is occurring and that his actions are facilitating it. At that point, he’s liable as a principal. I believe it also applies if he should have known that a crime was occurring, provided all the other elements are met, but I couldn’t find a quick cite for that so I could be wrong.

So if I start a delivery company hoping that I’ll help some people deliver illegal drugs, I’ve committed a crime? Even if my actions are indistinguishable from actions that I would have taken without that intent? That sounds like a pure thought crime.

There’s alot of hypo-fighting going on. Can we stipulate what whatever light-flashing is going on isn’t illegal or harmful for reasons other than the fact that is is communicating the existance of a speed-trap?

We could, but my point centers on the fact that it is often illegal to flash your brights irrespective of the reason (communicative or otherwise). That is, this is a classic O’Brien case in which the government regulates (potentially) expressive conduct.

If we stipulate that the light-flashing would be legal, then I agree wholeheartedly (and I wrote so more than a week ago) that it cannot be made illegal based on the content of the expressive message.

Perhaps if you specifically flash your lights at someone who appears to be speeding, but what if you flash your lights at every car you pass and make no attempt to determine whether they’re speeding or not?

You really don’t think the State can criminalize blinding every driver you see on the road, regardless of what putative message you mean to convey?!

Flashing headlights to warn of a speed trap, no matter how much Steve dislikes the argument, falls in the latter category. They’ve already been speeding; slowing down doesn’t prevent the police from ticketing them for that crime. All it does is cause them to stop breaking the law, at least temporarily.

Perhaps if you specifically flash your lights at someone who appears to be speeding, but what if you flash your lights at every car you pass and make no attempt to determine whether they’re speeding or not? At least when I do it, the message is “I don’t care whether you’re speeding or not, but if you speed on the stretch ahead, you’re going to get a ticket”. It is just as much “don’t start speeding” as “stop speeding”. I don’t discriminate among the recipients.

Oren: Well, I imagine that all the peace officers in our fine country have enough sense to regularize the insanity.

Yeah, nothing beats insanity becoming citizens’ regular expectation of police behavior.

As to your response to my example, do you really think that whether or not Anarchist Bill’s actions are a crime hinges entirely on his intent? That’s just not the law. The Anarchist’s Cookbook is protected by the First Amendment, even if the author or any particular vendor selling it intends or hopes that it will be used to commit violent acts. If Bill publishes his data without actually conspiring with any other person in the process, then I don’t think he’s committed any crime, no matter what his intent was.</blockquote

I think you’re mistaken about the law — if Anarchist Bill knows that crimes were being committed and acted to facilitate their commission, he could be liable as an aider and abettor if his intent was to facilitate the commission of the crime. All the government needs to prove to get him on aiding and abetting is that a crime was committed, Anarchist Bill intended that that crime occur (even though he did not himself commit it), and Anarchist Bill took an affirmative action for the purpose of facilitating the crime. He doesn’t need to know all the details of the crime, just that a crime is occurring and that his actions are facilitating it. At that point, he’s liable as a principal. I believe it also applies if he should have known that a crime was occurring, provided all the other elements are met, but I couldn’t find a quick cite for that so I could be wrong.

If the latter holds, I believe he would be liable under your hypo, despite his lack of contact with the principals. Anarchist Bill is not providing general information in anticipation of future potential crimes — he’s provided information to immediately assist in the commission of specific crimes in a specific place and time, and my reading of the law is that he can be liable even if he does not know the details of the crimes he’s facilitating.

Neither one of those links has anything about manually flashing lights.

The WA statute says “Drivers shall keep their lights on the lowest setting when another car is nearby”.

If you want to insist law permits them to operate their lights on any other setting other than lowest for any amount of time, go ahead. To my reading, it’s quite clear — you must keep it at the lowest setting whenever another vehicle is close.

http://www.virginialawreview.org/articles.php?article=89

A national-award-winning note by then-student, now-Professor Leslie Kendrick at Virginia Law entitled “A Test for Criminally Instructive Speech.”

Oren:
You guys must not be looking very hard about this flashing lights question. In the great State of Washington, you may not flash your high beams at anyone. In the somewhat-less-great State of Florida, it is also forbidden.In my (foolish, no doubt) conception of 1A law, it is perfectlylegal for a State to forbid flashing your lights as a generalregulation of motor vehicles on the road. They may not make thecontent-based law forbidding flashing your lights for the purpose of conveying the message that a cop is around the corner. The states of WA and FL, it appears, have done the former not the latter.[ Incidentally, WA is pretty strict in not allowing you to flickyour brights at anyone for any reason, where at least Florida has someexceptions. ]

Neither one of those links has anything about manually flashing lights. The Florida one appears to be only for lights that are automatic and repetitive.

Someone want to cite this felony statute from Oklahoma? Then explain to me why felony charges MUST go to a jury trial in OK? That seems incredibly wasteful, but I’m guessing that guy doesn’t know what he’s talking about.

That’s not hard to deal with under Brandenburg. You’d just need to show that the speaker intended that his or her listeners would be able to move so that they could continue to commit crimes without being caught, and that the speech was substantially likely to accomplish that.

The whole point of Brandenburg is to make incitement a crime of SPECIFIC intent– you have to knowingly further the crime, and do something that actually does further it. That ensures that people aren’t swept into the dragnet just because they say something that might assist a criminal.

I would just apply Brandenburg v. Ohio to these situations. If the speech is both highly likely to further illegal conduct and is specifically intended to do so, it’s unprotected. Otherwise, it’s protected.

And I would add the proviso that telling people to act LEGALLY because the cops are around, or to disperse from areas where they are going to be ordered to disperse from, is not furthering illegal conduct at all.

Well, depending on whether they use that advice to simply move to another area to commit their crime (disorderly conduct, disrupting the peace, impeding the flow of traffic on a public road, ...).

But the speaker does not know what they will do, so I don’t know how this applies in practice.

I didn’t. I commented on the law. I think the law is more than slightly insane.

Well, I imagine that all the peace officers in our fine country have enough sense to regularize the insanity.

Also, I didn’t catch this statement in your original post.

Now, I suppose in WA and FL you’re just supposed to be blinded and the jerk with high beams gets a medal for not “flashing” his lights to low beam when approaching traffic.

No, he gets a ticket because he violated the law that says he shall drive with his beams on the lowest setting when there are other cars nearby.

And I would add the proviso that telling people to act LEGALLY because the cops are around, or to disperse from areas where they are going to be ordered to disperse from, is not furthering illegal conduct at all.

Is this a free speech issue, or is it not?

Depends what you mean by issue. I suggest you read the case I quoted just above this post, United State v. O’Brien.

In that case, it was conceded that O’Brien’s activity was both conduct and speech at the same time — that is, it was expressive but it was not purely expressive. In other words, it was a free speech issue. On the other hand, the Court ruled that the statute was an acceptable restriction of free speech because it was content-neutral and not overly broad. Consider it in analogy to a law prohibiting protesters from marching through residential neighborhoods at 2AM with bullhorns — surely such a law prohibits some speech, but most everyone agrees that this is an acceptable restriction.

The same analogy applies here — if the State makes it specifically illegal to flash your brights in order to convey a particular message, that fails the test in O’Brien (just like they cannot make it illegal to protest a particular cause). On the other hand, if the law is general and simply says you cannot flash your brights (and presuming the government has a legitimate interest in the matter), then I believe that such a law passes the O’Brien test.

And for the light flashing under any circumstances law, isn’t the test whether or not the law was intended to suppress the communicative aspects of light flashing, and if so whether or not that communication was constitutionally protected?

Assuming that the law is like the one in WA (if you don’t believe my reading, pretend that WA passed a law in conformity with my reading) and prohibits any flashing of brights at another vehicle. Then the test of whether it is permissible despite the incidental restriction on speech is (quoting O’Brien)

1) be within the constitutional power of the government to enact, 2) further an important or substantial government interest, 3) that interest must be unrelated to the suppression of speech (or “content neutral”, as later cases have phrased it), and 4) prohibit no more speech than is essential to further that interest.

(1) Regulation of road safety is clearly within the powers of the various State governments.
(2) The interest of the government in road safety is substantial.
(3) The interest of the government in road safety is unrelated to the incidental suppression of speech here — they are not suppressing brights because they impede with law enforcement, they are supressing all usage of brights whatsoever because they might tend to blind other drivers.
(4) The suppression of speech here incidental to the safety concern is no more broad than essential — it prohibits only such speech that might tend to blind other drivers and not other such speech (such as waving or rolling down your windows and hollering) that does not impinge on that right.

I welcome, of course, any criticisms of my analysis here.

Oren: Fub, I did not endorse the law as proper or wise, I only linked it to show that it exists. Please do not conflate citation with support.

I didn’t. I commented on the law. I think the law is more than slightly insane.

Prof Volokh, and the commenters here, I found this example totally confusing. I think there was one cite in the paper to a lower court accepting a free speech defense for light flashing.

Is this a free speech issue, or is it not?

And in my area at least, the purpose of speed traps is more revenue enhancement than law enforcement. Perhaps warning of a speed trap is interfering with an officer in the performance of his duty of revenue enhancement.

I daresay the law enforcement angle to speed traps is sometimes doubtful.

Moda: I think the difference is that the lawyer is giving his client prospective advice, while the actor in the article is assisting people who have already violated the law (or are suspected of doing so) in escaping from the police.

I think Moda’s distinction here is the right one (although I disagree with other comments he has made.)

Telling people how to escape capture for committing a crime is and should be illegal, whether before the fact (“The side door’s alarm doesn’t work, so you can burgle the place secretly”) or after the fact (“The police are coming up the front steps; quick: destroy the evidence.”)

But telling people to avoid committing the crime in the first place is not illegal, even if, as a result, they commit the crime at another time and place so they won’t be caught.

Flashing headlights to warn of a speed trap, no matter how much Steve dislikes the argument, falls in the latter category. They’ve already been speeding; slowing down doesn’t prevent the police from ticketing them for that crime. All it does is cause them to stop breaking the law, at least temporarily.

I’m guessing the discussion is on high beams because they have been singled out in the statutes in question. The fact that they are not easily distinguished, in daytime, from any other sort of headlight is probably as good a reason as any to ignore the possibility that a person has flashed ordinary headlights instead of high beams when one seeks to replace revenue from lost speeding tickets with revenue from a headlight-flashing ticket.

Edited to add: I don’t know who wrote such a cynical thing here under my name. I will have a talk with my evil twin.

As far as the accessory thing, if I flash my lights at a speeder, and he slows down and doesn’t speed back up, am I still an accessory? Or am I only an accessory to any speeding that occurs after I flash my lights?

And for the light flashing under any circumstances law, isn’t the test whether or not the law was intended to suppress the communicative aspects of light flashing, and if so whether or not that communication was constitutionally protected?

EricPWJohnson: So David – you see where this is going in Texas, Oklahoma, Louisiana its common for truckers who do this on CB or with their headlights to be jailed.

Well, just because people are routinely jailed for doing something in those states doesn’t mean that something isn’t constitutionally protected.

its common for truckers who do this on CB or with their headlights to be jailed.

Stupid question — how do you tell who just broadcast a CB warning? It seems like a difficult charge to prove.

You know what really blows my mind? That people can make a statement like this, but don’t realize that the Federal Constitution is the Supreme Law under the Jurisdiction so constituted, and is the will of the people, which neither federal nor state governments, whether together or alone can defy, yet..

Gene, there is little question that a non-content-based law that prohibits flashing lights (leave aside whether the statute does, I’m done arguing about that — just suppose that a statute does) while in a vehicle comports with the First Amendment.

With no experience in Washington (calling Whit IIRC for practices there), I can assure you that Florida and Virginia both have a long, long precedent in allowing flashing of headlights as communication of the other drivers’ highbeams being on.

I’m sure they do. I’m sure they also have a long precedent of letting drivers go 56 in a 55 zone. Nevertheless, “you shall use low beams” means precisely what is says.

That interpretation is bolstered by the rest of the statute, which refers to just that type of light commonly found on police cars, wreckers, etc.

The rest of the clause that I cited refers to turn signals — commonly found on all cars.

“Flashing” does not mean a single flash. The law is not quite the literal monster he seems to envision.

And “robbing” does not mean a single robbery.

I’m not arguing in favor of police officers suddenly enforcing this law any more than I’m arguing in favor of writing 56-in-a-55 tickets. Both seem to be on the same level of illegality.

A felony!!!! Holy moly.

Perhaps when Texas executes an innocent man who was accused of flashing his high beams, we will achieve VC Critical Mass.

Finally, on an unrelated note, what’s the deal with this discussion of people flashing their high beams? I flick my lights off and on because USUALLY when you spot a speed trap on the interstate it’s during daylight hours.

In nearly every car I’ve ever driven, the high beams could be activated by pulling the lever for the directional signals towards the driver. It could be pulled all the way back to lock it in position, or it could be pulled partway, at which point it would spring back into its original position when released. This worked even when the headlights were off.

Turning the lights on and then off required more of an effort: one motion to turn them on, and the opposite motion to turn them off.

Jeff R.: If you are resisting or attempting to evade arrest, then what you are doing isn’t civil disobedience.Or at least You’re Doing It Wrong.

There was an appellate case recently — discussed on Volokh — about an attorney who argued that his client’s conviction (confession?) should be overturned/excluded because he was engaged in civil disobedience. One of the appellate judges explained to the lawyer that civil disobedience involves breaking the law and willingly accepting the punishment to show the injustice of the law, and that being unwilling to be punished isn’t really civil disobedience at all.

It’s one of the things that irritates me about people who handcuff themselves to the White House fence or engage in some other forms of trespass or disorderly conduct for the sake of their cause. They’re not breaking an unjust law; they’re breaking a perfectly just law with no connection to their cause. I’ve never felt moved at all by any of those antics.

Dare you to do it in Oklahoma

Double Dare you!

Triple quadruple dare you and yes it would go to a jury trial because its a felony

automatic in okie land