Freedom of Speech and the Criminal Law

By Coenen, Dan T. | Boston University Law Review, July 1, 2017 | Go to article overview

Freedom of Speech and the Criminal Law


Coenen, Dan T., Boston University Law Review


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 "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 crimerelated 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 already-existing First Amendment law, it offers a descriptive treatment of that law, albeit one that focuses largely on subtle and little-noticed doctrinal details. This descriptive work sets the stage for the suggestive components of this Article, which highlight particular ways in which the Court might build on current doctrine to rein in the use of criminal law to punish speech. In short, this Article shows that many features of the contemporary First Amendment landscape-with regard to police-challenging speech, hate speech, the "tortification" of speech law, the infliction of emotional harms, antidiscrimination law, content discrimination, and so on-have created an environment that is favorable to the Court's crafting of significant new limits on the government's power to criminalize expression.4

How has the Court put itself in this position? It has (albeit without quite saying so) developed three distinct methodologies for safeguarding speech from criminal prohibition. The most basic strategy involves judicial blocking-that is, establishing constitutional rules that prohibit outright certain types of speech restrictions without regard to whether they impose criminal or civil sanctions. The second strategy involves judicial channeling-that is, formulating constitutional rules that tolerate government restrictions on certain forms of expression if, but only if, those restrictions make use of civil law, rather than criminal law, controls. The third strategy involves judicial narrowing-that is, invoking free speech values in interpreting criminal statutes so as to give those statutes a restricted reach, thus inhibiting prosecutions.

In developing these ideas, I consider many fields of First Amendment doctrine, ranging from fighting words to hostile audience speech to incitement to obscenity to defamation to content-discrimination law.5 It follows that my coverage of free speech doctrine is broad and detailed, and that is by design. It is broad and detailed because I mean to suggest that the multifaceted and wideranging evolution of First Amendment law in a crime-limiting direction has created conditions in which lawyers may find the Court hospitable to freespeech- based arguments that not long ago might have been a bridge too far.

The rise of the decriminalization movement also may prove helpful to advocates of doctrine-pushing, speech-safeguarding positions. To be sure, the connection between social movements and the Court's work is complex. But the key point for present purposes has been aptly made by Robert Post and Reva Siegel: "Throughout American history, in contexts both liberal and conservative, the Court has consistently interpreted the Constitution to reflect fundamental contemporary values. . . . Seen from this angle, the Constitution by which we are governed is plainly not outside of politics. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Freedom of Speech and the Criminal Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.