Friday, November 12, 2010

Amazon, Pedophiles and the First Amendment

Can the Government Proscribe Speech that Incites Criminal Activity?

The answer is maybe. This issue has taken on renewed interest in light of Amazon's decision to offer for sale and then pull-off the market, “The Pedophile’s Guide to Love and Pleasure: a Child-lover’s Code of Conduct.”

Some have suggested that Amazon's decision to pull the book has violated the author's right of free speech as embodied in the First Amendment. A private entity, such as a book seller cannot violate an individuals right to free speech. The First Amendment applies to government intrusion on the rights of individuals, or the press, to speak freely.

Private entities censor content all the time. In fact, Amazon has a list of content restrictions. If a book publisher could not pick and choose based on content, then everyone who has ever submitted a rejected manuscript could argue that her right to free speech was infringed upon.

Now to the issue of the government intervening to legitimately restrict speech for purposes of public safety. In Brandenburg v. Ohio, 395 U.S. 444(1969), the U.S. Supreme Court refused to restrict speech, at a KKK rally, without a showing of "imminent lawless action." It is unlikely that the pedophile guide is inciting imminent lawless action, a guide book by its very title indicates conduct at some future time. The U.S. Supreme Court has said future conduct is not imminent.

However, there is a interesting federal decision out of the Fourth Circuit, Rice v. Paladin Enterprises, that held a book publisher civilly liable for a how-to-book for hit men that was used by a reader to commit three murders.

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