The Volokh Conspiracy
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First Amendment Doesn't Protect Speech That Solicits a Specific Crime
Calling for the burning of a particular mosque, for instance, or the bombing of a particular police station, or the killing of a particular person (politician, police officer, activist, or anyone else) may be constitutionally unprotected solicitation.
There's been much discussion recently about the English government's prosecution, in connection with the recent riots there, of various people who have been seen as advocating violence or hatred. Here's an excerpt from yesterday's New York Times article:
They Spouted Hate Online. Then They Were Arrested.
[Subtitle:] As hundreds of people appear in court for their role in recent anti-immigrant riots in Britain, several are accused of fueling disorder through online posts, raising questions about the limits of free speech.
A 53-year-old woman from northwest England was jailed for 15 months after posting on Facebook that a mosque should be blown up "with the adults inside." A 45-year-old man was sentenced to 20 months for goading his online followers to torch a hotel that houses refugees. A 55-year-old woman was questioned by the police for a viral post that wrongly identified the suspect in a deadly knife attack at a children's dance class.
The article goes on to note that English law is less protective of free speech than American law, and that much is correct. But I think it's also worth noting that speech urging the commission of a specific crime against a specific target is likely constitutionally unprotected even in America. In particular, calling for people to blow up a particular mosque (which is what the woman mentioned in the article seemed to be doing) or burn down a particular hotel would almost certainly fall within the "solicitation" exception to the First Amendment (or perhaps within the "solicitation" facet of the broader "speech integral to criminal conduct" exception).
That exception is not as well-known as other exceptions, such as for true threats of illegal conduct, incitement of imminent and likely illegal conduct, defamation, child pornography, and so on. But the Court has made clear that it does exist, most recently in U.S. v. Hansen (2023):
Criminal solicitation is the intentional encouragement of an unlawful act. [T]he crime of solicitation is complete as soon as the encouragement occurs [and does not require that the solicited crime take place -EV] …. [S]olicitation … [does not] require[] lending physical aid; … words may be enough. [It] require[s] an intent to bring about a particular unlawful act. [It is a] longstanding criminal theor[y] targeting those who support the crimes of a principal wrongdoer….
Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected. We have applied this principle many times, including to the promotion of a particular piece of contraband, solicitation of unlawful employment, and picketing with the "sole, unlawful [and] immediate objective" of "induc[ing]" a target to violate the law.
And to quote another leading precedent, U.S. v. Williams (2008),
Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or not) that is intended to induce or commence illegal activities. Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection….
To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality. The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it.
So abstractly calling for violent revolution, or for attacks on police officers, or the burning of mosques is constitutionally protected (unless it falls within the "incitement" exception for intentional advocacy of imminent and likely illegal conduct). But concretely calling for an attack targeting a particular person or a particular piece of property is solicitation, and punishable if the speaker "intended to bring about a particular unlawful act." Thus, for instance, U.S. v. White (7th Cir. 2010) held that public speech aimed at getting listeners to attack a particular former juror would be criminal solicitation of a crime of violence:
According to the government's indictment, William White created and maintained the website Overthrow.com. Overthrow.com was affiliated with the "American National Socialist Workers Party," an organization comprised of white supremacists who "fight for white working people" and were "disgusted with the general garbage" that the white supremacist movement had attracted….
On September 11, 2008, White posted personal information about the foreperson of the jury in the [solicitation of murder trial of white supremacist leader Matthew Hale] ("Juror A")…. The September 11 entry by White was entitled "The Juror Who Convicted Matt Hale." It identified Juror A by name, featured a color photograph of Juror A and stated the following:
Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number]….
The indictment here … charges White with having the intent for another person to injure Juror A, and soliciting another person to do so. It provides corroborating circumstances of White's intent. As one example of his intent, the government points to the re-posting of the information once action was taken by Juror A's employer to remove his picture from public access. As another, the government argues that White knew the persons solicited were prone to violence….
Although First Amendment speech protections are far-reaching, there are limits. Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside its protection…. In the case of a criminal solicitation, the speech—asking another to commit a crime—is the punishable act. Solicitation is an inchoate crime; the crime is complete once the words are spoken with the requisite intent, and no further actions from either the solicitor or the solicitee are necessary. Also, a specific person-to-person request is not required….
So, whether or not the First Amendment protects White's right to post personal information about Juror A first turns on his intent in posting that information. If White's intent in posting Juror A's personal information was to request that one of his readers harm Juror A, then the crime of solicitation would be complete. No act needed to follow, and no harm needed to befall Juror A. If, on the other hand, White's intent was to make a political point about sexual orientation or to facilitate opportunities for other people to make such views known to Juror A, then he would not be guilty of solicitation because he did not have the requisite intent required for the crime.
For another example, see U.S. v. Rahman (2d Cir. 1999), upholding a solicitation conviction of a jihadist religious leader in part because they went beyond "simply the expression of ideas" and instead constituted "solicitation of attack on the United States military installations, as well as of the murder of Egyptian President Hosni Mubarak … during his visit to the United States." This line, and others like it, may sometimes be difficult to draw, but that's what the law calls for in this area.
To be sure, if the statement was intended just as hyperbole, or just as an attempt to let off steam, then it might not constitute punishable solicitation. Again, recall that there has to be a showing of an intent (in the sense of a deliberate purpose) to bring about some criminal behavior by asking people to engage in it. But if such an intent can be shown, then in America as well as in England, the solicitation of crime would be criminally punishable—though in America (but perhaps not in England) the abstract advocacy of crime, without naming a particular target, generally would not be.
