By King, Martin J.
The FBI Law Enforcement Bulletin , Vol. 77, No. 4
"It remains fundamental that while the state may not criminalize the expression of views--even including the view that violent overthrow of the government is desirable--it may nonetheless outlaw encouragement, inducement, or conspiracy to take violent action." (1)
The First Amendment provides that Congress shall make no law abridging the freedom of speech, press, or assembly. (2) However, these "freedoms are themselves dependent upon the power of a constitutional government to survive," and if the government is to survive, "it must have the power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts." (3) The law recognizes that certain public dangers must be curtailed before they are realized or even imminent. Accordingly, early intervention and disruption of potential criminal activity at the stage of planning, organizing, and preparing are central components of law enforcement strategies designed to protect the public from harm. (4) This article examines the extent to which the First Amendment permits preventative prosecution based on speech intended to persuade or induce others to engage in unlawful conduct.
Preparation to commit a criminal act can itself be a criminal violation under conspiracy, attempt, or other provisions of federal criminal law defining preparatory crimes. Among these, Title 18, U.S. Code, Section 373 comes closest to a general prohibition of incitement by making it a crime to "solicit," "command," "induce," or "otherwise endeavor to persuade" another person to commit a crime of violence. (5) Crimes that induce the commission of criminal activity may implicate free speech principles because they characteristically are committed by speech advocating, advising, or teaching, albeit with the intent of causing a specific criminal objective. (6) Although courts vigilantly will ensure that prosecutions are not based improperly on the mere expression of unpopular ideas, if the evidence shows that speech crossed the line into criminal solicitation, procurement of criminal activity, or conspiracy to violate the laws, then prosecution is permissible. (7)
Preventative Prosecution: The Concept of Inchoate Crimes
The three main forms of inchoate crimes are attempt, solicitation, and conspiracy. (8) Inchoate offenses allow law enforcement officials to prevent the consummation of substantive criminal offenses by permitting anticipatory intervention once an individual's actions sufficiently have manifested intent. (9) Like a completed offense, an inchoate offense requires that a defendant engage in prohibited conduct (actus reus)--which can be limited to certain forms of speech--coupled with the requisite mental state (mens rea). Unlike the actus reus in a completed offense, however, the proscribed conduct in an inchoate offense is not prohibited because of its harmful effect but because it sufficiently demonstrates a purpose to act in furtherance of a criminal intent. (10) The mens rea for inchoate crimes, therefore, is the specific intent to commit a particular completed offense, or target or object of crime.
Inchoate crimes focus on the mental state of the actor and render the prohibited conduct ancillary in the sense that it only serves to demonstrate the likelihood that the actor would have done everything necessary to realize the criminal intent. (11) Nevertheless, it must be emphasized that the attempt, solicitation, or act in furtherance of a conspiracy never is criminal in the abstract. Rather, criminality arises only when the inchoate conduct has the violation of some other law as its specifically intended objective. In this way, prosecution of inchoate crimes protects the public from harm by preventing the consummation of substantive offenses when an individual's actions have demonstrated a serious intent to cause a criminal act to occur. (12)
First Amendment Principles
The First Amendment's guarantee of freedom of expression is sweeping but not absolute. …