Saturday, May 21, 2005

Update: After realizing Volokh was also a Huff Post contributor, I published an emended version of this post there.

I tend not to argree much with Eugene Volokh, most notably when it comes to torture. But I have to admit, his recent article on "Crime-Facilitating Speech" is fascinating as hell.

Basically, he takes a bunch of disparate cases -- from blinking your lights to let others know of a cop down the road, to posting, say, The Anarchist Cookbook on-line -- and classes them together as a form of speech which, although it does not incite criminal acts, nonetheless facilitates such acts.

The issue is interesting enough in purely theoretical terms, but there are two other factors that make it even more compelling. For one, as Volokh notes, our judicial system has yet to comprehensively address this form of speech. I find that really surprising; I can see how no cases based on the Patriot Act would've made their way through the courts yet, but I'm surprised there weren't any cases based on Cold War or McCarthyite legislation which touched on the issue.

For another though, Volokh also notes that
while crime-facilitating speech cases arise in all sorts of media, and should be treated the same regardless of the medium, the existence of the Internet makes a difference here. Most importantly, by making it easy for people to put up mirror sites of banned material as a protest against such bans, the Internet makes restrictions on crime-facilitating speech less effective, both practically and (if the restrictions are cast in terms of purpose rather than mere knowledge) legally. [emphasis his]
In other words: the infinite distributive capacity of the internet effectively renders the legality of crime-facilitating speech a secondary concern to the practicality of actually trying to enforce any legal definition. That's some pretty heady stuff. As if revolutionizing global commerce weren't enough, it seems the internet is now impacting constitutional law, too.


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