Legal Commentary

Speech That Is Criminally Punishable vs. Speech That Triggers an Investigation

By Eugene Volokh

A reader asks,

[If P]alin?s target poster and gun metaphor rhetoric were directed at white house or president, would that constitute a crime? Seems like folks get visits from the FBI for less...

The answer to the question is ?no,? for reasons I discussed in my earlier post. Nor do I think that the Secret Service would likely visit a leading politician based on something like that.

But the broader point is that we can?t determine what speech is legally punishable based on what we hear about speech that triggers investigation. Speech may well not be illegal and constitutionally unprotected, but still lead to investigation to see if the speaker has committed a crime or is planning to commit a crime. It?s no crime to say ?Joe Schmoe is a scumbag,? but if Joe Schmoe ends up dead, the police might come around to ask you where you were when he was killed. They don?t need proof beyond a reasonable doubt that you committed a crime to ask you questions. They don?t even need probable cause (unless they arrest you) or articulable suspicion (unless they detain you, even briefly, in a context where you are not legally free to leave). In fact, such investigations are often tools to determine whether they have probable cause for an arrest and a search, which in turn can help provide proof beyond a reasonable doubt for a conviction.

Likewise, it?s no crime to say, ?Abortionists are murderers, and, like other murderers, they deserve to be executed?; it?s the expression of a constitutionally protected political opinion. (For more on the boundary between protected speech and threats, see the earlier post and the cases that it cites.) But if an abortion provider was recently shot at not far from where the speaker lives, then the police might well visit the speaker to ask him some questions. And if the police are worried that there might be a conspiracy to kill abortion providers in the future, the police might well ask the speaker to questions about his plans, and see whether he says something that suggests they need to take a closer look.

Now my sense is that the Secret Service is considerably more proactive in investigating possible dangers to the President than is normal for law enforcement in dealing with possible dangers to others. The threshold for when the Secret Service will interview someone to figure out whether he likely poses a danger to the President?s life is thus rather lower than it is for people who might pose a danger to a legislator?s life or to a private citizen?s life. But this does not mean that all or even most of the speech that triggers such investigation is criminally punishable.

Full post as published by The Volokh Conspiracy on January 11, 2011 (boomark / email).