Freedom of Speech and Criminal Solicitation

Although criminal solicitation is recognized as one of the “historic and traditional categories” of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind “has no social value,” it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm requirement satisfy First Amendment standards? Or, to put the same question differently, what is the constitutional difference between criminal solicitation and incitement?

This Article presents the first comprehensive study of the relationship between freedom of speech and criminal solicitation. It tries to make sense of the new legal framework governing speech that encourages unlawful conduct and grapples with its conceptual and practical implications. It argues that, though the Court in Hansen did not purport to overrule Brandenburg, the decision introduced doctrinal uncertainties that risk weakening Brandenburg’s legacy. To avoid unnecessarily suppressing free speech, courts need a more worked-out theory of criminal solicitation—one that draws more precise boundaries with other doctrines regulating speech that encourages unlawful conduct. This Article aims to provide that theory.

After excavating the potentially far-reaching and pernicious material consequences of applying the new solicitation test to regulate speech, this Article advances a normative claim: Only advocacy of unlawful conduct that has no recognized constitutional value should be governed by the Hansen framework. On this view, solicitation is best understood as the direct, intentional encouragement of a specific unlawful act that is likely to cause harm. A review of the Supreme Court cases from the twentieth century shows that other forms of advocacy—those with more than minimal constitutional value—were governed by the Brandenburg incitement test. That should remain the standard.