The blog post on which I relied for a copy of the icon appears to have been incorrect. The correct photo, according to AP and Yahoo! News Photos, is this:

I can't read the text, but this site, which discusses what appears to be this icon, independently of the Slidell controversy, reports that the text corresponds to John 7:24 ("Judge not according to the appearance, but judge with righteous judgement") and Matthew 7:2 ("For with what judgement you judge, you shall be judged"). This is indeed more courthouse-related text than what I understood the quote to be earlier. [UPDATE: The ACLU of Louisiana was kind enough to send me a more readable version, and Sasha, who knows how to read Old Church Slavonic -- which differs enough from standard, even pre-1918 standard, Cyrillic Russian that it requires special skill in reading -- was kind enough to transliterate it into Russian. With this, he and I can confirm that the text is a combination of John 7:24 and Matthew 7:2.]

Still, the bottom line seems to me to remain: To the extent the text matters, it's New Testament text; to the extent the text should be ignored, since the overwhelming majority of observers won't understand it, it's apparently a depiction of Jesus. In either case, it seems unconstitutional even under Justice Scalia's proposed test for a court to display the work in this context, as a standalone work in a court house with the caption "To know peace, obey these laws."

UPDATE: Thanks to commenter Paul Lukasiak for a pointer to the picture as it appears in context:

A reader asked me whether true reputation-injuring statements are categorically immune from defamation liability. (Let's set aside for now invasion of privacy and other torts.) His state statute, he noticed, provided that such statements are protected only if they are said with "good motives" and for "justifiable ends."

Historically, many state statutes indeed so limited the truth defense. Today, I expect that such limitations would be unconstitutional: Defamation liability is said to be constitutional because "there is no constitutional value in false statements of fact," a rationale that doesn't apply to true statements. As to statements on "public issues," the Court has expressly rejected the good motives/justifiable ends limitation. But my sense is that such a limitation would be rejected as to private-concern statements, too; and I know of no modern cases that continue to apply the limitation.

Except, that is, for the remarkable case of Johnson v. Johnson, 654 A.2d 1212 (R.I. 1995). The facts:

On the evening of August 29, 1986, plaintiff entered Twin Oaks Restaurant in Cranston and proceeded to walk to the podium. While at the podium, plaintiff [ex-wife] saw defendant [her ex-husband] approach and ask her how her “[epithet] lawyer Fishbein” was. The defendant then drew nearer plaintiff who was standing with her then boyfriend-now husband Philip Caliri. At a distance of about four feet, in a loud voice, defendant screamed, “Phil, you are a * * * [epithet]. You could have prevented this case.” The defendant then pointed his finger in the face of plaintiff, while talking to Philip Caliri but screaming for all to hear, “You and that [obscenity] whore are costing me a lot of money.” ...

The ex-wife sued, claiming that the ex-husband slandered her by calling her a "whore," which in context appeared to mean someone who was unfaithful, not someone who was a prostitute. The court concluded the charges were true: "The findings of fact made by the trial justice are clear and unequivocal that the plaintiff fit the definition of the defamatory term applied to her." Yet the court went on to rule that, while "[i]n this case some spite and ill will might be understandable," "the trial justice was [not] clearly wrong when he confirmed the probable finding of the jury (although no special interrogatories had been submitted) that defendant acted out of spite and ill will."

Result: The compensatory damages award was upheld, on the theory that reputation-injuring but true statements on matters of private concern could still be actionable if said out of "malicious motives." The punitive damages award, however, was rejected, because in this case "defendant was the victim of a long course of reprehensible behavior committed against him by plaintiff."

I think this is an outlier case, which is inconsistent with the Court's false statement of fact jurisprudence, and which most American courts would not follow. Yet there it is, from the Rhode Island Supreme Court in 1995.

The New Orleans Times Picayune reports:

A portrait of Jesus Christ that hangs in the lobby of Slidell City Court violates the First Amendment to the U.S. Constitution, specifically a mandate calling for the separation of church and state, according to a federal lawsuit filed Tuesday by the Louisiana ACLU....

Vincent Booth, acting executive director and board president for the ACLU, said after filing the suit that he believes the portrait, along with lettering beneath that says, "To know peace, obey these laws," violates established U.S. Supreme Court law....

A local priest has identified the portrait as "Christ the Savior," a 16th Century Russian Orthodox icon. It depicts Jesus holding a book open to biblical passages, written in Russian, that deal with judgment. The ACLU says the book is the New Testament.

ERROR IN THE FOLLOWING TWO PARAGRAPHS AND THE PHOTO: The icon, according to this blog post, is this:

The reproduction is a little fuzzy, so I'm not positive about the entirety of the text; but at least the first two thirds are a Russian version of John 13:34, "A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another." (For the modern Russian version, see here.) END ERROR.

CORRECTION: The blog post on which I relied for a copy of the icon appears to have been incorrect. The correct photo, according to AP and Yahoo! News Photos, is this:

I can't read the text, but this site, which discusses what appears to be this icon, independently of the Slidell controversy, reports that the text corresponds to John 7:24 ("Judge not according to the appearance, but judge with righteous judgement") and Matthew 7:2 ("For with what judgement you judge, you shall be judged"). This is indeed more courthouse-related text than what I understood the quote to be earlier. END CORRECTION.

My sense is that even under Justice Scalia's dissenting opinion (joined by Justice Thomas and Chief Justice Rehnquist) in one of the Ten Commandments cases, such an overt reference to Christianity and to a New Testament verse would be impermissible: Justice Scalia, after all, stressed that he viewed Ten Commandments displays as permissible because they are essentially endorsed by "such a broad and diverse range of the population — from Christians to Muslims — that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint."

He also wrote that "The Establishment Clause would prohibit, for example, governmental endorsement of a particular version of the Decalogue as authoritative," and rejected Justice Stevens's argument that the Scalia approach would read the Establishment Clause as "protecting only the Christian religion or perhaps only Protestantism": "All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history, and all the other examples of our Government's favoring religion that I have cited, have invoked God, but not Jesus Christ.

Perhaps Justice Scalia should have taken the broader view that the Establishment Clause allows all government endorsement of religion, or at least of Christianity generally; and it's possible that he took this view in the creche cases. But his Ten Commandments opinion takes a view that is more restrictive of government religious speech, and under this view it seems that the Slidell painting may not be displayed.

The Alliance Defense Fund, which has agreed to represent the court, responds:

"The First Amendment allows public officials, and not the ACLU, to decide what is appropriate for acknowledging our nation’s religious history and heritage. The painting clearly delivers an inclusive message of equal justice under the law," said ADF Senior Legal Counsel Mike Johnson. "It is mind-boggling that the ACLU would oppose such a widely cherished idea simply because it is offended by the image in the painting."

"The ideas expressed in this painting aren't specific to any one faith, and they certainly don’t establish a single state religion," Johnson explained. "The reason Americans enjoy equal justice is because we are all 'created equal, endowed by [our] Creator with certain unalienable rights.' This painting is a clear reflection of the ideas in the Declaration of Independence." ...

It's hard for me to see how such an ecumenical perspective can be read into a painting of Jesus holding a fragment from the New Testament (or, if the theory is that the text is irrelevant because next to no-one would understand it, we can just settle on this being a painting of Jesus with some undefined pronouncement), coupled with "To know peace, obey these laws," presumably referring to the laws expounded by Jesus.

Thanks to Frank Bell for pointers to the story and to the icon.

UPDATE: I should stress that this seems to be a standalone painting, and one that isn't just displayed as a work of art for art's sake — the "lettering beneath that says, 'To know peace, obey these laws'" suggests the court authorities are trying to send a normative message with the painting, not just to display a historically interesting or significant artifact.

It looks like my new project will be when courts do, and when they should, organize free speech tests around the speaker's mental state -- for instance, around whether the speaker is negligent or reckless about certain circumstances (consider the constitutional libel tests, which focus on negligence or recklessness about the falsehood of the statement), or whether the speaker is speaking with the purpose of bringing about some result.

I'd thought about this already in the past, chiefly in my Crime-Facilitating Speech paper (see PDF pages 67-85), which touches on the subject in one context. But the Court's recent FEC v. Wisconsin Right to Life decision led me to think about the matter more broadly, chiefly because of the following passage:

The FEC ... [argues for having] the constitutional test for determining if an ad is the functional equivalent of express advocacy [be] whether the ad is intended to influence elections and has that effect....

[W]e decline to adopt a test for as-applied challenges turning on the speaker’s intent to affect an election. The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also “reflec[t] our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” A test turning on the intent of the speaker does not remotely fit the bill....

[A]n intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of §203, on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad covered by BCRA if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard “blankets with uncertainty whatever may be said,” and “offers no security for free discussion.” ...

A test focused on the speaker’s intent could [also] lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. See M. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001) (“[U]nder well-accepted First Amendment doctrine, a speaker’s motivation is entirely irrelevant to the question of constitutional protection”). “First Amendment freedoms need breathing space to survive.” An intent test provides none....

I much sympathize with this skepticism about focusing on a speaker's purpose or motivation. Yet of course under some well-accepted First Amendment doctrines, a speaker's motivation is deeply relevant to the question of constitutional protection: Consider the Brandenburg v. Ohio incitement test, which is whether the speech "is intended to [encourage imminent lawless conduct] and has that [likely] effect."

Likewise, Virginia v. Black, the Supreme Court's latest true threat case, seemingly treats the speaker's purpose as part of the constitutional test for whether the speech is unprotected: "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (emphasis added). (Note that lower courts are split as to whether Black should be interpreted this way.)

So there really is no flat rule that "a speaker's motivation is entirely irrelevant to the question of constitutional protection." But should it be irrelevant? Should it be relevant in some situations but not others? What about other mens rea standards, such as negligence, recklessness, and knowledge? It's pretty broadly agreed that they should sometimes be relevant, but exactly when and how?

And these questions are themselves relevant to a bunch of First Amendment controversies. One example is crime-facilitating speech, where the Justice Department's, the Fourth Circuit's, and in some measure Congress's judgment seems to be that the purpose-to-facilitate-crime vs. purpose-to-do-something-else distinction is indeed constitutionally significant. Another is the debate about whether the intentional infliction of emotional distress tort should allow punishment of otherwise constitutionally protected speech (i.e., speech other than threats, false statements of fact said with the proper mens rea, and the like) about nonpublic figures. Another is the debate about free speech and hostile work environment harassment, in which some commentators have urged a mens-rea-based test.

In any event, I hope to get started on this in a week or two, and I'd love to hear any thoughts you folks might have on the subject.

I continue the posts excerpting my article, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell Law Review 1277 (2005). Right now, I'm discussing the first part of the argument, which responds to the claim that “generally applicable laws” may be applied to speech with little constitutional scrutiny (or at least without strict scrutiny) even when the laws apply to the speech precisely because of the communicative effects of the speech.

So far, I’ve used the term “generally applicable law” simply to mean a law applicable equally to a wide variety of conduct, whether speech or not. But “generally applicable law” can have several different meanings, depending on context:

1. a facially speech-neutral law, which is to say a law applicable to a wide variety of conduct, whether speech or not;

2. a facially religion-neutral law, which is to say a law applicable equally to religious observers and to others; or

3. a facially press-neutral law, which is to say a law applicable equally to the press and to others.

These three meanings -- facially speech-neutral, facially religion-neutral, and facially press-neutral -- are different, though they sometimes share the label “generally applicable law.” For instance, most libel law principles are press-neutral but not speech-neutral. A tax on all books would be religion-neutral but not press-neutral.

Unfortunately, since all these laws are sometimes called “generally applicable,” the three types may be confused with one another. One major argument against the position I defended in the a previous post flows from this very sort of confusion. That argument (used, among others, by the Fourth Circuit in Rice v. Paladin Enterprises and by the Justice Department in their memo on restricting crime-facilitating speech) cites Cohen v. Cowles Media Co., and the opinions on which that case relies, for the proposition that applying generally applicable laws to speech doesn’t violate the First Amendment.

In Cowles Media, the Court held that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news,” and cited several other cases that so held. But this only means that the press gets no special exemption from press-neutral laws. The Court didn’t consider whether speakers were entitled to protection from speech-neutral laws, especially when those laws are content-based as applied. Cowles Media involved a promissory estoppel lawsuit by a source against a newspaper publisher. Cowles breached its promise not to reveal Cohen’s name; Cohen sued and won on a promissory estoppel theory, and the Court held that the damages award didn’t violate the First Amendment. In the process, the Court reasoned that the case was controlled by the

well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. As the cases relied on by respondents recognize, the truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news. Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. The press, like others interested in publishing, may not publish copyrighted material without obeying the copyright laws. Similarly, the media must obey the National Labor Relations Act and the Fair Labor Standards Act; may not restrain trade in violation of the antitrust laws; and must pay nondiscriminatory taxes. It is therefore beyond dispute that “[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.” Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.

There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general applicability. It does not target or single out the press. Rather, insofar as we are advised, the doctrine is generally applicable to the daily transactions of all the citizens of Minnesota. The First Amendment does not forbid its application to the press.

The Court repeatedly stressed that it was discussing only whether the press gets special exemption from laws that are equally applicable to the press and to others; this quote mentions “the press,” “newspapers,” or “the media” nine times. Each of the examples the Court gave discussed what “the press,” “the media,” “newspaper[s],” and “newspaper reporter[s]” have no special right to do. This makes sense, because the Court was overruling the Minnesota Supreme Court’s conclusion that the First Amendment requires courts to “balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity.”

Moreover, two of the Court’s examples are consistent only with the interpretation that the Court used “generally applicable” to mean press-neutral rather than speech-neutral. First, copyright law (which the Court also mentions as an example later in the opinion) is press-neutral but not speech-neutral. In 1977, when Zacchini v. Scripps-Howard Broadcasting Co. -- the case that the Cowles Media Court cited when referring to copyright law -- was decided, copyright law applied exclusively to communication, as it had through most of its history. Even today it applies mostly to communication, though over the past few decades it has been extended to cover architectural works and computer program object code.

Second, as Part II.B pointed out, the First Amendment sometimes provides a defense against antitrust law, when the alleged restraint of trade comes from defendant’s speech advocating legislation. Citizen Publishing Co. v. United States and Associated Press v. United States, the two antitrust cases that the Court cited, hold that newspapers cannot raise their status as members of the press as a defense to antitrust law. But Noerr and Pennington make clear that speakers can raise as a defense the fact that the law is being applied to them because of their speech.

So the Cowles Media Court’s “general applicability” reasoning means simply that Minnesota promissory estoppel law is press-neutral, and thus shouldn’t have been subject to any heightened scrutiny simply because it was applied to the press. (Compare Turner Broadcasting Sys., Inc. v. FCC, “[W]hile the enforcement of a generally applicable law may or may not be subject to heightened scrutiny under the First Amendment ... laws that single out the press ... for special treatment ‘pose a particular danger of abuse by the State,’ ... and so are always subject to at least some degree of heightened First Amendment scrutiny.”)

That, of course, leaves unresolved the argument that the law couldn’t be applied because it restricted speech; after all, it was Cowles Media’s speech that constituted the potentially actionable breaking of a promise.

But later in the opinion, the Court explains why promissory estoppel law is indeed constitutionally applicable to all speakers, whether press or not: “Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions which may be placed on the publication of truthful information are self-imposed.” So the Court rejected the free speech argument based on the principle that free speech rights, like most other rights, are waivable, rather than on an assertion that speech-neutral laws are per se constitutional.

The answers to this question (140,000 J.D., nearly 150,000 total) and many more are available at this ABA site. Cool.

The Providence Journal reports:

A 48-year-old Narragansett man has been charged with raping someone 32 years ago when both he and the alleged victim were 16 years old, the attorney general's office said this week.

Harold Allen, of 30 Riverview Rd., was indicted last month on a charge of first-degree sexual assault, and he pleaded not guilty, court records show. Allen is accused of raping the girl in North Kingstown between April 1 and Oct. 31, 1975, the records show.

"The traumatized victim decided back then not to tell anybody what happened and repressed the memory of it until recently," said Michael J. Healey, a spokesman for Attorney General Patrick C. Lynch’s office. "The victim came forward and made a complaint to the North Kingstown Police Department on June 15, 2006."

No statute of limitations applies to charges of first-degree sexual assault ....

"If this incident happened today, it would be [handled in] Family Court," [Healey] said. "But Family Court never attained jurisdiction because no petition was filed against the defendant before his 21st birthday saying he had committed the crime before he was 18 years old. So you bring the charge in the court that would have had jurisdiction if the crime was committed by an adult. And that means the Superior Court." ...

[Allen's lawyer says that] "[Allen] says they never had intercourse -- willing, unwilling or otherwise."

Sounds like a pretty troubling prosecution -- one person's word against another's, with no physical or documentary evidence, about something that happened two-thirds of a lifetime ago. I'm no expert on memory, repressed or otherwise; and it may well be that there's some other evidence available here, hard as it is for me to imagine what it might be. Still, it seems to me highly unlikely that a jury could sensibly discover beyond a reasonable doubt what really happened between these two pepople 32 years ago.

Thanks to Sean O'Brien for the pointer.

The names of many American states are derived from indigenous American languages. The names of some stem from words or proper names in European languages, chiefly English but also French and Spanish (and of course indirectly Latin, e.g., Virginia, and Germanic languages, e.g., North Carolina).

At least two names of American states, however, indirectly stem in whole or in part from words or proper names in Asian languages (and I don't mean indirectly in the sense that many European words stem from proto-Indo-European). What are they? I stress that there is some indirectness involved.

The Ninth Circuit says "no," in Perfect 10 v. Visa Int'l, in an opinion written by Judge Smith and joined by Judge Reinhardt; Judge Kozinski dissents. I think Judge Kozinski's opinion is more persuasive as a matter of current law (whatever one thinks the law ought to be), at least as to contributory liability.

As Judge Kozinski points out, "If this were a drug deal ... we would never say that the guy entrusted with delivery of the purchase money is less involved in the transaction than the guy who helps find the seller." And the Ninth Circuit had already held that "the guy who helps find the seller" in copyright infringement cases, knowing that the seller is infringing, is liable.

The quote comes in the vicarious liability section, but it seems fully applicable to contributory infringement, especially since the theory of contributory infringement is closely related to aiding-and-abetting liability. Knowing provision of material assistance to infringers is sufficient for contributory copyright infringement, and providing financial services surely qualifies as material assistance. The majority's attempts to distinguish such assistance from other assistance strike me as unpersuasive.

In any case, whoever is right, this is obviously an issue that bears further watching, in this litigation and in future cases.

Consider a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. Sometimes, as in United States v. O’Brien, the law may be triggered by the “noncommunicative impact of [the speech], and [by] nothing else.” A law barring noise louder than ninety decibels, for instance, might apply to the use of bullhorns in a demonstration. We might call such a generally applicable law “content-neutral as applied,” because it applies to speech without regard to its content.

But sometimes the law is triggered by what the speech communicates. The law may, for instance, prohibit any conduct that is likely to have a certain effect, and the effect may sometimes be caused by the content of speech. A person may violate a law prohibiting aiding and abetting crime, for example, by publishing a book that describes how a crime can be easily committed.

We might call such a law “content-based as applied,” because the content of the speech triggers its application. The law doesn’t merely have the effect of restricting some speech more than other speech -- most content-neutral laws do that. Rather, the law applies to speech precisely because of the harms that supposedly flow from the content of the speech: Publishing and distributing the book violates the aiding and abetting law because of what the book says.

In this post and coming posts, I’ll argue that laws that are content-based as applied should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Both presumptions may sometimes be rebutted, for instance if the speech falls within an exception to protection or if the speech restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.

This analysis also cuts against some commentators’ arguments that First Amendment doctrine should focus primarily on smoking out the legislature’s impermissible speech-restrictive motivations. (See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996); Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767 (2001).) When a law generally applies to a wide range of conduct, and sweeps in speech together with such conduct, there is little reason to think that lawmakers had any motivation with regard to speech, much less an impermissible one. Nonetheless, such a law should still be unconstitutional when applied to speech based on its content—even though the legislature’s motivations may have been quite benign.

The Court has confronted many cases where a law was content-based as applied. In all those cases, either the Court held that the speech was constitutionally protected, or -- if it held otherwise -- the decision is now viewed as obsolete.

Consider, for instance, the World War I-era cases Debs v. United States, Frohwerk v. United States, and Schenck v. United States. These cases, which upheld the criminal punishment of antiwar speech, are now generally seen as wrongly decided. But the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct -- speech or not -- that “willfully obstruct[ed] the recruiting or enlistment service of the United States, to the injury of the service or the United States.”

The L.A. Times reports:

The FBI and the Los Angeles Fire Department are investigating an anonymous claim that animal rights extremists placed an unexploded incendiary device found under the car of a prominent UCLA eye doctor last weekend. The incident was similar to one last year in which another UCLA researcher was the intended target.

A gasoline-filled device was discovered Sunday by the car outside the Westside home of Dr. Arthur Rosenbaum, who is chief of pediatric ophthalmology at UCLA's Jules Stein Eye Institute. The device did not ignite despite evidence of an attempt to light it ....

An e-mail on Wednesday signed by the Animal Liberation Brigade said the group put the device there to stop experiments on animals in Rosenbaum's laboratory....

According to the National Institutes of Health, [Rosenbaum's] lab received federal funding to, among other things, test tiny implanted electrodes on monkeys to correct severe cross-eyed conditions....

I share Orin's disapproval of this, and his reasons for the disapproval.

In recent months, I've often run across arguments (including in comments on this blog) that certain kinds of speech ought to be unprotected because they're really "conduct," not "speech." Now these weren't arguments about expressive conduct, such as flagburning or nude dancing. They focused on speech that was written or spoken words, and the speech was seen as causing harm through its content (as opposed to, for instance, because it was too loud or said by people who were blocking traffic). But something about the words -- or the laws restricting the words -- led some to respond that the restriction was actually a conduct restriction, not a speech restriction.

This led me to decide to serialize on the blog portions of an article I wrote about the subject a couple of years ago, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell Law Review 1277 (2005). I much enjoyed serializing my Medical Self-Defense piece when I was working on it, and my sense was that many of our readers enjoyed it, too. Let me then take the liberty of doing the same as to this piece -- which turns out to be relevant to many hot First Amendment debates, as I hope the following will show. If you're interested in seeing the footnotes, look here.

When, if ever, should speech lose its First Amendment protection on the grounds that it’s really just conduct? Let us set aside restrictions of speech or expressive conduct based on its noncommunicative aspects, for instance because the speakers are blocking traffic or are being too loud. Rather, let’s focus on situations in which speech is restricted because of the harm that flows from its content.

Consider, for instance, a book that explains the steps necessary to commit a particular crime. May this speech be restricted on the grounds that it constitutes the “conduct” of aiding and abetting, and is thus not subject to First Amendment protection at all? Or consider racist, religiously bigoted, or sexist statements that create an offensive work environment, an offensive educational environment, or an offensive public accommodations environment. May such statements be freely restricted because they aren’t speech but rather the “conduct” of harassment?

There are at least three main types of such “it’s conduct, not speech” arguments. First, some people think speech should be treated as conduct when it has the same effects as harmful conduct and it is covered by a generally applicable law that restricts all conduct that has those effects. This can happen in many situations [for examples of each, see the footnotes here:

1. Publishing a book that describes how to grow marijuana might constitute intentional or knowing aiding and abetting of a crime.
2. Publishing a newspaper article or web site that points to an infringing site may constitute contributory copyright infringement.
3. Publishing a news story that reveals the name of a witness, and thus unintentionally helps a criminal intimidate or kill that witness, may violate laws that bar knowingly, recklessly, or negligently facilitating crimes.
4. Publishing a news story that reveals the existence of a wiretap may help the wiretap targets escape justice, and may thus violate obstruction of justice laws.
5. Teaching one’s child racist, pro-polygamy, or pro- or anti-homosexuality views may (in the views of some family court judges) be contrary to the best interests of the child and may therefore lead the parent to lose custody or have his visitation rights curtailed under the generally applicable “best interests of the child” standard.
6. Making statements that create an offensive work, educational, public accommodation, or housing environment based on race, religion, sex, age, disability, or sexual orientation might violate antidiscrimination law.
7. Speaking out against a proposed group home for the mentally disabled might violate the Federal Housing Act’s ban on “interfer[ing] with any person in the exercise or enjoyment of” the right to be free from housing discrimination based on handicap.
8. Engaging in speech that helps the election of an anti-war candidate may violate treason law -- which prohibits intentionally aiding the enemy in time of war -- if the speaker thinks the enemy deserves to win the war.
9. Creating newspaper advertisements, billboards, or leaflets that praise jury nullification may be punishable under laws that prohibit all attempts to influence jurors.
10. Producing and distributing movies that stimulate copycat crimes may constitute negligence under generally applicable tort principles.
11. Giving children sexually themed material, or for that matter political material that most people view as evil, may violate laws that ban “impair[ing] the . . . morals of . . . [a] child.”

In all these cases, the speech would be restricted because of what it communicates -- because its content informs, persuades, or offends people -- and because of the harms that flow from this informing, persuasion, or offense. Yet some courts and commentators argue that such speech restrictions don’t implicate the First Amendment because the law in these instances punishes conduct, not speech: “[S]peech which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes.” Others argue that generally applicable laws should be treated as content-neutral restrictions on expressive conduct, and should thus be fairly easily upheld under the deferential O’Brien test because the restrictions on speech are “incidental” to the law’s overall thrust.

A second type of “conduct, not speech” argument is sometimes made even to defend laws that specifically target communication, such as statutes that ban the publication of bombmaking information. Such speech, the argument runs, is punishable because it is part of an illegal “course of conduct,” or is perhaps “speech brigaded with action,” a “speech act” rather than pure speech.

The argument seems especially appealing to some when the speech appears likely to cause harms that would be punishable if caused by conduct rather than speech -- when “words are bullets,” in the sense of being “a specific tool or weapon used . . . for the express purpose” of causing harm. Such arguments often quote Giboney v. Empire Storage & Ice Co., a 1949 case which asserted that “[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute,” and that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”

Courts have applied Giboney to justify, among other things, restrictions on (1) speech that advocates crime, (2) speech that explains how crimes can be committed, (3) doctors’ speech recommending medicinal marijuana to their patients, (4) speech that urges political boycotts, (5) speech that creates an offensive work environment, (6) racially offensive business names, and even (7) public profanity.

A third “speech as conduct” argument is made in Professor Kent Greenawalt’s influential book, Speech, Crime, and the Uses of Language, which asserts that certain kinds of speech -- such as offers, agreements, orders, permissions, and some threats -- constitute “situation-altering utterances” and should therefore be treated as unprotected conduct.

Finally, the “speech as conduct” argument is sometimes made to explain some of the uncharted zones of First Amendment law: categories of speech whose First Amendment status the Court has never squarely confronted, such as aiding and abetting, criminal solicitation, conspiracy, perjury, agreements to restrain trade, and professional advice to clients. Most lawyers would likely agree that such speech generally should be unprotected, or at least less protected. A common explanation for the Court’s lack of attention to these speech restrictions is that the speech is actually conduct, which the First Amendment does not protect.

A good article on the subject Sunday, apparently prompted by my Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harvard L. Rev. 1814.

The Independent (UK) reports:

Google ... is being sued by a London businessman in a landmark legal action that could hold the US-based company liable for the publication of inaccurate, malicious or damaging material on the internet.... [T]he search engine directed users to web pages that the businessman claims contained "deeply offensive and commercially damaging" material about his enterprises.

I don't know whether British libel law, which is famously much more pro-plaintiff than American law, would allow such a lawsuit. But if it does, that would spell serious trouble for any search engine that is subject to jurisdiction in Britain (for instance, because it has an office or assets there) -- and thus for users of any such search engine.