Stewart, Director, Arizona Department of Corrections v. McCoy

Background

A man was convicted in Arizona of helping a criminal gang by giving members advice on organizing, recruiting, and violent initiations. An Arizona jury sentenced him to 15 years in prison. The state courts affirmed his conviction under an Arizona law that criminalizes giving advice to a criminal syndicate. A federal district court later granted his habeas petition and released him, and the Ninth Circuit affirmed that release. The warden asked the Supreme Court to review the case, which the Court declined.

Reasoning

The central question is whether speech that teaches or instructs criminal activity counts as protected free speech under the First Amendment. The Ninth Circuit concluded the defendant’s comments were "mere abstract advocacy" and therefore protected because they did not encourage immediate lawless action, relying on Brandenburg and Hess. Justice Stevens, writing to explain why the Court denied review, agreed the case raised important questions and cautioned that the Brandenburg rule covers only "mere advocacy" and may not resolve speech that functions as teaching or long-range planning of crimes.

Real world impact

Because the Supreme Court refused review, the lower courts’ decision releasing the defendant remains in place. But Justice Stevens emphasized that courts have not yet decided how the Constitution treats instructional speech that aids long-term criminal planning. That leaves open whether people who give detailed advice, training, or written plans for criminal activity can be punished without violating free speech. This denial is not a final ruling on those broader questions.

Dissents or concurrances

Justice Stevens issued the statement respecting the denial; he stressed the defendant’s harsh sentence justified denying review but urged clarity on whether "instructional" speech that poses public danger differs from mere advocacy.