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«THE FIRST AMENDMENT AS CRIMINAL PROCEDURE DANIEL J. SOLOVE* This Article explores the relationship between the First Amendment and criminal ...»

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This Article explores the relationship between the First Amendment and criminal

procedure. These two domains of constitutional law have long existed as separate

worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, and countless searches and seizures involving people’s private papers, the books they read, the websites they surf, and the pen names they use when writing anonymously now fall completely outside the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment should protect against government information gathering that implicates First Amendment interests. He contends that there are doctrinal, historical, and normative justifications for developing what he calls “First Amendment criminal procedure.” Solove sets forth an approach for determining when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

INTRODUCTION................................................. 113 R


ACTIVITIES.............................................. 117 R A. Two Separate Worlds of Constitutional Law......... 117 R B. First Amendment Values and Government Information Gathering.............................. 119 R C. Criminal Procedure and First Amendment Values... 123 R D. An Open Question.................................. 128 R II. FIRST AMENDMENT CRIMINAL PROCEDURE............ 132 R A. Historical Justifications.............................. 132 R * Copyright  2007 by Daniel J. Solove. Associate Professor, George Washington University Law School; J.D., Yale Law School. For helpful comments, thanks to Jack Balkin, Paul Butler, Morgan Cloud, Anuj Desai, Thomas Dienes, David Fontana, Marcia Hofmann, Chris Hoofnagle, Orin Kerr, Chip Lupu, Robert Post, Peter Raven-Hansen, Neil Richards, Fred Schauer, Paul Schwartz, Chris Slobogin, Charlie Sullivan, Michael Sullivan, Andrew Taslitz, Robert Tsai, Robert Tuttle, and Eugene Volokh. I would also like to thank Judith Krug, who helped me track down cases involving subpoenas and requests for library records. The Criminal Law Professors Workshop held at the George Washington University Law School yielded very helpful comments. My research assistants James Murphy, Tiffany Stedman, and Sava Savov provided excellent research support.

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Suppose the government is interested in finding out about your political beliefs, religion, reading habits, or the things you write and say to others. To uncover this information, law enforcement officials construct a bibliography of the books you read using records at bookstores and libraries. They assemble a list of people with whom you communicate using records obtained from your Internet Service Provider (ISP) and phone company. They seize your diary and personal writings. To what extent do the Fourth and Fifth Amendments restrict the government’s investigation?

In many instances, not at all. A century ago, the Fourth and Fifth Amendments would have significantly restricted government informaserver05\productn\N\NYU\82-1\NYU103.txt unknown Seq: 3 13-MAR-07 13:34


tion gathering that involves what I will refer to as “First Amendment activities”—speech, association, consumption of ideas, political activity, religion, and journalism.1 But today, the Fourth and Fifth Amendments play a much diminished role in these contexts. First, the Supreme Court has held that the use of a subpoena to obtain documents and testimony receives little, if any, Fourth or Fifth Amendment protection.2 Subpoenas are orders compelling the production of documents or information. They are issued without judicial approval, and they have few limitations beyond a requirement that the information be relevant to an investigation.3 As a result, the government can readily use subpoenas to gather information pertaining to communications, writings, and the consumption of ideas. Second, the Court has held that the Fourth Amendment does not cover instances when a person’s information is gathered from third parties.4 In the Information Age, a massive amount of data about our lives—data that may pertain to First Amendment activities—is maintained by third-party businesses and organizations.

Does the First Amendment provide any protection? At first blush, the question seems odd. The rules that regulate government investigations have typically emerged from the Fourth and Fifth Amendments, not the First. Lawyers and judges generally do not think of the First Amendment as having much relevance to criminal procedure, let alone as providing its own criminal procedure rules.

The First Amendment is usually taught separately from the Fourth and Fifth Amendments, and judicial decisions on criminal procedure only occasionally mention the First Amendment. I contend in this Article, however, that the First Amendment must be considered alongside the Fourth and Fifth Amendments as a source of criminal procedure.

First Amendment activities are implicated by a wide array of law enforcement data-gathering activities. Government information gathering about computer and Internet use, for example, can intrude on a 1 The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I.

2 See Fisher v. United States, 425 U.S. 391, 397 (1976) (holding that use of subpoena to obtain records from third party does not violate Fifth Amendment privilege of person under investigation); United States v. Dionisio, 410 U.S. 1, 9 (1973) (holding that subpoenas are not searches under Fourth Amendment).

3 See generally DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 202–03 (2004) (describing subpoenas and contrasting them with warrants).

4 United States v. Miller, 425 U.S. 435, 443 (1976).

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significant amount of First Amendment activity. Searching or seizing a computer can reveal personal and political writings. Obtaining email can provide extensive information about correspondence and associations. Similarly, ISP records often contain information about speech, as they can link people to their anonymous communications.

AOL, for example, receives about a thousand requests per month for use of its customer records in criminal cases.5 The government can also use subpoenas to gather information about First Amendment activities such as book reading and personal writing. Indeed, the FBI once subpoenaed six years of customer records from Arundel Books, an alternative book retailer, in connection with an investigation of political campaign contributions.6 Independent Counsel Kenneth Starr subpoenaed records of Kramerbooks & Afterwords, a bookstore in Washington, D.C., regarding books Monica Lewinsky purchased for President Bill Clinton.7 The government has also subpoenaed people’s writings, documents, and even their diaries. The Senate Ethics Committee, for example, subpoenaed the diaries of Republican Senator Bob Packwood as part of its investigation of sexual harassment charges against the senator.8 Government information gathering can also implicate other First Amendment protections, such as freedom of association and freedom of the press. Freedom of association can be implicated when the government monitors or attempts to infiltrate political groups. Freedom of the press can be compromised when the government subpoenas journalists to provide the identities of confidential sources, or when the police search the offices or computers of media entities. And with blogs supplementing the traditional media, searches of individual homes and computers might also implicate journalistic activities.9 Today, in an effort to fight the war on terrorism and protect national security, the government gathers extensive information about people’s associational ties and their communicative activity. Section 215 of the USA PATRIOT Act permits the FBI to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an 5Saul Hansell, Online Trail Can Lead to Court, N.Y. TIMES, Feb. 4, 2006, at C1.

6Bob Tedeschi, Patriot Act Has Led Online Buyers and Sellers to Watch What They Do. Could It Threaten Internet Business?, N.Y. TIMES, Oct. 13, 2003, at C6.

7 Felicity Barringer, Using Books as Evidence Against Their Readers, N.Y. TIMES, Apr. 8, 2001, at 4.3.


9 See David A. Anderson, Freedom of the Press, 80 TEX. L. REV. 429, 434–35 (2002) (noting that what constitutes “the press” for constitutional purposes is called into question by blogging).

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investigation... to protect against international terrorism or clandestine intelligence activities.”10 Shortly after September 11th, the Bush Administration authorized the National Security Agency (NSA) to engage in warrantless wiretapping of international phone calls and the gathering of phone records en masse.11 The FBI began canvassing for information about worshippers at several mosques.12 Furthermore, the government has been engaging in “data mining”—examining data for various links between people or for certain patterns of behavior.13 Although First Amendment activities are frequently involved in government investigations, the First Amendment is rarely invoked when courts apply the constitutional procedural safeguards that govern such investigations.14 This Article endeavors to establish a foundation for the development of First Amendment criminal procedure. I contend that there are doctrinal, historical, and normative foundations for the First Amendment to play a significant role in regulating government information gathering. I explore when government investigations should trigger First Amendment protection and what kinds of safeguards the First Amendment should require.

Part I discusses the current landscape of criminal procedure protections for First Amendment activity and argues that current rules leave many activities that are central to First Amendment values unprotected. Government information gathering frequently implicates First Amendment values, but courts and commentators analyzing the constitutionality of government searches have traditionally focused only on the Fourth and Fifth Amendments. Under current law, however, much government information gathering affecting First 10 USA PATRIOT Act § 215, 115 Stat. 287 (2001) (codified as amended at 50 U.S.C.

§ 1861 (Supp. III 2005)).

11 See Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA TODAY, May 11, 2006, at A1 (reporting on NSA program to collect millions of call records from telephone companies and noting that while NSA wiretapping authority is limited to international calls, acquisition of phone records may facilitate broad access to personal information about domestic callers). While the details of the NSA surveillance and information gathering programs are still shrouded in secrecy, it seems clear that the information gathered by the NSA relates to communication and association. See Seymour M. Hersh, Listening In, NEW YORKER, May 2006, at 25 (describing, in conjunction with NSA surveillance and information gathering programs, NSA’s “chaining” process that begins with suspect phone number and then expands outward through several “levels of separation” to observe calling patterns of persons associated with suspect number).

12 Linda E. Fisher, Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups, 46 ARIZ. L. REV. 621, 625–26 (2004).


RANGE OF USES 1–3 (2004) (discussing various government data mining endeavors);


LAW 604–17 (2d ed. 2006) (describing government data mining programs).

14 See infra Part I.

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Amendment activity falls outside the scope of Fourth and Fifth Amendment regulation.

Part II sets forth the positive case for First Amendment criminal procedure. I contend that First Amendment protection against government information gathering is justified by the historical connections between the First, Fourth, and Fifth Amendments, the history of government investigations into First Amendment activity, and several lines of First Amendment doctrine.

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