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Attorney General Nominee Eric Holder, the First Amendment, and Crime-Facilitating Speech:

InstaPundit points to a 1999 program in which Eric Holder -- then Deputy Attorney General, and now President-Elect Obama's choice for Attorney General -- was expressing support for "reasonable restrictions" on certain kinds of Internet speech. I thought I'd give a bit more context, especially since it relates to one of my research areas.

The recording seems to come from an April 25, 1999 Face the Nation segment discussing the Littleton massacre. Here's an excerpt from the CBS transcript:

[Host BOB] SCHIEFFER: Mr. Holder, you can also learn how to make a bomb on the Internet, on the Web. How do you police that?

Mr. HOLDER: Well, it's very difficult, given the tenor of the recent Supreme Court cases. The court has really struck down every government effort to try to regulate it. We tried with regard to pornography. It is going to be a difficult thing, but it seems to me that if we can come up with reasonable restrictions, reasonable regulations in how people interact on the Internet, that is something that the Supreme Court and the courts ought to favorably look at.

I assume that Holder was talking about what was then a bill, but was enacted four months later (Pub. L. 106-54) as 18 USC § 842(p):

(p) DISTRIBUTION OF INFORMATION RELATING TO EXPLOSIVES, DESTRUCTIVE DEVICES, AND WEAPONS OF MASS DESTRUCTION.--

(1) DEFINITIONS.--In this subsection--
(A) the term 'destructive device' has the same meaning as in section 921(a)(4);
(B) the term 'explosive' has the same meaning as in section 844(j); and
(C) the term 'weapon of mass destruction' has the same meaning as in section 2332a(c)(2).
(2) PROHIBITION.--It shall be unlawful for any person--
(A) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence; or
(B) to teach or demonstrate to any person the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute to any person, by any means, information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, knowing that such person intends to use the teaching, demonstration, or information for, or in furtherance of, an activity that constitutes a Federal crime of violence.

I discuss this statute, among many others, in my Crime-Facilitating Speech article in the Stanford Law Review. I conclude that subsection 2(B), which basically deals with individualized giving of crime-facilitating information to a particular person, is constitutional (much like aiding and abetting laws are generally constitutional, even when applied to speech, and even when they require only knowledge that the aid will be used in criminal ways rather than a purpose that it be so used). But I argue that subsection 2(A), even though it is limited to speakers who have the purpose of promoting violent crime by some of their unknown listeners, is not constitutional, for reasons I go into at great length.

Nonetheless, I think there are plausible arguments in favor of the constitutionality of subsection 2(A), canvassed at length in this 1997 Justice Department Report on the Availability of Bombmaking Information. So if I'm right that then-Deputy Attorney General Holder was discussing this proposal -- which seems likely -- rather than some more comprehensive attempt to restrict online speech, then it seems to me that his view of the matter is moderate and defensible, though I have come to disagree with it.

RPT (mail):
In connection with Mr. holder's nomination I think we should encourage the Republican minority to make a very detailed argument why inquiry should be permitted into internal deliberations regarding presidential pardons and other executive decisions. The Federalist Society and conservative legal community should devote substantial resources to the argument that executive privilege does not bar such inquiry into past DOJ activities or practices or the production of documents and the use of subpoenaes to compel live witnesses to appear and testify. Past AG's and others would be appropriate witnesses in such hearings. The broad application of the executive privilege doctrine should be fought and the GOP/FS should lead the way.
11.21.2008 1:46pm
Reginald Spanish III:
Yes RPT, and monkeys might fly out of my butt.
11.21.2008 2:01pm
Soronel Haetir (mail):
Given that the pardon power is lodged directly with the president, needing no authority from Congress, I would think that an area where legitimate prviledge would be at its greatest. Priviledge would be at its weakest in the arena of legislative oversight.
11.21.2008 2:11pm
Tom Perkins (mail):

Nonetheless, I think there are plausible arguments in favor of the constitutionality of subsection 2(A), canvassed at length in this 1997 Justice Department Report on the Availability of Bombmaking Information.


Because the use of expedient explosives is certainly a military concept, and creating, procuring, and employing such a matter of field manuals published by the DoD, I suspect any such law falls afoul of the 2nd amendment. These devices are certainly arms used by individuals, and they are not much unlike the grenades in use at the time the 2nd was written.

And of course Miller implies that items of uniquely military use are protected by the 2nd.

As as aside, as XKCD quips, the 2nd should cover encrypted communication means as well.

Yours, TDP, ml, msl, &pfpp
11.21.2008 2:22pm
Richard Aubrey (mail):
Didn't NAMBLA get a pass on this, wrt an online manual for screwing underage kids?
As did something called, iirc, "The Assassin's Handbook" (or manual).
11.21.2008 2:39pm
pintler:
Why the fascination with the internet? 'The Making of the Atomic Bomb' by Richard Rhodes is a staple on used bookstore shelves around here (and a fascinating read).

My copy is on the bookshelf in the 'cool engineering' section, right next to the books on the intricate details of fossil fuel power plants, marine propulsion plants, steel making, 'Amateur Telescope Making', etc.
11.21.2008 3:12pm
Bruce_M (mail) (www):
Why can't someone appoint a non-prosecutor as AG? Why can't AG be someone who has practiced criminal defense for his/her entire career, rather than being a career prosecutor/rights restrictor? Government should be run by people who believe in preserving and expanding rights, not taking them away or advocating that they be applied as narrowly as possible.

Anyone who has spent one day as a prosecutor is unqualified to be AG as far as I'm concerned, though I know most will not agree with me on this.
11.21.2008 3:41pm
Steve P. (mail):
Why can't AG be someone who has practiced criminal defense for his/her entire career, rather than being a career prosecutor/rights restrictor?

The presidential election was only a couple of weeks ago, and you've already forgotten about guilt by association?
11.21.2008 4:08pm
jukeboxgrad (mail):
guilt by association


Good point.
11.21.2008 4:28pm
KeithK (mail):
I can't agree with you Bruce. We need people in government who are focused on protecting society and putting the bad guys away. They will sometimes push the envelope as to what is acceptable (either to society or judges) but you want people who are willing to use all of the tools available to their fullest extent. Sometimes it's necessary to restrict the rights of some (e.g. those who have committed crimes) to protcet the rights of the rest of society.

This shouldn't be the only type of person we employ in government. We need some of the "rights preservers" too in order to have balance. But for the person whose job is to lead an organziation dedicated to law enforcement you probably want experience in law enforcement.
11.21.2008 7:35pm
Fub:
So, Holder favors censorship, massive gun control, and escalating the war on (some) drugs. This no surprise, but predictable "change" from any administration, Republicrat or Demopublican.

As Instapundit has said so often, "meet the new boss, same as the old boss."
11.21.2008 8:18pm
RPT (mail):
"Yes RPT, and monkeys might fly out of my butt."

We've had eight years of this....
11.21.2008 11:32pm
Bruce_M (mail) (www):
It's NEVER worth limiting our rights just to be able to convict a murderer because the constitution would otherwise prevent the conviction. Society will not fall apart if the police are forced to do their job and investigate crime properly so as to legally gather sufficient evidence to support a conviction. If they can't get sufficient evidence without violating the 4th Amendment, then the suspect should go free, rather than relying on a evil, anti-american attorney to argue that the 4th Amendmetn should not apply in that scenario, in direct contravention of his/her oath to support, protect and defend the Constitution of the United States.

I'd rather have my rights and not have every criminal locked up than lose/restrict my rights to get an extra conviction.
11.22.2008 12:34am
M. Simon (mail) (www):
I spend a lot of time at a fusion discussion group. The question often comes up: can a small cheap ($50 mn or so) fusion reactor be used to produce Plutonium. Generally the answer is most often yes. Then we discuss possible safeguards.

http://www.talk-polywell.org/bb/index.php

I'd hate (is that a crime?) to be investigated for such discussions.
11.22.2008 9:47am
David M. Nieporent (www):
Because the use of expedient explosives is certainly a military concept, and creating, procuring, and employing such a matter of field manuals published by the DoD, I suspect any such law falls afoul of the 2nd amendment. These devices are certainly arms used by individuals, and they are not much unlike the grenades in use at the time the 2nd was written.
Providing information about explosives is and ought to be constitutional, but the law as quoted by EV prohibits doing so "with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence"; that's much much more narrowly drawn than a blanket prohibition on teaching about explosives. (The second provision bans doing so with knowledge, even without intent.)

IOW, if I say to you, "Teach me how to make a bomb," you can do it. If I say, "Teach me how to make a bomb so I can go blow up the White House," you can't.
11.22.2008 9:49am
Malvolio:
IOW, if I say to you, "Teach me how to make a bomb," you can do it. If I say, "Teach me how to make a bomb so I can go blow up the White House," you can't.
Is there a need for a special law for that? If say to you, "Drive me to the White House," you can do it. If I say, "Drive me to the White House so I can go blow it up," you can't. Speech is arguable different, but it's constitutionally different, so a specific law for it changes nothing.
11.22.2008 4:34pm
Jmaie (mail):
Richard - I believe you are referring to "The Anarchist's Cookbook", a must read for every high school science geek.
11.23.2008 7:47pm