Volokh furnishes fans a First Amendment feast
Eugene Volokh has a writeup on Stewart v. McCoy, which may be the most fascinating First Amendment case to hit the courts in a long time. The issue is whether a person who advises gang members on how to organize their enterprise, giving what is essentially a version of business mentoring advice to gangs, may be found guilty of criminal syndicalism. The Ninth Circuit held that the First Amendment protected the speech in question, because there was no incitement to imminent criminal action, and the Supreme Court has now denied certiorari.
Justice Stevens wrote an (apparently concurring) opinion which touched upon the merits of the First Amendment claims, and his comments should be carefully considered in light of current events:
While the requirement that the consequence be "imminent" is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function.
As our cases have long identified, the First Amendment does not prevent restrictions on speech that have "clear support in public danger." Thomas v. Collins, 323 U.S. 516, 530 (1945). Long range planning of criminal enterprises -- which may include oral advice, training exercises, and perhaps the preparation of written materials -- involves speech that should not be glibly characterized as mere "advocacy" and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech. Our denial of certiorari in this case should not be taken as an endorsement of the reasoning of the Court of Appeals.
And that is not all. Another entry, posted by Volokh just a half hour earlier, addresses a case in which a UNLV student who was privately and unobtrusively viewing images from Maxim magazine on a laptop during class may be charged with violation of a university's sexual harrassment policy. The twist: the complaints were apparently made in reaction to his decision to proactively post information about the controversy on the school's web site.
The interface between the First Amendment and sexual harrassment laws is a current topic here in Michigan, in light of the pendency of the Burns v. City of Detroit case, in which the Michigan Supreme Court has directed the Court of Appeals and the parties to address the First Amendment issue. For further information, see this column and this one too, both reports from Brian Dickerson of the Detroit Free Press. Volokh has written on the subject himself. See Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 U.C.L.A. L. Rev. 1791 (1992).
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