Murder Recruitment Is Now Constitutionally Protected Free Speech
Sep 27, 2024 by David Fowler
Last Friday, a federal district judge in Middle Tennessee, Alita Trauger, held that communications in Tennessee designed to “recruit” someone in connection with the murder of another person outside the state are protected by the First Amendment’s free speech clause. How could that be true? If you are pro-life, the answer will disgust you, but there is a solution to it.
The statute behind the judge’s holding, enacted by Tennessee’s legislature last year, prohibits “abortion trafficking.” The law says “[a]n adult commits the offense of abortion trafficking of a minor if the adult intentionally recruits . . . a pregnant unemancipated minor within this state for the purpose of procuring an abortion or . . . obtaining an abortion-inducing drug.”
How the Judge Analyzed the Constitutionality of the Law
The judge’s analysis began by correctly noting that if “conduct is illegal, then the speech knowingly and directly facilitating that conduct may be forbidden as well, without violating the First Amendment.” This precept has been true at common law for centuries.
On the other hand, the judge wrote, “If] the underlying conduct is not illegal,” a “conversation considering that conduct is simply ordinary speech, entitled to First Amendment protection.”
Then the judge explained the problem, by putting in jarring words the meaning of the U.S. Supreme Court’s Dobbs decision in 2023 reversing Roe v. Wade:
In other words, abortion is constitutionally permissible and, therefore, lawful unless a state chooses to make it unlawful.
Therefore, the judge correctly concluded that Tennessee “has chosen to outlaw certain communications made in the furtherance of abortions that are, in fact, entirely legal,” meaning in those states that chose not to make it unlawful. (emphasis supplied)
Thus, Judge Trauger was also able to say:
Where It All Went Wrong
The “problem” presented by the judge’s constitutional analysis of the statute rests on the fact that none of the leading lawyers in the pro-life community, including the prominent lawyer who drafted this kind of law, have ever argued for an interpretation of the Fourteenth Amendment based on the common law. And yet it has only been by judicial interpretation of that amendment’s Due Process Clause that the Free Speech Clause of the First Amendment has been applied to the states (for an explanation of how that error happened see my book, Recovering the Constitution).
Please bear with me as I explain why this failure is, in my view, legal madness and what our attorney general can do to fix it.
The Legal Precedents the Pro-Life Lawyers and Our Legislators Refuse to Consider
As I wrote last week, the U.S. Supreme Court has said that common law provided the legal “nomenclature” from which the words in the Constitution were drawn. The Court has said that the Constitution must “necessarily” be interpreted “in light of the common law and its history.”
That is precisely why Judge Trauger said at the outset that the Free Speech Clause could not be interpreted to protect conversations pertaining to a conspiracy to commit murder. Before any statutes were ever written and before our Constitution was written, it was a crime at common law to conspire for the murder of a person.
What Judge Trauger was saying is that this common law precept is imbedded in the meaning of the Free Speech Clause without it having to be spelled out. This shows why common law is important to a proper interpretation of the Constitution.
Nevertheless, the lawyers in the pro-life community and in our legislature have been unwilling to use the common law to interpret the word “person” in the Fourteenth Amendment applicable to its Due Process and Equal Protection Clauses.
Why This Argument and These Precedents Matter
Why that kind of argument is important is that the word “person” at common law includes “the child in the mother’s womb.” This was true at the time of the adoption of the Constitution and the Fourteenth Amendment.
Had that argument ever been made in support of pro-life legislation, it is possible that the U.S. Supreme Court would have held that state abortion laws deny an unborn person life without due process of law and that refusing to extend murder laws to an unborn person denies him or her equal protection of the law.
I don’t know if the Court would have held that way, but it could not have denied the historical accuracy of the argument and its own precedents about the common law’s application to constitutional interpretation. To reject this argument, the Court would have had to reject and overrule several of its precedents regarding constitutional interpretation and disregard hundreds of years of common law history!
But, because these arguments were not made by the parties in Dobbs, the Court escaped having to rule on them.
How This Would Have Changed Everything
Had the Court held, according to the precedents I referenced, that the word “person” includes the unborn, as was true at common law at that time, all state abortion laws would immediately have been constitutionally suspect.
That doesn’t mean those laws would “go away” since the judicial power is separate from the legislative powers. The laws in those states would have remained “on the books” until repealed, their constitutionality was challenged in a court proceeding, or Congress exercised its powers under Section 5 of the Fourteenth Amendment to nullify those abortion laws by legislation.
However, had there been such a ruling, Tennessee could have argued in defense of the trafficking law that no state’s pro-abortion laws can provide a lawful defense to prosecution since that state’s law would be constitutionally unenforceable. In other words, there could be no protected speech concerning abortion trafficking, and the law would be enforceable.
How to Fix the Problem
So, challenging the constitutionality of state abortion laws is, in my opinion, precisely what our attorney general needs to do in the present court proceeding. If successful, it would eliminate the grounds on which Judge Trauger’s free speech ruling rests.
Here is the argument in a nutshell:
Because the Fourteenth Amendment, written in the language of the common law extant at the time of its ratification, protects the “life” of a “person” by due process of law and equal protection of the law and because common law included a “child in the mother’s womb” within the meaning of the word “person,” there can be no state in which an abortion is constitutionally lawful. The Constitution is not silent on the right of persons to due process and equal protection of the law. Therefore, no “speech” in Tennessee advocating for the murder of another person is protected free speech, even if the murder is to take place in another state.
The statute behind the judge’s holding, enacted by Tennessee’s legislature last year, prohibits “abortion trafficking.” The law says “[a]n adult commits the offense of abortion trafficking of a minor if the adult intentionally recruits . . . a pregnant unemancipated minor within this state for the purpose of procuring an abortion or . . . obtaining an abortion-inducing drug.”
How the Judge Analyzed the Constitutionality of the Law
The judge’s analysis began by correctly noting that if “conduct is illegal, then the speech knowingly and directly facilitating that conduct may be forbidden as well, without violating the First Amendment.” This precept has been true at common law for centuries.
On the other hand, the judge wrote, “If] the underlying conduct is not illegal,” a “conversation considering that conduct is simply ordinary speech, entitled to First Amendment protection.”
Then the judge explained the problem, by putting in jarring words the meaning of the U.S. Supreme Court’s Dobbs decision in 2023 reversing Roe v. Wade:
Dobbs changed the Supreme Court’s caselaw to make territorial abortion bans permissible. (emphasis supplied)
Therefore, the judge correctly concluded that Tennessee “has chosen to outlaw certain communications made in the furtherance of abortions that are, in fact, entirely legal,” meaning in those states that chose not to make it unlawful. (emphasis supplied)
Thus, Judge Trauger was also able to say:
[A]s long as there are states in which abortion is permissible, then abortion will be potentially available to Tennesseans. Because obtaining an abortion out of state is a lawful option, moreover, Tennessee cannot make it a crime to communicate freely about that option. (emphasis supplied)
Where It All Went Wrong
The “problem” presented by the judge’s constitutional analysis of the statute rests on the fact that none of the leading lawyers in the pro-life community, including the prominent lawyer who drafted this kind of law, have ever argued for an interpretation of the Fourteenth Amendment based on the common law. And yet it has only been by judicial interpretation of that amendment’s Due Process Clause that the Free Speech Clause of the First Amendment has been applied to the states (for an explanation of how that error happened see my book, Recovering the Constitution).
Please bear with me as I explain why this failure is, in my view, legal madness and what our attorney general can do to fix it.
The Legal Precedents the Pro-Life Lawyers and Our Legislators Refuse to Consider
As I wrote last week, the U.S. Supreme Court has said that common law provided the legal “nomenclature” from which the words in the Constitution were drawn. The Court has said that the Constitution must “necessarily” be interpreted “in light of the common law and its history.”
That is precisely why Judge Trauger said at the outset that the Free Speech Clause could not be interpreted to protect conversations pertaining to a conspiracy to commit murder. Before any statutes were ever written and before our Constitution was written, it was a crime at common law to conspire for the murder of a person.
What Judge Trauger was saying is that this common law precept is imbedded in the meaning of the Free Speech Clause without it having to be spelled out. This shows why common law is important to a proper interpretation of the Constitution.
Nevertheless, the lawyers in the pro-life community and in our legislature have been unwilling to use the common law to interpret the word “person” in the Fourteenth Amendment applicable to its Due Process and Equal Protection Clauses.
Why This Argument and These Precedents Matter
Why that kind of argument is important is that the word “person” at common law includes “the child in the mother’s womb.” This was true at the time of the adoption of the Constitution and the Fourteenth Amendment.
Had that argument ever been made in support of pro-life legislation, it is possible that the U.S. Supreme Court would have held that state abortion laws deny an unborn person life without due process of law and that refusing to extend murder laws to an unborn person denies him or her equal protection of the law.
I don’t know if the Court would have held that way, but it could not have denied the historical accuracy of the argument and its own precedents about the common law’s application to constitutional interpretation. To reject this argument, the Court would have had to reject and overrule several of its precedents regarding constitutional interpretation and disregard hundreds of years of common law history!
But, because these arguments were not made by the parties in Dobbs, the Court escaped having to rule on them.
How This Would Have Changed Everything
Had the Court held, according to the precedents I referenced, that the word “person” includes the unborn, as was true at common law at that time, all state abortion laws would immediately have been constitutionally suspect.
That doesn’t mean those laws would “go away” since the judicial power is separate from the legislative powers. The laws in those states would have remained “on the books” until repealed, their constitutionality was challenged in a court proceeding, or Congress exercised its powers under Section 5 of the Fourteenth Amendment to nullify those abortion laws by legislation.
However, had there been such a ruling, Tennessee could have argued in defense of the trafficking law that no state’s pro-abortion laws can provide a lawful defense to prosecution since that state’s law would be constitutionally unenforceable. In other words, there could be no protected speech concerning abortion trafficking, and the law would be enforceable.
How to Fix the Problem
So, challenging the constitutionality of state abortion laws is, in my opinion, precisely what our attorney general needs to do in the present court proceeding. If successful, it would eliminate the grounds on which Judge Trauger’s free speech ruling rests.
Here is the argument in a nutshell:
Because the Fourteenth Amendment, written in the language of the common law extant at the time of its ratification, protects the “life” of a “person” by due process of law and equal protection of the law and because common law included a “child in the mother’s womb” within the meaning of the word “person,” there can be no state in which an abortion is constitutionally lawful. The Constitution is not silent on the right of persons to due process and equal protection of the law. Therefore, no “speech” in Tennessee advocating for the murder of another person is protected free speech, even if the murder is to take place in another state.
