The Volokh Conspiracy - 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.

	[Eugene Volokh, November 21, 2008 at 1:12pm] Trackbacks 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.