The Washington PostDemocracy Dies in Darkness

Opinion Illinois bill would outlaw posting ‘video of a crime being committed’ ‘with the intent to promote or condone that activity’

Placeholder while article actions load

Illinois state Reps. Terri Bryant, Dan Brady and Grant Wehrli are proposing criminalizing

  1. “Upload[ing] a video of a crime being committed, a gang-related fight, a battery committed with the intent to cause a person to be made unconscious, or other display of violence”
  2. “to a social media website or social networking website”
  3. “with the intent to promote or condone that activity.”

But speech intended to “promote or condone” crime, even violent crime, is protected by the First Amendment unless (a) it’s intended to and likely to produce imminent illegal conduct (see Brandenburg v. Ohio (1969)) or (b) it solicits the commission of a specific crime, likely against a specific target or in a specific place or time (see U.S. v. Williams (2008)). And that extends to videos of crime, and to postings to social media sites, as much as to other speech. If someone records, for instance, criminal vandalism or violence at a political demonstration and posts it together with praise of such criminal conduct, that is fully protected.

The bill is thus unconstitutionally overbroad. It’s apparently prompted by people posting videos of kids beating up other kids, and if the people who are recording the videos are involved in the beating — for instance, they helped arrange it, or they shout out encouragement during the beating (that would be a form of criminal solicitation) — then they can be punished for such arranging or encouragement. But simply posting a video, even of a fight involving children, can’t be criminally punished, even if the speaker has the intent to condone such fights. And the broader ban on uploading all “video of a crime being committed” “with the intent to promote or condone” such crime is even more clearly unconstitutional.

The bill would also criminalize “refus[ing] to provide a law enforcement agency or peace officer with that uploaded video upon request of that agency or officer.” That, too, would be unconstitutional, though under the Fourth Amendment: As the court held in City of Los Angeles v. Patel, the government can’t just require people to turn over their property to be viewed, simply on an officer’s request. The police can get a warrant for the property; they can get a subpoena for the property; in some situations, they can indeed seize and search the property even without a warrant or a subpoena; but they can’t just categorically demand people’s videos, simply on the grounds that they want the videos or even because they think the videos contain important evidence.