First Amendment Query
So I'm reading through the opinions in the Sixth Circuit NSA decision, and this question arises. The "lead" opinion (there is no majority opinion) concludes that the First Amendment cannot be implicated in a case where the communications were intended to be private, confidential--they were phone calls and emails--because the First Amendment only applies to public speech, i.e., speech intended to be heard. Slip op. at 9-10. Now, of course, I intend my phone calls to be heard by someone, but I don't want to quibble.
Here's my question. Under that theory, could the Government prohibit the communication of certain political beliefs in private phone calls or emails only? If the First Amendment only applies to "public speech," then there wouldn't be a problem with such a regulation. (Now, the regulation might be hard to enforce without an army of snitches, but enforcement is a separate question.)
More seriously: It seems to me that the associational apsects of the First Amendment allow some kind of expectation of privacy, no? I've never really thought about the connection b/w the First and Fourth Amendments before, certainly not in this light. But don't I have a First Amendment interest in being able to communicate my "message" to just one person (or a few people)?
posted by Number Three @ 12:53 PM
4 Comments:
Whomever decided this caese needs to go back and read (I would say reread, but I fear that's being too generous) their Kant. From what you say, no. 3, it sounds like a horrendous understanding of public/private. Yes, the 1st amendment is about the public sphere in some important sense, but that doesn't mean it only protects speech when folks are literally standing in that sphere. It protects speech whenever that speech is directed TOWARD the public sphere.
Or am I missing something?
I would go farther. The "freedom of speech" encompasses purely private speech. For example, the Government cannot prohibit spouses from talking to one another about politics (or any other subject). It may be that the speakers never intend that their speech become public; it may never have been directed at the public sphere; but that doesn't change the analysis. The speech is still protected. So government wiretapping can have a chilling effect even on private, purely private speech. To say that the Fourth Amendment is the only amendment implicated by wiretapping (and private speech) seems to me to be a misreading of the case law (esp. Griswold) and the Bill of Rights.
Your comment, though, might mean "directed" in the sense that the speech is related to public affairs. If so, I concur. Even if confidential speech is private, if it is on matters of public concern, it gets First Amendment protection. But again, I would go farther and say that all private speech is protected, under the First Amendment, regardless of content (public affairs or private matters).
Hey Fro, as long as we're doing a theorist check, I'll see your Kant and raise you a More. In Utopia, private political discussions are banned (to prevent conspiracies) while public ones are embraced. I've always thought that one of the weirdest passages in that book. I think it combines a genuinely "republican" advocacy of speech with the era's complete practical inexperience with how that speech would need to germinate in a free society.
#3, doesn't the court's opinion fully invert our regular 1st am. jurisprudence? Ever since free speech doctrine began developing in the 1910s, the assumption has been that the state needs to demonstrate some manifest PUBLIC harm created by speech--hence the dueling standards of "bad tendency" and "clear and present danger" that eventually lead to speech getting put in a "preferred position" with respect to gov't regs. But the basic idea is always this: the fallback position is free speech, but if the public consequences are severe enough and immediate enough, the state may have a compelling reason to restrict. This ruling says the opposite, making a prima facie case for its incoherence.
I'm not sure the lead opinion--which doesn't have much precedential value, if any--really inverts the traditional understanding. The plaintiffs are trying to get around the standing problem by alleging a First Amendment injury--a chilling effect on their (private) communications. The lead opinion says that you can't do it that way, that the First Amendment doesn't apply to private speech (i.e., speech intended to be confidential). So the plaintiffs are stuck with the Fourth Amendment, and they can't actually show an injury to them on that theory (because of Govt secrecy, for the most part).
So it's not that the speakers have to prove anything; it's that the whole category is excluded from the First Amendment.
Post a Comment
<< Home