Constitutional right not to turn over evidence about free spe
Mark.Scarberry at PEPPERDINE.EDU
Fri Apr 12 11:40:57 PDT 2002
I agree with a lot of what Eugene says. I think he is right that private
speech is very important in countering "bad" public speech. But that "good"
private speech cannot counter the "bad" public speech effectively unless at
least many of those engaging in the good private speech have read or
listened to the bad public speech. And there is a danger of a kind of guilt
by association, of jurors believing that anyone who would read such
subversive material must be a bad person. Thus, IMHO, the receipt and
reading of "bad" public speech needs particular protection.
I think Eugene is right to say that not all subpoenas of information
concerning books purchased by a person should need to pass strict scrutiny.
But I do think that such information would so often be irrelevant or nearly
irrelevant that a showing of particular need and relevance should be
required, in light of the need to protect the receipt and reading of "bad"
public speech. A defendant denies knowledge of how to make a bomb or how to
make methampetamine--a subpoena to a bookstore for records of purchases of a
book on how to make bombs or meth should be permitted. A defendant denies
robbing a bank--a subpoena to a bookstore for records of purchases of books
critical of our banking system or of capitalism should be quashed, at least
absent other evidence that the defendant committed the bank robbery for
A hypo for consideration: a man is charged with committing violence against
a woman on account of her gender; do list members think a subpoena to a
magazine shop of any records of purchases of Playboy magazines should be
upheld or quashed? If the magazine store owner refuses to tell a grand jury
whether the defendant ever purchased Playboy magazines at the store, should
a court hold the store owner in contempt?
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu>
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Thursday, April 11, 2002 2:34 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Constitutional right not to turn over evidence about free spe
There's much to what Mark says, but I'm not sure it quite supports
the distinction at issue here -- the notion that subpoenaing information
about what one has read is a more serious burden on free speech than
subpoenaing information about what one has said, to the point that the
former must pass strict scrutiny and the latter only a relevance test.
First, I agree that some countries restrict public criticisms of
government but tolerate private criticisms. But that hardly supports the
notion that private speech should get *less* protection (as opposed to equal
protection) compared to public speech. Private speech is a vital part of
the marketplace of ideas. Private speech often involves the opportunity for
bad speech to be corrected with good speech, especially since many people
are more willing to listen to disagreements from friends and acquaintances
than from strangers. Our views about the world are, I'd wager, as
influenced by the aggregate of our private speech as by the aggregate of our
listening to public speech or reading books.
Second, I agree that inferences from what one reads are sometimes
unreliable, and perhaps on balance less reliable than inferences from what
one says. But the difference is subtle, and varies greatly from case to
case: People sometimes play devil's advocate; sometimes say things (even
political things) when they're deeply emotionally affected by an event, and
quickly realize that those aren't their true views; and sometimes change
their views over the years or even the months. But in any event, this issue
seems to me to go to the weight of the evidence, rather than to the degree
to which using the evidence burdens the speaker's free speech rights. Or am
I missign something here?
Mark Scarberry writes:
Utilitarian notions are important, aren't they, in the justification
freedom of speech? I've always thought that a basic justification for a
refusal to allow government to prevent most "harmful" public statements is
that a better result is reached if "bad" public speech is countered by more
public speech. This notion did not seem to get much traction the first time
I stated it (a few days ago), and thus perhaps most persons on this list
think it is a naive high school civics approach. But it seems to me crucial
that we have a free public marketplace of ideas--in which "bad" speech is
countered by "good" speech--and to have such a marketplace we need to
protect persons who read or listen to "bad" speech against any quick
assumption that they must agree with it.
This marketplace of ideas justification for freedom of speech (and
freedom of the press) is particularly relevant to public speech. Thus I
suggested a few days ago that the underpinnings of freedom of speech and of
the press in our political system are largely concerned with public
communications. Many societies in which there is no freedom of public speech
or of the press permit relatively free private conversations. My friends in
the People's Republic of China tell me that criticism of the government in
private conversations is tolerated; of course public criticism is not.
It has been suggested, implausibly I think, that we can predict what
person will do almost as well from what the person reads as from what the
person says he or she plans to do. I continue to disagree with that
suggestion. On balance we should be particularly on guard against allowing
the government to judge a person's intentions by what he or she reads.
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