Volokh, Eugene
Sun, 31 Jan 2010 19:17:40 -0800
Well, Brandenburg said that "the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe advocacy of
the use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action." That's hardly limited to "mere statement[s] of belief,"
and expressly covers "advocacy of [action]." And I would think that it's hard
to distinguish as a general matter between "advocacy of the use of force or of
law violation" (which Brandenburg says is protected) and "an effort to produce
unlawful action ... in the future" (which Prof. Rosenthal says is unprotected).
Now I agree that some efforts to produce unlawful action in the future
are unprotected, even in the absence of imminence -- Williams does make this
clear. But it seems to me that Williams must apply to some subset of such
efforts (with the question being, of course, where the line is drawn), and not
to all efforts to produce unlawful action in the future, as Prof. Rosenthal
suggests.
Eugene
> -----Original Message-----
> From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-
> boun...@lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
> Sent: Saturday, January 30, 2010 12:25 PM
> To: Humbach, Prof. John A.; Renz, Jeff; conlawprof@lists.ucla.edu
> Subject: RE: The law of "attempt" and imminence in Brandenburg
>
> Yates, Scales, and Noto reject the view that the First Amendment imposes an
> "imminence" requirement with respect to punishing advocacy of illegal conduct.
> Brandenburg does not purport to overrule any of these cases, and the approach
> taken in that trilogy was reaffirmed as recently as Williams.
>
> As I read Yates, Scales, and Noto, speech can be punished as a form of
> criminal
> solicitation when the speaker specifically intends to produce unlawful
> conduct,
> with independent judicial review required to ensure that the speech cannot be
> fairly characterized as a mere statement of belief as opposed to an effort to
> produce unlawful action, imminently or in the future. To that extent, I agree
> that the First Amendment constrains the law of criminal solicitation, and to
> that
> extent as well Debs and Schenck are no longer good law. To be sure, Professor
> Volokh's "Crime Facilitating Speech" article frets that a test that turns so
> much
> on intent may deter some valuable speech, but thus far, it appears to me that
> the Supreme Court has not found this argument warrants anything more than
> independent appellate review of the evidence supporting a finding of specific
> intent to produce unlawful conduct.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> From: conlawprof-boun...@lists.ucla.edu on behalf of Humbach, Prof. John A.
> Sent: Sat 1/30/2010 11:45 AM
> To: Renz, Jeff; conlawprof@lists.ucla.edu
> Subject: The law of "attempt" and imminence in Brandenburg
>
>
>
> I'm still trying to understand the First Amendment status of crimes like
> criminal
> solication (and since I'm teaching it Monday afternoon, I'm feeling a little
> urgency).
>
> Jeff says correctly that neither Debs nor Schenck has been overruled. But does
> this mean that, in 2010, we can still expect that the Court might allow laws
> to
> punish words having a mere "tendency and intent" to produce criminal acts,
> even if that "tendency" is so remote that no crimes are "imminent"?
>
> I would have thought that, after Brandenburg, the answer was clearly no. In
> 2002, moreover, the Court in Ashcroft v. FSC reconfirmed the "imminence"
> requirement (citing Brandenburg) when it rejected the "whet the appetite"
> argument against virtual child pornography.
>
> However, in 2008, the United States v. Williams case seems to say the
> "important distinction [is] between a proposal to engage in illegal activity
> and
> the abstract advocacy of illegality," specifying that a "proposal" includes a
> "recommendation" to an illegal act "with the intent of initiating" the act.
> As I
> read Williams, such a "proposal" can be criminalized even though there is no
> chance that the words in the proposal will actually lead to any illegal
> act--and
> even if no illegal act would even be factually possible. (In the case of the
> Williams statute, a proposal to transfer child pornography could be severely
> punished even if there were no child pornography that could be illegally
> transferred. The mere words, or words-plus-intent, were punished.)
>
> Of course the analogy to the Model Penal Code law of attempt should be
> apparent (as my colleague, Audrey Rogers, has written at length). And this
> raises
> an interesting possibility: Using the law of attempt (which punishes
> intent-plus-
> futile-efforts alone), the post-Brandenburg Court could effectively go back to
> Schenck, Debs and even Whitney by upholding bans on words having a mere
> "tendency and intent" (without imminence) as an *attempt* to produce some
> illegal result.
>
> Because nothing prevents the penalties for attempt from being as severe as
> those for consummated crimes, the law of attempt could serve as a highway
> around Brandenburg. While this is a result that I would greatly dislike, I
> fear that
> United States v. Williams may have already paved the way.
>
> Phipps is would be an obvious example of such a case and possibly, too, the
> claims being made against John Yoo.
>
> John A. Humbach
> Professor of Law
> Pace University School of Law
> 78 North Broadway
> White Plains, New York 10603
> 914-422-4239
>
> Personal website: humbach.net
> ________________________________________
> From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu]
> On Behalf Of Renz, Jeff [jeff.r...@mso.umt.edu]
> Sent: Friday, January 29, 2010 4:58 PM
> To: conlawprof@lists.ucla.edu
> Subject: "Imminence" in Brandenburg
>
> Let me first note that neither Debs nor Schenk have been overruled and that I
> know that counsel in pending appellate cases in which there is a "speech
> crime"
> issue fear the two, to try to avoid triggering a discussion of either, and
> focus on
> Brandenburg.
>
> My sense of Phipps is that there was more than advocacy taking place. Phipps
> was selling tax evasion kits. Setting aside other violations of the law,
> this does
> not differ too much from one sending plans for a bomb to another along with
> encouragement that the recipient assemble and activate it.
>
> The distinction then may be advocacy on the one hand, protected by
> Brandenburg, and, on the other hand advocacy + means to carry out the crime.
>
> Prof. Jeffrey T. Renz
> School of Law
> The University of Montana
> 32 Campus Drive
> Missoula, Montana 59812
> 406-243-5127
>
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 28 Jan 2010 15:30:03 -0800
> From: "Volokh, Eugene" <vol...@law.ucla.edu>
> To: "'CONLAWPROFS professors'" <Conlawprof@lists.ucla.edu>
> Subject: RE: "Imminence" in Brandenburg
> Message-ID:
>
> <e7aaec684f9e3641b8cfc2b9a0bd965ac1a6783...@uclawe2k7.lawnet.lcl
> >
> Content-Type: text/plain; charset="iso-8859-1"
>
> It's certainly true that Brandenburg did not entirely (or perhaps
> even largely)
> invalidate the law of aiding or abetting, criminal solicitation, or
> conspiracy. At
> the same time, it doesn't seem to me to follow that they have no effect on the
> constitutional boundaries of such laws. I take it, for instance, that we'd
> agree
> that Schenck and Debs are no longer good law (or would Prof. Rosenthal
> contend that they are still constitutional)? Yet Schenck involved a
> conviction for
> conspiracy to cause and attempt to cause insubordination, and might well today
> be treated as a solicitation matter (since the Court took the view that the
> defendants were intending to cause others to commit a crime). Debs involved
> causing and inciting and attempting to cause insubordination, disloyalty,
> munity,
> and refusal of duty, as well as obstructing and attempting to obstruct
> recruiting
> and enlistment -- again, the theory being that the defendant was intending to
> cause others to commit a cr!
> ime.
>
> Likewise, though Hess v. Indiana involved a disorderly conduct
> prosecution,
> can it really be that if the government had simply pled the case as a
> solicitation
> case, the prosecution would have been constitutional? The trial court, after
> all,
> found that Hess "was intend[ing] to incite further lawless action on the part
> of
> the crowd" -- which might well constitute solicitation -- but the Court
> concluded
> that even if "We'll take the fucking street later [or again]" constituted
> "advocacy
> of illegal action at some indefinite future time," the speech remained
> protected.
> (The Court did say that "the uncontroverted evidence showed that Hess'
> statement was not directed to any person or group of persons, it cannot be
> said
> that he was advocating, in the normal sense, any action"; so perhaps the
> constitutional limit on solicitation is that the statement must be directed
> to a
> particular group of persons, but this would indeed be an important
> constitutional limit.)
>
> We can come up with plenty of other examples. Say someone says "All
> of
> us should infringe copyright any chance we get." That's "advocacy of
> action," to
> quote the post below, rather than just "mere statement[] of belief" -- is that
> really constitutionally unprotected under Brandenburg, if the prosecution
> rests
> on some broad state law solicitation theory? Or aiding and abetting: Say a
> newspaper reporter publishes an article about copyright infringing sites,
> which
> includes the names of some such offshore sites, and there's evidence that the
> reporter is actually a foe of copyright law and might therefore want people to
> use such infringing sites. Can that really be punishable on an aiding and
> abetting
> theory, if the jury concludes that the reporter had the intent of helping
> people
> commit criminal copyright infringement? What if the relevant aiding and
> abetting law requires a mens rea of mere knowledge rather than purpose (some
> states and some federal circuits take t!
> his vie!
>
> w) -- would the reporter be punishable as an aider of copyright infringement
> simply based on a finding that he knew it was very likely that some people who
> read the article would use the information to infringe copyright?
>
> Perhaps Prof. Rosenthal's theory is that all this speech is indeed
> punishable,
> as solicitation or aiding and abetting, because it goes beyond "mere
> statement[]
> of belief." If so, I'd like to hear more about this. But if there are
> constitutional
> constraints on such punishment, I'd like to hear just what they might be.
>
> I should add, by the way, that I appreciate that the line between
> punishable
> solicitation and protected speech is not well understood, and neither is the
> line
> between punishable aiding and abetting and protected speech (though I tried to
> deal with the latter question in my Crime-Facilitating Speech article,
> http://www.law.ucla.edu/volokh/facilitating.pdf). I just don't think that
> the line
> that seems to be proposed by the post below is the right line.
>
> Eugene
>
> > -----Original Message-----
> > From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-
> > boun...@lists.ucla.edu] On Behalf Of Rosenthal, Lawrence
> > Sent: Wednesday, January 27, 2010 8:25 AM
> > To: Humbach, Prof. John A.; CONLAWPROFS professors
> > Subject: RE: "Imminence" in Brandenburg
> >
> > As the recent holding in Williams suggests, Brandenburg did not modify the
> > law
> of
> > aiding or abetting, criminal conspiracy, or criminal solicitation, all of
> > which
> permit
> > liability based on an actor's statements urging the commission of unlawful
> > acts
> > without any requirement of imminence. At most, the decisions in Yates,
> > Scales
> > and Noto indicate that the First Amendment prohibits liability based on mere
> > statements of belief, unaccompanied by advocacy of action now or in the
> future,
> > but Brandenburg does not purport to overrule any of those cases. The First
> > Amendment problem in Brandenburg and Hess, I have always believed, arose
> > from the fact that the statutes at issue did not proceed on a theory of
> > aiding
> and
> > abetting, criminal solicitation, or conspiracy, but instead made advocacy
> > itself
> the
> > crime.
> >
> > I do not know what the evidence established in Phipps, but I suspect that
> > the
> law
> > of aiding and abetting provides a far sounder basis to uphold the conviction
> than
> > the court's claim that Brandenburg's imminence test was satisfied. Yates,
> Scales
> > and Noto make clear that imminent unlawful conduct is not always required to
> > impose liability for a defendant's advocacy of unlawful conduct.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >
> > ________________________________
> >
> > From: conlawprof-boun...@lists.ucla.edu on behalf of Humbach, Prof. John
> A.
> > Sent: Wed 1/27/2010 7:28 AM
> > To: 'CONLAWPROFS professors'
> > Subject: RE: "Imminence" in Brandenburg
> >
> >
> >
> > Well, I think Hess said some "indefinite" future time, which may imply an
> > even
> > greater degree of contingency than "unknown" future time.
> >
> > But the question I have is what verbal formulations would best capture the
> > relationship between issues like this one and the whole law of criminal
> solicitation
> > in general, which I presume is not under any particular First Amendment
> > cloud.
> > The New York Penal Law, for example, talks of one who "importunes or
> otherwise
> > attempts to cause such other person to engage in such conduct."
> >
> > I'm guessing that the whole answer may be what Scalia wrote in United States
> v.
> > Williams: "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. See, e.g., ALI,
> > Model
> > Penal Code ? 5.02(1) (1985) (solicitation to commit a crime); ? 5.03(1)(a)
> > (conspiracy to commit a crime)." Does Brandenburg constitute a qualification
> of
> > (or, worse, is it superseded by) this principle, reaffirmed in 2008?
> >
> > Ideas?
> >
> > John A. Humbach, Professor of Law
> > Pace University School of Law
> > 78 North Broadway
> > White Plains, New York 10603
> > Tel. 914-422-4239 -- jhumb...@law.pace.edu
> > personal homepage: humbach.net
> >
> > -----Original Message-----
> > From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-
> > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> > Sent: Monday, January 25, 2010 5:14 PM
> > To: 'CONLAWPROFS professors'
> > Subject: "Imminence" in Brandenburg
> >
> > Any thoughts on this opinion decided today, U.S. v. Phipps, 2010 WL 254983
> (5th
> > Cir.)? In particular, I wonder whether it's consistent with Brandenburg and
> Hess
> > v. Indiana to hold that this speech incites "imminent lawless conduct" --
> > isn't it
> > more like the advocacy of illegal conduct at some unknown future time, which
> > doesn't satisfy the "imminence" requirement, according to Hess? (I set
> > aside
> the
> > question whether the speech could be restricted on other grounds.)
> >
> > Eugene
> >
> >
> >
> >
> > For over twenty years, Phipps has operated self-styled "educational programs
> > dedicated to teaching others how to eliminate their debt and live within
> > their
> > means." Despite notice from the United States Postal Service ("USPS") that
> both
> > of his prior, similarly structured endeavors were considered illegal pyramid
> > schemes, Phipps created the instant program, Life Without Debt ("LWD").
> > Members were encouraged to contribute between $2,000 and $100,000;
> Phipps
> > claimed that a larger contribution would engender larger returns. As with
> > prior
> > schemes, members were required to recruit two new members prior to
> receiving
> > any payments; they also received educational literature and tapes with anti-
> > income tax messages. Notably, Phipps told participants that the income
> received
> > through LWD would not need to be reported to the IRS. Phipps himself did not
> > report any of his LWD income to the IRS.
> >
> > During his ten years of operating LWD, Phipps received notices from the
> > states
> of
> > Georgia, Oklahoma, and Maryland that LWD constituted a pyramid scheme,
> and
> > he may be subject to civil or criminal enforcement actions as a result.
> > Indeed,
> six
> > LWD members were arrested in Florida for felony and misdemeanor
> promotion of
> > and participation in an illegal lottery. Despite these warnings that his
> > activities
> > might be illegal, Phipps continued to recruit new members through mass
> mailings,
> > teleconference calls, and seminars in major cities. Phipps sent periodic
> > small
> > payments to members to encourage them to remain in the program, recruit
> new
> > members, or reinvest in larger payment plans. Though Phipps marketed LWD
> as
> > a compound-leveraging investment program that would generate large sums
> of
> > money for its investors, less than nine percent of LWD's approximately
> > 31,000
> > participants made a net profit above their initial investment. Phipps
> > "earned"
> > $4,606,396 from LWD, $1,381,683 of which wa!
> > s "participation income," and $3,224,782 of which he paid to himself under
> aliases
> > within the scheme.
> >
> > A jury found Phipps guilty of mail and wire fraud and aiding and abetting,
> corrupt
> > endeavor to obstruct and impede the due administration of the internal
> revenue
> > laws, and income tax evasion. [FN1] Phipps was sentenced to 210 months
> > imprisonment, to be followed by three years of supervised release. Phipps
> > was
> > also ordered to pay $1,402,446 in restitution. Phipps now appeals the
> sufficiency
> > of the evidence to support his convictions and whether his sentence was
> properly
> > calculated....
> >
> > Phipps alleges that his tax evasion advocacy was protected by the First
> > Amendment. This allegation is without merit. Telling his adherents that he
> > did
> not
> > report his LWD income to the IRS and encouraging them to do the same place
> > Phipps' speech within the sphere of proscribed speech likely to incite or
> produce
> > "imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969);
> > see
> > also United States v. Kelley, 864 F.2d 569, 577 (7th Cir.1989) (rejecting
> > First
> > Amendment protection of "more than mere advocacy" where defendant told
> clients
> > to keep tax shelter information secret from the IRS and received commissions
> > from sales); United States v. Buttorff, 572 F.2d 619, 624 (8th Cir.1978)
> (rejecting
> > First Amendment protection of activity that went "beyond mere advocacy of
> tax
> > reform" in explaining to others how to avoid income tax liability). Phipps
> > has
> not
> > shown that his behavior advising and advocating tax evasion to LWD
> participants
> > should be entitled to First Amendment !
> > protection....
> > _______________________________________________
> > To post, send message to Conlawprof@lists.ucla.edu
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> >
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> > _______________________________________________
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>
>
>
> ------------------------------
>
> Message: 2
> Date: Fri, 29 Jan 2010 14:43:38 -0500
> From: "Miller, Darrell (mille2di)" <mille...@ucmail.uc.edu>
> To: "Conlawprof@lists.ucla.edu" <Conlawprof@lists.ucla.edu>
> Subject: Outsourcing Legislation from WH to the House of
> Representatives
> Message-ID:
>
> <4dea66fecaf51547840ce95566b4c46d1c63cc8...@ucmailbe3.ad.uc.edu
> >
> Content-Type: text/plain; charset="us-ascii"
>
> >From Politico, full link here:
> http://www.politico.com/news/stories/0110/32192_Page2.html
>
> Cantor criticized Obama for last year's "outsourcing of the legislative
> activity
> from the White House to Nancy Pelosi here in this House," which he said has
> resulted in "a bill shift and an agenda shift way to the left and outside the
> mainstream of this country."
>
> To me, this seems like a fairly gross exploitation of people's ignorance of
> our
> system of divided government, and an indictment of partisan gerrymandering
> which makes this kind of statement politically resonant.
>
> Darrell A.H. Miller
> Assistant Professor of Law
> University of Cincinnati College of Law
> PO Box 210040
> Clifton Avenue & Calhoun Street
> Cincinnati, OH 45221-0040
> v: 513-556-0133
> f: 513-556-1236
> e: darrell.mil...@uc.edu<mailto:darrell.mil...@uc.edu>
>
> faculty page:
> http://www.law.uc.edu/faculty/profiles/miller.php
>
> SSRN:
> http://ssrn.com/author=1107305
>
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>
>
> _______________________________________________
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