Constitutional right not to turn over evidence about free spe echactivity

[Volokh, Eugene]

        I guess I'm a bit puzzled by this:  Is the argument that evidence
that someone has bought a book is simply *less relevant* than evidence that
someone has said something?  The trouble is that the Colorado Supreme Court
didn't really justify its analysis in those terms -- it didn't ground its
strict scrutiny requirement on the notion that the government rarely has a
sufficient interest in introducing the information, but rather on the notion
that the speaker has a strong interest in keeping the information quiet.

        And if Malla's comparative reasoning belos is correct, speakers
would have, if anything, an even stronger interest in keeping their
statements confidential than in keeping the books they read confidential --
if the books come to light, the readers can at least claim that they were
just "looking at multiple opinions to see if [they] should decide to agree
with them," and thus diminish the embarrassment (and therefore the chilling
effect on reading the books).  The potential embarrassment if the statements
come to light -- and therefore the chilling effect from being able to have
the statements subpoenaed -- is greater, precisely because observers will
assume that "[t]he opinions one expresses are more likely to be one's own."

        Actually, I think that what one reads can often be as damning, and
thus as embarrassing, as what one says; there may be a subtle difference,
but not a huge one.  But in any event, the case for the existence of a
chilling effect flowing from the power to subpoena evidence of one's
statements is at least as strong as the case for the existence of a chilling
effect flowing from the power to subpoena evidence of one's readings.

        Eugene

> -----Original Message-----
> From: Malla Pollack [SMTP:L10MXP1 at wpo.cso.niu.edu]
> Sent: Monday, April 08, 2002 3:10 PM
> To:   CONLAWPROF at listserv.ucla.edu; VOLOKH at mail.law.ucla.edu
> Subject:      Re: Constitutional right not to turn over evidence about
> free speechactivity
>
> I see a clear distinction.  The opinions one expresses are more likely to
> be one's own than the books one reads.  Reading is way of looking at
> multiple opinions to see if one should decide to agree with them.
> Congruently, librarians consider themselves to have an ethical duty to
> shield records showing who borrowed what.
>
> Malla Pollack
> Northern Illinois Univ., College of Law
> DeKalb, Illinois 60115
> 815-753-1160; (fax) 815-753-9499
> mallapollack at niu.ed <mailto:mallapollack at niu.ed>u
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