Friday, January 22, 2021
Judith P. Miller, University of Chicago Law School, has published Defending Speech Crimes on the University of Chicago Legal Forum, 2020. Here is the abstract.
The First Amendment is supposed to provide important protections against criminal prosecutions for speech crimes. In practice, however, those protections are inadequate: in a world of vanishing trials, criminal defendants lack meaningful opportunities to litigate often fact-bound First Amendment questions. Through the lens of prosecutions for false speech, this article proposes refocusing First Amendment protections in criminal cases on criminal procedure rather than substantive questions about what the First Amendment protects. It suggests two procedural reforms—revitalizing the indictment and unanimity requirements—to help make the First Amendment’s ostensible protections more of a reality for criminal defendants.
Download the article from SSRN at the link.