Document Type

Article

Publication Year

2005

Journal Title

University of San Francisco Law Review

Abstract

Real or not, we perceive the convergence of several dangers-the physical threat of terrorism, both foreign and domestic; the economic threat of recession, corporate scandal, and globalization; and the social threat of new technology that connects, informs, exposes, and overwhelms us. At this moment, certain First Amendment protections are ripe for circumscription. The question, then, is whether our constitutional right of free speech is relative and conditional. The populist answer is yes. The legal answer is much more complicated.

To that end, this Article carries three goals. The first is to highlight parallel signals from the three branches of government suggesting that "dangerous" instructional speech will no longer be tolerated or constitutionally protected. The legislative branch has recently criminalized speech that is understood to promote criminal activity by teaching or demonstrating its methods. The executive branch undertook the first prosecution under this recent statute and instituted new investigative guidelines and procedures designed to aid enforcement of these provisions. Finally, the judicial branch recently signaled its willingness to consider exempting instructional speech from full constitutional protection.

Building on this last point, the second goal of this Article is to establish that the Supreme Court may be poised to announce a new theory of lesser constitutional protection for "dangerous" instructional speech. Here, I suggest that the Court will likely explicitly limit the scope of Brandenburg v. Ohio, distinguishing and exempting speech that, through its capacity to perform a teaching function, creates the abstract potential for violence. In its place the Court seems inclined to adopt a derivative of the "public danger" doctrine more akin in application, albeit unintentionally, to a discredited analysis used primarily to sanction political censorship of the Socialist Party in the 1920s and of the Communist Party in the 1950s. Brandenburg's imminence requirement is eliminated as applied to certain types of instructional speech under this approach. The question of public danger, both as a matter of doctrine and proof, will become a function of the speech itself and the context of its distribution. Intent, a question of fact, may be consumed by the scope of the public-danger analysis.

The third and final goal of this Article is to demonstrate that this public-danger derivative will, in application, create a de facto Internet-specific standard, incorporating standards of likelihood and intent that are easily subsumed by the very nature of the network and that will tend to affirm content-based regulation of disfavored online speech that performs a teaching function.

First Page

353

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