A recent article by Prof. Steven Gey briefly cites in a footnote my Crime-Facilitating Speech piece, quickly describes my proposal, and then says:
Professor Volokh draws two exceptions to this rule [of generally protecting speech even though it’s crime-facilitating]: first, when the information creates “extraordinarily serious harms,” and second, when the speech “seems to have virtually no noncriminal uses.” Volokh’s analysis and conclusions are largely consistent with the arguments presented in this Article, although the protectiveness of Volokh’s rule would depend on how narrowly the courts interpret Volokh’s two exceptions. Volokh is aware of this problem, and is appropriately circumspect about the difficulties of defining the relevant harm threshold that triggers the exceptions to the rule.
As I read it, Prof. Gey is in some measure criticizing my approach, though also in some measure agreeing with it, both of which are perfectly fine. (OK, the latter is more fine than the former, but while I like it when people agree with me, that itself is hardly occasion for great joy, just like disagreement as such is no occasion for great sorrow.)
What particularly pleases me, though, is the last sentence: To me, one of the marks of sound and careful scholarship — as opposed to, say, effective advocacy or emotionally rewarding self-expression — is being aware of the problems in one’s proposals, and therefore being appropriately circumspect about the difficulties of properly crafting the proposals. I try to always aim at this. I’m sure I often miss. But if Prof. Gey is correct that in this instance I succeeded, I am very glad indeed.
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