“People have generally overstated the impact of the Patriot Act,” Prof. Eugene Volokh just told us in his talk as part of the Berkman Center speaker series.  Though provocative, his views on the Patriot Act are not at the core of what he is saying today.  Prof. Volokh, who teaches law at UCLA and a visiting professor at Harvard Law School this semester, is telling us about his new paper on Crime-Facilitating Speech.  He’s gone old-school, using white boards instead of .ppt; no notes; just fast, near-seamless argument (his students better not blink).  His definition of CFS: “Speech or expressive conduct that, either intentionally or not, communicates information that makes easier either committing a crime, a tort, an act of war, suicide, or escaping punishment.”  The Supreme Court has not taken up this problem, other than at the margins, over the past twenty years, despite taking up flag-burning five times, Volokh argues.

Some of the axes along which to think about possible legal restraints on CFS:

* Did the speaker have knowledge that the speech will have a crime-facilitating effect?  (Unfulfilling as a sole metric, Volokh says).

* Did the speaker have intent for the speech to have a crime-facilitating effect?  (Ditto, says Volokh, as intent doesn’t get you where you want to be.  If you were to use the Intent rationale, then, in the Austin bomb-making case, do we want a legal regime in which Austin is punished but the person who mirrors that site is not punished?  You’re then not focused, Volokh says, on whether the speech restriction is effective.)

* What are the possible legal (and perhaps desirable/valuable) uses to which speech might be put in related manner?  Having some idea of these positive uses helps to point out speech that we want to protect.

The bottom line is that there are two categories of presumptively unprotected speech, in Volokh’s view: if the speech could cause a potentially extraordinary harm (the “Progressive H-Bomb” example) or if the speech is valueless or nearly valueless to society (his definition is more nuanced than this one; read the forthcoming paper to get the exact language).  The potential extraordinary harm cases are hard to parse from other cases, Volokh notes, but making a weapon of mass destruction would fit within that category.  So, for instance, speech that he thinks ought not to enjoy Constitutional protections: burglar advice, lookout, and publishing social security numbers of others on the Net, say, none of which do much other than to facilitate crime.   

Update: Wendy Koslow has much more extensive notes here on the Berkman Center weblog.