A Test for Criminally Instructional Speech

This Note introduces the category of criminally instructional speech and proposes a test for such speech under the First Amendment. Criminally instructional speech is expression that provides information helpful in the commission of a crime. Some such speech already qualifies as aiding and abetting and is thus punishable under the criminal law. In constructing a test for the whole category of criminally instructional speech, the aiding and abetting paradigm provides a better model than those available in First Amendment law. The current case law, however, tends to ignore the aiding and abetting doctrine in favor of an incitement test. An analysis of this case law exposes the weaknesses of such an approach and the preferability of a test based on aiding and abetting.