Document Type

Article

Publication Title

Cardozo Law Review

Publication Date

2015

Abstract

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast with conventional wisdom’s assumption that the right to free speech is broadly protected under existing jurisprudence, much speech is currently overcriminalized under the endangerment justification. Free speech doctrines and criminal law are in tension with one another. While under its First Amendment jurisprudence the Court contracts government’s power to ban speech, criminal law constantly expands the scope of speech crimes.

The Article contends that existing doctrines attempting to explain this inconsistency fail to provide a principled explanation for the absence of First Amendment scrutiny from various types of speech crimes. To ameliorate this problem, this Article proposes a unified analytical framework for assessing when speech justifies criminalization and when it warrants constitutional protection. The proposal suggests that all speech crimes should be subject to constitutional scrutiny under free speech doctrines, as well as to additional constraints stemming from criminal law theory. This Article provides several factors to guide the judicial inquiry into determining the scope of criminal bans on speech.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.