U.Va. Law Graduate Wins Award for Developing Legal Test to Determine First Amendment Protections of ‘Criminally Instructional Speech'

Leslie Kendrick, a 2006 graduate of the University of Virginia School of Law, has won the Brown Award, a $10,000 national prize for excellence in student legal writing. Kendrick, who coined the term “criminally instructional speech” to classify such directions that may aid crimes, received the award for developing a test to determine whether such speech is legal. Her article on the subject, “A Test for Criminally Instructional Speech,” was published in the Virginia Law Review.

Kendrick, who currently clerks for Judge J. Harvie Wilkinson III (U.Va. Law ’72) of the U.S. Court of Appeals for the Fourth Circuit, was chosen for the award by a panel that included Judge Eugene Davis from the Fifth Circuit of the U.S. Court of Appeals and Harvey Rishikof, former dean of the University of Rhode Island law school. In the fall, she will receive the award in Houston, Tex.

“I had no idea that I had been nominated for it, and so to hear it first from Mrs. Brown when she called to say I had won the prize, that was just an incredible surprise,” Kendrick said. “Both personally and professionally, it was a really good boost of encouragement to keep working on legal projects and to keep writing.”

The Judge John R. Brown Scholarship Foundation provides the award, which attracts 80 to 150 nominations annually. Brown, the foundation’s namesake, was appointed in 1955 by President Dwight D. Eisenhower to serve on the U.S. Court of Appeals for the Fifth Circuit. Brown is remembered for his influential decisions that helped to desegregate the South and advance civil rights for African-Americans during the 1960s and 1970s.

Kendrick’s “note” – a term used in legal education meaning student-written articles – in the Virginia Law Review was based on an independent study paper that she worked on with her U.Va. law school adviser, professor Vincent Blasi. The note responds to UCLA law professor Eugene Volokh’s “Crime Facilitating Speech,” an article published in a 2005 issue of The Stanford Law Review.

Kendrick’s piece is significant, Blasi said, because it categorizes criminally instructional speech so that it can be defined and provides a test for whether such speech is protected under the First Amendment. “Her solution is practical. It grows out of a real deep engagement with traditional common law doctrine,” Blasi said. “It’s very carefully worked out.”

Whether the information is used to commit a crime is not necessarily the trigger; what matters is the intent of the speaker, Kendrick argues. The easy exchange of information on the Internet has fueled an increasing concern about this type of speech and has necessitated a reliable test to determine what expressions should and should not be protected under the First Amendment.         

Kendrick’s test is based on the aiding-and-abetting paradigm. The person who provided criminal instruction to an offender should be held accountable for aiding the crime if it can be proven that he intended that a crime should happen, knew the offender directly and knew of the offender’s plan to commit a crime. The second part of the test contends that if the instructor did not know the offender or know of the offender’s plans, he still should be held accountable if his intent was to assist in the commission of a crime and a clear connection can be made between his instructions and the actual crime. The final part of the test is administered when a crime has not been committed, but the instructor intended to facilitate a crime and his instruction would likely be used to commit a crime.
                 
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