PREPARED BY THE UNITED STATES DEPARTMENT OF JUSTICE
AS REQUIRED BY SECTION 709(a) IF THE
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996

SUBMITTED TO:

THE UNITED STATES HOUSE OF REPRESENTATIVES
AND THE UNITED STATES SENATE

APRIL 1997

            INTRODUCTION AND SUMMARY

            BACKGROUND

            I.     THE PUBLIC AVAILABILITY OF INFORMATION ON THE MANUFACTURE
                   OF BOMBS, DESTRUCTIVE DEVICES, AND WEAPONS OF MASS DESTRUCTION

                  A.     Books, Pamphlets and Other Printed Material

                  B.     The Internet

                  C.     Summary

            II.    THE EXTENT TO WHICH PUBLISHED BOMBMAKING INFORMATION HAS
                    FACILITATED THE MANUFACTURE AND USE OF EXPLOSIVES IN ACTS OF
                    TERRORISM AND OTHER CRIMINAL ACTIVITY

            III.   THE LIKELIHOOD THAT PUBLISHED BOMBMAKING INFORMATION WILL
                    CONTINUE TO BE USED TO FACILITATE ACTS OF TERRORISM AND OTHER
                    CRIMINAL ACTIVITY

            IV.   APPLICABILITY OF CURRENT FEDERAL LAW TO THE PUBLICATION AND
                    DISSEMINATION OF BOMBMAKING INFORMATION

                  A.     Conspiracy

                  B.     Solicitation

                  C.     Aiding and Abetting

                           1.    18 U.S.C. § 2

                           2.    AEDPA Section 323

                  D.     18 U.S.C. § 231(a)(1)

            V.    THE NEED FOR ADDITIONAL LAWS RELATING  TO THE DISSEMINATION OF
                    BOMBMAKING INFORMATION

            VI.   CONSTITUTIONALITY OF RESTRICTING OR PENALIZING THE
                    PUBLICATION OR DISSEMINATION OF BOMBMAKING INFORMATION

                  A.     First Amendment Principles

                          1.    Advocacy of Unlawful Action

                          2.    Disclosure or Publication of Lawfully Obtained Information

                          3.    "Speech Acts," such as Aiding and Abetting

                  B.    Application of First Amendment Principles To Dissemination of Bombmaking
                            Information

                          1.    Dissemination with the "Intent" to Facilitate Unlawful Conduct

                          2.    Dissemination with the "Knowledge" that a Particular Recipient of the
                                   Information Intends to Use it in Furtherance of Unlawful Conduct

                  C.     Proposed Modification of the Feinstein Amendment
 
 

    In section 709(a) of the Antiterrorism and Effective Death Penalty Act of 1996 ["the AEDPA"], Pub. L. No. 104-132, 110 Stat. 1214, 1297 (1996), Congress provided that, in consultation with such other officials and individuals as she considers appropriate, the Attorney General shall conduct a study concerning --

                (1) the extent to which there is available to the public material in any medium (including print, electronic, or film)
                     that provides instruction on how to make bombs, destructive devices, or weapons of mass destruction;

                (2) the extent to which information gained from such material has been used in incidents of domestic
                     or international terrorism;

                (3) the likelihood that such information may be used in future incidents of terrorism;

                (4) the application of Federal laws in effect on the date of enactment of this Act to such material;

                (5) the need and utility, if any, for additional laws relating to such material; and

                (6) an assessment of the extent to which the first amendment protects such material and its
                      private and commercial distribution.

    Section 709(b) of the AEDPA, in turn, requires the Attorney General to submit to the Congress a report containing the results of the study, and to make that report available to the public.

     Following enactment of the AEDPA, a committee was established within the Department of Justice ["the DOJ Committee"], comprised of departmental attorneys as well as law enforcement officials of the Federal Bureau of Investigation and the Treasury Department's Bureau of Alcohol, Tobacco and Firearms.  The committee members divided responsibility for undertaking the tasks mandated by section 709.  Some members canvassed reference sources, including the Internet, to determine the facility with which information relating to the manufacture of bombs, destructive devices and other weapons of mass destruction could be obtained.  Criminal investigators reviewed their files to determine the extent to which such published information was likely to have been used by persons known to have manufactured bombs and destructive devices for criminal purposes.  And legal experts within the Department of Justice reviewed extant federal criminal law and judicial precedent to assess the extent to which the dissemination of bombmaking information is now restricted by federal law, and the extent to which it may be restricted, consistent with constitutional principles.  This Report summarizes the results of these efforts.

    As explained in this Report, the DOJ committee has determined that anyone interested in manufacturing a bomb, dangerous weapon, or a weapon of mass destruction can easily obtain detailed instructions from readily accessible sources, such as legitimate reference books, the so-called underground press, and the Internet.  Circumstantial evidence suggests that, in a number of crimes involving the employment of such weapons and devices, defendants have relied upon such material in manufacturing and using such items.  Law enforcement agencies believe that, because the availability of bombmaking information is becoming increasingly widespread (over the Internet and from other sources), such published instructions will continue to play a significant role in aiding those intent upon committing future acts of terrorism and violence.

    While current federal laws -- such as those prohibiting conspiracy, solicitation, aiding and abetting, providing material support for terrorist activities, and unlawfully furthering civil disorders -- may, in some instances, proscribe the dissemination of bombmaking information, no extant federal statute provides a satisfactory basis for prosecution in certain classes of cases that Senators Feinstein and Biden have identified as particularly troublesome.  Senator Feinstein introduced legislation during the last Congress in an attempt to fill this gap.  The Department of Justice agrees that it would be appropriate and beneficial to adopt further legislation to address this problem directly, if that can be accomplished in a manner that does not impermissibly restrict the wholly legitimate publication and teaching of such information, or otherwise violate the First Amendment.

    The First Amendment would impose substantial constraints on any attempt to proscribe indiscriminately the dissemination of bombmaking information.  The government generally may not, except in rare circumstances, punish persons either for advocating lawless action or for disseminating truthful information -- including information that would be dangerous if used -- that such persons have obtained lawfully.  However, the constitutional analysis is quite different where the government punishes speech that is an integral part of a transaction involving conduct the government otherwise is empowered to prohibit; such "speech acts" -- for instance, many cases of inchoate crimes such as aiding and abetting and conspiracy -- may be proscribed without much, if any, concern about the First Amendment, since it is merely incidental that such "conduct" takes the form of speech.

    Accordingly, we have concluded that Senator Feinstein's proposal can withstand constitutional muster in most, if not all, of its possible applications, if such legislation is slightly modified in several respects that we propose at the conclusion of this Report.  As modified, the proposed legislation would be likely to maximize the ability of the Federal Government -- consistent with free speech protections -- to reach cases where an individual disseminates information on how to manufacture or use explosives or weapons of mass destruction either (i) with the intent that the information be used to facilitate criminal conduct, or (ii) with the knowledge that a particular recipient of the information intends to use it in furtherance of criminal activity.

    In order fully to understand the issues we have been asked to address, it is helpful first to describe the legislative proceedings that prompted enactment of section 709 of the AEDPA.

    On May 11, 1995, less than one month after the Oklahoma City terrorist bombing, in testimony before the Subcommittee on Terrorism, Technology and Government Information of the Senate Judiciary Committee, Deputy Assistant Attorney General Robert Litt, of the Justice Department's Criminal Division, explained that "how to" guides for the manufacture of explosives are readily available on the Internet, in bookstores and even in public libraries¹.  To illustrate the point, he observed that, according to a news article, only hours after the Oklahoma City bombing, someone posted on the Internet directions -- including a diagram -- explaining how to construct a bomb of the type that was used in that tragic act of terrorism.  Another Internet posting offered not only information concerning how to build bombs, but also instructions as to how the device used in the Oklahoma City bombing could have been improved.

    Mr. Litt explained that "expansion of the scope of federal criminal laws dealing with the violent, terrorist activity will permit the Department of Justice to prosecute those who engage in efforts to assist violence and terrorism over the Internet."  Mr. Litt observed, however, that despite the dangers posed by the dissemination of such information and the callous disregard of human life shown by those who are responsible for such action, the First Amendment imposes significant constraints on the ability of the federal government to proscribe and penalize such activity.

    On June 5, 1995, Senator Feinstein proposed an amendment to a bill (S. 735) that later became the AEDPA.  141 Cong. Rec. S7682 (daily ed. June 5, 1995).  The purpose of the amendment was to address the problem of the increasingly widespread "distribution of bombmaking information for criminal purposes."  Id.  Following some debate in the Senate, Senator Feinstein's amendment was slightly modified, and the full Senate unanimously approved it by voice vote.  Id. at S7686.  The Senate passed S. 735 on June 7, 1995.  141 Cong. Rec. S7857 (daily ed.).  As passed by the Senate, the Feinstein amendment would have amended 18 U.S.C. § 842 to add a new prohibition:

            It shall be unlawful for any person to teach or demonstrate the making of explosive materials, or to distribute by any
            means information pertaining to, in whole or in part, the manufacture of explosive materials, if the person intends or
            knows, that such explosive materials or information will likely be used for, or in furtherance of, an activity that
            constitutes a Federal criminal offense or a criminal purpose affecting interstate commerce.

    Id. at S7875.  In conference committee, this prohibition ["the Feinstein Amendment"] was removed from the bill and was replaced with section 709 of the AEDPA -- the requirement for the Attorney General's study and report, quoted above.  142 Cong. Rec. H3336 (daily ed. Apr. 15, 1996).  Senator Biden then moved to recommit the conference report to the conference committee with instructions to the Senate managers to insist on insertion of the Feinstein Amendment.  142 Cong. Rec. S3448 (daily ed. Apr. 17, 1996).  Senator Hatch moved to table Senator Biden's motion, and Senator Hatch's motion was agreed to by a vote of 51 to 48.  Id. at S3450.

    Two months later, Senator Feinstein revived her proposal, and the Senate unanimously agreed to include it as an amendment to a bill that later became the National Defense Authorization Act for Fiscal Year 1997.  142 Cong. Rec. S7271-74 (daily ed. June 28, 1996).  Once again, however, the Feinstein Amendment was removed in conference.  142 Cong. Rec. H9303 (daily ed. July 30, 1996).

    The first question that section 709 required the Attorney General to study concerns the availability of instructional information describing the fabrication of explosives, destructive devices and other weapons of mass destruction.  Our study confirms that any member of the public who desires such information can readily obtain it.

A.  Books, Pamphlets and Other Printed Material.  Most strikingly, a cursory search of the holdings of the Library of Congress located at least 50 publications substantially devoted to such information, all readily available to any member of the public interested in reading them and copying their contents.  The titles of a number of these publications are indicative of their contents.²  They include:

    -- Guerrilla's Arsenal: Advanced Techniques For Making Explosives and Time-  delay Bombs (Paladin Press, 1994);

    -- The Anarchist Arsenal (Harber, 1992);

    -- Deadly Brew: Advanced Improvised Explosives (Paladin Press, 1987);

    -- The Anarchist's Handbook (J. Flores, 1995);

    -- Improvised Explosives:  How To Make Your Own (Paladin Press, 1985); and

    -- Ragnar's Guide to Home and Recreational Use of High Explosives (Paladin Press, 1988).

Other texts, intended for military training, agricultural and engineering use, contain information equally useful to individuals bent upon constructing bombs and other dangerous weapons.  Publications in this category include:

     -- Explosives In Roadworks:  User's Guide (Assoc. of Australian State Road Authorities, 1982);

     -- Explosives and Blasting Procedures Manual (U.S. Bureau of Mines, 1982);

     -- Military Chemical and Biological Agents: Chemical and Toxicological Properties (Telford Press, 1987); and

     -- Clearing Land Of Rocks for Agricultural and Other Purposes (Institute of Makers of Explosives, 1918).

    Another collection of some 48 different "underground publications" dealing with bombmaking, contained in the library of the FBI Explosives Unit, reflects a similar diversity of such published material.  All of this literature was easily obtainable from commercial sources.

    The ready accessibility of such literature is further illustrated by reference to a single page in a recent 70-page catalog of Delta Press, Ltd., of El Dorado, Arizona, captioned "Homemade Explosives."   Among the texts featured on that page are Improvised Shape Charges, Two Component High Explosive Mixtures, Improvised Radio Detonation Techniques, and the Anarchists Handbook Series.  Another page, captioned "poisons," advertises The Poisoner's Handbook, which it touts as "a complete handbook of poisons, both natural and manmade," including poisonous gases, lethal drugs, poisonous explosive compounds and a "list of sources and some additional chemistry."   A number of the titles featured in this publication are commonly featured, along with firearms publications, at local gun shows.

    With respect to weapons of mass destruction, there are a number of readily available books, pamphlets, and other printed materials that purport to provide information relating to the manufacture, design and fabrication of nuclear devices.  The Department is aware of many publications that claim to provide some fundamentals necessary for the understanding of nuclear weapons, e.g., physics, design, manufacture, or fabrication.  They include:

    -- The Curve of Binding Energy (J. McPhee, 1974);

    -- U.S. Nuclear Weapons: The Secret History (C. Hansen, 1966); and

    -- The Swords of Armageddon (C. Hansen, 1986).³

    Stories of crimes contained in popular literature and magazines also constitute a rich source of bombmaking information.  For example, the August 1993 edition of Reader's Digest contains an account of efforts by law enforcement officers to track down the killer of United States Court of Appeals Judge Robert S. Vance and attorney Robert Robinson.  That article contained a detailed description of the explosive devices used by the bomber in committing the murders, including such information as the size of the pipe bombs, how the bombs were constructed, and what type of smokeless powder was used in their
construction.⁴  According to the Arson and Explosives Division of the Bureau of Alcohol, Tobacco and Firearms, in a bombing case originating in Topeka, Kansas, the devices were patterned after the bomb used to kill Judge Vance.  Upon questioning, the suspect admitted to investigators that he constructed the bomb based on information contained in the Reader's Digest article.

B.  The Internet.  Bombmaking information is literally at the fingertips of anyone with access to a home computer equipped with a modem.⁵ To demonstrate such availability, a member of the DOJ Committee accessed a single website on the World Wide Web and obtained the titles to over 110 different bombmaking texts, including "Calcium Carbide Bomb," "Jug Bomb," "How To Make a CO2 Bomb," "Cherry Bomb," "Mail Grenade," and "Chemical Fire Bottle."  The user could access and print the text of each of the listed titles.⁶

    One of the texts, captioned "Nifty Things That Go Boom," appears to be a computer adaptation of The Terrorist's Handbook (purportedly edited at Michigan State University).  The publication contains chapters that describe and address the procurement (legal and otherwise) of necessary explosives, chemicals and other ingredients, the preparation of chemicals, techniques for transforming such substances into bombs and explosives, and the manufacture of fuses and other ignition systems.

    Another of the accessed texts purports to consist of the "Bomb Excerpts" from Anarchy Cookbook.  This text explains in minute detail how to construct dozens of different types of bombs and explosive devices, including fertilizer bombs, dynamite and other explosives made with chemicals and other substances that "can be bought at Kmart, and various hardware supply shops."  The text also details the ways that such devices can be employed following their fabrication.  For example, discussing the use of a bomb constructed from a CO2 cartridge and black powder, it explains:

        Insert a fuse. . . .  Now, light it and run like hell!   It does wonders for a row of mailboxes (like the ones in apartment
        complexes), a car (place under the gas tank), a picture window (place on window sill), a phone booth (place right under
        the phone), or any other devious place.  This thing throws shrapnel, and can make quite a mess!

Similarly, after explaining how to build a thermite bomb, the manual explains:

        Now when you see your victim's car, pour a fifty-cent sized pile onto his hood, stick the [magnesium] ribbon in it,
        and light it with a blow torch.  Now chuckle as you watch it burn through the hood, the block, and axle, and the
        pavement.  BE CAREFUL!  The ideal mixtures can vaporize CARBON STEEL!  Another idea is to use thermite
        to get into pay phone and cash boxes.  HAVE FUN!

And, in discussing how to construct a thermite letter bomb using an insulated, padded mailing envelope, the author explains that, when the detonating "explosive is torn or even squeezed hard it will ignite the powdered magnesium . . . and then it will burn the mild thermite.  If the thermite didn't blow up, it would at least burn the fuck out of your enemy (it does wonders on
human flesh!)."⁷

    Our review of material accessible on the Internet also reveals the frequent use of "Usenet" newsgroups to facilitate the exchange of information concerning the fabrication and use of explosives and other dangerous weapons.  For example, on August 28, 1996, one participant of a Usenet newsgroup inquired whether anyone had a recipe for C-4 and detonation techniques.  The following day, someone responded to the inquiry by posting a detailed formula, explaining that "[t]he production of C-4 is probably beyond what can [be] done in the kitchen, but here is something to get you started."   On August 16, 1996, another Usenet participant complained that he had "recently attempted to follow the recipe [for an explosive] posted earlier . . . and nearly blew my arms off!"  This prompted the following response:

        So what do you want, sympathy?  Let me clue you in here. Actually building any of this stuff is illegal, immoral,
        anti-social, and just plain wrong.  But then, so are a lot of other fun things.  The point is, if you do it, and you blow
        yourself up, it's your own fault.  So quit sniveling.  [N]ext time, don't cook at home.

C.  Summary.  It is readily apparent from our cursory examination that anyone interested in manufacturing a bomb, dangerous weapon or weapon of mass destruction can easily obtain detailed instructions for fabricating and using such a device.  Available sources include not only publications from the so-called underground press but also manuals written for legitimate purposes, such as military, agricultural, industrial and engineering purposes.  Such information is also readily available to anyone with access to a home computer equipped with a modem.
 
 

    Recent law enforcement experience demonstrates that persons who attempt or plan acts of terrorism often possess literature that describes the construction of explosive devices and other weapons of mass destruction (including biological weapons).  Although in some cases there is no hard evidence demonstrating that such individuals actually employed such information in furtherance of their crimes, possession of such information often is strong circumstantial evidence from which such usage can be inferred.

    During the execution of a search warrant at the Rex, Georgia residence of Walter Leroy Moody, Jr., the convicted bombing murderer of Judge Robert S. Vance and attorney Robert Robinson, investigators discovered a copy of the Anarchist's Cookbook.

    In November 1995, Oklahoma residents Ray and Cecilia Lampley, along with one John "J.D." Baird, began construction of an ammonium nitrate bomb, utilizing a manual for the making of "Homemade C-4," a military plastic explosive.  The group intended to destroy either the Jewish Anti-Defamation League building in Houston, Texas, or the Southern Poverty Law Center in Birmingham, Alabama.  Following the recipe from the manual, the Lampleys "cooked" the ammonium nitrate, and obtained accelerants, such as nitromethane and powdered aluminum.  Additionally, Ray Lampley learned that he needed an initial detonating charge to properly detonate the "homemade C-4," and attempted to make a triacetone triperoxide detonator utilizing instructions from Ragnar's Big Book of Explosives.  When the three co-conspirators were arrested by the FBI, law enforcement agents recovered the Anarchist's Cookbook and Homemade Weapons, in addition to the "homemade C-4" text, from the Lampley residence.⁸

    Following the February 26, 1993, terrorist bombing of the World Trade Center in New York City, investigators discovered bombmaking manuals in the possession of individuals connected with that crime.  Although it is believed that those individuals brought those particular manuals into the United States from a foreign country, the manuals had been copied from books written and printed in the United States and available for purchase from publishers like Paladin Press.  The presence of these manuals suggests that the conspirators consulted them in effecting their deadly terrorist scheme.

    Between January 1994 and January 1996, a string of some 18 bank robberies occurred across the Midwest.  The robberies were committed by individuals brandishing automatic weapons, wearing disguises, and using hoax-bomb devices, apparently to delay pursuit and investigation.  Following the arrests of two individuals linked to the series of robberies, investigators conducted searches of safehouses and other locations used by the defendants.  Execution of the search warrants resulted in the discovery of numerous weapons, explosives, grenades, and components for manufacturing improvised explosive devices.   Additionally, the investigators discovered a library of literature describing neo-guerrilla techniques, including the manufacture and use of explosives.

    Beginning in 1991, four members of the "Patriots Council," a Minnesota tax protest group, began to develop a castor-bean derivative known as "ricin," which is one of the most toxic known substances.  The members involved learned the process of manufacturing ricin from a mail-order pamphlet.  The group planned to suspend the substance in a toxic gel capable of transmission through a skin barrier, and then to place the impregnated gel on doorknobs, handles, and steering wheels.  They were considering whether to target IRS agents, U.S. Marshals, or local sheriffs for ricin attacks when the FBI arrested them.⁹

    In 1993, Thomas Lavy attempted to cross the Canadian border carrying 130 grams of ricin -- an amount that, if administered in individual doses, would be sufficient to kill over 32,000 people -- as well as four guns and $89,000 in cash.  Canadian officials returned Lavy to the United States because of the amount of cash he was carrying.  A search of Lavy's cabin by law enforcement officers revealed that he possessed mail-order books, such as The Poisoner's Handbook, Silent Death, and Get Even: The Complete Book of Dirty Tricks, which, among other things, describe how to make and use ricin.  Lavy committed suicide before he could be tried.

    To the Department's knowledge, no devices producing a nuclear yield have been constructed based on published bombmaking information.  However, the Department is aware of approximately 117 threats since 1970 involving detonations of nuclear devices.  Approximately half of these nuclear extortion threats have been accompanied by sketches, information, or descriptive phrases gleaned from information in the public domain, including technical reference materials and fictional nuclear "thrillers."

    In addition to the incidents recounted above, reported federal cases involving murder, bombing, arson, and related crimes, reflect the use of bombmaking manuals by defendants and the frequent seizure of such texts during the criminal investigation of such activities.  See, e.g., United States v. Prevatte, 66 F.3d 840, 841 (7th Cir. 1995) (bombmaker read Anarchist's Cookbook); United States v. Johnson, 9 F.3d 506, 510 (6th Cir. 1993) (search of bombmaker's residence revealed presence of books on explosive devices), cert. denied, 512 U.S. 1212 (1994); United States v. Talbott, 902 F.2d 1129, 1131 (4th Cir. 1990) (execution of search warrant at residence of bombmaker revealed presence of books on bombmaking); United States v. Michael, 894 F.2d 1457, 1459 (5th Cir. 1990) (bombmaker bought books at gun shows to determine how to make bombs, booby traps and silencers); United States v. Levasseur, 816 F.2d 37, 41 (2d Cir. 1987) (execution of search warrant at bomber's residence revealed presence of bombmaking instructions); United States v. Arocena, 778 F.2d 943, 947 (2d Cir. 1985) (members of "Omega 7" group, who conducted terrorist bombings in New York metropolitan area, possessed bombmaking manuals), cert. denied, 475 U.S. 1053 (1986); United States v. Williams, 775 F.2d 1295, 1298 (5th Cir. 1985) (bomb murderer used Marine Corps training manual to construct "mouse trap" bomb), cert. denied, 475 U.S. 1089 (1986); United States v. Bergner, 800 F. Supp. 659, 663 (N.D. Ind. 1992) (bomber consulted Anarchist's Cookbook and other bombmaking texts available at police academy library).

     Finally, information furnished by the Bureau of Alcohol, Tobacco and Firearms reveals that such literature is frequently used by individuals bent upon making bombs for criminal purposes.  ATF statistics reflect that, between 1985 and June 1996, the investigations of at least 30 bombings and four attempted bombings resulted in the recovery of bombmaking literature that the suspects had obtained from the Internet.  Most recently, on August 6, 1996, ATF investigators participated in the investigation of two North Attleboro, Massachusetts, juveniles, aged 11 and 14, who were injured while attempting to make an improvised explosive device.  The youths had retrieved from the Internet information on how to make napalm, and were badly burned when a mixture being heated on a kitchen stove ignited.¹⁰

    In sum, it is fair to conclude from scenarios such as those we have described that the availability of bombmaking literature may play a significant role in aiding those intent on using explosives and other weapons of mass destruction for criminal purposes, including acts of terrorism.  Moreover, the availability of this information might contribute to youthful experimentation with explosive devices, which could result in serious injury.
 
 

    It is, of course, impossible to prognosticate with any measure of certainty the extent to which persons wishing to engage in acts of terrorism and other criminal activity will rely upon printed and computer-based information instructing them how to manufacture bombs, other dangerous weapons, and weapons of mass destruction.   A statistical survey conducted by the FBI concerning bombing incidents occurring in the United States shows that between 1984 and 1994, the frequency of such incidents has increased almost four-fold.  The study, however, did not attempt to correlate the trend with the increased availability of bombmaking information.  Therefore, we have no empirical data on what percentage, if any, of the recent increase in the number of bombings is attributable to the increased availability of bombmaking information.  However, based upon the recent experiences recounted above, both the FBI and ATF expect that because the availability of such information is becoming increasingly widespread, such bombmaking instructions will continue to play a significant role in aiding those intent upon committing future acts of terrorism and violence.
 
 

    Presently there are four basic ways in which dissemination of bombmaking information could be punished under federal criminal law, depending on the circumstances of the case.¹¹  The first three bases for culpability -- federal statutes prohibiting (i) conspiracy, (ii) solicitation, and (iii) aiding and abetting -- do not single out information concerning bombmaking for special treatment.  The fourth basis for culpability -- 18 U.S.C. § 231 -- is directed specifically at the "teaching or demonstrating" of techniques related to the use or manufacture of firearms and explosives.¹²

A.  Conspiracy.  A conspiracy to use an explosive to commit "any felony which may be prosecuted in a court of the United States," 18 U.S.C. § 844(h), is explicitly proscribed under 18 U.S.C. § 844(m); and a conspiracy to commit any offense defined in Chapter 40 of Title 18, U.S. Code -- entitled "Importation, Manufacture, Distribution, and Storage of Explosive Materials" -- is prohibited by 18 U.S.C. § 844(n).  In addition, the general federal criminal conspiracy statute, 18 U.S.C. § 371 -- which prohibits conspiring "to commit any offense against the United States" -- makes it unlawful to conspire to commit other federal crimes involving explosives.  A person may not, as part of a conspiracy to commit an independently defined criminal offense, transmit information to a coconspirator concerning how to make or use explosive devices.¹³  Indeed, such transmission of information could be an overt act in support of a conspiracy.¹⁴

    In order to prove that a person disseminating bombmaking information did so as part of a conspiracy to commit a substantive offense, the government need not prove that the substantive offense occurred; however, the government must show, at the very least, that the disseminator (i) knew of the intended unlawful use of the information and (ii) agreed with other conspirators that an offense would be committed.¹⁵  And, as a general matter, the requisite agreement cannot be proved simply by demonstrating that a person has provided a product to another person knowing that the product would be used in the commission of a crime, where the provider of the product is indifferent to its subsequent use.¹⁶  "[A] conspiracy requires agreement, and there is a difference between knowing that something will occur [by virtue of one's sale of a product] -- even as an absolute certainty -- and agreeing to bring that same `something' about."  United States v. Lechuga, 994 F.2d 346, 362 (7th Cir.) (Cudahy, J., concurring in pertinent part), cert. denied, 510 U.S. 982 (1993).  It follows that "an isolated sale is not the same thing as enlisting in the venture."  United States v. Blankenship, 970 F.2d 283, 287 (7th Cir. 1992).¹⁷

B.  Solicitation.  The federal criminal solicitation statute, 18 U.S.C. § 373, provides in pertinent part:

            Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use,
            attempted use, or threatened use of physical force against property or against the person of another in violation
            of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands,
            induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not
            more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half
            of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable
            by life imprisonment or death, shall be imprisoned for not more than twenty years.

Id. § 373(a).  Solicitation proscribed by this statute often will take the form of speech, including written speech.¹⁸  Indeed, Congress intended that the statutory phrase "otherwise endeavors to persuade" be construed broadly to cover any situation "`where a person seriously seeks to persuade another person to engage in criminal conduct.'"  United States v. Buckalew, 859 F.2d 1052, 1054 (1st Cir. 1988) (Breyer, J.) (quoting S. Rep. No. 307, 97th Cong., 1st Sess. 183-84 (1982)) (emphasis added).  In the prototypical solicitation case, the "persuasion" is accompanied by some form of inducement, such as a money payment, or a threat.  Such a case raises no First Amendment issues, for reasons we explain infra at 35-38.¹⁹  However, insofar as Congress also intended § 373 to cover cases of "persuasion" taking the form of mere advocacy or urging of unlawful action -- without any threat or inducement -- many such cases could be subject to significant First Amendment constraints under the Brandenburg doctrine. Seeinfra at 29-30 (discussing Brandenburg v. Ohio, 395 U.S. 444 (1969)).²⁰  Therefore, for purposes of this discussion, we will assume that § 373 would be used principally in the case of "persuasion" accompanied by an inducement (e.g., murder for hire²¹) or an explicit or implicit threat or "command" (e.g., an organized crime boss "asking" an associate to commit a crime).

    In such cases, the solicitation itself would not likely be in the form of a transmission of bombmaking information.  However, as part of a solicitation scheme, it is conceivable that the solicitor would transmit such information so as to facilitate the crime being solicited.  Indeed, such facilitation could provide circumstances that "strongly corroborate" a solicitor's improper intent, thereby satisfying § 373's scienter requirement:  Congress indicated that it would be "highly probative" of improper intent if the solicitor "acquired . . . information suited for use by the person solicited in the commission of the offense, or made other apparent preparations for the commission of the offense by the person solicited."  S. Rep. No. 307, 97th Cong., 1st Sess. 183 (1982).

    Although § 373 does not require either actual agreement (like conspiracy), nor that the crime be committed (like aiding and abetting), it nonetheless could provide a means of addressing dissemination of bombmaking information in only a limited set of cases.  For one thing, the statute requires more than mere dissemination of information:  there must be some solicitation, command, inducement or other endeavor to persuade.  (And the First Amendment might exclude cases of "persuasion" absent any threat, command or inducement.)  More importantly, the government must prove "circumstances strongly corroborative" of the solicitor's intent that another person engage in conduct constituting a felony.

C.  Aiding and Abetting.  Two different "aiding and abetting" statutes might have some application in cases where bombmaking information is disseminated:  (i) the general federal aiding and abetting statute, 18 U.S.C. § 2, and (ii) section 323 of the AEDPA, which concerns provision of material support or resources for use in certain crimes of terrorism.

1.  18 U.S.C. § 2.  In 1909 Congress enacted what is now 18 U.S.C. § 2, a general aiding and abetting statute applicable to all federal criminal offenses.  That statute in essence provides that "those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing the crime."  Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994) (citing Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)).²²  Not infrequently, aiding and abetting can take the form of speech, including providing instructions on how to commit a crime to a particular person or to a discrete audience.²³  Section 2 nonetheless is somewhat ineffectual as a tool to address dissemination of information on how to manufacture explosives, for three reasons.

    First, there is some question whether aiding and abetting culpability ever can rest solely on the basis of general publication of instructions on how to commit a crime, or undifferentiated sale to the public of a product that some purchaser is likely to use for unlawful ends, or whether, at a minimum, the person supplying the aid must know that a particular recipient thereof will use it in commission of a crime.²⁴

    Second, even assuming that aiding and abetting could under some circumstances be established by virtue of a publisher's knowledge that unknown recipients of generally published information would use it to commit crimes, § 2 requires that the accomplice have engaged in intentional wrongdoing, rather than mere recklessness.  Central Bank of Denver, 511 U.S. at 190.  That is to say, the aider must not only know that her assistance will be in the service of a crime; she also must share in the criminal intent.  The defendant must "`participate in [the venture] as in something that he wishes to bring about, that he seek by his action to make it succeed.'"  Nye & Nissen, 336 U.S. at 619 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)).²⁵  As Judge Hand explained in the seminal Peoni case, the intent standard for criminal aiding and abetting is not the same as the "natural consequences of one's act" test that is the touchstone for "intent" in the civil tort context; criminal intent to aid the crime has "nothing whatever to do with the probability that the forbidden result [will] follow upon the accessory's conduct." Peoni, 100 F.2d at 402.  Rather, the aider must have a "purposive attitude" toward the commission of the offense.  Id.²⁶

    Finally, under the plain terms of § 2, the underlying offense must in fact be committed (though the government need not prove by whom it was committed); section 2 merely makes aiders and abettors culpable for their principals' commission of an offense.²⁷  There is no federal statute generally proscribing an attempt to aid and abet a federal offense (though the Model Penal Code recommended that such a prohibition be codified).²⁸  Therefore, if a crime has not been committed, the general federal aiding and abetting statute cannot be invoked.

2.  AEDPA Section 323.  Section 323 of the AEDPA, 110 Stat. at 1255 (to be codified as amended section 2339A(a) of Title 18) makes it unlawful to provide "material support or resources" to another person, "knowing or intending that they are to be used in preparation for, or in carrying out," various federal offenses relating to terrorism, or in preparation for, or in carrying out, the concealment from the commission of any such violation.  Id. (to be codified at 18 U.S.C. § 2339A(a)).²⁹  Notably, the statute defines the term "material support or resources" to include, inter alia, "training, . . . and other physical assets." Id. (to be codified at 18 U.S.C. § 2339A(b)).³⁰

    Section 323 essentially is a prohibition on certain forms of knowing or intentional facilitation of particular terrorist crimes.  In two respects, it is broader in scope than the general aiding and abetting statute.  First, the facilitator can be culpable even if the underlying offense is not in fact committed.  Second, the scienter provision is a bit broader than the "intent" requirement in 18 U.S.C. § 2.  Under AEDPA section 323, specific intent to facilitate the underlying offense is not necessary:³¹  the person providing the support or resources can be culpable so long as he "know[s]" that the resources provided "are to be used" to prepare for or commit a specified offense.  In effect, however, this "knowledge" provision will rarely be of use to a prosecutor, because where -- as in section 323 -- the element of "knowledge" refers to a possible future result of a defendant's conduct, typically the government must prove that the defendant was "aware `that that result is practically certain to follow from his conduct.'"  United States v. Bailey, 444 U.S. 394, 404 (1980) (emphasis added) (quoting United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978) (internal citation omitted)).³²

    Furthermore, whatever the scope of the "knowledge" provision, the use of section 323 to address distribution of bombmaking information might nonetheless be limited, for two other reasons.  First, section 323 covers facilitation of only certain enumerated crimes. Seesupra note 29.  Second, it is not clear whether courts would find that information on how to manufacture or use explosives is "material support or resources."  In the case of an actual physical demonstration of the techniques in question, or a one-to-one sale of printed information to someone who purports to be planning a crime, transfer of such information might constitute "training."  Otherwise, it is open to question whether a manual on explosives would constitute a "physical asset[]" under § 2339A.³³

D.  18 U.S.C. § 231(a)(1).  For the most part, the federal statutes discussed in the previous sections are not directed at dissemination of information, as such.  Instead, they are general prohibitions on conduct that can, in particular cases, be violated by providing information to another person.

By contrast, 18 U.S.C. § 231(a)(1) -- like the proposed Feinstein Amendment -- arguably could be characterized as a prohibition on certain forms of speech.  Section 231(a)(1) provides that:

            Whoever teaches or demonstrates to any other person the use, application, or making of any firearm or explosive or
            incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or
            intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder which may in any
            way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in
            commerce or the conduct or performance of any federally protected function . . . [s]hall be fined under this title or
            imprisoned not more than five years, or both.

"Civil disorder," in turn, is defined as "any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual."  18 U.S.C. § 232(1).

    This prohibition applies, not to all forms of speech that could cause a civil disorder, but solely to a discrete type of conduct involving expression -- namely, the "teach[ing]" or "demonstrat[ion]" of the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to persons.³⁴

    It appears that this statute has been used sparingly; there are only two reported decisions involving it.³⁵  In those two cases, the courts of appeals narrowly construed the scienter provisions of § 231(a)(1) so as to avoid serious constitutional questions. National Mobilization Comm. to End the War in Viet Nam v. Foran, 411 F.2d 934 (7th Cir. 1969); United States v. Featherston, 461 F.2d 1119 (5th Cir.), cert. denied, 409 U.S. 991 (1972).  In both cases, the persons charged under § 231(a)(1) were alleged to have instructed discrete groups of students on techniques of violence, with the intent that such techniques would be used in furtherance of civil disorders.  The defendants nonetheless complained that the statute was impermissibly vague or overbroad, because its plain terms are not limited to cases of bad intent.  Read literally, § 231(a)(1) also could be construed to prohibit well-intentioned persons from teaching techniques of self-defense and sporting activities where such persons have a "reason to know" that some pupils might put the skills they acquire to unlawful use.  The defendants in Foran and Featherston argued that this apparent reach of § 231(a)(1) rendered the statute facially invalid under the First Amendment.

    In order to avoid the substantial constitutional questions raised by the "reason to know" language, both courts of appeals construed the scienter element of § 231(a)(1) narrowly.  The Seventh Circuit, somewhat cryptically, concluded that "[t]he requirement of intent of course `narrows the scope of the enactment by exempting innocent or inadvertent conduct from its proscription."  Foran, 411 F.2d at 937 (citation omitted).  The Fifth Circuit, relying upon the Supreme Court's narrowing construction of similar language in an espionage statute, held that proof of "`bad faith'" is required under § 231(a)(1). Featherston, 461 F.2d at 1121 (quoting Gorin v. United States, 312 U.S. 19, 27-28 (1941)).  The court concluded that "the statute does not cover mere inadvertent conduct.  It requires those prosecuted to have acted with intent or knowledge that the information disseminated would be used in furtherance of a civil disorder."  Id. at 1122 (emphasis added).

    The potential use of § 231(a)(1) to reach cases involving dissemination of bombmaking information is limited in three ways.  First, as construed in Featherston and Foran, § 231(a)(1) can apply only where the person doing the teaching or demonstrating either (i) intends that the information will be used in furtherance of a civil disorder or (ii) "knows" that the information will be so used.  As explained supra at 21, as a practical matter the "or knows" prong will rarely be useful:  since the knowledge in question is of a possible future result of a defendant's conduct, the government must prove that the defendant was "aware `that that result is practically certain to follow from his conduct.'"  Bailey, 444 U.S. at 404 (citations omitted) (emphasis added).³⁶  Accordingly, the vast majority of cases in which § 231(a)(1) could successfully be invoked will involve defendants who intend that their teaching be used to facilitate or assist in a civil disorder.

    Second, it is questionable whether the operative verbs -- "teaches or demonstrates" -- could be read to cover an arms-length sale of a manual to an anonymous or unknown customer.  Finally, the intended or known use of the information conveyed must be "in, or in furtherance of, a civil disorder which may in any way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function."  And a "civil disorder" requires a public disturbance involving violence by assemblages of three or more persons.  Section 231(a)(1) would not, therefore, apply to uses of the information by merely one or two felons.
 
 

    During the Senate debate on the Feinstein Amendment, Senators Feinstein and Biden identified two sets of circumstances in which the dissemination of bombmaking information ideally should be prohibited:

        (i) where the person disseminating the information intends that it be used for unlawful ends;³⁷and

        (ii) where the person disseminating the information has good reason to know that a particular potential recipient thereof
             plans to use that information to engage in unlawful activities.³⁸

On the other hand, Senator Feinstein made it plain that she did not wish to prohibit the "legitimate" publication of information about explosives contained in, for instance, the Encyclopedia Britannica (despite the fact that such information certainly could be used by persons who wished to commit violent crimes);³⁹ and Senator Hatch indicated that any prohibition that is enacted should be drafted carefully, so as not to subject to criminal sanctions, for example, legitimate explosives manufacturers who teach customers and other persons how to manufacture, and make legitimate use of, explosives.⁴⁰

    The Department of Justice agrees that it would be salutary if the federal criminal law prohibited dissemination of bombmaking information in the two circumstances described above, while still permitting the "legitimate" publication of information about explosives in the manner described by Senators Feinstein and Hatch.  As the discussion in Part IV demonstrates, however, the present federal criminal code is less than completely effective in accomplishing these objectives:

    1.  Federal law would in certain cases prohibit or punish the dissemination of bombmaking information where the person disseminating the information intends that it be used for unlawful ends.  For example:

    -- If the disseminator enters into an agreement with another person to commit a federal crime, dissemination of bombmaking
    information as a means of furthering that crime would be an overt act in furtherance of a conspiracy.  Similarly, if the
    disseminator solicits another person to commit a federal crime of violence -- for example, by offering a reward for its
    commission -- conveyance of the bombmaking information would be evidence "strongly corroborating" an improper intent,
    thereby satisfying the scienter requirement of 18 U.S.C. § 373.

    -- If the disseminator provides the information to a particular person with the specific purpose of assisting the recipient in the
        commission of a federal crime, and if the recipient thereafter does commit such an offense, the disseminator would be
        culpable for aiding and abetting that offense.  And, even if the offense is not in fact committed, the disseminator might still
        be culpable for a violation of AEDPA section 323, provided (i) that the offense that he intended to advance was one of
        those enumerated in the statute; and (ii) a court finds that bombmaking information can be considered "material support
        or resources."

    --  If the disseminator provides the information to a person or persons in order to prepare for or further a "civil disorder," he
         will have violated 18 U.S.C. § 231(a)(1), assuming that provision of such information constitutes the "teach[ing] or
         demonstrat[ion]" of the making of explosives or incendiary devices.

    However, except where the particular requirements of AEDPA section 323 or 18 U.S.C. § 231(a)(1) are met, federal law presently does not provide a ground for prosecution where a disseminator of bombmaking information does not conspire with or solicit another to commit a federal crime, but nevertheless intends to aid the recipients of the information in commission of such criminal conduct, and where no federal crime is in fact committed.  Further, federal law does not presently reach the person who disseminates bombmaking information intending that it be used to aid the commission of a state or local criminal offense, notwithstanding the utilization of interstate or foreign commerce to achieve such dissemination and notwithstanding the actual or potential impact of the underlying violation on such commerce.

    2.  If a disseminator of bombmaking information does not have the specific purpose of facilitating a crime, but nonetheless is aware that (i) an enumerated terrorist crime or (ii) a "civil disorder" were practically certain to follow from dissemination of the information to a particular person or persons, then the disseminator might be culpable under AEDPA section 323, or 18 U.S.C. § 231(a)(1), respectively.  However, absent such a high degree of "knowledge" of the facilitation of future crimes, current federal law generally would not prohibit or punish the dissemination of bombmaking information in the case where the disseminator does not have the specific purpose of facilitating a crime but nevertheless knows that a particular recipient thereof intends to use it for unlawful ends.

    In sum, current federal law does not specifically address certain classes of cases that Senators Feinstein and Biden identified.  Accordingly, the Department of Justice agrees with those Senators that it would be appropriate and beneficial to adopt further legislation to address this problem directly, in a manner that does not impermissibly restrict the wholly legitimate publication and teaching of such information, or otherwise violate the First Amendment.
 
 

    Before identifying what further steps Congress can take to address this problem, it is necessary to discuss whether and to what extent the First Amendment limits the government's power to impose criminal culpability on persons publishing or disseminating bombmaking information.  In this regard, it should be noted that in Rice v. Paladin Enterprises, Inc., 940 F. Supp. 836 (D. Md. 1996), appeal docketed, No. 96-2412 (4th Cir.), a district court recently held that the First Amendment substantially protects the right of persons to publish such information, regardless of the publishers' intent.

    The defendant in that case, publisher Paladin Enterprises, Inc., has (for many years) offered for public sale (principally through a mail-order catalogue) a book entitled Hit Man, which describes in great detail specific methods and techniques of, and strategies for, murder for hire.  James Perry ordered and received Hit Man from Paladin.  Thereafter, Perry followed a number of instructions in Hit Man in planning, executing, and attempting to hide the evidence of, his contract killing of three people in Montgomery County, Maryland.  Perry was convicted of murder, after which the survivors of the victims sued Paladin in federal court for wrongful death, alleging that Paladin had aided and abetted the murders by selling Hit Man to Perry.  Paladin moved for summary judgment on the ground that the First Amendment barred recovery.  For the purposes of the motion, the parties stipulated the following:

    1.  Paladin had no contact with Perry (or the person who hired him to commit the murders) other than to sell him Hit Man
         and another book.  Paladin had no "specific knowledge" that Perry planned to commit a crime, or that he had been
         retained to kill anyone.  940 F. Supp. at 839.

    2.   In planning, committing, and concealing his crimes, Perry followed certain descriptions and instructions in Hit Man,
          including:  (a) Hit Man's recommendation that a "beginner" hit man use an AR-7 rifle; (b) Hit Man's instructions on how
          to disassemble the AR-7; (c) Hit Man's detailed instructions on how to drill out the serial number on the rifle; (d) Hit
          Man's detailed instructions on how to create a silencer to use on an AR-7; (e) Hit Man's detailed instructions on how to
          murder victims from close range; and (f) Hit Man's detailed instructions on how to file the AR-7 so that it would not be
          traceable. Id. at 839-40.⁴¹

     3.  Paladin engaged in a marketing strategy intended to maximize sales to the public, including sales to the following targeted
          audiences:  authors who desire information for the purpose of writing books about crime and criminals; law enforcement
          officers and agencies who desire information concerning the means and methods of committing crimes; persons who
          enjoy reading accounts of crimes and the means of committing them for purposes of entertainment; persons who
          fantasize about committing crimes but do not thereafter commit them; criminologists and others who study criminal
          methods and mentality; and "criminals and would-be criminals who desire information and instructions on how to commit
          crimes."  In particular, the parties stipulated that "[i]n publishing, marketing, advertising and distributing Hit Man . . . ,
          Paladin intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be
          criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications."  Id. at 840.⁴²

    The district court granted Paladin summary judgment.  The court seemed to rely upon two distinct rationales for its decision:  First, the court concluded that the State of Maryland has not "extend[ed] the tort of aiding and abetting to the circumstances of this case," and that "[a] federal court sitting in diversity cannot create new causes of action."  Id. at 842.  Accordingly, the court seemed to conclude that plaintiffs had failed to state a claim under Maryland tort law.  Id.  Second, the court held that, even if an aiding and abetting tort theory were cognizable, Paladin's publication and dissemination of the book was entitled to constitutional protection, and "the First Amendment acts as a bar to liability in the instant case," id. at 843, despite defendants' stipulation that they "intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications."  See also id. at 843-49 (First Amendment analysis).

    This recent decision suggests that it is necessary to consider carefully the First Amendment questions that a statute like the Feinstein Amendment would raise.⁴³
 
 

    Other than the cursory analysis in the Featherston and Foran cases, discussed supra at 22-23, and the district court's recent decision in Rice v. Paladin, discussed supra at 27-28, there is little in the way of judicial analysis directly addressing the First Amendment questions that a statute like the Feinstein Amendment would raise.⁴⁴  However, the courts have substantially addressed the scope of the Free Speech Clause in three related factual contexts that serve to put the constitutional question in perspective:  (i) where the government seeks to restrict the advocacy of unlawful action; (ii) where the government (or a private party using tort law) seeks to restrict or punish the general disclosure or publication of lawfully obtained information; and (iii) where the government punishes conveyance of information as part of a "speech act," such as speech that aids and abets another person's commission of a crime.

1.  Advocacy of Unlawful Action.  In the landmark case of Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), the Supreme Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce that action." Id. at 447 (footnote omitted).  This test, in other words, requires both an intent and a likelihood that the expression in question -- "advocacy of the use of force or of law violation " -- will incite or produce imminent unlawful action.

    A few years later, the Court made clear how demanding the Brandenburg test is.  In Hess v. Indiana, 414 U.S. 105 (1973) (per curiam), the defendant was arrested for loudly stating, at an anti-war rally, "We'll take the fucking street later."  The Court held that Brandenburg prohibited the State from punishing this alleged advocacy of illegality, principally because the defendant's statement "amounted to nothing more than advocacy of illegal action at some indefinite future time."  Id. at 108.  Furthermore, the Court reasoned that "[s]ince the uncontroverted evidence showed that Hess' statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action." Id. at 108-09.

    In light of these precedents,⁴⁵ it is doubtful that general publication of written materials advocating illegality can ever be proscribed under the Brandenburg test.⁴⁶  Many of the bombmaking manuals discussed by Congress and identified in this Report could plausibly be said to advocate -- either explicitly or implicitly -- the illegal use of explosives and other weapons.  Insofar as publication of such manuals were criminalized on account of those manuals' advocacy of unlawful conduct, such a prohibition almost certainly could not pass constitutional muster.⁴⁷

2.  Disclosure or Publication of Lawfully Obtained Information.  The Brandenburg test, by its terms, applies to advocacy of unlawful conduct.  But the government's principal concern with respect to bombmaking manuals is not their advocacy, but the instructional information they contain.  That information is (at least for the most part) a matter of public record.  As demonstrated elsewhere in this Report, anyone interested in manufacturing a bomb, dangerous weapon or weapon of mass destruction can easily obtain detailed instructions for manufacturing and using such a device, both from legitimate publications and from so-called "underground" publications.  And, presumably, most if not all of the writers and publishers of such publications do not obtain the information unlawfully, or from classified sources.  The First Amendment imposes significant constraints on the ability of the government to restrict publication of such information.

    Although the Supreme Court has been careful never to hold categorically that publication of lawfully obtained truthful information "is automatically constitutionally protected," The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989), nonetheless the Court has, on several occasions, held that "the government may not generally restrict individuals from disclosing information that lawfully comes into their hands in the absence of a `state interest of the highest order.'"  United States v. Aguilar, 115 S. Ct. 2357, 2365 (1995) (quoting Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979)).  See also Butterworth v. Smith, 494 U.S. 624, 632 (1990).  And even if the state has such an interest, "punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order."  Florida Star, 491 U.S. at 541.⁴⁸

    We can assume that there is a "state interest of the highest order" in keeping information on how to make explosives out of the hands of persons who want -- or who would be likely -- to use that information in furtherance of violent crime.⁴⁹  What is more, it is "foreseeable," in the tort-law sense, that some readers will use such information for unlawful ends if the information is made publicly available.  As explained in Part II of this Report, strong circumstantial evidence demonstrates that persons bent upon committing acts of terrorism often rely upon literature for guidance in the construction of explosive devices and other weapons of mass destruction.  Therefore, chances are that even "legitimate" publication of bombmaking information -- such as that found in government-issued manuals and in encyclopedias -- will facilitate some degree of unlawful conduct.

    Nevertheless, even where it is foreseeable that widely disseminated information will be used unlawfully, or in a negligent and dangerous manner, courts uniformly have found that the Constitution prohibits imposing culpability or civil liability for distributing or publishing that information.  For example, a number of courts have held that the First Amendment prohibits imposing tort liability on publishers, producers and broadcasters for the foreseeable consequences of their speech where viewers or readers mimicked unlawful or dangerous conduct that had been depicted or described, even if the standards for tortious negligence or recklessness were otherwise satisfied.⁵⁰  Similarly, a number of courts have held that the First Amendment bars recovery for allegedly foreseeable injuries suffered by persons who were following "how-to" instructions.⁵¹  In a third, related category of cases, courts have held that the Constitution does not permit imposition of criminal penalties or civil liability for written or visual depictions

-- including depictions of "factual" events -- that are likely to alter (or that have in fact changed) persons' attitudes such that those persons are more likely to engage in criminal, dangerous or otherwise undesirable behavior.⁵²

    Florida Star explicitly leaves open the possibility that, in rare circumstances, the First Amendment might not bar sanctions for the publication of true, lawfully obtained information.⁵³  Nevertheless, such an exception almost certainly would not be recognized where, as here, the information is already in the public domain.  The Court's stringent First Amendment test for restrictions on publication of lawfully obtained information, in other words, almost certainly would not permit the government to proscribe the publication or widespread dissemination of bombmaking manuals.  Where similar or equivalent information is widely available elsewhere, the Court has been unwilling to find that a restriction on publication of that information is "narrowly tailored" to address a state interest:  no "meaningful public interest" can be served by further restriction under such circumstances.  Florida Star, 491 U.S. at 535.  "`[O]nce the truthful information [is] "publicly revealed" or "in the public domain,"'" its dissemination cannot constitutionally be restrained.  Id. (quoting Smith, 443 U.S. at 103 (internal citation omitted)). See also id. at 539 (one critical problem with the rape-shield statute at issue in Florida Star was that it punished publication of rape victims' identities "regardless of whether the identity of the victim is already known throughout the community").⁵⁴  Congress presumably would not be willing to ban the publication and teaching of all information concerning the manufacture of explosives -- including, for example, information exchanged among professional explosives manufacturers, or contained in the Encyclopedia Britannica and in government manuals. Seesupra at 24.  As long as this is the case, it is hard to imagine that the First Amendment would permit culpability or liability for publication of other bombmaking manuals that have a propensity to be misused by some unknown, unidentified segment of the readership, since sources of the same information inevitably will remain in the public domain, readily available to persons who wish to manufacture and use explosives.

3.  "Speech Acts," such as Aiding and Abetting.  On the other hand, the constitutional analysis is radically different where the publication or expression of information is "brigaded with action,"⁵⁵ in the form of what are commonly called "speech acts."  If the speech in question is an integral part of a transaction involving conduct the government otherwise is empowered to prohibit, such "speech acts" typically may be proscribed without much, if any, concern about the First Amendment, since it is merely incidental that such "conduct" takes the form of speech.  "`[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'" Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).  For example, as the Court in Ohralik explained, there are "numerous examples" of communications -- including communications that convey information -- that are subjected to economic or commercial regulation without implicating the First Amendment, such as:  exchange of securities information; corporate proxy statements; exchange of information among competitors; and employers' threats of retaliation for employees' labor activities. Id. (citations omitted).⁵⁶

    Similarly, many inchoate crimes often or always are effected through speech "acts."  Such crimes include conspiracy, facilitation, solicitation, bribery, coercion, blackmail, and aiding and abetting.⁵⁷  Punishing speech -- including the dissemination of information -- when it takes the form of such criminal conduct typically does not even raise a First Amendment question.  As Justice (then-Judge) Kennedy explained, "where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone." United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985), cert. denied, 476 U.S. 1120 (1986).⁵⁸

    In particular, "[t]hat `aiding and abetting' of an illegal act may be carried out through speech is no bar to its illegality." National Org. for Women v. Operation Rescue, 37 F.3d 646, 656 (D.C. Cir. 1994).⁵⁹  What is more, aiding and abetting a crime often consists of providing factual information to another person.  The role of a lookout at a burglary is to inform confederates that someone is coming.  An accomplice of a bank robbery might abet the operation by telling the principal the combination of a safe, or how to evade detection.  The First Amendment is simply inapposite in such cases.⁶⁰  Nor is the situation necessarily different where the information conveyed is already publicly available.  For example, there may be many lawful -- and constitutionally protected -- circumstances in which a person (say, a professor of architecture) may provide the blueprint of a bank to other persons (say, architecture students); but if such blueprints are transferred for the purpose of assisting others in a bank robbery, and if that robbery occurs, the person providing the information is subject to accomplice culpability, even if he obtained the blueprint from a textbook, from city hall, or from the newspaper. See also United States v. Edler Industries, Inc., 579 F.2d 516, 521 (9th Cir. 1978) (though the dissemination and export of technological information on how to manufacture military equipment otherwise might generally be protected by the First Amendment, there is no constitutional protection for export of such information as part of "the conduct of assisting foreign enterprises to obtain military equipment"); Constitutionality of the Proposed Revision of the International Traffic in Arms Regulations, 5 Op. O.L.C. 202, 206-09 (1981) (discussing Edler Industries).

    In a number of cases, persons have been convicted of aiding and abetting violations of the tax laws by providing explicit instructions to a discrete group of listeners on techniques for avoiding disclosure of tax liability.  See supra notes 23-24.  Defendants in such cases often have invoked the First Amendment; but that constitutional guarantee has rarely, if ever, been a bar to accomplice culpability.  The courts correctly have rejected defendants' reliance on Brandenburg; and, in particular, have refused to accept defendants' arguments that the "imminence" requirements of the Brandenburg test apply to such aiding and abetting cases.  If a defendant has aided and abetted a crime through the dissemination of information -- rather than simply by urging or "advocating" that the crime be committed -- then the government should not need to demonstrate that the speech was intended or likely to "incite" imminent unlawful conduct.  The reasons the strict requirements of the Brandenburg test must be applied to cases of advocacy are that (i) abstract advocacy of unlawful conduct usually is closely aligned with (or sometimes part of) political and ideological speech entitled to the strongest constitutional solicitude; and (ii) the danger the speech will in fact lead to unlawful behavior often is remote and speculative.  These concerns are rarely, if ever, implicated, in cases involving conduct constituting intentional and material aid to the criminal conduct of particular persons.  It follows that the question of whether criminal conduct is "imminent" is relevant for constitutional purposes only where, as in Brandenburg itself, the government attempts to restrict advocacy, as such.  But the tax-avoidance aiding and abetting cases are not subject to Brandenburg because culpability in such cases is premised, not on defendants' "advocacy" of criminal conduct, but on defendants' successful efforts to assist others by detailing to them the means of accomplishing the crimes.⁶¹

    If it were otherwise -- that is, if the Brandenburg test applied to crimes implemented through the use of informative speech -- there would, for example, be no way for the government to prohibit the aiding and abetting of a crime that is intended to occur weeks or months after its planning.  But in fact, if someone in October teaches another person how to cheat on their tax forms to be filed the following April, the person doing the teaching nonetheless can be culpable of aiding and abetting tax fraud.  "The fact that the aider and abettor's counsel and encouragement is not acted upon for long periods of time does not break the actual connection between the commission of the crime and the advice to commit it."  United States v. Barnett, 667 F.2d 835, 841 (9th Cir. 1982).

    Just as advocacy of unlawful conduct is entitled to greater constitutional protection than the act of using speech to aid and abet such conduct, Brandenburg itself recognizes another, related distinction that is of equal significance for present purposes.  As we explained above, the Court in Brandenburg held that the First Amendment renders invalid statutes that "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  395 U.S. at 447.  Immediately after stating this constitutional requirement, however, the Court drew a sharp distinction between "`the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence'" and "`preparing a group for violent action and steeling it to such action.'"  Id. at 448 (quoting Noto v. United States, 367 U.S. 290, 297-98 (1961)).

    As the Court made plain in Noto and in related cases, the latter category of conduct -- "preparing a group for violent action and steeling it to such action" -- is not entitled to First Amendment protection, even though advocacy ("the mere abstract teaching . . . of the moral propriety") of such violence is protected.  Indeed, even Justice Douglas -- in the course of urging strong constitutional protection for the advocacy of illegality -- freely acknowledged that "[t]he freedom to speak is not absolute; the teaching of methods of terror . . . should be beyond the pale."  Dennis v. United States, 341 U.S. 494, 581 (1951) (Douglas, J., dissenting) (emphasis added).

    The distinction recognized in Brandenburg between advocacy of, and preparation for, unlawful conduct, was exemplified in Scales v. United States, 367 U.S. 203 (1961), a case in which the Court carefully distinguished between the teaching of abstract doctrine -- punishment of which is subject to substantial constitutional constraints -- and the teaching of the techniques of unlawful conduct, which can much more easily be proscribed.  Id. at 233-34.  As to the former, the Court has developed the Brandenburg test, which asks whether the danger is intended, likely and "imminent."  But the constraints of the First Amendment do not apply when the "teaching" goes "beyond the theory itself" to "an explanation of `basic strategy.'"  Scales, 367 U.S. at 244.  At that point, the teaching -- if it is done with the purpose of preparing a group for unlawful action -- is not much different than the information conveyed in a typical aiding and abetting case; accordingly, the Brandenburg protections should largely be inapposite.  See Yates v. United States, 354 U.S. 298, 331-33 (1957) ("systematic teaching" in classes to "develop in the members of [a] group a readiness to engage [in unlawful conduct] at the crucial time," could be punished, even if that conduct was to occur only "when the time was ripe").⁶²

    This critical distinction -- between advocacy of unlawful conduct, on the one hand, and "instructions" for unlawful conduct, on the other -- was recognized by Professor Thomas Emerson in his seminal treatise on the First Amendment:

            [C]onduct that amounts to "advice" or "persuasion" [sh]ould be protected; conduct that moves into the area of
            "instructions" or "preparations" [sh]ould not.  The essential task would be to distinguish between simply conveying an
            idea to another person, which idea he may later act upon, and actually participating with him in the performance of an
            illegal act.  It is true that the distinction does not offer automatic solutions and that courts could easily disagree on any
            particular set of facts.  But this process of decision making is related to the nature of "expression" and the functions and
            operations of a system of freedom of expression.  It is therefore a rational method of approaching the problem.

Thomas Emerson, The System of the Freedom of Expression 75 (1970).⁶³
 
 

    Having reviewed the role of the First Amendment in these three related contexts, we now can address specifically the circumstances under which Senators Feinstein and Biden would seek to proscribe dissemination of bombmaking information.

1.  Dissemination with the "Intent" to Facilitate Unlawful Conduct.  The Feinstein Amendment would make it unlawful, inter alia, for any person to "teach or demonstrate" the making of explosive materials, or to distribute by any means information pertaining to, in whole or in part, the manufacture of explosive materials, where the person "intend[ed]" that such information would be used for, or in furtherance of, an activity that "constitutes a Federal criminal offense or a criminal purpose affecting interstate commerce."  In light of the foregoing discussion in Part VI-A, two things about the constitutionality of this "intent" prohibition are clear:

    First, the First Amendment almost certainly would require that the "intent" scienter provision in such a statute be construed to mean an actual, conscious purpose to bring about the specified result.  "Intent" may not be construed as "constructive intent," as in the civil tort context; that is to say, "intent" could not constitutionally be inferred solely by virtue of the fact that criminal offenses were a foreseeable result -- a "natural consequence" -- of the general distribution of bombmaking information.  Anyone who teaches or publishes bombmaking information -- including those who do so for wholly legitimate reasons, such as explosives manufacturers, the military, and encyclopedia publishers -- could foresee that some unknown recipient of the teaching or information will use it for unlawful ends; but the First Amendment would not permit culpability on that basis.  See supra at 30-34.  Instead, an "intent" element must be construed to reach only the person who disseminates the information for the purpose of facilitating criminal conduct.⁶⁴

    Second, a prosecution relying upon an "intent" requirement plainly would be constitutional where the teacher intends that a particular student -- or a discrete group of students -- use the information for criminal conduct.  Indeed, if there is such an intent, and a receiver of the information thereafter does use that information to commit a crime, the person who assisted him by showing him how to do so would be culpable as an aider and abettor, and the First Amendment would not bar such accomplice culpability.  See supra at 36-39.  The constitutional analysis should be the same, as in the Featherston case, where the teacher intends that particular students use the information for unlawful ends, but the crime is never committed (such as when the scheme is foiled by detection).  This would be, in essence, a form of "attempted aiding and abetting."  Although presently there is no general federal statute prohibiting "attempted aiding and abetting," see supra at 20, that is not because of any constitutional bar:  application of such a statute to the provision of information would not transgress the First Amendment.  Therefore, a statute like the Feinstein Amendment could constitutionally be applied to a case where the person supplying the critical training or information has the intent thereby to assist a particular recipient thereof in unlawful activity, whether or not the crime eventually occurs.⁶⁵  As the Court emphasized in Brandenburg and in earlier cases, the Constitution does not protect the conduct of "preparing a group for violent action" by teaching the techniques of unlawful conduct.  See Noto; Scales; Dennis, 341 U.S. at 581 (Douglas, J., dissenting); Emerson, System of Freedom, supra, at 75; Greenawalt, Speech, Crime, supra note 20, at 244-45.⁶⁶

      The more difficult question is whether criminal culpability can attach to general publication of explosives information, when the writer, publisher or seller of the information has the purpose of generally assisting unknown and unidentified readers in the commission of crimes.  This is, in essence, the situation alleged in the recent Rice v. Paladin case.  See supra at 27-28.  To be sure, such a "generalized" attempt to aid crime through publication is "not the same as preparing a group for violent action." Noto, 367 U.S. at 298.  The "joint participation" in a crime that is the hallmark of conspiracy or aiding and abetting is absent here:  the speech is not, in any direct sense, "brigaded with action."  What is more, the danger to the public in such a case is not necessarily greater than that caused by the same exact publication that is made solely for permissible purposes.  The constitutional question is, therefore, more difficult than in the case of intentional concerted action discussed above.

    There are few, if any, cases directly on point.⁶⁷  However, in Haig v. Agee, 453 U.S. 280 (1981), the Court suggested that otherwise privileged publication of information can lose its First Amendment protection when the publisher has an impermissible motive.  In Agee, a former CIA employee had his passport revoked as a result of his campaign to publish the names of (and otherwise publicly identify) intelligence agents working in foreign countries, a course of conduct that undermined intelligence operations and endangered agents.  In the context of this serious threat to American national security, the Court held that the First Amendment did not protect Agee's publication of the agents' names.  In so ruling, the Court stressed the following:

            Agee's disclosures, among other things, have the declared purpose of obstructing intelligence operations and the
            recruiting of intelligence personnel.  They are clearly not protected by the Constitution.  The mere fact that Agee is
            also engaged in criticism of the Government does not render his conduct beyond the reach of the law.

Id. at 308-09 (emphasis added).  The Court did not indicate whether Agee's bad intent was, in and of itself, sufficient to strip his speech of its constitutional protection.  In particular, the Court had no occasion to determine whether the First Amendment analysis would be the same if the information Agee published was already in the public domain and/or if the government's interests were not as significant as the protection of intelligence sources.

    Nonetheless, in the absence of contrary authority, this passage in Haig v. Agee supports the argument that the government may punish publication of dangerous instructional information where that publication is motivated by a desire to facilitate the unlawful use of explosives.⁶⁸  At the very least, publication with such an improper intent should not be constitutionally protected where it is foreseeable that the publication will be used for criminal purposes; and the Brandenburg requirement that the facilitated crime be "imminent" should be of little, if any, relevance.⁶⁹  Accordingly, we believe that the district court in Rice v. Paladin, seesupra at 27-28, erred insofar as it concluded that Brandenburg bars liability for dissemination of bombmaking information regardless of the publisher's intent.  See also infra note 71.

    Having said that, we should note that where there is no concerted action between the publisher and any particular recipient of the information, there might be a significant problem in proving that the person publishing the information has done so with an impermissible purpose.  Most publishers of the bombmaking materials in question will argue that their publication is well-intentioned.  For example, in Rice, the publisher of Hit Man has asserted that its intended audience includes:  authors who desire information for the purpose of writing books about crime and criminals; law enforcement officers and agencies who desire information concerning the means and methods of committing crimes; persons who enjoy reading accounts of crimes and the means of committing them for purposes of entertainment; persons who fantasize about committing crimes but do not thereafter commit them; and criminologists and others who study criminal methods and mentality.  See supra at 28.

    Nevertheless, proof of improper intent might be possible in certain types of cases.  In many cases the manuals themselves might have "the declared purpose," Agee, 453 U.S. at 309, of facilitating crime.  Although, under Brandenburg, culpability cannot attach merely because the manuals advocate unlawful action, such advocacy could constitutionally be used as probative evidence that the disseminator of accompanying information on the techniques of bombmaking intended by such dissemination to facilitate criminal conduct.  See supra note 47.  What is more, if a publisher of such communications engages in a marketing strategy intended to maximize sales to, inter alia, "criminals and would-be criminals who desire information and instructions on how to commit crimes," as the publisher of Hit Man allegedly did, and if that publisher's economic success evidently depends upon stimulating a high volume of unlawful use of his product -- i.e., the publisher's fortunes substantially rise or fall depending on the degree to which his product facilitates unlawful conduct -- there might be sufficient evidence of improper intent.  See Direct Sales, 319 U.S. at 712-13 (where seller of dangerous drugs -- which could be used both for proper and improper purposes -- engaged in marketing strategy to stimulate sales to would-be criminals, and where seller had a "stake in the venture," it was permissible to infer intent to assist criminal operation).  As Justice Holmes explained in a related context, it is fair to assume that items are "designed for" unlawful use where they are "offered for sale in such a mode as purposely to attract purchasers who wanted them for the unlawful [use]."  Danovitz v. United States, 281 U.S. 389, 397 (1930).

    Finally, if, as Senator Feinstein believed, some of the information contained in the bombmaking manuals has no use other than to facilitate unlawful conduct,⁷⁰ that fact, too, would be evidence of an intent to facilitate crime (at least with respect to that particular information).  Publishers of such information undoubtedly would argue that such information has uses other than to facilitate unlawful conduct -- such as to educate law enforcement officials and would-be murder-mystery writers, and simply to entertain persons who enjoy reading accounts of the workings of the criminal mind. Seesupra at 28 (describing claims made by publisher of Hit Man).  But that assertion would only raise, rather than resolve, the critical question of fact regarding a publisher's intent; it would remain an issue for the trier of fact to determine whether one of the publisher's purposes was to facilitate criminal conduct.

    We acknowledge that in many cases, there may be a broad and diverse audience for such communications, including persons who would not use the information as a blueprint for crime, and the communications might have substantial value other than to facilitate crimes.  In such cases, courts might agree that "a strict rule about finding intent is especially important, lest a jury convict because of outrage over the facts someone has chosen to disclose.  A person should not be punished for encouraging a general crime like murder by publicly disclosing facts unless the prosecution's evidence leaves no possible doubt that his purpose has been to aid or cause that criminal result."  Greenawalt, Speech, Crime, supra note 20, at 273.  But where such a purpose is proved beyond a reasonable doubt, as it would have to be in a criminal case, the First Amendment should be no bar to culpability.⁷¹

2.  Dissemination with the "Knowledge" that a Particular Recipient of the Information Intends to Use It in Furtherance of Unlawful Conduct.  The Feinstein Amendment also would have made it unlawful, inter alia, for any person to "teach or demonstrate" the making of explosive materials, or to distribute by any means information pertaining to, in whole or in part, the manufacture of explosive materials, if the person "knows" that such information will be used for, or in furtherance of, "an activity that constitutes a Federal criminal offense or a criminal purpose affecting interstate commerce."  As Senator Biden explained, this "knowledge" provision was intended to address the case where the person disseminating the information has evidence that a particular potential recipient plans to use that information to engage in unlawful activities -- for example, when the person requesting the information expressly indicates that he plans to use the information to learn how to commit violent crimes.  See supra note 38.

    It is questionable whether the statutory scienter requirement ("knows") in the Feinstein Amendment would suffice to cover such a situation.  As explained above, supra at 21 & note 32, where a statutory element of "knowledge" refers to a possible future result of a defendant's conduct, the government typically must prove that the defendant was "aware `that that result is practically certain to follow from his conduct.'"  United States v. Bailey, 444 U.S. 394, 404 (1980) (citations omitted).  Thus, even where someone expressly states that he desires to purchase a product in order to plan a crime, it might be difficult to persuade the trier of fact that it was "practically certain" that the crime would be committed (particularly if, as it turned out, the crime was not in fact committed).  It would, therefore, be helpful to identify a more carefully tailored mens rea requirement in order to address Senator Biden's hypothetical situation.

    The scenario Senator Biden describes brings to mind other types of "facilitation" statutes, such as state statutes making it a crime to "provide" a person with "means or opportunity" to commit a crime, "believing it probable that he is rendering aid to a person who intends to commit a [crime]."  N.Y. Penal Law § 115.05 (McKinney 1996).⁷²  Such statutes, however, are of general applicability:  they do not single out a particular form of facilitation, such as facilitation involving conveyance of information, for especially harsh treatment.  And what is more, conviction under such statutes -- as under the federal aiding and abetting statute, 18 U.S.C. § 2 -- requires that the facilitation actually result in the commission of a crime.⁷³

    A closer analogy, therefore, might be another section of the AEDPA itself.  Section 706 of the AEDPA makes it a felony to "knowingly transfer[] any explosive materials, knowing or having reasonable cause to believe that such explosive materials will be used to commit a crime of violence . . . or drug trafficking crime."  110 Stat. at 1295-96 (to be codified at 18 U.S.C. § 844(o)).⁷⁴ The "reasonable cause to believe that [the item] will be used [for the unlawful purpose]" standard would seem to address directly the case where the recipient of the product indicates an intent to use it to commit or to facilitate a crime.  The constitutional question then becomes whether such a standard can be used where the item being transferred is not "explosive materials," as in AEDPA section 706, but instead information on how to manufacture or use such materials.

    There is little case law directly on point.  As Professor Greenawalt points out, however, this case is not quite as easy from a First Amendment perspective as "attempted aiding and abetting," which can constitutionally be proscribed because it requires a specific purpose to actually assist in the commission of the crime:

            It is only a minor impairment of freedom to tell people they cannot provide information they want to be used for a
            crime.  It is somewhat more serious to tell them that, even if they have no such purpose, they must keep their mouths
            shut.  A speaker may conceivably think a communication has significant value for the listener beyond the listener's
            immediate purpose, but, even if the speaker does not think that, perhaps a recognition of the speaker's autonomy
            should include allowing him ordinarily to say what he believes to be true to his acquaintances, regardless of the use he
            thinks they plan to make of it.

            A further argument against such liability is the problem of determining facts accurately and the effect of the resulting
            uncertainty on people who speak.  If people become aware that they can be treated as criminal for providing
            information they believe will aid a crime, they may hesitate to give information when they think there is some modest
            chance of criminal use, not trusting that prosecutors and jurors will always be discerning about perceptions of relevant
            probabilities.

            The implications for free speech are serious enough to warrant careful attention to the problem of communications that
            facilitate.

Greenawalt, Speech, Crime, supra note 20, at 86-87.

    There are two principal reasons why a "facilitation through speech" prohibition without an "intent" requirement would raise serious First Amendment problems.  First, such a facilitation prohibition would be directed specifically and uniquely at facilitation effected by way of conveying information.  In other words, it would not prohibit facilitation, as such, but only a speech-related subset of such conduct.  "The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct."  44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1512 (1996) (plurality opinion).  The constitutionality of the prohibition therefore is not as clear as it would be if "facilitation through speech" were just one form -- i.e., one application -- of a generally applicable facilitation statute that did not refer specifically to speech. SeeCohen v. Cowles Media Co., 501 U.S. 663, 669-71 (1991) (whereas First Amendment is not implicated by application of "generally applicable laws" to violations involving speech or the press, there is a greater constitutional problem where, as in Florida Star, the "State itself define[s] the content of publications that would trigger liability").

    Second, as explained above, supra at 30-34, the First Amendment traditionally has been understood to prohibit the use of the criminal or tort law to punish the dissemination of lawfully obtained factual information absent an impermissible purpose for such dissemination; and this is so even where such publication has a "propensity" to be misused by someone in a criminal or tortious manner.  Yet that is, in a sense, precisely what a facilitation prohibition would do in Senator Biden's scenario:  it would punish distribution of lawfully obtained information because the disseminator had reason to believe that such distribution would result in some harm.

    Although the matter is far from certain, in the end we think these First Amendment concerns can be overcome, and that such a facilitation prohibition could be constitutional, if drafted narrowly.  To be sure, the prohibition would be "speech-specific."  But, as with respect to 18 U.S.C. § 231(a)(1), see supra at 21-23, Congress would be singling out "teaching" and "informational" facilitation of crime not because of any hostility to speech itself, but because those are the forms of facilitation that are the most apparent threats to safety not already addressed by accomplice and conspiracy prohibitions and by the facilitation prohibitions found in sections 323 and 706 of the AEDPA.  Congress arguably would simply be filling in a statutory gap, rather than expressing a general hostility to any particular viewpoint.  Accordingly, the constitutional problems should be minimized.  See Edler Industries, 579 F.2d at 520-22 (whereas First Amendment would prohibit export restrictions dealing with general "interchange of scientific and technological information," it is constitutional to restrict such export where the exporter knows or has reason to know that the recipient of the information will use it to produce or operate munitions).  See also Constitutionality of the Proposed Revision of the International Traffic in Arms Regulations, 5 Op. O.L.C. 202, 207-08 (1981).

    Furthermore, such a prohibition could be, in constitutionally significant respects, less problematic than a statute or tort that punishes speech having a propensity to be misused by some unknown recipient.  In the latter type of tort and criminal cases, the practical effect of a penalty would be to deter altogether the dissemination of the information, since there is always a chance that some reader, listener or viewer will turn the information to bad use, and the only way to avoid this risk is to cease speaking altogether.  Indeed, even where there would in fact be only a slim likelihood that the information would be misused, a jury might be expected to find the requisite degree of "recklessness," particularly if -- as is likely in such cases -- the jury is hostile to the message conveyed in the information and does not believe that it serves any social utility to distribute such information.  The risk of such an outcome effectively could chill the "legitimate" dissemination of bombmaking information even if there is but a slight risk of its misuse.⁷⁵  By contrast, a facilitation prohibition tailored to particular recipients who are likely to make criminal use of the information would not have such a broad chilling effect on such speech.  The person conveying the information would be required only to withhold its distribution to particular persons who pose an apparent risk, and otherwise would be able to continue general publication, distribution or sales.  In other words, such a prohibition would only restrict or deter certain particular transactions, but would not impede general publication.

    In drafting a constitutional facilitation statute, we think the safest strategy would be to address Senator Biden's scenario directly -- for example, by barring dissemination of bomb-making information to a particular person, where the disseminator knows that such person intends to use the information for an unlawful purpose.  Under such a statute, the requisite "knowledge" would not be of a future event, but instead, of someone else's present intent.  Therefore, the government would not be required to prove that the disseminator was "practically certain" of the recipient's intent.  See supra at 21 (discussing "practical certainty" standard for "knowledge" of future events).  Instead, it should suffice to prove that the person providing the information was aware of a "high probability" that the recipient had an intent to use the information to commit a crime.  See, e.g., Barnes v. United States, 412 U.S. 837, 845 (1973); Turner v. United States, 396 U.S. 398, 416 & n.29 (1970); Leary v. United States, 395 U.S. 6, 46 n.93 (1969).⁷⁶  That "knowledge" typically should be found where, as in the cases hypothesized by Senator Biden, the recipient clearly indicates to the disseminator a desire to use the information for criminal purposes.⁷⁷

    Alternatively, Congress could decide to track the language of section 706 of the AEDPA, such as the following:

            It shall be unlawful for any person to teach or demonstrate to any particular person the making of explosive materials,
            or to distribute to any particular person, by any means, information pertaining to, in whole or in part, the manufacture of
            explosive materials, with reasonable cause to believe that such particular person will use such teaching, demonstration
            or information for, or in furtherance of, an activity that constitutes a Federal criminal offense or a criminal offense
            affecting interstate commerce.

That formulation would almost certainly cover the case where the recipient of the information expressly indicates an intent to use such information to commit or to facilitate a crime, and would likely be constitutional as applied to such a case.  However, such a "reasonable cause to believe" standard might also deter widespread, general publication of such information where a publisher is aware that certain suspicious persons are in the "audience."⁷⁸  Because of this risk of chilling substantial publication of such information to persons who will not use it unlawfully, such a statute would run a greater risk of constitutional invalidation than a statute (such as that described above) that is more narrowly tailored to the particular hypothetical described by Senator Biden.⁷⁹

    For the reasons discussed in the preceding sections, the Feinstein Amendment would be more likely to reach all of the fact situations that Senators Feinstein and Biden wished to address, and would be more likely to pass constitutional muster in most or all of its applications, if it were modified to read as follows:

    It shall be unlawful for any person --

    (a) to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to
    distribute by any means information pertaining to, in whole or in part, the manufacture or use of such an explosive, device or
    weapon, intending that such teaching, demonstration or information be used for, or in furtherance of, an activity that
    constitutes a Federal criminal offense or a State or local criminal offense affecting interstate commerce;⁸⁰ or

    (b) to teach or demonstrate to any particular person the making or use of an explosive, a destructive device, or a weapon of
    mass destruction, or to distribute to any particular person, by any means, information pertaining to, in whole or in part, the
    manufacture or use of such an explosive, device or weapon, knowing that such particular person intends to use such
    teaching, demonstration or information for, or in furtherance of, an activity that constitutes a Federal criminal offense or State
    or local criminal offense affecting interstate commerce.

    For purposes of this section, the term "explosive" has the meaning set out in 18 U.S.C. § 844(j).  The term "destructive
    device" has the meaning set out in 18 U.S.C. § 921(a)(4).  The term "weapon of mass destruction" has the meaning set out in
    18 U.S.C.A. § 2332a(c)(2).

    The principal differences between this proposal and the Feinstein Amendment itself are the following:

    1.  The Feinstein Amendment could be construed to impose culpability if the person disseminating the information has reason to know that some unidentified, unspecified recipient thereof will use the information for an unlawful purpose, or if such an outcome is the "natural consequence" of publication of the information.  Because that construction could cover virtually all public dissemination of such information, it would raise serious constitutional questions.  The alternative formulation specifies that the person who disseminates the information must either have the specific purpose of facilitating criminal conduct, or must have knowledge that a particular recipient intends to make improper use of the material.  This should, for example, address Senator Biden's example of a sale of a bombmaking manual to a purchaser who has requested it for the express purpose of using such information to accomplish an unlawful end.  In such a case, a well-intentioned distributor of the information will be prohibited from providing the information to the requesting party, but may otherwise freely offer the item for sale.

    2.  Under the Feinstein Amendment, it would be unclear whether criminal culpability would attach where someone disseminates dangerous information about explosives with a conscious purpose of facilitating unlawful conduct by unknown recipients of the information.  The alternative formulation would make clear that dissemination with such a specific purpose would be proscribed.  While the constitutionality of particular applications of such a prohibition might be somewhat uncertain (depending on whether the evidence truly demonstrates the improper intent beyond a rea