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How far does free speech go? To identifying police?

This article first appeared in the St. Louis Beacon, Aug. 10, 2009 - A Virginia woman has been locked up for three weeks for her blog identifying drug agents near Charlottesville, Va. She is charged with identifying a police officer with intent to harass, the Washington Post reports. She is being held on $750 bail, which she apparently is unable to pay. The arrest challenges the limits of free speech.

Elisha Strom, who has white supremacist connections, was arrested outside Charlottesville on July 16. Police raided her house, confiscating notebooks, computers and camera equipment. Strom's last post, at 7 a.m. the morning of the arrest, says, "Uh-oh, they're here."

Much of the blog was devoted to photos and nasty comments about the Jefferson Area Drug Enforcement task force, which Strom called "nothing more than a group of arrogant thugs." All of the information on the website, including photos, was taken from public records. The posting that apparently led to the arrest contained the name and address of one of the officers and a street-view photo of his house.

Charlottesville Police Chief Timothy J. Longo Sr. warned Strom that the postings had scared off informants and endangered officers and their families. None of the postings contained threats.

Constitutional law experts say the arrest raises a First Amendment issue that the U.S. Supreme Court never has squarely answered: whether crime-facilitating speech may be punished. For example, is it illegal to write about how to build a bomb, pick a lock, commit suicide or read an encrypted computer message? Similarly, is it illegal to publish the names of witnesses to a crime or of abortion providers -- information that could lead to them being targeted?

The law that Strom is charged under reads: "It shall be unlawful for any person, with the intent to coerce, intimidate, or harass another person, to publish the person's name or photograph along with identifying information [defined as the person's (iii) social security number; (iv) driver's license number; (v) bank account numbers; (vi) credit or debit card numbers; (vii) personal identification numbers (PIN); (viii) electronic identification codes; (ix) automated or electronic signatures; ... or (xii) passwords], including identification of the person's primary residence address." The crime is a felony with a 6-month mandatory minimum when the target is a police officer.

Eugene Volokh, a First Amendment scholar, thinks that speech such as Strom's generally should be protected, unless it is aiding and abetting a crime. He notes, however, that no Supreme Court case clearly protects this kind of speech.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.