The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the first article in our first Journal of Free Speech Law issue; you can read it here, but here's the Abstract:
According to the thought crime doctrine, neither beliefs nor intentions may be subject to criminal punishment. The doctrine is widely endorsed, but puzzling in its scope. Beliefs have a free speech credential: they play a straightforward role in the sincere exchange of ideas. Moreover, they are harmless, in the specific sense that they do not aim at action and so not at lawbreaking. But intentions are otherwise. They do not necessarily further the exchange of ideas and they may aim at wrongful, illegal conduct.
So why should the thought crime doctrine categorically protect them in addition to beliefs? Why not allow the criminalization of at least some intentions, such as those that aim at criminal wrongdoing? The going answers to this question are unsatisfying because they do not identify any moral reason to protect intentions per se.
I argue that there is such a reason based in the importance of thinking. My argument has two premises. The first is that persons have a fundamental moral interest in thinking. The second is that thinking partly consists in believing and intending whatever one takes to be warranted, even if it's not. Hence, persons have a moral interest in their beliefs and intentions, whether they are true and laudable or false and odious. The thought crime doctrine is the sound legal recognition of this interest.
As you'll see from the upcoming posts, we'll have plenty of doctrinal articles, plenty that discuss public policy and litigation strategy, and some that are empirical; but we of course hope to have law-and-philosophy articles such as this, as well as legal history and more. (Note that this article was blind-reviewed by editorial board members, and is the first article we accepted via such blind review.)