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.
Property as Entrance
One of the central values of private ownership in liberal property thought is its freedom-guaranteeing function. The precise mechanism by which private property rights accomplish this guarantee, however, is frequently left unexplored. When theorists discuss the issue, they often identify property’s liberty-securing quality with the power that property confers upon its owner to exit from society into the protective cocoon of his stuff. In its most ambitious forms, this mechanism of “property as exit” draws strength from an implicit assumption that people are the sorts of beings that can withdraw from social relations into the isolation of their property. But there are reasons to think that withdrawal would be very costly for most people. As a consequence, the power of property to facilitate exit may be substantially weaker than is often assumed. Moreover, scholars’ affinity for property’s isolating function has obscured the degree to which property facilitates “entrance” by tying individuals together into social groups.