There are a variety of expressive forms or subjects that have never been thought to implicate the First Amendment's guarantee of free expression. (1) For example, no serious scholar has suggested that speech involved in the creation or implementation of a scheme to defraud consumers or to engage in an antitrust violation is deserving of even the slightest constitutional protection. (2) The same is true for perjury, blackmail, espionage, and a host of other activities, which seem to involve the use of language and communication. (3) Simply as a matter of common sense, it would seem, both the scholarly and judicial worlds have chosen summarily to exclude these categories of communication from the First Amendment's protective scope. They have, instead, been relegated to the category of "low value speech." (4) It is important, however, to temper these "intuitionist" (5) insights with the humility that should come from the fact that at least two types of expression, which historically resided in the very same constitutional oblivion--defamation and commercial speech--have, in modern times, been accorded substantial constitutional protection. (6) These two First Amendment success stories represent victories for principled analysis over intuition in constitutional law. In light of these important First Amendment transformations, it is worth thinking about whether any other areas of expression that have been tossed on the junk heap of First Amendment doctrine simply as an intuitive matter deserve thoughtful reconsideration through the lens of principled constitutional analysis. (7)
In this article, we attempt to do just that for one of those areas of communication: criminal conspiracy. By ignoring the negative intuitionist response to criminal conspiracy on the part of both courts and scholars and instead reasoning in a principled manner from both core premises of free speech theory and analogous applications of First Amendment doctrine, we seek to establish that at least certain expressive elements of traditional criminal conspiracy are, in fact, deserving of substantial constitutional protection. This does not mean that criminal conspiracies should be rendered constitutionally immune from governmental regulation or punishment. It does mean, however, that government should be required to alter its treatment of criminal conspiracies to accommodate what should be seen as important free speech interests intertwined in the average conspiracy. We believe that in order for criminal conspiracies to lose the First Amendment protection normally afforded to communication, they must involve a distinct, non-expressive, overt act which is intertwined with the communication. Once such an overt act takes place, the communication is appropriately viewed as part and parcel of the act, and therefore no longer appropriately conceptualized as pure expression. (8) However, absent proof of such an overt act, government should be constitutionally precluded from punishing what is nothing more than pure communication between individuals.
The likely reflexive response of many to our suggested approach to conspiracy is that there could not possibly be any First Amendment value in speech designed to plan a criminal act, and even if there were such a value, the obvious societal harm inevitably flowing from such speech categorically outweighs any such benefit. It is certainly possible to set up a constitutional structure that would reach this conclusion. However, it is not the one our society has adopted in shaping First Amendment law. For example, the Supreme Court has extended significant constitutional protection to expression openly advocating criminal acts, (9) and it is widely accepted, both that speakers may defame public figures with full constitutional protection and that self-styled Nazis possess a First Amendment right to march in full regalia down the streets of a town populated by concentration camp survivors. …