Timeline for Is it illegal to ask someone to commit a misdemeanor? What is this called?
Current License: CC BY-SA 4.0
18 events
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| Aug 9, 2021 at 21:55 | comment | added | ohwilleke | Incidentally, crimes for which you can be liable without actually personally committing all of the acts of the crime (e.g. solicitation, attempt, conspiracy) are called, collectively, "inchoate offenses." | |
| Mar 17, 2021 at 4:45 | comment | added | David Schwartz | @bdb484 I think we're in violent agreement. As you now state, mere encouragement, like "I encourage you to obtain child pornography" can only be punished if it meets the Brandenburg requirement of imminence, as I said. It has to go beyond mere encouragement (for example, into solicitation) for Williams to apply. As you said, solicitation is not mere encouragement. | |
| Mar 16, 2021 at 19:35 | comment | added | bdb484 | Your intepretation is essentially the same one the Supreme Court rejected in Williams: "To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality. See Brandenburg v. Ohio ... The term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer." | |
| Mar 16, 2021 at 19:31 | comment | added | bdb484 | That's not really what Brandenburg says, as Brandenburg didn't actually encourage anyone to do anything. He just said that if Congress keeps oppressing the white man, "it's possible that there might have to be some revengeance taken." His speech wasn't protected because it was "mere encouragement"; it was protected because it was "abstract advocacy." That's the question that flips the Brandenburg / Williams switch, and "Go to Atlanta and kill him" is sufficiently specific to trigger Williams. | |
| Mar 16, 2021 at 19:17 | comment | added | David Schwartz | @bdb484 I don't agree. Williams would allow it if it was an offer, advertisement, or solicitation. Brandeburg prohibits it if it's merely encouragement. "Get me something illegal so that I can have it for my use" is way beyond merely encouraging someone to commit a crime. "Go to Atlanta and kill him" is not an offer or solicitation. | |
| Mar 16, 2021 at 19:13 | comment | added | bdb484 | Maybe I'm missing something. As I understand it, you're saying Brandenburg would prohibit punishment for "Go to Atlanta and kill him"; I'm saying Williams would allow it and Brandenburg would be inapplicable. | |
| Mar 16, 2021 at 19:10 | comment | added | David Schwartz | @bdb484 That's fully consistent with what I said. These are all cases that go beyond mere encouragement. | |
| Mar 16, 2021 at 19:01 | comment | added | bdb484 | See, e.g., United States v. Williams, 553 U.S. 285 (2008) ("Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or not) that is intended to induce or commence illegal activities. ... Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection."). | |
| Mar 16, 2021 at 19:01 | comment | added | bdb484 | @DavidSchwartz The Supreme Court has rejected this argument. The imminence requirement is part of the test for the "incitement" exception to First Amendment protection; because solicitation is not "abstract advocacy," it is more properly run through the "speech integral to criminal conduct" exception, and the courts don't impose any imminence requirement there. | |
| Mar 16, 2021 at 17:59 | comment | added | David Schwartz | Note that you can't actually be convicted if you merely encouraged the crime verbally unless the criminal act was imminent at the time you encouraged it. So "Kill him now" can be punished but "Go to Atlanta and kill him" cannot because of the Supreme Court's holding in Brandenburg. Offering to pay someone to commit a crime is not merely encouraging it. | |
| Mar 16, 2021 at 17:16 | history | edited | bdb484 | CC BY-SA 4.0 |
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| Mar 16, 2021 at 10:16 | comment | added | bdb484 | It's model language, and most states in the United States have adopted it. The states that don't use it will generally follow the same principles, using different language. | |
| Mar 16, 2021 at 8:42 | comment | added | Hobbamok | @bdb484 I read through it but am not absolutely sure: does that link you quoted from apply to the united-states or is it like a general guideline on criminal codes? | |
| Mar 16, 2021 at 8:41 | comment | added | Hobbamok | @Frungi, yeah, whether it applies to misdemeanors if entirely up to local laws | |
| Mar 15, 2021 at 13:53 | vote | accept | Frungi | ||
| Mar 15, 2021 at 13:52 | comment | added | Frungi | Thanks to this wording, I found this in my local laws: “A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation, ranked for purposes of sentencing as provided in subsection (4).“ | |
| Mar 15, 2021 at 5:29 | comment | added | George White | As your link mentions, this may not be a crime in some states that require the underlying crime to be more serious than a misdemeanor. | |
| Mar 15, 2021 at 5:04 | history | answered | bdb484 | CC BY-SA 4.0 |