Volokh on Crime-Facilitating Speech
Eugene Volokh, whom I had the pleasure of meeting for the first time this past week, has written a huge article on "Crime-Facilitating Speech". It's characteristically comprehensive, full of fascinating examples and discussions of real cases, and right in the middle of an area of huge interest to me. Unfortunately, I haven't had time to read the whole thing yet.
One area where first amendment law has run into difficulty -- and I bear in mind that some people have argued that we can never hope to resolve these difficulties -- is when speech can be useful to people committing some sort of crime. Volokh gives many dozens of examples. That speech is then a magnet for prospective regulation, especially when regulators believe it would be cheaper or easier to suppress the speech than to go after the crime it might facilitate, or when someone believes the crime is especially troubling. I note that, for example, Dean Marks and Bruce Turnbull made explicit their argument for censoring programmers in their infamous 1999 article on how they hoped to use the DMCA on the grounds that it was too expensive to pursue people who might abuse programmers' speech but relatively cheap to censor the programmers. Because there aren't a lot of programmers, you know, and other people are wholly in thrall to their leet skillz in order to be able to do stuff. Here's hoping that changes and that you take personal responsibility for helping undermine the premises Marks and Turnbull employ. But I digress.
One of the interesting parts parts of Volokh's paper is his discussion of the value of crime-facilitating speech. He describes various reasons why crime-facilitating speech might be useful to someone other than a criminal who wants to use it to help commit a crime. One of his examples is as part of an argument about what is possible -- and hence about policy or resource allocation. For example, Volokh mentions that information about how to make weapons might serve an argument that it is expensive or futile to try to suppress those weapons; the more specific the information, the greater the benefit to the argument may be. He gives a related example about information on marijuana cultivation -- to the extent that people learn that it is easy to cultivate marijuana, they may be less likely to believe that laws against marijuana can be enforced easily, and they might conclude that those laws are not such a good idea.
This is particularly interesting to me because I'm about to publish some information about aviation security -- arguably "crime-facilitating" information within the meaning of Volokh's definition -- in the service of an argument that current U.S. aviation security measures are both ineffective and harmful. And even as I think about aviation security, I remember dozens of casual conversations with friends where we started to speculate about just how ineffective airlines' and TSA's screening procedures are and just how easy it would be to defeat or undermine those. In my experience, whenever people start to talk about this, they invariably come up with half a dozen ways of concealing or improvising weapons that would very likely evade the screening process. This can be an interesting thought experiment, but it could also, especially if those ways began to be more widely publicized, form a part of a political argument.
There are at least three kinds of arguments that could benefit from publicizing details of, say, ways of improvising weapons that could evade TSA screening procedures. One argument is that TSA's screening procedures are inherently incapable of stopping attackers and could never reasonably be capable of doing so. Therefore, TSA's budget, power, or influence should be reduced, because TSA's current resources are being wasted. Another argument is that, because many attacks are currently possible and might conceivably be deterred by better screening, TSA's budget, power, or influence should be expanded to allow it to research or deploy new, more effective screening procedures that would make it significantly harder for people to conceal or improvise weapons.
The third argument is that TSA's screening procedures or rules about prohibited items are misdirected because they prohibit relatively harmless items while permitting relatively dangerous items. Therefore, the rules are irrational and should be significantly revamped. Under this argument, one might maintain that there are some screening procedures that could be useful, but they are significantly different from the current screening procedures. (Probably this argument implies that passengers ought to be permitted to carry items such as pocket knives, which were permitted in the past, on the grounds that weapons more dangerous than pocket knives can be improvised or manufactured from other things that are already permitted. However, this third argument does not imply that screening should be abolished or that every kind of item should be permitted. The argument seems to involve two assumptions: first, that every item has a degree of threat or danger associated with it; second, that it is inappropriate to forbid some item while permitting some other item that is more dangerous. Some people would probably agree with these assumptions, while other people would not, because they think about threats to aviation security differently -- perhaps believing that many potential attackers are not especially skilled or motivated.)
Despite Volokh observation that crime-facilitating speech can have these kinds of benefits (and to me, because I think so much of current aviation security is both ineffective and harmful, the potential benefits seem pretty significant), it's probably true that publishing lots of details about improvising weapons would make lots of people angry, and might make law enforcement concerned. Some of that anger might be a result of people seeking peace of mind instead of security (in the sense of an actually reduced likelihood of successful attacks -- think of Bruce Schneier's suggestion that much security, and especially much aviation security, is actually "security theater"). But some of that concern might be justified if it's really true that a lot of prospective attackers are not very skilled or motivated. Under that theory, maybe there are things that a moderately clever amateur could think up in a few minutes, but that some potential terrorist or enraged passenger would not have thought of but for the presence of lots of detailed articles about how to attack airline passengers. Schneier has, I think, mentioned glass and ceramic knives (they figure prominently in the plot of Neal Stephenson's Snow Crash), and they could lead to an interesting debate: they don't set off metal detectors, they are sharper than metal knives, but few people know about them, few people own them, and few people carry them around regularly -- whereas many people own and regularly carry metal pocket knives. So ceramic knives and glass knives, as weapons, are something someone would have to obtain deliberately and in advance, whereas metal knives, as weapons, are something that might be widespread for casual reasons. Perhaps someone would say that this makes an important difference.
Volokh's paper goes far beyond these questions, and I think it's a fertile work that will prove important and influential. One thing I think it doesn't address in detail is the prior conceptual question of the problem of defining what kind of things are or can be crimes. For example, sometimes some kind of communicative activity is defined as a crime in itself (as opposed to merely facilitating some other crime, which is the situation Volokh's paper focuses on). Defamation, threats, and obscenity are examples (as is copyright infringement); in an earlier era, "seditious libel" was an example, and the Supreme Court has allowed a narrow but nonempty scope for viewing some kinds of seditious advocacy as crimes even today. Sometimes people make up entirely new categories of speech crime which were not understood as crimes by tradition -- circumvention device trafficking is our newest unhappy example. Sometimes people (including the Supreme Court) make a convenient pretense that certain things are "not speech" (like obscenity); in other cases they say that "nonspeech elements" of some expressive activity are being punished. As many people have recognized, there is a serious difficulty in the apparently logical distinction between speech and nonspeech elements -- say, in a rule like the O'Brien rule. If you make up a new crime, there is nothing in principle to stop you from banning any given speech by saying that you are merely punishing the "nonspeech elements" involved in the utterance of that speech so far as they run afoul of your entirely new kind of crime.
Some people feel that there is a coherent doctrine in O'Brien and other cases that deals with these questions by examining various things at various layers of regulation. I don't ind this very persuasive; I don't think U.S. free speech law is particularly coherent or particularly able to prevent new kinds of threats to speech or to explain exactly why existing speech restrictions are appropriate. And some people, like Stanley Fish, say that it is totally impossible to have any kind of theory that would actually be able to do that. I think I have gone on long enough that I won't try to summarize Fish's argument here. But it has some real power. Partly it relates to saying that the question of what things are expression and what things are not is an arbitrary political question, and that every expressive act has consequences for which one might conceivably hold someone responsible.
I think of myself as a free speech absolutist, but I have to admit that at present I don't know exactly what that might mean. Because there is a real problem about how we might say that it is ever possible to commit a crime solely by using words or another communications medium without also opening the door to the possibility of the political creation of new, additional categories of speech crime. I think Fish says that it is not possible.
One reason that I think that Eugene Volokh is a great teacher is that merely talking with him for a few minutes (totally apart from reading his papers!) is enough to rekindle one's sense that apparently simple free expression concepts are much more complicated that one might have suspected.
