The Volokh Conspiracy - Freedom of Speech and Mens Rea:

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.

	[Eugene Volokh, July 5, 2007 at 2:22pm] Trackbacks Freedom of Speech and Mens Rea: 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.