Sense and Sensitivity in Criminalizing Speech

Josh Blackman, who has been on the Supreme Court’s abortion protest buffer zone speech restriction case, McCullen v. Coakley, like a fly on shit lawprof, notes some very interesting language in Chief Justice Roberts’ opinion.

On a somewhat related note, another key limitation recognized in McCullen on crimes that regulate speech, is a requirement of intent. It’s not enough that speech may have an incidental effect that harms another. Rather, the speaker must have the intent to “intimidate” or “harass” someone else.

The second supposed defect in the alternatives we have identified is that laws like subsection (e) of the Act and the federal FACE Act require a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove. As Captain Evans predicted in his legislative testimony, fixed buffer zones would “make our job so much easier.” Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.

The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demand­ing a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

Given the extensive discussions here, dealing with laws seeking to criminalize bullying, cyber-harassment and revenge porn, the Court’s expressed condemnation of laws that are overbroad for “mere convenience” is hugely significant.

One of the foremost, if usually tacit because it’s not a positive, arguments by advocates for criminalizing speech they find offensive is that they have no choice but to sweep in protected speech if they’re going to eradicate every last bit of the speech they hate.  It’s not that they want to be overbroad, but that they can figure out no better way to shut down speech. That it will criminalize protected speech, and provide the opportunity for prosecution of innocents, is just an unfortunate collateral impact.

This language in McCullen suggests that criminal laws, meant for well-intended purposes but inadequate to limit its reach to only those whose conduct falls fully within the ambit of the crime, won’t pass muster.  Too many of these criminalization efforts fail to require the requisite mens rea needed to censor speech:

. . . a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove.

Notably, the words “annoy and alarm” are nowhere to be found in McCullen.  Indeed, much speech has its purpose to annoy and alarm, and it’s a purpose that needs to remain protected.  Speech designed to piss off politicians and advocates because we disagree with them and think they’re purposed to be wrong and dangerous is worthwhile speech.  Yes, its purpose is to annoy and alarm.  That’s the point.

But the notion of framing laws based on “mere convenience” is one that needs to be given greater thought.  It’s hard to write a good law, one that doesn’t impinge on constitutional rights, that fully defines its purpose and limits, and that achieves its purpose by getting the bad guy without collateral damage of being susceptible to getting the not so bad guy, or even the innocent guy.  When advocates push for new crimes, they make grand appeals to emotion, raising the specter of the terrible wrongs and the harms they need to prevent.  Yes, yes, stop the evil, its supporters cry.

What isn’t adequately considered, and is never mentioned unless they’re forced to, are the unintended consequences of convenience.  The intense light directed to the bad dude blinds otherwise well-intended people from seeing the harm to others.

This has been particularly problematic with the revenge porn laws, where its supporters slough off the problems with facile, if legally inadequate, rationalizations, while persisting their drum beating about how horrible it is, how damaging it is, how it must be stopped at all costs.  It can be horrible. It can be damaging. But that doesn’t mean law written to conveniently ignore their errors, excesses and omissions because it’s just too hard to write a good law gets a free pass.

Sacrificing speech for efficiency may be acceptable to advocates, but it appears from McCullen that it won’t fly with the Supreme Court.  And that’s how it should be.

4 comments on “Sense and Sensitivity in Criminalizing Speech

  1. John Barleycorn

    Abortion protest shenanigans leading to a long over due about-face order. Who would-a-thunk-it eh?

    Kewl! Here’s hoping the Me Generation knows what to do with an advertised change up floating towards the plate.

    Them Supremes can be such sneaky devils every now and then.

  2. Richard G. Kopf


    An ordinance, with criminal penalties, allegedly designed to shield little kids from graphic signs of aborted fetuses as the children entered a church by banning any and all use of signs on sidewalks adjacent to the church during a session of the church, caused me to think through your point (“Sacrificing speech for efficiency may be acceptable to advocates, but it appears . . . that it won’t fly with the Supreme Court”) and ultimately adopt it. See Olmer v. City of Lincoln, 23 F.Supp.2d 1091 (D. Neb. 1998), aff’d 192 F.3d 1176 (8th Cir. 1999). I must say, however, that I struggled with a certain “cognitive dissonance” as I thought about the little kids and the impact my decision might have upon them. All the best.


    1. SHG Post author


      My sensibilities are offended fairly regularly these days. I find TV needlessly vulgar and wish everybody would tone it down. We’re stuck with a dilemma, personal offense to the most delicate sensibilities around (which are often mine) or free speech. I bite my tongue, because given the options available, free speech must prevail.

      That said, I wish people would be a little less coarse and shocking. Actually, a lot less.

      1. John Barleycorn

        What year is it?

        A judge and CDL (and mind you not just any judge or CDL) who both probably got to second base for the first time under the bleachers, worrying about the vulgar world their grandchildren and great grandchildren may inherit? You do know you can go to jail in 2014 for going to second base with your girlfriend under the bleachers these days don’t you?

        Sweet and endearing enough to almost make me want to spend the evening watching some old jingoistic Second World War news reels and then some classic 1950’s automobile and appliance commercials.

        I hope neither of you loose any sleep tonight. Heck, relax and have a drink even. With any luck those precious little ones will not be jailed due to any of the prevailing sensitivity perceptions of their day if ever they choose to express themselves in the street.

        And don’t forget to be good grandpas this year and get them little ones a bicycle helmet that they would be pleased to wear naked to a riot for their next birthday present.

        You two will be shocked just shocked I tell you…to see what tattoos they may be sporting when you see them on the news expressing themselves.

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