I have been meaning to post this for a couple of weeks now. Eugene Volokh of UCLA recently posted at VC about his new paper concerning the “speech integral to criminal conduct” exception to the First Amendment, forthcoming in the Cornell Law Review. As is reflected in his post, only an early draft is available, so it will likely be refined in the coming months. But I view this as an important work in the area of Free Speech law.
It is particularly relevant to my work on treason and material support for terrorism, which in part asks what types of conduct could subject one to those criminal prohibitions – what is aid and comfort, and is it co-extensive with the statutory definition of material support? Those kinds of prosecutions have raised, and will likely continue to raise, questions about whether the conduct at issue reaches the intersection of the First Amendment and anti-terrorism policy. But as someone who desires robust anti-terrorism enforcement mechanisms, I view the “speech integral to criminal conduct” exception as especially valuable where those mechanisms target conspiratorial and complicit conduct. I look forward to reading the final product, as I am confident I will rely on it heavily in future projects of my own. And it’s not just for academics: anyone interested in the intersection of criminal justice policy and free speech should find it valuable.