Volokh, Eugene, "Crime-Facilitating Speech" . Stanford Law Review, Vol. 57, February 2005 Available at SSRN:
This article begins by drawing the link between the many different examples of crime-facilitating speech - a link that's important to recognize, since it means that the decision in any of those cases may affect the decisions in others. It then explains why restrictions on crime-facilitating speech can't be easily justified under existing First Amendment doctrine, and goes on to discuss the various distinctions that might form the building blocks of a possible new First Amendment exception. One seemingly appealing distinction - between speech intended to facilitate crime, and speech that is merely said with knowledge that some readers will use it for criminal purposes - turns out to be less helpful than might at first appear. Many other possible distinctions end up being likewise unhelpful, though a few are promising.
The article ultimately suggests that crime-facilitating speech ought to be constitutionally protected unless (1) it's said to a person or a small group of people when the speaker knows the listeners are likely to use the information for criminal purposes, (2) it's within one of the few classes of speech that has almost no noncriminal value, or (3) it can pose truly extraordinary harm (on the order of a nuclear attack or a plague) even when it's also valuable for lawful purpose; but I hope its analysis will be helpful even to those who would reach a different conclusion.
Finally, the article notes that, while crime-facilitating speech cases arise in all sorts of media, and should be treated the same regardless of the medium, the existence of the Internet does make a difference here. Most importantly, by making it easy for people to put up mirror sites of banned material as a protest against such bans, the Internet makes restrictions on crime-facilitating speech less effective, both practically and (if they're cast in terms of purpose rather than mere knowledge) legally.
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