Legal consequences to asking questions about specific illegal activity?

Question

Say I were to make a website that consisted of short survey like questionnaires. For the purpose of this question lets say 1 question per survey, 1 survey per page.

Can legal issues arise from asking specific "yes/no" type questions about illegal activity. The first thing that comes to mind is threat type questions. When i say specific I mean what if the question involved names, for example "Would you kill the president?" or "Would you kill Obama?". I wouldn't think this is inherently a threat from the askers point of view but the fact that you pointed out this person in particular seems sort of threatening. Would there be legal ramifications for asking that in a public forum.

What about repercussions for people who respond, keep in mind this would be primarily anonymous. I doubt any legal body would take the time to actually care about these types of things but if for some reason they wanted to persue it could the web host be forced to provide what ever details they do have on people who respond?

What if the question is no longer "would you" but "have you", insinuating this person has already committed a crime?

This is asked using the example of threat because that's the easiest for me to think of but I want this to cover any type of "yes/no" answer questions.

Answer 1

Would there be legal ramifications for asking that in a public forum?

As phrased, I cannot see how there would be. First and probably most importantly, in the context these questions are clearly hypothetical. In many jurisdictions there are laws against making threats, however, those threats have to be made to the person and contain within them sufficient force that the person concerned can reasonably feel that that they may be acted on. Similarly, they do not qualify as in incitement to violence or a conspiracy.

could the web host be forced to provide what ever details they do have on people who respond?

If a court issued a subpoena then failure to supply the information would be contempt of court. Would a court issue a subpoena? Probably not; there is no evidence apparent that there is any criminal or illegal activity going on.

What if the question is no longer "would you" but "have you", insinuating this person has already committed a crime?

No ... look:

"Last Saturday at 3pm I killed the president with a shoulder-mounted rocket launcher".

The above sentence is known in legal circles as a "lie". Do you have any evidence that the person taking the survey is telling the truth?

Warning

This answer is valid for jurisdictions with a strong rule of law. There are parts of the world where such "confessions" could and would be used as the basis for judicial persecution.

Answer 2

There are certainly a number of enumerated exceptions to First amendment right of free speech, however, your description of this fictitious scenario survey is not, thus far, one of them. The Supreme Court has identified a number of categories of speech that are unprotected by the First Amendment and may be prohibited entirely. Among them are obscenity, child pornography, and speech that constitutes so-called “fighting words” or “true threats.”

In a 2010 case, the Court made clear that it would not likely add any more categories to the list of types of speech that currently fall outside the First Amendment’s purview, but it did not entirely rule out the possibility that other forms of unprotected speech exist. I say thus far only jokingly, for the most part. That type of thing would really never be regulated under current jurisprudence. The court had occasion to say it wouldn't foreclose the possibility in a case where the government argued pictures of animal cruelty should survive strict scrutiny as an overriding public good. The court called them manipulative in their argument, but did say they can't say there won't ever be something (however unlikely) that expands the current exceptions to our freedom to say what we want.

While I doubt a fictitious "what if" polling site could ever be regulated, short of falling within one of these exceptions, the fact is that nobody knows until it's tested. That said, if this is something you'd like to do, no matter how distasteful the query may be, I would be willing to posit that you're protected.