Where does free speech end and crime begin? This is an old legal question in American law; it stretches back to the beginnings of the republic, and even earlier. Crown v. John Peter Zenger (1735).

Early on, the federal prosecutions under the Sedition Act and similar state libel prosecutions—such as People v. Croswell, 3 Johns. Cas. 337 (N.Y. 1804), defended by Alexander Hamilton—cited to Lord Coke and spoke "of a libel, as having a tendency to break the peace." In such cases the courts confronted cause and possible effect ("tendency") to evaluate what defenses would be allowed to avoid criminal liability for allegedly libelous speech.

In recent years, however, at least since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Garrison v. Louisiana, 379 U.S. 64 (1964), defamation lawyers have generally focused on First Amendment protections from civil liability. During more than five decades, First Amendment litigation has mostly moved on, freed from its criminal law origins. In the process, civil liability for free speech activities has become detached from the historic criminal law principles that were the subject of debate and litigation in the 1790s and thereafter. This is because, recognizing that the "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need … to survive'" 376 U.S. at 271-272 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)), Sullivan and its progeny developed constitutional rules applying free speech protections.

In his new article "The 'Speech Integral to Criminal Conduct' Exception," 101 Cornell L. Rev. 983 (2016), UCLA Law Professor Eugene Volokh reminds us that, excluding modern defamation law, this "tendency" analysis remains key in evaluating unusual governmental limitations on free speech protections. Indeed, under the Roberts court, a new category of unprotected speech has quietly been added to the historic list of First Amendment "exceptions" recognized in Chaplinsky v. New Hampshire, namely speech integral to criminal or tortious conduct. 315 U.S. 568 (1942).

As Professor Volokh notes, this is a recent development and potentially very troubling. When the Supreme Court decided United States v. Stevens, 559 U.S. 460 (2010), and United States v. Alvarez, 567 U.S. 709 (2012), First Amendment advocates were generally pleased. In both cases, citing the First Amendment, the court struck down the application of a federal criminal law to activities that were plainly speech or speech-related.

Neither case presented great facts. Stevens involved so-called "crush videos," while Alvarez construed the constitutionality of the Stolen Valor Act, a federal law that criminalized false statements about having a military medal, with the justices voting 6-3 to hold the law unconstitutional as applied. In his plurality opinion, Justice Anthony Kennedy ruled that "[t]he Government has not demonstrated that false statements generally should constitute a new category of unprotected speech." But, in both cases, according to Professor Volokh, the court, when listing the usual collection of well-recognized Chaplinsky "categories," added "a long-dormant and little defined First Amendment exception: the exception for 'speech integral to criminal [or tortious] conduct,'" and included a citation to Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), as the leading case supporting that exception. In another decision, Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011)—a "commercial speech" case holding unconstitutional a Vermont law that "restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors"—the court also cited Giboney in listing the categories of speech that were excluded from the First Amendment. [DWT also submitted an amicus brief in Sorrell.]

According to Professor Volokh, Giboney "hadn't been cited by the Court at all from 1991 to 2005," but since 2006 "the Court has cited Giboney six times," and its exception for speech integral to criminal conduct "is now a standard item on lists of First Amendment exceptions." In his view, the reliance on Giboney is a product of the Roberts court. That is, both Chief Justice Roberts and Justice Scalia sought to avoid "categorical balancing" tests and instead embraced a constitutional doctrine supposedly rooted "in history and tradition." With apologies to Van Wyck Brooks (1886-1963, American literary critic, biographer, and historian) it is clear that Giboney was attractive because it offered a usable past to several justices with originalist tendencies.

The purpose of his article, says Professor Volokh, is to examine the roots of Giboney. This examination traces back to the early 20th century, but reminds us that "if this exception is indeed to be well-defined and narrowly limited," we must "explain and cabin its scope." Thus, "the conclusion that some speech is sufficiently related to criminal conduct—and thus is potentially constitutionally unprotected—can only be the start of the analysis." Like libel and obscenity, where modern courts have adopted constitutional tests "to clarify and narrow the historical scope of the exceptions," Professor Volokh suggests that courts applying this test must allow sufficient breathing room for speakers in order to minimize the risk that Giboney will "suppress constitutionally valuable speech."

Giboney is an unusual source for a constitutional test narrowing the scope of First Amendment protections. It was a "coercive solicitation" case (involving a union's illegal secondary boycott), with the constitutional analysis endorsed by two "First Amendment maximalists," including the author of the court's opinion, Justice Hugo Black, who was also a supporter of union rights.

Interestingly, Professor Volokh locates the doctrinal basis for the Giboney test in Justice Black's embrace of the so-called "fighting words" exception to the First Amendment: "The fighting words exception is structurally similar to the solicitation exception. Both involve speech that tends to cause crime. Both, though justified as involving a 'course of conduct,' can actually lead to criminal liability even for standalone statements. In both, the concern is that the speech will cause criminal conduct by someone else."

This is the Croswell debate again, shorn (mostly) from its historic libel roots and renewed after more than two centuries. Indeed, as Professor Volokh reminds us, we are likely to evaluate the constitutionality of future revenge porn statutes using the Giboney test. Professor Volokh analyzes the cases applying the Giboney test, finding that some cases are correct and some (such as the strange "Hit Man" case, see Rice v. Paladin Enterprises, 128 F.3d 233 (4th Cir. 1997)) clearly wrong. In his conclusion, Professor Volokh summarizes various rules that he believes should govern the courts' use of Giboney, and its application in various situations. His discussion is thus a valuable and comprehensive summary of existing case law and a guide to future decision-making that is consistent with basic free speech principles.

What value does this analysis offer for civil practice? Because the nation's criminal codes are littered with criminal provisions governing any human activity, expanding the scope of governmental regulation of speech can present opportunities for imaginative prosecutors, as the Stevens and Alvarez cases show. Indeed, as Judge Sol Wachtler warned us many years ago, criminal law is so malleable that a grand jury would "indict a ham sandwich" [Jan. 31, 1985 interview with The New York Daily News].

As Professor Volokh comments, the Giboney doctrine also extends to speech integral to tort liability. Thus, civil practitioners should take little comfort in the hope that novel criminal or tort risks are far removed from ordinary free speech litigation. Loosening Giboney ties them together. Thus, the court's resurrection of this old case requires us to study and understand how to explain and apply the Giboney doctrine in evaluating First Amendment protections. The alternative, of course, is to ignore a fundamental principle of First Amendment jurisprudence, which should be a bedrock for civil practitioners: that "the power to prohibit or regulate particular conduct does not necessarily include the power to . . . regulate speech." Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 193 (1999).

The bench and bar would do well to read and reflect upon Professor Volokh's informative and insightful article. Much can be gained by doing so, and much lost by not.

This article originally appeared in First Amendment News, Concurring Opinions blog in Oct. 2016 as the first in the "More Speech" series of Occasional Papers circulated by the First Amendment Salon and the Floyd Abrams Institute for Freedom of Expression.

Bruce E. H. Johnson is a partner based in Seattle.