Another interesting crime-facilitating speech issue, which I discussed in my Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005):
An advocate for immigrant and civil rights has started using text messages to warn residents about crime sweeps by a high-profile Arizona sheriff.Lydia Guzman, director of the nonprofit immigrant advocacy group Respect/Respeto, is the trunk of a sophisticated texting tree designed to alert thousands of people within minutes to the details of the sweeps, which critics contend are an excuse to round up illegal immigrants.
Guzman said the messages are part of an effort to protect Latinos and others from becoming victims of racial profiling by sheriff’s deputies….
So what’s the First-Amendment-relevant difference, if there is one, between this and a lookout who alerts criminals when the police are coming? (Assume that the lookout isn’t getting a share of the loot, but is just helping his friends avoid getting locked up.) Should it matter, as one expert who’s mentioned in the article suggests, whether Ms. Guzman’s real goal is preventing lawful arrest of illegal immigrants (as opposed to preventing racial profiling, assuming such profiling is unlawful)? I think there may indeed be a difference between such revelation of facts to the public and individualized communications to a small group of criminals, and I don’t think it should turn on jury inferences about the speaker’s true purpose; my article discusses the question at length. But in any event it’s helpful to think about what the difference might be.
Thanks to M. Williams for the pointer.
Chem_geek says:
I haven’t read the paper yet, but, here’s a hypo: Someone’s listening to a police scanner radio, and takes action based on that to avoid arrest. Does that make the police liable for crime-facilitating speech?
January 6, 2010, 12:58 pmMartinned says:
No mens rea, presumably, so no.
January 6, 2010, 1:03 pmVisitor Again says:
This abusive sheriff’s roundup policies are a matter of great public controversy–in part because they lead to the arrests of U.S. citizens and immigrants who are here legally as well as aliens who are here unlawfully–and alerting the public that he is engaging in yet another roundup is plainly protected speech whatever the motives of the speaker. The first amendment takes into account the interests of those who receive the communication as well as the motives of the speaker. The public thus has a huge and legitimate interest in learning this information. The communication may, as an incidental effect, allow some “illegals” to escape detention, but that is insufficient to cancel out the public interest that is served by the communication.,
January 6, 2010, 1:19 pmVisitor Again says:
Made an editing mistake because of that inconveniently small editing box.
“intent of the speaker” at the end of the first sentence should read “motives of the speaker.”
“as well as the motives of the speaker” at the end of the second sentence should read “as well as the interests of the speaker.”
January 6, 2010, 1:27 pmSk says:
There is no difference. It is crime-facilitating speech, therefore it should be illegal.
But, it is popular crime-facilitating speech. And, most importantly, it is popular with the chattering classes. Ergo, no crime.
Sk
January 6, 2010, 2:03 pmEugene Volokh says:
Sk: What is your definition of “crime-facilitating speech” that “should be illegal”?
January 6, 2010, 2:05 pmNick B says:
Could you arrest her and charge her with conspiracy after catching someone she warned, who was wanted for an unrelated crime?
January 6, 2010, 2:43 pmNick
Daniel Chapman says:
Under Wisconsin law, a person is guilty as Party to a Crime if they either aid/abet another person in the commission of a crime or the stand ready and willing to aid/abet that person and the other person is aware of the fact that they are ready/willing. This is generally the basis for charging the lookout in crimes such as robberies/burglaries.
In the case you describe, there is no indication that they are aiding/abetting in any specific crime. If a person gets word that the police are going on a “sweep” and they put out a blanket warning to the entire public (criminal and law-abiding alike) that the police are taking that action, they are not knowingly aiding in the commission of any particular crime.
True, their actions may have the effect of hindering enforcement of the law, but that’s not the same thing.
If this same text-alert system were used by a criminal gang to alert all their pimps/drug dealers after spying on police communications, I think you could charge them as PTAC. The key would be to prove the connection between the alert system and the criminal enterprise benefiting from the warning.
January 6, 2010, 2:47 pmhattio says:
Professor Volokh,
January 6, 2010, 2:58 pmMy understanding is a phone tree has been set up, like schools used to do for basketball practices, etc. Does this effect your opinion of the legality, since she personally would only be spreading the word to a few people? Granted the point is to get the word spread widely….
Sk says:
“Sk: What is your definition of “crime-facilitating speech” that “should be illegal”?”
Eugene: a wise legal scholar offered this analogy earlier in the conversation…
“So what’s the First-Amendment-relevant difference, if there is one, between this and a lookout who alerts criminals when the police are coming?”
Perhaps you should look him up.
Sk
January 6, 2010, 3:24 pmDaniel Chapman says:
The sarcasm was too strong for the point you were making, sk… We’ve had several posts with high-level discussion about whether a nebulous class of “crime-facilitating speech” can be made “illegal” consistent with the first amendment. EV’s first response to you was just asking you to unwrap your terminology a bit and think about the deeper issues.
You’re essentially assuming that there is another unrecognized first amendment exception similar to obscenity, fighting words, or incitement. That’s a big assumption.
January 6, 2010, 3:47 pmlgm says:
You make a good case that helping illegals escape police is illegal. As a non-lawyer, I have been interested in the meaning of a jury of “peers”. I assume that means that those peers will use their personal judgment of right and wrong rather than following the law as written blindly. Would a largely Hispanic jury in southern Arizona convict?
People made similar arguments and counter arguments when Bush was ordering illegal wiretaps to “keep us safe”. There’s also the question of getting a ticket for speeding on the way to the hospital.
Should there be punishment for an action that is both a crime and a mitzvah?
January 6, 2010, 3:49 pmFantasiaWHT says:
Would this still hold if, say, a person got word that the police were about to execute a long-planned sting operation on a drug smuggling ring, and that person somehow broadcast a blanket warning (viral internet/text messages, perhaps) about the imminent raid?
January 6, 2010, 3:52 pmARCraig says:
When Joe Arpaio’s horde of violent sociopaths actually has to follow the law, I’ll worry about such minutiae in the citizens’ efforts to defend themselves. And if Joe Arpaio wanted to file charges against these people, I promise you such technicalities as the “Bill of Rights” would have nothing to do with his decision.
January 6, 2010, 3:54 pmorca says:
A little off topic: Is flashing your headlights to warn fellow motorists of a police speed trap up ahead “crime-facilitating speech?”
January 6, 2010, 4:05 pmDaniel Chapman says:
FantasiaWHT: Under the conspiracy definition of party to a crime, if you could prove beyond a reasonable doubt that the party broadcasting the police movements was aware of the drug smuggling ring and intended to warn them specifically, you could convict him of the smuggling ring’s various crimes as party to a crime.
Same example I was going for with the criminal gang I mentioned in my post.
Orca: NO! (We had that discussion in another post, and I’m sticking to my guns, dammit!)
January 6, 2010, 4:07 pmARCraig says:
No, it’s 1st Amendment protected speech.
http://www.npr.org/templates/story/story.php?storyId=1493749
January 6, 2010, 4:07 pmShelbyC says:
I assume if someone correctly believes that the cops are going after someone, not to enforce the law, but to murder them, warning the target isn’t a crime. And if they incorrectly believe the same, that wouldn’t be a crime either, right? No mens rei, as the above commenter suggested. So how is that different than what the texters are doing?
January 6, 2010, 4:11 pmShelbyC says:
There’s a little different twist there, because arguably you’re not facilitating crime, you’re just suggesting that someone stop committing a crime.
January 6, 2010, 4:15 pmMark N. says:
The fact that the fine they tried to impose was only $10 says something interesting about public conflictedness, too: it seems that people think that flashing to warn of a police speed trap shouldn’t be legal, but are unwilling to assign more than token penalties to it (and token penalties much lower than even other minor traffic violations).
January 6, 2010, 4:29 pmSk says:
“You’re essentially assuming that there is another unrecognized first amendment exception similar to obscenity, fighting words, or incitement. That’s a big assumption.”
Ok, I’ll bite, because I do agree that it is a more complicated issue.
There clearly is an unrecognized first amendment exception similar to obscenity, fighting words, or incitement. For example:
“Hey, guys, let’s rob a bank. Here’s the plan. Here’s the blueprints to the bank. Here’s the guard’s shift schedule. Here’s our escape plan. etc etc etc.” Here’s another example: “Hey, guys. I’ve got an inside tip on which stock to sell before tomorrow’s quarterly results-my cousin is an assistant vice principal in Corporation X.” Similarly, conspiracy. There is unquestionably a class of speech-planning a crime-that is illegal and can be charged.
So the challenge is not what you are claiming (whether there is an additional class of unprotected speech-there clearly is): rather, it is whether this form of interference with law enforcement falls under that class or not- i.e. does this type of speech (look out! The police are coming!) count as ‘insider trading’ or ‘conspiracy’ type speech (which is illegal), or does it count as ‘arguing about the Platonic ideal form of government’ (which is protected)?
There are many similar cases, some mentioned earlier:
-flashing headlights to oncoming traffic to warn of a traffic stop.
-Twittering about DWI checkpoints
-being on the lookout for a gang (robbing a bank, for instance) “Look out! The police are coming!”
-describing, on a website, how to avoid being caught by authorities downloading, or copying, pirated Beatles songs
-describing, on a website, how to avoid being caught by authorities downloading bombmaking information and flight information for travel from Amsterdam to Detroit
-describing, on a website, how to avoid being caught by authorities downloading child pornography
My contention is that the cases, above, that are clearly not constitutionally protected speech (I am assuming the child porn case, but I guess I don’t know, bombmaking, being on the lookout for a gang, insider trading) differ from the cases, above that are constitutionally protected speech (flashing headlights, twittering stoners to avoid DWI checkpoints, describing how to avoid being caught copying or downloading Beatles songs) most dramatically in their popularity with the chattering classes than in any ‘constitutional’ distinction.
In other words, I steal Beatles songs. Rich guys steal stock information. Insider trading is a more clearcut crime because judges don’t like rich guys, but judges do like their own teenagers (who happen to have alot of Beatles songs on their ipods). The ‘constitutional’ difference between stealing stock information and Beatles songs isn’t clear to me.
And, the ‘constitutional’ difference between warning illegal immigrants that the cops are coming to get them, vs warning illegal bank robbers that the cops are coming to get them, is similarly unclear to me. But the chattering classes work with lots of folks sympathetic to (or themselves are sympathetic to) illegal immigrants. They don’t work with alot of bank robbers.
Sk
January 6, 2010, 4:52 pmDaniel Chapman says:
That’s a much better answer to EV’s request that you define “crime facilitating speech” than your previous one, sk.
January 6, 2010, 4:56 pmEugene Volokh says:
sk: I’m still not sure I understand exactly what First Amendment exception you are proposing — an exception for all speech that gives listeners information that helps them commit a crime? All speech that gives listeners information that helps them escape detection when they commit a crime? Something else?
I ask because I wrote a 100-page law review article on this very topic, so I think I could say something useful about some particular proposal. It’s hard, though, to evaluate a proposal when I don’t know exactly what is being proposed.
January 6, 2010, 5:06 pmAaron says:
As a police officer friend of mine related to me, anyone he catches doing that gets hit with an “interfering with agency function” ticket, and apparently it has been upheld in court when challenged.
January 6, 2010, 5:26 pmBZ says:
Well, I’d suggest that the exception is that recognized in United States v. Lopez, 2 Cir., 1975, 521 F.2d 437, 440 (2d Cir. 1975), cert. denied, 423 U.S. 995 (1976), and its progeny. The statute at issue, 8 U.S.C. 1374, prohibiting “harboring” illegal immigrants, targets activity “tending substantially to facilitate an alien’s ‘remaining in the United States illegally.’ ” 521 F.2d at 441. Don’t recall the cites off-hand, but there was a case involving warning illegal immigrants by a special red light, and another by verbal signals. Might also check U.S. v. Cantu, 557 F.2d 1173 (5th Cir. 77), which specifically involves hiding and not hiding activities.
January 6, 2010, 5:27 pmEugene Volokh says:
Orca: I mention one headlight-flashing case in footnote 150 of my article (though I’m not sure that it’s correctly decided); it’s State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting a First Amendment defense to a charge of knowingly interfering with an officer, when the defendant’s conduct consisted of flashing his headlights to warn oncoming motorists about a speed trap). I vaguely recall seeing some other cases since then, but I can’t find the cites now.
January 6, 2010, 5:35 pmThe Sheriff Is Coming! The Sheriff Is Coming! - Hit & Run : Reason Magazine says:
[...] Volokh, who alerted me to this story, has a paper [PDF] on crime-facilitating speech with some relevant case law. He [...]
January 6, 2010, 5:35 pmSk says:
“sk: I’m still not sure I understand exactly what First Amendment exception you are proposing — an exception for all speech that gives listeners information that helps them commit a crime? All speech that gives listeners information that helps them escape detection when they commit a crime? Something else?”
Doesn’t the exception already exist? Isn’t conspiracy a crime? Isn’t insider trading a crime? “As a police officer friend of mine related to me, anyone he catches doing that gets hit with an “interfering with agency function” ticket, and apparently it has been upheld in court when challenged.” It sounds like warning motorists of a speed trap is a crime.
And if the exception already exists, then, isn’t it a political decision as to what forms of communication qualify for that exception?
I haven’t read your article. Perhaps you actually do argue that there is no exception, and serving as a lookout for a bank robbery, or insider trading, are perfectly legal. If so, we are simply misunderstanding each other.
sk
January 6, 2010, 5:51 pmMartinned says:
I think a generous reading of Sk’s comment suggests that he has something in mind like “speech that gives listeners information that helps them commit a crime or escape detection where it is the speaker’s primary intention to do so”.
January 6, 2010, 5:57 pmlosantiville says:
Eugene,
I’m not sure that the act is warning criminals. An immigration sweep is not targeted at immigration criminals – those “avoiding inspection at the border”, “uttering false documents”, “lying on a visa app”, etc. but rather at persons who are “subject to deportation” because they have no legal right to remain in the US. Such proceedings are civil and not criminal. After all, the sheriff possesses no individual information about the targets. No warrants. So any stops he makes are not for a “crime.” No probable cause.
Is it illegal to warn people about a civil proceeding?
January 6, 2010, 9:49 pmArthurKirkland says:
My preferences regarding every activity involving this sheriff mirror my hopes regarding every link in the narcotics enforcement chain: May every search be unsuccessful. May every tip be a loser. May every warrant contain a fatal defect. May every investigation be botched. May every arrest be flawed. May all evidence be suppressed. May every prosecution be mishandled. May every deadline be blown. About the only things I want to see go right for these folks are (1) that they complete every shift safely and (2) that every attempt to move on to honest and worthwhile work is successful.
But that’s just the libertarian way of looking at things. Some people don’t care for it.
January 6, 2010, 11:49 pmohgoodgrief says:
May your sense of reason and proportion return before you again grace us with your wit and wisdom.
January 7, 2010, 12:05 amEugene Volokh says:
sk: Conspiracy is a crime — but this does not qualify as conspiracy, because there’s no agreement, express or implied. Insider trading is a crime, but that’s because the trading is trading, not just speech. Tipping someone off may be illegal, but that generally involves individualized communications and not publishing speech to a broad group of people (a significant distinction, or so I argue in my article is significant).
The closest analogy here is aiding and abetting, but as I explain in my article (see PDF pp. 29-31), the lower cases are badly split on the scope of the exception, and in particular on whether the exception covers speech to a large group of people rather than just to a few known criminals; the Supreme Court has never squarely confronted the issue. So I can pretty confidently assure you, based on a good deal of research that produced a 100+-page law review article, that there is no existing exception that clearly covers this speech.
Martinned: I didn’t want to assume that sk was endorsing a purpose standard, as opposed to a knowledge standard or some such; both kinds of proposal have been made, and his comments did not make clear which it would be. But I do critique both kinds of proposal in my article, see PDF pp. 72-85.
January 7, 2010, 1:16 amArthurKirkland says:
Perhaps your allocations of reason and proportion (and morality) enable you to support imprisonment of people for marijuana and cocaine possession, sale or use. Mine do not. Different strokes. Not everyone is cut out for libertarianism.
January 7, 2010, 2:34 amDavid Newton says:
There is perhaps a reasonable argument with marijuana since its effects are generally somewhere in between alcohol and tobacco in severity. There is no reasonable argument that I can see with cocaine. Cocaine has extremely limited medical uses as an anesthetic and it is highly psychologically addictive. The only reason that tobacco is legal is because it is so widely used and became so before its medical effects were known.
Cocaine is equal to or worse than tobacco in its bad effects and its use is not nearly as widespread as tobacco. There are thus extremely weak arguments for its legalisation. It is a hard drug and its classification as such has not been seriously debated. Libertarianism is a philosophy which advocates the minimum necessary role for government. Protection of its citizens is certainly a role which I would say is within that minimum necessary role. Prohibition of cocaine and similar substances such as LSD and heroin which have minimal positive effects and are inherently dangerous when used is something which only a government can do in wider society. Since cocaine and similar substances have minimal positive effects (which can be allowed by controlled medical use) and are otherwise inherently dangerous their prohibition is a large net benefit to society. There are certainly law enforcement costs but the health costs of legalised cocaine would also be substantial.
January 7, 2010, 7:21 amDJR says:
Mere presence in the country without having a legal status is not a crime (in that it is not punishable under any federal criminal statute), so to the extent the warning simply helps illegal aliens avoid detection it does not facilitate crime at all.
The quoted text says “crime sweeps,” but who knows what that means. Orin might have something to say about the constitutionality of such a practice.
January 7, 2010, 9:06 amegd says:
Being in the country without having a legal status, however, is evidence that a crime (entering the country illegally, overstaying a visa, etc.) has taken place, and it’s unarguable that the police have the right and duty to seek out those who have committed crimes.
January 7, 2010, 10:30 amKen Arromdee says:
I don’t see why a libertarian should support illegal immigration unless 1) the immigrants will receive no government services (government services which encourage immigration are government interference in the market) and 2) the immigrants come from a country that’s itself libertarian (non-libertarian governments who mismanage their country such that people want to immigrate somewhere else are also government interference in the market).
I might also add 3) the government doesn’t require that employers provide things like minimum wages, since that’s government interference which encourages employers to hire illegals (who can’t complain about not getting it).
Without these you’re not really being libertarian.
January 7, 2010, 10:34 amBuddy Hinton says:
Here is what I think the law ought to be:
If the speaker can articulate a reasonable suspicion that somebody’s constitutional rights might be violated absent the warning, then the speech is justified.
It should mirror the standard for a Terry frisk.
Not only would my proposed law support good policy (that is, avoiding violations of Constitutional rights), but is would also begin to make the ex-prosecutor-heavy courts less lopsided about what the words “reasonable articulable suspicion” really mean.
January 7, 2010, 11:04 amArthurKirkland says:
Ken
I was referring to the aggressive anti-libertarianism of the United States’ drug warriors, not to anything involving immigration — except tangentially, in that I have concluded that when Sheriff Arpaio’s plans go awry, whether related to immigration or not, justice and decency are likely to result. So I place his efforts in the category with those of drug enforcement personnel. Whatever Arpaio’s next idea or activity is, I hope things go wrong. Phone calls missed, notes misplaced, warrants botched, surveillance fruitless, tips mishandled, etc. Nothing but harmless (no one hurt) bad luck and failure.
January 7, 2010, 11:50 amChris Travers says:
Funny, that is not my sense of EV’s post at all.
January 7, 2010, 3:01 pmChris Travers says:
I agree it is but I don’t think that the contours are quite where you think they are. IANAL, but I have done some reading into this as it relates to software-as-speech and legal restrictions on it. Basically first amendment jurisprudence does NOT protect practical elements of communications very strongly, and offers NO protections on crime-facilitating practical elements. It only protects expressive elements. (Basically, generally, courts recognize computer software source code as speech but questions of what is protected turn on a rather complex sort of analysis.)
In other words, if I publish a book on how to obstruct justice in murder investigations, cheat on income taxes, etc. that is clearly not protected. Nor would improper advice regarding how to invest money in the stock market. These are the same issues regardless of whether one is writing a book of creating a software tool intended to help people accomplish these goals.
In other words, crime-facilitating, practical elements of speech are not protected at all, and practical elements (say, physics on how a new generation of nuclear weapons works) are subjected to greater scrutiny.
Now, obviously a lookout who warns criminals and only criminals that the police are coming is engaging in entirely unprotected speech in the same way as someone who helps someone plan a bank robbery.
But that is not the case here. If someone tells the general public about ongoing police investigations, not just to protect criminals but to protect law abiding citizens as well, then you have some elements in the speech which are subject to some moderate first amendment protection.
Let me provide an analogous case that I have looked at more closely. There is a software program out there called DeCSS which circumvents access control mechanisms on DVD’s. (There are newer programs too which do a better job but DeCSS has been the subject of an actual court case.) The software itself is clearly banned under access control provision of the DMCA. The online magazine 2600.com at one point did an article on DeCSS and argued that since software was speech, that DeCSS was protected speech and that linking to it was protected speech. The Second Circuit disagreed in a well thought out opinion.
The argument is that the program exists in order to violate statutory copyrights and therefore is unprotected.
However, the second circuit opinion turned on the specifics of the software itself, and whether distribution of it, in object code format (which the court found relevant), along with a factual publication was protected.
At the same time, it isn’t clear from reading Universal v 2600 whether individuals who distributed DeCSS in clear acts of protest against the restrictions of the DMCA could be liable. Such acts of distribution included not only source and object code, but shirts with the source code and encryption keys printed on them, as well as diverse other media (coffee cups, etc). To date, I do not believe that any such lawsuits were filed, let alone made it to court. Many C&D letters were sent out, and I followed a few folks who refused to take down the offending content but no suits came from any of the protests.
January 7, 2010, 3:24 pmChris Travers says:
Just to note: I think the reason that the MPAA members have not filed suits over protest distribution of the DeCSS program is that they are concerned that the distribution would be found to be Constitutionally protected in that context and hence it would strongly undermine their cease and desist campaign.
Certainly printing the source code for a DMCA-banned access control device on a T-shirt and wearing it as a form of protest is speech at the core of the First Amendment.
January 7, 2010, 4:16 pmOhgoodgrief says:
Why have borders? As to dope: I don’t care if you (or anyone) uses it as long as the collateral damage of drug use, wrecked homes, hospital costs, innocent deaths, etc. don’t cost me anything. I’d like it just fine if the laws were changed to allow anyone to use any narcotics so long as anyone injured by their use gets to kill the user. “Do your thing but not on me.” Oh and don’t try the “well alcohol kills more people…thing”.
January 7, 2010, 5:37 pmChris Travers says:
I support legalizing raw coca leaf imports, however. Refined cocaine though is a different issue and really if we are going to be concerned about it we should also be concerned about pure caffeine.
January 7, 2010, 5:47 pmreadery says:
Certain types of crime-facilitating speech have been a recognized exception to the First Amendment for some time, In Lesbian and Gay Student Association v. Virginia Commonwealth University, the 4th Circuit parsed the issue closely and held that the university could prohibit “the association from engaging in peer-counseling” because it would facilitate violation of Virginia’s sodomy law, but could not prohibit the association from general advocacy. Similar, in Palladin Press, the 4th Circuit held that publishing the book “Hit Man” containing detailed instructions on how to conduct a contract killing was not protected by the First Amendment, even though the publisher did not know any specific customer would use it to kill.
January 7, 2010, 6:47 pmFub says:
Prof. Volokh wrote:
There is a hoary, amusing and apocryphal history [Snopes discussion] of “individualized communications to a small group of criminals” upon which “jury inferences about the speaker’s true purpose” might realistically have some bearing. Instigators of various incidents may have included both Conan Doyle and Mark Twain.
To quote one such allegedly factual story from the link:
January 7, 2010, 6:55 pmChris Travers says:
BTW, I think Universal et. al. v. 2600 is a very good place to start regarding crime facilitation and the First Amendment since it covers a lot of the ground. I mentioned the case before but decided a link would be appropriate.
The cases cited in the opinion include one of the H-bomb cases (whether it is protected to publish nuclear physics information that might facilitate a foreign country’s efforts to build thermonuclear weapons), whether books designed to help people cheat on taxes are protected, and the like.
The line seems very narrow and fine between what is protected and what is not.
January 7, 2010, 8:38 pmArthurKirkland says:
Crime-facilitating speech?
If John Yoo’s situation is indicative, the doctrine may be dead.
January 7, 2010, 9:24 pmRyan Waxx says:
Thank you, Visitor Again, for introducing to us your personal little “matter of great public controversy” standard for weather speech is crime-facilitating.
Efforts to introduce controversy because of people’s Pavlovian reaction to accusations of racism aside, there are really only two questions, and only one is relevant.
1. Does a lookout gain immunity to crime-facilitating speech if he shouts the warning loud enough for the innocent to hear along with the guilty? The answer to anyone with a modicum of sense is a clear NO. Ergo, the subject of this post is an example of crime-facilitating speech.
2. Are the sheriff’s actions unlawfully discriminatory, given that the sweeps can harass the innocent? Even if they are, there ARE legal ways to remove sheriffs that behave illegally. Absent such a judgment, however, you don’t get a free pass to break laws to foil the police, no matter how urgent your “matter of great public controversy” is in your mind.
January 9, 2010, 4:03 pmChris Travers says:
I am not sure that this is all there is to it. In this case there is a strong political component which goes beyond merely facilitating the crime. Since the political components are at the heart of the first amendment, I think there is a strong case for this to be protected.
Once again consider the difference between:
1) Distributing object code for DVD-cracking software on one’s web site and
2) Distributing source code for DVD-cracking software on T-shirts (where the T-shirts either include real-time cryptographic attacks or actual encryption keys for the DVD’s) as a protest against making #1 illegal.
#1 is clearly illegal and probably has very little protections available under the First Amendment even though software is generally seen as speech.
I think #2 would be entirely legal and protected despite being arguably prohibited under the DMCA.
As best as I can tell, the basic rule is that protections increase along with expressive value. Something that has more expressive or political value is more protected. Something that is purely functional and crime-facilitating would not.
January 9, 2010, 4:31 pmChris Travers says:
Just a further note re: DeCSS lawsuits:
The lawsuit of Universal v. 2600 involved whether distributing DeCSS.exe (in computer-executable but not human-readable form) along with an article describing the controversy was protected under the First Amendment. In a very detailed opinion, the 2nd Circuit concluded that it wasn’t but also held that software WAS protected by the First Amendment generally.
The next round consisted of several hundred lawsuits asking for injunctive relief but not damages. Taking a hint from the 2nd Circuit decision in Universal, the DVD CCA filed trade secrets claims this time. Most of the lawsuits were aimed at protesters distributing the software in protest of the DMCA. One defendent, Brunner, (sued for distributing the source code on his web site) fought and took the preliminary injunction up as far as the California Supreme Court. The Court there held that the preliminary injunction did not violate the first amendment but that standard tests for content-neutral restrictions on speech should be applied. Shortly after the California Supreme Court weighed in, the DeCSS moved to dismiss the lawsuit.
Interestingly, this second wave apparently did NOT file on the basis of the access control provision of the DMCA because it seemed likely that the defendant would prevail as per the 2nd Circuit’s reasoning in that case.
January 9, 2010, 5:40 pm“Hide, the Police Are Coming!” « Immigration Watch International says:
[...] SOURCE (See the original for links) [...]
January 11, 2010, 7:18 pmG. G. says:
What if Ms. Guzman sends out her message and Raul gets it, and runs outside and is hit by a garbage truck and killed. is this akin to yelling ‘fire’ in a crowded theater, and Raul getting trampled to death??
January 26, 2010, 1:13 pm