Journal of Free Speech Law: "Gitlow Revisited: Disentangling Ideas and Crimes Via the Harm Principle," by Ronald Krotoszynski

The final article from the "Gitlow v. New York at 100" symposium, held last year at the Arizona State University Sandra Day O'Connor College of Law.

The article is here; some excerpts from the Introduction:

An enraged King Henry II famously asked several of his barons, while the court met in Normandy at Christmas in 1170, "Will no one rid me of this turbulent priest?!" King Henry was referring, of course, to Thomas Becket, the incumbent Bishop of Canterbury and head of the Roman Catholic Church in England. Becket had steadfastly insisted on preserving the independence of the ecclesiastical courts and authority over bishopric appointments (much to King Henry's dismay). Subsequently, four of these same barons went from Normandy, in France, to Canterbury, in England, and proceeded to assassinate Becket, on December 29, 1170, while he was conducting a prayer service in Canterbury Cathedral. The perpetrators (shockingly) escaped the king's justice. Perhaps Becket received some small justice, however, when Pope Alexander III proclaimed him a martyr and saint on February 21, 1173.

Could Henry II's musing, consistent with the requirements of the First Amendment, serve as a basis for criminal charges in the contemporary United States? On a first cut, one might answer this question negatively. After all, Henry II was in France; Becket was in England. His speech could not have produced an "imminent" threat to Becket's safety. On the other hand, the barons who assassinated Becket did so only four days after Henry II pondered aloud his abstract desire to be rid of "this turbulent priest"—which, for the Middle Ages, constitutes a rather rapid response.

Even if Henry II might not be on the hook for criminal incitement charges, which under the Brandenburg test require both a clear call to unlawful activity and circumstances in which the speaker's audience would likely act on the suggestion of unlawful action, a clever prosecutor in today's United States could evade the Brandenburg rule entirely through the expedient of charging Henry II with solicitation or conspiracy (rather than incitement). Would the First Amendment preclude solicitation charges on these facts? Or, for that matter, conspiracy charges? Moreover, should changing the criminal charges fundamentally affect the governing First Amendment analysis?

Current free speech doctrine offers a less than clear answer—but most likely solicitation charges would stand up against a Free Speech Clause challenge. The controlling Supreme Court precedent on point, Williams, decided in 2008, seems straightforwardly to hold that proposing a criminal action enjoys absolutely no First Amendment protection. The Supreme Court doubled down on this approach in 2023, in Hansen, holding that "[s]peech intended to bring about a particular unlawful act has no social value; therefore it is unprotected [under the First Amendment]."

To be sure, neither of these cases expressly holds that speech proposing a crime, in contexts where the speech activity clearly constitutes expression about a public policy question, may be criminally punished. Moreover, the facts in both cases do not involve advocacy related to matters of public concern. Nevertheless, neither majority opinion bothers to distinguish speech with no relationship to democratic deliberation (for example, an effort to hire a hit man to commit a murder) from hyperbolic speech at a mass public rally (for example, an impassioned call to support illegal immigrants and immigration, and advocating taking direct actions to facilitate it, such as leaving jugs of water in the Arizona desert, because the speaker believes U.S. federal immigration policies are cruel and unjust).

Accordingly, whatever residual doubts might exist about charging Henry II with incitement would greatly diminish if a prosecutor were to charge solicitation or conspiracy instead. This outcome, of course, does not make any sense normatively or as a matter of public policy. First Amendment protection for speech that arguably calls for unlawful action should not depend on the vagaries of the indictment….

[T]his Essay proposes a different, more holistic approach to bringing the criminal law to bear on speech. Just as the Supreme Court's effort to reconcile tort law with the imperatives of the Free Speech Clause did not end with New York Times Co. v. Sullivan and the tort of libel, free speech principles and values should inform criminal law enforcement too. A careful review of the relevant cases involving speech-crimes shows that, in all save one case (namely Dennis), the speech activity clearly caused, or had an obvious potential for causing, a serious social harm. The federal courts should apply the harm principle to any and all speech crimes—not just to the crimes of incitement and threats. Moreover, switching the crime charged from incitement to solicitation, for example, should not render the First Amendment wholly irrelevant any more than changing torts from libel to intentional infliction of emotional distress would foreclose a meaningful First Amendment analysis. And yet at worst this is unfortunately more or less how things seem to work today and, at best, the Justices have not taken sufficient care to disentangle speech integral to committing a crime from hyperbolic political advocacy.

Part II of this Essay discusses, in some detail, Justice Oliver Wendell Holmes's iconic dissent in Gitlow v. New York and his argument that all ideas are potentially incitements to action as well. Because ideas and actions are inexorably intertwined, a legal test that turns entirely on a federal judge arbitrarily applying one label or another is really no test at all. Part III then considers the Supreme Court's treatment of speech crimes and argues that, although the Justices have so far never clearly articulated the harm principle beyond Alvarez, this concept clearly and best explains the outcomes in all of the relevant cases save one (again, Dennis).

In Part IV, I draw upon Justice Anthony Kennedy's important opinion in United States v. Alvarez to argue that speech can constitute a crime consistent with the Free Speech Clause of the First Amendment only when the government can prove, beyond a reasonable doubt, that it causes or would be highly likely to cause some kind of legally cognizable harm. Consistent with John Stuart Mill's cogent arguments in On Liberty, and the plurality's holding in Alvarez, the fact that speech offends or scandalizes many within the community, or might even have bad tendencies, must not be constitutionally sufficient to justify the imposition of criminal punishment. Part IV also explicates the harm principle and how the federal courts should deploy it consistently across the criminal law to limit the potential censorial effects of speech crimes. Finally, Part V provides a brief summary and conclusion.

For present purposes, Justice Holmes' recognition that all ideas are also incitements constitutes his most important contribution in Gitlow to theorizing how the freedom of speech and punishment of crime should be reconciled. Because every idea is, potentially, an incitement, giving the government carte blanche to punish incitements would necessarily involve giving it a free hand to extirpate ideas that it dislikes from the marketplace of ideas. But the risk of government censorship is not limited to the crime of incitement; it exists too when the government charges a solicitation, a conspiracy, an attempt, a threat, or disorderly conduct. In any given case, the government should have the burden of showing that speech serving as the basis for a criminal charge (of any type) either caused or was highly likely to cause a serious social harm; if the government cannot meet this burden, the federal courts should hold the speech protected under the Free Speech Clause of the First Amendment.