FREEDOM OF SPEECH AND CRIMINAL SOLICITATIO.
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| Title: | FREEDOM OF SPEECH AND CRIMINAL SOLICITATIO. |
|---|---|
| Authors: | HAJDIN, NIKOLA R. |
| Source: | Journal of Criminal Law & Criminology. Summer2026, Vol. 116 Issue 3, p659-720. 62p. |
| Subjects: | Criminal solicitation (Law), Freedom of speech, Legal doctrines, Actions & defenses (Law), United States. Supreme Court, United States. Constitution. 1st Amendment, Brandenburg v. Ohio |
| Geographic Terms: | United States |
| Abstract: | Although criminal solicitation is recognized as one of the "historic and traditional categories" of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind "has no social value," it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm requirement satisfy First Amendment standards? Or, to put the same question differently, what is the constitutional difference between criminal solicitation and incitement? This Article presents the first comprehensive study of the relationship between freedom of speech and criminal solicitation. It tries to make sense of the new legal framework governing speech that encourages unlawful conduct and grapples with its conceptual and practical implications. It argues that, though the Court in Hansen did not purport to overrule Brandenburg, the decision introduced doctrinal uncertainties that risk weakening Brandenburg’s legacy. To avoid unnecessarily suppressing free speech, courts need a more worked-out theory of criminal solicitation—one that draws more precise boundaries with other doctrines regulating speech that encourages unlawful conduct. This Article aims to provide that theory. After excavating the potentially far-reaching and pernicious material consequences of applying the new solicitation test to regulate speech, this Article advances a normative claim: Only advocacy of unlawful conduct that has no recognized constitutional value should be governed by the Hansen framework. On this view, solicitation is best understood as the direct, intentional encouragement of a specific unlawful act that is likely to cause harm. A review of the Supreme Court cases from the twentieth century shows that other forms of advocacy—those with more than minimal constitutional value—were governed by the Brandenburg incitement test. That should remain the standard. [ABSTRACT FROM AUTHOR] |
| Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.) | |
| Database: | Psychology and Behavioral Sciences Collection |
| FullText | Links: – Type: pdflink Text: Availability: 0 |
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| Header | DbId: pbh DbLabel: Psychology and Behavioral Sciences Collection An: 195105488 AccessLevel: 6 PubType: Academic Journal PubTypeId: academicJournal PreciseRelevancyScore: 0 |
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| Items | – Name: Title Label: Title Group: Ti Data: FREEDOM OF SPEECH AND CRIMINAL SOLICITATIO. – Name: Author Label: Authors Group: Au Data: <searchLink fieldCode="AR" term="%22HAJDIN%2C+NIKOLA+R%2E%22">HAJDIN, NIKOLA R.</searchLink> – Name: TitleSource Label: Source Group: Src Data: <searchLink fieldCode="JN" term="%22Journal+of+Criminal+Law+%26+Criminology%22">Journal of Criminal Law & Criminology</searchLink>. Summer2026, Vol. 116 Issue 3, p659-720. 62p. – Name: Subject Label: Subjects Group: Su Data: <searchLink fieldCode="DE" term="%22Criminal+solicitation+%28Law%29%22">Criminal solicitation (Law)</searchLink><br /><searchLink fieldCode="DE" term="%22Freedom+of+speech%22">Freedom of speech</searchLink><br /><searchLink fieldCode="DE" term="%22Legal+doctrines%22">Legal doctrines</searchLink><br /><searchLink fieldCode="DE" term="%22Actions+%26+defenses+%28Law%29%22">Actions & defenses (Law)</searchLink><br /><searchLink fieldCode="DE" term="%22United+States%2E+Supreme+Court%22">United States. Supreme Court</searchLink><br /><searchLink fieldCode="DE" term="%22United+States%2E+Constitution%2E+1st+Amendment%22">United States. Constitution. 1st Amendment</searchLink><br /><searchLink fieldCode="DE" term="%22Brandenburg+v%2E+Ohio%22">Brandenburg v. Ohio</searchLink> – Name: SubjectGeographic Label: Geographic Terms Group: Su Data: <searchLink fieldCode="DE" term="%22United+States%22">United States</searchLink> – Name: Abstract Label: Abstract Group: Ab Data: Although criminal solicitation is recognized as one of the "historic and traditional categories" of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind "has no social value," it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm requirement satisfy First Amendment standards? Or, to put the same question differently, what is the constitutional difference between criminal solicitation and incitement? This Article presents the first comprehensive study of the relationship between freedom of speech and criminal solicitation. It tries to make sense of the new legal framework governing speech that encourages unlawful conduct and grapples with its conceptual and practical implications. It argues that, though the Court in Hansen did not purport to overrule Brandenburg, the decision introduced doctrinal uncertainties that risk weakening Brandenburg’s legacy. To avoid unnecessarily suppressing free speech, courts need a more worked-out theory of criminal solicitation—one that draws more precise boundaries with other doctrines regulating speech that encourages unlawful conduct. This Article aims to provide that theory. After excavating the potentially far-reaching and pernicious material consequences of applying the new solicitation test to regulate speech, this Article advances a normative claim: Only advocacy of unlawful conduct that has no recognized constitutional value should be governed by the Hansen framework. On this view, solicitation is best understood as the direct, intentional encouragement of a specific unlawful act that is likely to cause harm. A review of the Supreme Court cases from the twentieth century shows that other forms of advocacy—those with more than minimal constitutional value—were governed by the Brandenburg incitement test. That should remain the standard. [ABSTRACT FROM AUTHOR] – Name: AbstractSuppliedCopyright Label: Group: Ab Data: <i>Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract.</i> (Copyright applies to all Abstracts.) |
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| RecordInfo | BibRecord: BibEntity: Languages: – Code: eng Text: English PhysicalDescription: Pagination: PageCount: 62 StartPage: 659 Subjects: – SubjectFull: Criminal solicitation (Law) Type: general – SubjectFull: Freedom of speech Type: general – SubjectFull: Legal doctrines Type: general – SubjectFull: Actions & defenses (Law) Type: general – SubjectFull: United States. Supreme Court Type: general – SubjectFull: United States. Constitution. 1st Amendment Type: general – SubjectFull: Brandenburg v. Ohio Type: general – SubjectFull: United States Type: general Titles: – TitleFull: FREEDOM OF SPEECH AND CRIMINAL SOLICITATIO. Type: main BibRelationships: HasContributorRelationships: – PersonEntity: Name: NameFull: HAJDIN, NIKOLA R. IsPartOfRelationships: – BibEntity: Dates: – D: 01 M: 07 Text: Summer2026 Type: published Y: 2026 Identifiers: – Type: issn-print Value: 00914169 Numbering: – Type: volume Value: 116 – Type: issue Value: 3 Titles: – TitleFull: Journal of Criminal Law & Criminology Type: main |
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