Posted by Eugene Volokh:
Crime-Facilitating Speech, and Showing Photos (and One Home Address) of
Undercover Police Officers:
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248900796
[1]Radley Balko (The Agitator) writes:
A Virginia woman has been arrested for blogging about the members
of a local drug task force. The charge is harassment of a police
officer. She apparently posted on the blog one officer�s home
address, as well as photos of all members of the task force, and a
photo of one officer getting into his unmarked car in front of his
home....
Photographing, writing about, and criticizing police officers, even
by name, should of course be legal. But it�s a tougher call when
the officers in question work undercover. Naming them, posting
their photos, posting their addresses, are all pretty clearly
efforts to intimidate them, and it isn�t difficult to see how doing
so not only makes it more difficult for them to do their jobs, but
may well endanger their lives....
This is indeed a tough issue, and a special case of another tough
issue, which I discussed at some length in my [2]Crime-Facilitating
Speech article: When may speech be restricted because it provides
others with information that may help them commit crimes? Here, the
information may help people kill police officers, or at least conceal
their crimes from police officers (once the undercover officers'
covers are blown). But similar crimes could also be caused by [3]a TV
station's running a story about undercover police officers, or a
newspaper's publishing the name of a crime witness, or a civil rights
boycott organizer's publishing the names of people who aren't
complying with boycotts, or a neighborhood watch group's publishing
the name of a sex offender who has recently moved into the
neighborhood, or [4]IndyMedia's publishing the names and addresses of
Republican delegates, and so on. And the broader issue arises even
with less personalized data -- what if a Web page, [5]a research
paper, a novel, or a chemistry textbook provides information that can
help people commit crimes in general, and not just information about
particular prospective crime targets? I give more examples, and
citations, in the article.
One thing I stress in the article is that much (though not all) such
crime-facilitating speech does have value to law-abiding readers as
well. Knowing the identity of an undercover police officer can help
noncriminals know which of their acquaintances aren't what they seem,
and can help criminal defense lawyers figure out how to better defend
their clients. Even knowing a person's home address could be useful if
you want to organize picketing of their homes. Such residential
picketing could be restricted by city ordinance, but in some cities it
isn't; and even if focused residential picketing is banned by a city
ordinance, parading through the targets; neighborhood in order to
express your message of condemnation to the targets' neighbors is
constitutionally protected. See Madsen v. Women�s Health Ctr., 512
U.S. 753, 775 (1994); Frisby v. Schultz, 487 U.S. 474, 480-81 (1988).
One can certainly argue that the speech is so dangerous when revealed
to criminals that it should be restricted despite its potential value
to law-abiding readers. But I don't think one can assert, as I've
heard some people assert, that such speech has no value to the
law-abiding.
Thanks to Joe Olson for the pointer.
References
1. http://www.theagitator.com/2009/07/29/tough-call-5/
2. http://www.law.ucla.edu/volokh/facilitating.pdf
3. http://www.volokh.com/posts/1184780570.shtml
4. http://volokh.com/archives/archive_2004_08_29-2004_09_04.shtml#1093937279
5. http://www.volokh.com/posts/1118878158.shtml
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