Complicit Publication: When Should the Dissemination of Ideas and Data Be Criminalized

Abstract

This article is about using criminal prohibitions to control the dissemination of ideas and information. It begins by considering the history of the criminalization of the content of speech in Anglo-American society. The article points out that English law criminalized the dissemination of certain types of speech in reaction to the proliferation of the printing press. Printing, which gave rise to the widespread dissemination of speech and the anonymization of speech, was perceived as a threat to the social fabric of English society. That society reacted by creating new offenses: blasphemy, seditious libel, obscenity and criminal libel.

The article traces the evolution of these offenses in English and American law and finds that most of them (obscenity being the exception) fell into disuse over the next several centuries. The criminal remedies fell into disuse because printing (and, later, radio and television) became subject to certain pragmatic constraints, empirical filters, which reduced the likelihood that these types of media would be used for disruptive purposes. The article argues that while speech was theoretically free, it was technically constrained so that, for example, hate speech and potentially dangerous information were not disseminated via the mass media.

The article also traces the history of a parallel set of criminal remedies known as the "speech act" doctrine. Under this doctrine, speech is punished when it serves as the actus reus of a criminal offense; conspiracy, for example, is an offense the actus reus of which almost always involves some type of speech, since communication is necessary to consummate the criminal contract.

Finally, the article considers how, if at all, these principles, i.e., the criminalization of the content of certain types of speech and the speech act doctrine, should apply to speech disseminated via cyberspace. It divides speech into three general categories (notional ideas, applied ideas and data) and parses the applicability of both principles to subcategories of each. It argues that, except for certain limited instances in which the speech act doctrine properly applies, criminalization is not an appropriate tactic for dealing with speech which many in society find discomfiting, dangerous or otherwise unacceptable. The article concludes by concluding that cyberspace, unlike prior forms of media, creates the opportunity for speech to be truly free; it argues that we, unlike the English lawmakers who criminalized sedition, blasphemy, libel and obscenity, should not regard the possibility of uncontrolled speech as a phenomenon to be stifled, to be the subject of a reaction predicated on the use of criminal sanctions.

JEL Classification: K3, K1