The Volokh Conspiracy

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.