Ronald J. Krotoszynski Jr. (University of Alabama — School of Law) has posted Gitlow Revisited: Disentangling Ideas and Crimes Via the Harm Principle in 6 Journal of Free Speech Law 827 (2025), on SSRN. Here is the abstract:
At present, no Supreme Court decision exists that squarely holds, as with cross burnings and other “true threats,” and also with respect to the law of incitement, that speech calling for unlawful activity, or suggesting joint unlawful action, must actually cause a legally cognizable harm in order to be criminalized consistently with the First Amendment. By way of contrast, however, false speech cannot be criminalized absent the government proving a cognizable legal harm that the false speech actually caused or foreseeably could cause. It lies beyond the scope of my immediate project to set the precise constitutional standard that should be a precondition to criminally charging pure speech as a crime. At a minimum, however, the Free Speech Clause should require the government to show that a defendant’s subjective intent was to bring about a crime otherwise within the power of the state to proscribe on facts and circumstances where the speech activity, standing alone, would cause social harm or would present a significant risk of causing it. As it happens, Justice Oliver Wendell Holmes, Jr., in his iconic dissent in Gitlow v. New York, 268 U.S. 652 (1925), fully appreciated the critical need to reconcile the criminal law with a serious commitment to freedom of expression under the First Amendment. In his view, the government may criminalize speech, including speech calling for unlawful action, only if it can show that the speech actually causes or presents a serious risk of causing significant social harm. In the absence of such a showing, the First Amendment should protect speech and speaker alike. Unfortunately, however, the contemporary Supreme Court’s approach to bringing the Free Speech Clause to bear in the general area of criminal law has been opaque and arguably inconsistent. This lack of jurisprudential clarity gives rise to a serious chilling effect: Would-be speakers must choose their words very carefully, particularly if the speaker’s organization supports or previously has engaged in unlawful direct action, even if all that takes place at a particular public rally involves hyperbolic speech about matters of public concern and governance. This Article proposes a different, more holistic approach to bringing the criminal law to bear on speech. Just as the Supreme Court’s effort to reconcile tort law with the imperatives of the Free Speech Clause did not end with New York Times Co. v. Sullivan and the tort of libel, free speech principles and values should inform criminal law enforcement too. A careful review of the relevant cases involving speech-crimes shows that, in all save one case (namely Dennis), the speech activity clearly caused, or had an obvious potential for causing, a serious social harm. The federal courts should apply the harm principle to any and all speech crimes—not just to the crimes of incitement and threats. Moreover, switching the crime charged from incitement to solicitation, for example, should not render the First Amendment wholly irrelevant any more than changing torts from libel to intentional infliction of emotional distress would foreclose a meaningful First Amendment analysis. In Gitlow, Justice Holmes wisely recognized that all ideas are also incitements; indeed, this observation arguably constitutes his most important contribution in Gitlow to theorizing how the freedom of speech and punishment of crime should be reconciled. Because every idea is, potentially, an incitement, giving the government carte blanche to punish incitements would necessarily involve giving it a free hand to extirpate ideas that it dislikes from the marketplace of ideas. Accordingly, in any given criminal prosecution for pure speech, the government should have the burden of showing that speech serving as the basis for a criminal charge (of any type) either caused or was highly likely to cause a serious social harm; if the government cannot meet this burden, then the federal courts should hold the speech protected under the Free Speech Clause of the First Amendment.
Highly recommended!
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