Author Archives: Andrew Moore
Posted by Andrew Moore
In 2010, drunk driving accounted for nearly a third of all traffic related deaths. In an effort to deter drunk driving, police departments around the country started implementing sobriety checkpoints. In 1990, the Supreme Court ruled that these checkpoints were constitutional, contrary to arguments that they violated the Fourth Amendment, which bans unreasonable search and seizure. Recently, people have been posting the location of these sobriety checkpoints with increasing frequency. While this poses a clear threat to public safety, it also forces lawmakers to address the issue of crime-facilitating speech.
Crime-facilitating speech differs from incitement in that facilitating speech assists criminals in either committing a crime or getting away with the as opposed to convincing or encouraging someone to commit a crime. It is important to separate the crime-facilitating speech from crime-advocating speech (incitement) for two reasons. First, incitement has already been ruled on many times by the Supreme Court, most recently in Brandenburg v. Ohio (1969), whereas crime-facilitating speech has not been. Second, and perhaps more importantly, is that crime-facilitating speech may pose more of a threat to public safety than incitement. If a person knows how to commit a crime but does not want to, they must be persuaded to do so by crime-advocating speech and would therefore also be susceptible to counter advocacy encouraging them to not commit the crime. This process can be seen in the case of drunk driving. While it can be assumed most people know how to drive drunk, counter advocacy groups have persuaded most of us that it is against out best interest to do so. However, crime-facilitating speech does the opposite. It gives people who already want to commit a crime but are either afraid of being caught or don’t know how the knowledge on how to commit the crime or avoid being caught. In the case of drunk driving, this would give a person who would drive drunk if not for the risk of being caught the ability to avoid sobriety checkpoints and could convince them to drive drunk.
Crime-facilitating speech, however, is much too broad a topic to be debated in its entirety here, as it can range from posting DUI checkpoints, to writing a book about how to kill people, to publishing details of explosive compounds in a chemistry textbook. Some speech facilitates crime while also being used primarily for completely legal reasons (e.g. the aforementioned chemistry book that contains information on explosive chemical reactions which could be used to build a bomb) and because of that, it would be irresponsible to simply ban all crime-facilitating speech. While in theory there may be a law that could differentiate between acceptable crime-facilitating speech and speech that is deemed too dangerous while simultaneously restricting unwanted speech legally, I will not attempt to analyze that here. Instead, I will focus on the legality of and how to craft a law that outlaws the publication of sobriety checkpoint locations.
Current Censorship of Sobriety Checkpoints
There is already censorship of these sobriety checkpoints going on in the private sector. Members of Congress have asked companies like Apple, Google, and Research in Motion to ban any app that lists sobriety checkpoint locations from their smartphones and tablets. While Apple and Research in Motion have agreed to do so, up to this point Google has refused. As of now, there is no legislation addressing the publication of sobriety checkpoints, nor has any the Supreme Court ruled on the constitutionality of crime-facilitating speech. Twitter recently announced that it would respect any nation’s wishes in regards to censorship of tweets. Brazil has filed a suit against Twitter and several of its users under this new policy asking that the tweets be removed, that information about the users who tweet checkpoint locations be revealed, and that the users be subjected to fines.
Should Checkpoint Publication Be Censored?
Everyone knows the U.S. has a right to free speech. What is less obvious to most is where the limit of that right falls. When it comes to the publication of sobriety checkpoints, people typically have two reactions. Either they believe it should be censored because their publication leads to more drunk drivers and therefore more alcohol related accidents and deaths, or they the value of free speech trumps the safety interest of keeping drunk drivers off the streets.