Originally uploaded at SSRN.

Abstract

Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this article claims that the Court has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles. The first involves judicial blocking—that is, declaring some speech controls altogether out of bounds, whether they utilize either criminal or civil sanctions. The second involves judicial channeling—that is, requiring that government regulation of some types of speech must take the form of civil law, and not criminal law, restraints. The third involves judicial narrowing—that is, interpreting criminal statutes to restrict their reach and thus frustrate potential government prosecutions in light of free expression values. This Article identifies concrete ways in which the Court might deploy all three strategies to support the decriminalization of expressive conduct in the future, with regard to such topics as fighting words, hostile audience speech, infliction of emotional distress, mens rea rules, speech law “tortification,” content discrimination, individualized-warning requirements, hybrid-rights analysis, and more.

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