Last year, a man named Tarek Mehanna was convicted of a series of charges related to having allegedly provided material support for terrorism. A few weeks ago, Mehanna was sentenced to a very long prison term for his crimes. In the wake of the sentencing, an expert witness from the trial, Yale Professor Andrew F. March, wrote a column in The New York Times arguing that Mr. Mehanna had been charged and found guilty in connection with what were, in essence, thought crimes.
According to Professor March, much of what Mehanna was accused of doing was completely innocent but came to be classified as criminal only because it advocated ideas that supported al Qaeda and reflected Mehanna’s feelings of sympathy for some of al Qaeda’s actions. March’s argument, in short, was that some of the charges on which Mehanna was convicted represented violations of his First Amendment rights to freedom of thought and expression.
I am not sufficiently familiar with the facts of Tarek Mehanna’s case to offer a well-informed opinion about the First Amendment claims; interested readers may want to click on the link above to read March’s argument. Regardless of how compelling that argument might be for Mehanna, though, other commentators regularly raise less meritorious First Amendment arguments condemning instances of criminal prosecution or civil litigation as impermissibly penalizing people’s thoughts and statements, rather than their deeds.
In this column, I will offer an account of why people both outside and within legal circles have found—and will likely continue to find—an uneasy relationship between criminal and civil litigation, on one hand, and guarantees of free speech and thought, on the other.
Freedom of Speech and Thought
Under the First Amendment, as also incorporated against the States through the Fourteenth Amendment, no government within this country may abridge the freedom of speech, among other rights. As a necessary condition for the exercise of this freedom, the First Amendment is also understood to protect the individual’s freedom of thought.
But what do such freedoms entail? They mean, first, that if you ride the bus on your way home from work and think about how much you hope that your cruel and abusive supervisor at work comes down with a deadly disease, no one can punish you for entertaining that thought. Indeed, you can summon the thought to mind several times every day, if you wish, and the government may not penalize you for it.
Perhaps that freedom does not seem like much to you, because unless you tell someone your thoughts, no one will ever know about them, or be in a position to punish them, anyway. Having this freedom, however, means that even if someone finds out what you were thinking—because you tell other people or write about it in a diary—police officers still cannot arrest you for those thoughts.
The First Amendment means, as well, that if you say something offensive at an otherwise legal time and place, and in an otherwise legal manner, you may not be punished for the substance of what you say. For instance, you may go to a politician’s speech and stand in line waiting to state your views during the question-and-answer period. And, when your turn came, you may say to the politician that you dislike her, or perhaps even hate her, because you believe that women with young children have a moral obligation to stay home and care for their children, and should not be running for office.
If you state these opinions, no government official can either arrest you or hold you civilly liable for doing so, regardless of how unwelcome and offensive the statement might be to many people and to the values that animate our law. Put another way, you are under no obligation to think or to express only “politically correct” views that conform to a prescribed orthodoxy.
Despite the Broad Rights That the First Amendment Grants, There Are Permissible Limits on Free Speech
Notwithstanding your freedom of speech and thought under the First Amendment, there are limits. As Justice Oliver Wendell Holmes famously said in Schenck v. United States, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” In this example, your right to free speech is limited when it runs up against compelling competing values, including the immediate safety of those around you.
You also lack the right to say things that will foreseeably incite imminent violence. Inciting a mob to go out and hurt others is therefore subject to legal prohibition and punishment, even when the speaker himself perpetrates no direct violence.
There are other categorical limits on free speech that the Supreme Court has recognized as legitimate and lawful. Examples include each of the following prohibitions: the possession of child pornography; the possession of obscene materials (outside of one’s home); and the use of “fighting words” (that is, words which by their very utterance inflict injury and provoke an immediate breach of the peace).
We understand, then, that speech can in some circumstances inflict immediate injury, and First Amendment doctrine permits the law to respond, when necessary, to the risk of such injury.
There is another, less obvious limit on free speech that can sometimes prove as important as the explicitly recognized limits. This limit lies in the fact that what people say can provide evidence of what they have done and what they will later do, and the law may utilize that evidence to help establish that the speaker is guilty of having committed a crime of which speech may not itself be an element.
Return, for example, to the case of the bus rider—you, in the hypothetical example above—who thinks every day about how much he hates his supervisor and wishes that she would contract a deadly disease. He has every right to entertain these thoughts as frequently as he likes, and he may also tell people about having had those thoughts. If his supervisor turns up dead due to exposure to anthrax, however, his hateful thoughts—as revealed by his words to others—may be introduced in evidence in order to prove that he had something to do with his supervisor’s demise.
Speech, in other words, can provide very useful information when we are trying to determine what happened to give rise to a harmful outcome. Thus, speech is not only permissible but highly desirable evidence, notwithstanding the First Amendment freedom of speech. Yet it is difficult to argue with the proposition that if one’s words (and the thoughts that they convey) may be used in evidence, this possibility can “chill” (that is, inhibit) people’s willingness to speak freely.
When you know that your words can be used in evidence to convict you of a crime, you will probably measure your words quite carefully, even though the words themselves may not be independently punished. Indeed, it is out of a recognition of the in terrorem effect of having one’s words come into evidence that the law provides evidentiary privileges for communications that are deemed very important, such as attorney-client confidential communications, spousal confidences, and the secrets shared by patients with their psychotherapists. Privileges exclude these types of communications from evidence.
Absent a privilege like those listed above, however, the Miranda warning, “Anything you say can be used against you in a court of law” accurately describes virtually everything you choose to communicate in the exercise of your free speech rights. That reality can act as a significant deterrent to free expression.
Can Limits on Free Thought Be Constitutionally Imposed? The Accurate Answer Is a Subtle One
Unlike speech, it might seem to many that our thoughts are absolutely protected under the First Amendment, so long as they are not spoken aloud. This is true, on one level. Your hostile thoughts about your supervisor are not subject to penalties. But at the same time, your thoughts, feelings, and intentions are at the center of what can make a subset of your behavior subject to criminal penalties. They are the essence of culpability.
Consider an action by John Doe that causes the death of James Smith. Is Doe guilty of a crime? The answer depends entirely on what was going on in Doe’s brain at the time that he brought about Smith’s death, and in the time prior to that. Suppose Doe was attempting to save Smith’s life by administering the Heimlich Maneuver in the belief that Smith was choking. If this is true, then Doe’s thoughts and intentions would likely render him innocent of murder.
But now suppose that Doe had been thinking about killing Smith for weeks, and had planned to attend a dinner at which Smith would be present, thus providing Doe with the opportunity to kill Smith. In that event, the facts about Doe’s longstanding internal state of mind would render his actions causing the death of Smith “premeditated.” In addition, if Doe, at the time of his crime, was specifically trying to cause Smith’s death, then this fact, too—also a feature of Doe’s internal state of mind—would help classify his offense as a murder, the most serious type of homicide.
Add now the motivation behind Doe’s actions. Assume that Doe hates Smith because of Smith’s race or religion and that it was this bigoted hatred that led Doe to deliberately kill Smith. This interior mental state of feeling motivated by racial or religious hatred might convert Doe’s murder of Smith into a hate crime, which is potentially subject to penalty enhancements and/or classification as a separate offense beyond the murder itself.
Doe’s premeditation, his motivation, and his intentions are all forms of thought. Yet their presence or absence serves to distinguish between lawful conduct that results in tragedy and the most serious criminal offenses within American law, subject to prolonged prison terms and even the death penalty. There could hardly be a starker illustration of how central thoughts are to criminal responsibility, culpability, and guilt.
So What, Exactly, Is Left of Free Speech and Thought?
Given the role of speech and thought in both evidencing and constituting culpability, is there anything left of free speech and free thought? Yes, there is.
One is free to speak and to contemplate whatever one wishes to say and think, respectively, so long as the speech and thought are not intimately connected with, and inextricable from, destructive action. And even when there is an intimate connection between speech and action, the speaker still may not be penalized for the expressive content or viewpoint that her acts convey.
What does all of this mean? First, a hate crime may be punished as such only if the hateful feeling actually played a role in driving the offender to carry out his offense. If instead, the killer is a racist but killed his victim for reasons having nothing to do with race, the killer may not be punished for a hate crime simply for feeling that hatred.
To be sure, in practice, it may be difficult for the racist murderer to defend himself against a hate crime charge. After all, the hatred provides compelling evidence that he in fact was impelled by racism to commit his crime. But if the jury concludes that his hatred did not in fact cause (or play a role in causing) him to kill his victim, then the First Amendment protects him from being punished for his free-floating hatred.
For similar reasons, in the civil context, an at-will employer may fire her employees for stupid reasons (e.g., she does not share their taste in fiction), but she may not fire them for discriminatory reasons. It is then the employer’s internal motivation, such as racism, that can render her termination decision subject to legal sanctions.
On the other hand, an employer who holds sexist beliefs and also—independently—fires a woman from her job (or fails to give her a deserved promotion), may not be penalized for holding his sexist views, so long as they did not affect his conduct as an employer. His thoughts and feelings are his own, unless and until they drive him to behave in a manner that harms someone else. Once they do drive him to harm another, however, they become an essential component of what makes him guilty of and/or liable for those harms.
When Clear Criminal Conduct Occurs, a First Amendment Right Against Censorship Remains
Even when a person’s thoughts, feelings, or words become inextricably linked to a criminal act, though, there still remains a First Amendment right against censorship. The government may not punish the person because of the content or viewpoint of the message that his or her actions were intended to convey. For this reason, the Supreme Court held in R.A.V. v. City of St. Paul that a white person who burns a cross on an African-American family’s lawn may not be specifically punished for expressing a message of racial hatred and intolerance. It is fine to punish the bigot for arson or for racially motivated violence or intimidation, but the expressive message may not itself be penalized.
There is something unusual in this last protection of free expression. It is not really about protecting the individual’s affirmative freedom, because the actions he undertakes out of hatred may be lawfully prohibited and punished. Instead, the protection lies in barring a particular kind of governmental motivation—the motivation to censor an expressive idea, however repugnant the idea may be. In other words, the protection lies in regulating the government’s own thoughts.
The government may stop an individual from doing things that harm others, even when those actions are plainly expressive. What the government may not do is to take action against an individual out of a disdain for the message that the individual has chosen to express. This is less a right to speak freely than it is a right to be free from governmental censorship, and the First Amendment accomplishes the latter by limiting the sorts of governmental thoughts that may drive the government’s decisions to create and enforce the law. It is thus through the First Amendment’s censorship of the government’s censorship-motivated action that the paradox of free speech and free thought comes full circle.