Constitutional right not to turn over evidence about free spe ech activity

[Tobias Barrington Wolff]

One difference, of course, is that purchasing and reading books is about
receiving information, while private conversations are about communicating
information.  Perhaps there is an implicit assumption here that the impulse
to communicate is stronger than the impulse to seek out and receive
information, and hence that the latter is more subject to "chill" than the
former.  (That strikes me as fairly plausible -- people like to talk.)

Combined with that, perhaps, is an extra-legal set of background
assumptions against which the bookstore subpoena was issued.  I think it is
a matter of common understanding that we can be called to testify in a
lawsuit, and that our private conversations might be the subject of
inquiry.  Thus, even when we're called upon to testify about an earlier
conversation that we'd rather not discuss, I think few people would have
the reaction that a highly unusual intrusion (rather than simply an
undesired situation) was occurring.  In contrast, I do not think it is a
matter of common understanding or expectation that bookstore receipts might
be subpoenaed.  The level of intrusion may thus seem more unusual to a
non-legal audience.  If that's so, the subjective perception of unusual
intrusion may also be more likely to provoke a behavior-altering (i.e.
dissuade one from purchasing books).

This is, in fact, an interesting question in First Amendment
analysis.  When we ask whether an individual is likely to be "chilled" from
engaging in protected speech activities, to what extent can a court take
cognizance of behaviors or background assumptions that are "irrational" or
have no legal foundations -- as, for example, the lack of common
understanding that bookstore receipts might as readily be subpoenaed as
testimony about a private conversation -- if they are nonetheless
descriptively accurate?

-- T

At 04:28 PM 4/10/2002 -0700, you wrote:

>         Hmm -- I'm not sure whether this flies:
>
>         (1)  Surely the First Amendment protects people's private
> conversations with one another about politics as much as it protects
> public speech.  Even in the rare contexts where there's a "public
> concern" test applicable, private speech is protected; see, e.g., Givhan
> v. Western Line Consol. School Dist., 439 U.S. 410 (1979).  In fact, one
> of the most important ways in which ideas about public issues are
> propagated is through private conversations -- people persuading each
> other one at a time about what's right and what's wrong.  It therefore
> seems to me not accurate to say that "confidentiality of what one has
> said or written does not usually advance First Amendment values, which
> are mostly concerned with public speech"; or am I missing something?
>
>         (2)  It's true that the books that one reads sometimes don't
> reveal that much about what one actually thinks; but often they
> do.  Likewise, what one says generally reveals more about what one
> thinks; but sometimes it doesn't, since people sometimes say things they
> don't really believe, and often say things that they later stop
> believing.  The difference in relevance seems to be likely fairly slight,
> on balance, and in any event seems to go more to the weight of the
> evidence -- not to whether the First Amendment should bar discovery of
> the evidence.
>
>         (3)  The best argument I've heard for the First Amendment should
> bar discovery of bookstore records is the Colorado Supreme Court's
> argument:  That such discovery may deter people from exercising their
> First Amendment rights.  But exactly the same argument applies to
> discovery of information about what people said in conversation.
>
>         Eugene
>-----Original Message-----  From:   Scarberry, Mark
>[SMTP:Mark.Scarberry at PEPPERDINE.EDU]  Sent:   Wednesday, April 10, 2002
>12:33 PM  To:     CONLAWPROF at listserv.ucla.edu  Subject:        Re:
>Constitutional right not to turn over evidence about free spe echactivity
>
>I agree with Malla. The Colo. S.Ct.'s reasoning may be poor, and its
>decision in this case may be wrong, but there is, on balance, a stronger
>societal interest in protecting confidentiality of what is read or
>purchased than of what is said or written.
>
>    To counter evil or misguided or false speech, it is often necessary to
> listen to it or to read it. (Of course it is usually necessary to read or
> listen to speech in order to evaluate whether it is evil or misguided or
> false in the first place!) The drawing of inferences from the mere
> purchase of a book as to state of mind or propensity to engage in any
> particular action dangerously undermines the structure of freedom of
> speech (and press), which depends mostly on "more speech" to counter bad
> speech. Such an undermining might be tolerated if the inferences were in
> most cases valid, but IMHO they will in most cases be invalid.    By
> contrast, confidentiality of what one has said or written does not
> usually advance First Amendment values, which are mostly concerned with
> public speech. Further, what one says or writes is often very good
> evidence of the person's state of mind or propensity to act. Evil can
> sometimes be averted if we actually take seriously what people say or
> write as indications of their intentions. Cf. Mein Kampf.    Where,
> however, the book provides information as to how to commit a crime, and
> the defendant claims he did not know how to commit the crime, evidence
> that the defendant purchased the book becomes important not to show state
> of mind or propensity to act but rather to show ability to commit the
> illegal act. Such cases will be rare enough, and the inference as to
> ability will be reliable enough, that in my view the prosecution should
> be permitted to gather and introduce evidence of purchase of the book.
> Perhaps the defense should be able to block introduction of the evidence
> by stipulating that the relevant knowledge was known by or at least
> accessible to the defendant.    I'm sure there are other cases in which
> the balance should come out in favor of permitting gathering and use of
> evidence of what one has purchased (or possessed or borrowed). E.g.,
> child pornography cases. But such cases should be relatively rare. They
> should be much rarer than cases in which the gathering and use of
> evidence of what one has said or written is permitted. At least, that's
> how I see it.    Mark S. Scarberry Pepperdine University School of Law
> mark.scarberry at pepperdine.edu


* * *
Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
530-754-6981
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