Conspiracy Law and Free Speech

Steven R. Morrison, University of North Dakota School of Law, has published Conspiracy Law’s Threat to Free Speech. Here is the abstract.

In this article, I define the relationship between the systems of criminal conspiracy law and speech rights. This relationship is characterized primarily by two conflicting sets of interests — public safety and freedom to speak — and the fact that conspiracy law’s exigencies virtually always prevail. This means that the law largely fails to acknowledge the need to balance these two sets of interests against each other.

I attempt to engage a positivist approach to my topic by simply describing this intertwinement. This positivist approach leads ultimately to normative questions: what types of speech ought to be admissible to prove agreements and overt acts, and what types of speech should be inadmissible, protected by the First Amendment? should the admissibility of various types of speech remain a static absolute, or should it shift as a function of the remaining evidentiary landscape? should even core First Amendment speech be admissible if closely coupled with some other type of evidence, or should this speech be admissible on its own, at least for some purposes? how do we answer these questions when it comes to potential evidence that is a speech/conduct hybrid?

In this article, I refrain from fully addressing these normative questions. Rather, I present a functionalist approach that acknowledges that both conspiracy law and speech law support important social goals. I then seek to provide a theoretical roadmap toward Pareto improvement. At this point, normativity sets in, as I focus on increasing speech rights without undermining public safety.

To do so, I discuss the history of the intertwinement of conspiracy law and speech rights, beginning in 1867-69. I then argue that we are today living in the third First Amendment crisis. When it was once anarchists and communists being targeted, it is now Muslims. I illustrate how Muslims are being targeted for their unpopular speech through the medium of conspiracy law. This process is common to all abusive conspiracy charges since the early twentieth century, and points the way to Pareto improvement.

Download the paper from SSRN at the link.