The Volokh Conspiracy

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Leading First Amendment lawyer Bruce Johnson on the 'Speech Integral to Criminal Conduct' exception


I was swamped from mid-October until a few days ago (hence the low blogging volume), so I neglected to post a link to this article by leading First Amendment lawyer Bruce Johnson on the "speech integral to criminal conduct" exception (and on my Cornell article on the subject). An excerpt:

Where does free speech end, and crime begin? This is an old legal question in American law; it stretches back to the beginnings of the Republic, and even earlier….

[U]nder the Roberts Court, a new category of unprotected speech has quietly been added to the historic list of First Amendment "exceptions" recognized in Chaplinsky v. New Hampshire…. [In two recent cases,] the Court, when listing the usual collection of well-recognized Chaplinsky "categories," added "a long-dormant and little defined First Amendment exception: the exception for 'speech integral to criminal [or tortious] conduct,'" and included a citation to Giboney v. Empire Storage & Ice Co. as the leading case supporting that exception….

Giboney v. Empire Storage & Ice Co. is an unusual source for a constitutional test narrowing the scope of First Amendment protections. It was a "coercive solicitation" case (involving a union's illegal secondary boycott), with the constitutional analysis endorsed by two "First Amendment maximalists," including the author of the Court's opinion, Justice Hugo [B]lack, who was also a supporter of union rights….

Because the nation's criminal codes are littered with criminal provisions governing any human activity, expanding the scope of governmental regulation of speech can present opportunities for imaginative prosecutors …. [But] the Giboney doctrine also extends to speech integral to tort liability. Thus, civil practitioners should take little comfort in the hope that novel criminal or tort risks are far removed from ordinary free speech litigation. Loosening Giboney ties them together. Thus, the Court's resurrection of this old case requires us to study and understand how to explain and apply the Giboney doctrine in evaluating First Amendment protections….

Johnson's essay is part of the "More Speech" project of the First Amendment Salon and the Floyd Abrams Institute for Freedom of Expression.