The Volokh Conspiracy - Crime-Facilitating Speech, and Showing Photos (and One Home Address) of Undercover Police Officers:

Radley Balko (The Agitator) writes:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer's home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home....

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it's a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn't difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives....

This is indeed a tough issue, and a special case of another tough issue, which I discussed at some length in my Crime-Facilitating Speech article: When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers' covers are blown). But similar crimes could also be caused by a TV station's running a story about undercover police officers, or a newspaper's publishing the name of a crime witness, or a civil rights boycott organizer's publishing the names of people who aren't complying with boycotts, or a neighborhood watch group's publishing the name of a sex offender who has recently moved into the neighborhood, or IndyMedia's publishing the names and addresses of Republican delegates, and so on. And the broader issue arises even with less personalized data -- what if a Web page, a research paper, a novel, or a chemistry textbook provides information that can help people commit crimes in general, and not just information about particular prospective crime targets? I give more examples, and citations, in the article.

One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. Knowing the identity of an undercover police officer can help noncriminals know which of their acquaintances aren't what they seem, and can help criminal defense lawyers figure out how to better defend their clients. Even knowing a person's home address could be useful if you want to organize picketing of their homes. Such residential picketing could be restricted by city ordinance, but in some cities it isn't; and even if focused residential picketing is banned by a city ordinance, parading through the targets; neighborhood in order to express your message of condemnation to the targets' neighbors is constitutionally protected. See Madsen v. Women's Health Ctr., 512 U.S. 753, 775 (1994); Frisby v. Schultz, 487 U.S. 474, 480-81 (1988).

One can certainly argue that the speech is so dangerous when revealed to criminals that it should be restricted despite its potential value to law-abiding readers. But I don't think one can assert, as I've heard some people assert, that such speech has no value to the law-abiding.

Thanks to Joe Olson for the pointer.

	[Eugene Volokh, July 29, 2009 at 4:53pm] Trackbacks Crime-Facilitating Speech, and Showing Photos (and One Home Address) of Undercover Police Officers: Radley Balko (The Agitator) writes: A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer's home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home.... Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it's a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn't difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives.... This is indeed a tough issue, and a special case of another tough issue, which I discussed at some length in my Crime-Facilitating Speech article: When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers' covers are blown). But similar crimes could also be caused by a TV station's running a story about undercover police officers, or a newspaper's publishing the name of a crime witness, or a civil rights boycott organizer's publishing the names of people who aren't complying with boycotts, or a neighborhood watch group's publishing the name of a sex offender who has recently moved into the neighborhood, or IndyMedia's publishing the names and addresses of Republican delegates, and so on. And the broader issue arises even with less personalized data -- what if a Web page, a research paper, a novel, or a chemistry textbook provides information that can help people commit crimes in general, and not just information about particular prospective crime targets? I give more examples, and citations, in the article. One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. Knowing the identity of an undercover police officer can help noncriminals know which of their acquaintances aren't what they seem, and can help criminal defense lawyers figure out how to better defend their clients. Even knowing a person's home address could be useful if you want to organize picketing of their homes. Such residential picketing could be restricted by city ordinance, but in some cities it isn't; and even if focused residential picketing is banned by a city ordinance, parading through the targets; neighborhood in order to express your message of condemnation to the targets' neighbors is constitutionally protected. See Madsen v. Women's Health Ctr., 512 U.S. 753, 775 (1994); Frisby v. Schultz, 487 U.S. 474, 480-81 (1988). One can certainly argue that the speech is so dangerous when revealed to criminals that it should be restricted despite its potential value to law-abiding readers. But I don't think one can assert, as I've heard some people assert, that such speech has no value to the law-abiding. Thanks to Joe Olson for the pointer.