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

[Tobias Wolff]

Agreed that the distinction is a difficult one to draw.

I just taught the First Amendment section of Robert Bork's classic
"Neutral Principles . . . " article in constitutional law today.  Our task
would certainly be a lot easier if Bork's view had carried the day.

-- T

>         Tobias's response is, as always, thoughtful and creative -- but I
> think it only ends up showing the difficulty of drawing a distinction
> between subpoenaing bookstore records and subpoenaing
witnesses to private
> statements.
>
>         (1)  To begin with, the First Amendment protects the freedom of
> *speech*.  I think the Court was quite right to hold that it also
protects
> the freedom to read, cf. Lamont, but surely it protects the freedom to
> communicate at least as much as the freedom to receive
information.  And
> while many people like to talk, many people like to read; people can
be
> chilled from reading by the risk that the government will learn what
they
> read, but they can be chilled from talking by the risk that the
government
> will learn what they say.  So the "impulse to comunicate is stronger
than
> the impulse to seek out and received information" distinction
strikes me as
> unsound.
>
>         (2)  Nor does it seem likely to me that "it is [not] a matter of
> common understanding or expectation that bookstore receipts
might be
> subpoenaed."  My suspicion is that laypeople don't know much
about the
> subpoena rules.  Some might think (I'd say erroneously, outside
Colorado,
> cf. Zurcher v. Stanford Daily) that bookstore records can't be
subpoenaed,
> and conversations can be.  Others might think (equally
erroneously) that
> bookstore records can be subpoenaed, but information about
private political
> conversations can't be.  Most probably don't know, and are aware
that they
> don't know.
>
>         If the question is people's reasonable expectations, then
before
> this case -- and even now, outside Colorado (note that the Colo.
Sup. Ct.
> acknowledged that the result would likely be different under the
First
> Amendment) -- it would be reasonable to expect that subpoenas
may be issued
> in both situations.  If it's their actual expectations, then I don't know
> how we can figure it out short of a poll.  But in any case, I don't quite
> see how this should be dispositive of the question of what the rules
> *should* be.
>
>         Eugene
>
> > -----Original Message-----
> > From: Tobias Barrington Wolff [SMTP:tbwolff at UCDAVIS.EDU]
> > Sent: Wednesday, April 10, 2002 5:45 PM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: Constitutional right not to turn over evidence about
> > free spe ech activity
> >
> > 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
> >
>