This Article will explore the possibility of shifting or sharing the liability
stemming from criminal activities to those who provide detailed directions on
how to commit those acts, when the publication in question has no other
redeeming value. This Article concludes that in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others.
Part I of this Article reviews the First Amendment and discusses the Brandenburg test and its potential application to situations involving speech
advocating socially harmful activity. Part II argues that this approach is poorly
suited for dealing with the problems inherent in such harm-promoting speech.
By accommodating only considerations that arise from the imminence of the
harm, and not the nature of the speech itself, the courts have not permitted
individuals to recover in tort for harm proximately caused by such speech and intended by the speaker to cause such hann. Part III suggests that the
recognition of this new category of speech would pennit courts to better address the conflict between society's need to protect its citizens from violence and the First Amendment value of free expression and democratic deliberation.
Malloy, S. Elizabeth, "Taming Terrorists but Not "Natural Born Killers"" (2000). Faculty Articles and Other Publications. 39.