Wednesday, November 16, 2011
This article sets forth the argument that conspiracy law in the United States may be entering a new stage, thanks to the efforts of government prosecutors in the terrorism context. The new stage is characterized by the criminalization of conspiracies to support an (unpopular) idea.
This new conspiracy paradigm confronts the intertwined relationship between conspiracy law and speech rights. Its foundational argument is that speech rights are limited in the context of a conspiracy trial because speech is used as evidence against a defendant. This is not a bad thing per se. The conflict between conspiracy law’s interests and speech rights is questioned, however, when defendants’ anti-American and pro-“jihad” speech is used when it could indicate support for terrorism, a fundamentalist (but nonviolent) religiosity, or mere protest against the U.S. military’s involvement in the Middle East.
I show that the government’s current targeting of Muslims is a continuation of our historic struggle to secure speech rights in light of criminal charges against other unpopular groups, namely anarchists and communists. I also show how contemporary criminal statutes and the evidentiary rules in conspiracy trials enable the targeting of an unpopular group.
I then offer an approach to solving the problem of abusive conspiracy charges (those charges involving defendants who were not engaged in crime, but were simply exercising their speech rights). This approach rejects the zero sum notion that an increase in speech rights means reduced effectiveness of conspiracy law to secure public safety. Rather, I believe we live in a system of non-zero-sumness, in which we can both maximize speech rights and protect society from truly dangerous conspiracies.
To illustrate my rejection of the zero sum approach, I introduce the concept of “interest brinkmanship.” In the speech-conspiracy context, this means that with every increase in speech rights, application of conspiracy law also increases. The zero sum approach logically would result in vast direct speech protections, but also a universally applied conspiracy law that ultimately restricts speech by proxy. We need to engage a non-zero-sum approach if we are to secure our right to speech and maintain a legitimate conspiracy law system that actually protects society.