When Is Speech That Causes Unlawful Conduct Protected by Freedom of Speech? The Case of the First Amendment?

Abstract

This chapter investigates the question of speech causing unlawful conduct. Should speech that causes others to violate the law be protected by the freedom of speech? If those who violate the law can be punished, why not also punish those who cause them to violate the law? For more than two centuries, this question has played a central role in the evolution of First Amendment jurisprudence in the United States. Because the issue has arisen most often in the United States in time of war, the chapter reviews the American experience with this question during the ‘Half War’ with France in 1798, the Civil War, World War I, the Cold War, and over the course of the last half-century. It then offers some concluding observations.