The 'speech integral to criminal conduct' exception

I have an article with the above title coming out in several months in the Cornell Law Review—an early draft is available here. The Introduction is below:

Since 2006, the Supreme Court has been reviving a long-dormant and little-defined First Amendment exception: the exception for "speech integral to criminal [or tortious] conduct." The leading case cited as support for that exception, Giboney v. Empire Storage & Ice Co. (1949), hadn't been cited by the Court at all from 1991 to 2005. Since 2006, the Court has cited Giboney six times. "Speech integral to criminal conduct" is now a standard item on lists of First Amendment exceptions.

The Court has used this exception to justify prohibitions on distributing and possessing child pornography, on soliciting crime, and on announcing discriminatory policies. Lower courts have used it to justify restrictions on speech that informs people how crimes can be committed; on doctor speech that recommends medical marijuana to their clients; on union speech that "retaliates" against union members by publicly criticizing them for their complaints; on intentionally distressing speech about people; and more. Government agencies have used the exception to justify restrictions on, among other things, the publication of bomb-making instructions, speech by tour guides, and offensive speech by protesters near a highway.

The Court has offered "speech integral to [illegal] conduct" as one of the "well-defined and narrowly limited classes of speech" excluded from First Amendment protection. But if this exception is indeed to be well-defined and narrowly limited, courts need to explain and cabin its scope. This Article—the first, to my knowledge, to consider the exception in depth—aims to help with that task.

In the process, the Article observes several things, both about the current state of the law and how it evolved:

1. The "speech integral to [illegal] conduct" exception, though largely dormant during the late Burger Court and the Rehnquist Court, was very important in the early decades of free speech law, and had roots going back to the 1910s. The Court saw it as connected not just with the law of solicitation and conspiracy, but also the law of fighting words and threats. The limits on what constitutes punishable incitement, from the Holmes and Brandeis post-World War I dissents to Brandenburg v. Ohio and NAACP v. Claiborne Hardware, were attempts to chart the boundaries of this doctrine.

2. This exception was also central to Justice Black's (and, to some extent, Justice Douglas's) supposedly "absolutist" vision of the First Amendment. Justice Black's distinction between conduct and speech was closely linked to the view that some speech that causes or threatens illegal conduct should itself be treated as a form of conduct.

Indeed, though Justices Black and Douglas famously rejected First Amendment exceptions for obscenity, libel, and incitement, they had no problems with exceptions for fighting words, solicitation, and threats. The "integral to [illegal] conduct" exception helps explain that position.

3. And the history of the exception also helps explain its revival during the Roberts Court. Over several cases, Chief Justice Roberts and Justice Scalia have been articulating a vision of the First Amendment in which the exceptions to protection are not the product of "categorical balancing" by the Court, but are rather supposed to be found in history and tradition.

Given this, the Justices have to answer a question: how to explain existing exceptions that the Justices do not reject, but that (unlike, say, libel, obscenity, fighting words, and incitement) lack a solid historical provenance? This is a similar question to the one that Justices Black and Douglas had to answer: how to explain existing exceptions that those Justices did not reject, but that look like they should be rejected under their absolutist test? The answer Justice Black gave is that the "speech integral to illegal conduct" doctrine left room for such exceptions.

The Court is now returning to that same doctrine, armed with that doctrine's historical provenance, and seeking the same thing: an umbrella that can cover restrictions on speech such as child pornography, solicitation, threats of discrimination, and the like. Labeling such speech "conduct"—or, as Justice Douglas tended to call it, speech "brigaded" with conduct—helps avoid (or, in the view of cynics, conceal) more thoroughgoing balancing.

4. But the "speech integral to illegal conduct" doctrine—together with its links to the threats and fighting words exceptions—was not just a convenient safety valve to protect what would otherwise be an excessive absolutism. Rather, it is consistent with a particular understanding of free speech, which one might call a "rule-of-law" model of speech.

Under this model, people have to be free to advocate for changes in the law, the economy, and society, and to use social and economic pressure to push for such changes. But people must comply with valid laws that regulate nonspeech conduct. And they must also avoid speech that helps cause illegal conduct, or that threatens to commit illegal conduct.

Given that speech sometimes both constitutes advocacy of social change and helps cause illegal conduct, the question is where the rule of law calls for the line to be drawn. In many ways, that was the question that the Court during Justice Black's tenure was facing, and that Justice Holmes was struggling with in his shifting free speech votes from 1911 to 1927.

5. The Giboney opinion and the ones that followed it, especially in the 1950s, were not clear in their scope. That is unsurprising, since the Court was just beginning to develop free speech doctrine then, and since the more libertarian Justice Black wing of the Court was struggling at the time with the more pro-restriction Justice Frankfurter wing. And precedents since the 1960s have cut back on some of the broader implications of Giboney and its earlier progeny.

6. Given all these precedents, the best understanding of the "integral to illegal conduct" exception is this:

• When speech tends to cause, attempts to cause, or makes a threat to cause some illegal conduct (illegal conduct other than the prohibited speech itself)—such as murder, fights, restraint of trade, child sexual abuse, discriminatory refusal to hire, and the like—this opens the door to possible restrictions on such speech.
• But the scope of such restrictions must still be narrowly defined, in order to protect speech that persuades or informs people who will not engage in illegal conduct. That some category of speech was historically unprotected, because it causes or threatens illegal conduct, does not tell us where the boundaries of the exception should be drawn. The history of the incitement and fighting words doctrines, for instance, shows the Court's narrowing the historically unprotected zone (as the Court has done with regard to some of the historical exceptions that aren't tied to other illegal conduct, such as the obscenity and libel exceptions).

In a sense, then, the Giboney doctrine should be seen less as a single exception than as a guide to generating other exceptions. For instance, Giboney cited cases authorizing punishment for advocacy of illegal conduct and for insulting speech as involving speech integral to illegal conduct. But while the risk of illegal conduct posed by such speech has indeed led the Court to recognize First Amendment exceptions (for incitement and fighting words), the Court has been careful to define those exceptions narrowly, to protect potentially valuable speech.

Likewise, the child pornography exception has been explained as an application of the Giboney principle, because distribution and possession of child pornography helps cause criminal production of child pornography. But there too the Court has made clear that not all speech that creates a market for criminally obtained speech (for instance, for unlawful interception of cell phone calls) is constitutionally unprotected.

7. On the other hand, the Giboney doctrine can't justify treating speech as "integral to illegal conduct" simply because the speech violates the law that is being challenged. That should be obvious, since the whole point of modern First Amendment doctrine is to protect speech against many laws that prohibit such speech. Yet many lower courts have indeed used Giboney that way, for instance to uphold laws restricting professionals' (such as psychotherapists') speech to their clients.

Giboney has thus become, at times, a tool for avoiding serious First Amendment analysis—a way to uphold speech restrictions as supposedly fitting within an established exception, without a real explanation of how the upheld restrictions differ from other restrictions that would be struck down. Understanding the limitations on the Giboney doctrine is critical to avoiding such misuse of Giboney.

8. Relatedly, Giboney can't justify treating speech as "integral to illegal conduct," even when the speech violates a law that equally forbids both conduct and speech (usually a law that bars conduct that produces, is intended to produce, or is likely to produce a certain result). The Court has recently made clear, in Holder v. Humanitarian Law Project, that even generally applicable laws are subject to strict scrutiny when they apply to speech because of the harm assertedly caused by its content. Moreover, when Giboney was decided, the Court had already so held in several other leading cases—and continued to do so in many leading cases between Giboney and Holder.

I am not a fan of the "speech integral to illegal conduct" exception, but it seems to be here to stay. The question is what it does, and should, cover.