Freedom of Speech and the Criminal Law
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FREEDOM OF SPEECH AND THE CRIMINAL LAW ∗ DAN T. COENEN INTRODUCTION ............................................................................................ 1534 I. BLOCKING ........................................................................................ 1539 A. Blocking and “Unprotected” Speech ....................................... 1539 1. The Protection of Unprotected Speech ............................... 1540 2. Non-Expansion of the “Unprotected Speech” List ............. 1543 3. Restricting the Range of Unprotected Speech .................... 1545 a. Removing Items from the Unprotected Speech List ..... 1545 b. Contracting the Reach of Unprotected Speech ............ 1548 i. Fighting Words .................................................... 1548 ii. Incitement to Crime .............................................. 1552 iii. Hostile Audience Speech ...................................... 1555 iv. Sexually Oriented Expression ............................... 1557 c. Other Tools for Protecting Speech .............................. 1561 II. CHANNELING .................................................................................... 1567 A. Channeling and Tort Law ......................................................... 1568 B. Channeling and Non-Tort Law ................................................. 1577 III. NARROWING ..................................................................................... 1580 IV. THE FRONTIERS OF FREE SPEECH DECRIMINALIZATION .................. 1588 A. The Frontiers of Free Speech Means-Ends Analysis ................ 1590 1. Actual Harm Rules ............................................................. 1591 2. Individualized-Warning Rules ............................................ 1593 B. Free-Speech-Driven Hybrid Rights .......................................... 1595 C. Beyond Free-Speech-Based Decriminalization ........................ 1602 CONCLUSION ................................................................................................ 1604 Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this Article claims that the Court ∗ University Professor and Harmon W. Caldwell Chair in Constitutional Law, University of Georgia. Thanks to Randy Beck, Michael Coenen, Richard Fallon, Russell Gabriel, Erica Hashimoto, Walter Hellerstein, Paul Kurtz, Rodney Smolla, Mark Tushnet, Michael Wells, and Sonja West for thoughtful comments on earlier drafts. Thanks also to Solesse Altman, Fisher Law, and Chase Ogletree for valued research and editorial assistance. 1533 1534 BOSTON UNIVERSITY LAW REVIEW [Vol. 97:1533 has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles. The first involves judicial blocking— that is, declaring some speech controls altogether out of bounds, whether they utilize either criminal or civil sanctions. The second involves judicial channeling—that is, requiring that government regulation of some types of speech must take the form of civil law, and not criminal law, restraints. The third involves judicial narrowing—that is, interpreting criminal statutes to restrict their reach and thus frustrate potential government prosecutions in light of free expression values. This Article identifies concrete ways in which the Court might deploy all three strategies to support the decriminalization of expressive conduct in the future, with regard to such topics as fighting words, hostile audience speech, infliction of emotional distress, mens rea rules, speech law “tortification,” content discrimination, individualized-warning requirements, hybrid-rights analysis, and more. INTRODUCTION Courts often invoke the Free Speech Clause to invalidate criminal statutes. This point is important in and of itself, and it will remain important as long as our Constitution endures. But, for two related reasons, it is particularly important today. First, a “decriminalization movement” has taken hold across the nation, focusing the public mind on the far-reaching costs—both human and financial— created by the existing penal law system.1 Second, concerns about 1 See Wayne A. Logan, After the Cheering Stopped: Decriminalization and Legalism’s Limits, 24 CORNELL J.L. & PUB. POL’Y 319, 348 (2014) (noting that “the decriminalization movement” has involved “the American body politic i[n] showing increasing interest in softening the harsh penal policies adopted over the past several decades”). The costs raised by the existing system begin with the fact that the United States has more individuals in its prisons and jails than any other nation in the world. See Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. TIMES, Apr. 23, 2008, at A1 (observing that while “[t]he United States has less than 5 percent of the world’s population,” it “has almost a quarter of the world’s prisoners” with “2.3 million criminals behind bars”). While there exists little opposition to the imposition of harsh criminal punishments on many offenders, particularly violent offenders, increasing concern exists about the criminalization of non-violent and minor wrongs. This concern has arisen, in part, because the human effects of criminalization on offenders are both direct, in terms of time spent in incarceration, and “collateral,” including through the loss of future employment opportunities, the destruction of positive relationships, and the like. See PEW CHARITABLE TR., COLLATERAL COSTS: INCARCERATION’S EFFECT ON ECONOMIC MOBILITY 3 (2010), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/collateralcosts1pdf .pdf [https://perma.cc/U7TE-5BTS] (finding, for example, that “former inmates work fewer weeks each year, earn less money and have limited upward mobility”). These effects ripple through to family members, including innocent children, and to society as a whole, particularly as cycles of poverty are reinforced. See Timothy Williams, Report Details the Economic Hardships That Many Families of Inmates Face, N.Y. TIMES, Sept. 16, 2015, at A18. The rise of the decriminalization movement also has much to do with rising condemnation of racial injustice in the criminal justice system. See Jessica Johnson, Removal 2017] FREEDOM OF SPEECH AND THE CRIMINAL LAW 1535 “overcriminalization” have come to weigh on the decision-making calculus of the Supreme Court.2 These facts matter because the Court’s First Amendment decisions invalidating penal statutes have a decriminalizing impact that is especially powerful in light of the locked-in nature of constitutional rulings.3 Against this backdrop, I explore in this Article where the Court’s crime- related free speech doctrine has been in the past, where it is now, and where it might go in the future. I posit that various doctrines, framed over many decades, have positioned the Court to develop free speech principles going forward in an energetic way. Because this Article explores how the Court might build on of Confederate Flag Doesn’t Address Institutionalized Racism, ATHENS BANNER-HERALD (July 18, 2015, 11:14 PM), http://onlineathens.com/opinion/2015-07-18/johnson-removal- confederate-flag-doesnt-address-institutionalized-racism [https://perma.cc/78TM-Z3PQ] (reporting that “African Americans in prison or jail, or on probation or parole, outnumber blacks who were slaves in 1850”). And recent commentary even suggests that overcriminalization may foster lawbreaking, rather than deter it. See generally Todd Haugh, Overcriminalization’s New Harm Paradigm, 68 VAND. L. REV. 1191 (2015). 2 The point is illustrated by Yates v. United States, 135 S. Ct. 1074 (2015). In that case, five Justices bent over backwards to read a federal criminal law narrowly, finding that the term “tangible object” did not include a fish. See id. at 1081. Justice Kagan, joined by three other dissenters, concluded that no sound canon of statutory construction could support this text-defeating result. See id. at 1091 (Kagan, J., dissenting). Thus, according to Justice Kagan, the result reached by the majority could be explained only by the “the real issue” presented in the case—namely, “overcriminalization and excessive punishment in the U.S. Code.” Id. at 1100. The challenged law, she noted, was “too broad and undifferentiated,” and “unfortunately not an outlier, but an emblem of a deeper pathology.” Id. at 1101. Put simply, the dissenters saw the majority as torturing the statutory language because it was so concerned about the far-reaching “real” problem of “overcriminalization.” No less important for present purposes, the dissenting Justices themselves fully agreed with the proposition that a “pathology” of “overcriminalization” exists in federal law. See id. This view seems likely to cause the Justices to look for reasonable ways to rein in criminal laws in the future. See Haugh, supra note 1, at 1195 (noting that at oral argument in Yates “[a]t least six Justices asked questions about overcriminalization’s impact on Yates’s arrest and conviction”). 3 To be sure, the term “decriminalization” has no single definition, and analysts use it in different ways. For example, the