Speech and Crime

What kind of constitutional standards are applicable to communications likely to cause listeners to commit crimes? An examination of the tension between the highly protective approach to advocacy of crime taken by the Supreme Court inBrandenburg v. Ohioand the provisions in many criminal codes that make those who encourage criminal violations generally punishable for solicitation is followed by an analysis of the penological reasons for punishing crime-causing communications and of the relevance to such communications of the justifications for freedom of expression. After an account of the Supreme Court decisions dealing with this subject and a summary critical examination of interpretive approaches to the First Amendment, the author suggests standards for constitutional appraisal of prohibitions of communications that may cause crime. The central proposals are that most statements of fact and value be accorded virtually absolute protection; that dominantly situation-altering utterances, such as agreements, offers of agreement, and orders, be treated as outside the scope of First Amendment protection; and that simple encouragements to commit specific crimes, a kind of action-inducing communication, be granted a degree of protection that depends heavily on context, with criteria like those contained inBrandenburgapplicable to public ideological solicitation but with much less restrictive standards applicable to private solicitation.