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

[Volokh, Eugene]

        Mark proposes an interesting First Amendment evidentiary relevance
test; I think there may be something to his suggestion, but I just don't
agree that this would justify a constitutional distinction between
subpoeanas of evidence about what books one bought and subpoenas of evidence
about what one said.  Both are relevant some of the time and irrelevant some
of the time.  Maybe book-buying records are on average less relevant than
testimony about what one said; or maybe not.  But even if they are, I don't
think the difference is so stark as to justify a bright-line constitutional
distinction.

        As to the Playboy hypo, I think that the evidence is irrelevant on
these facts, but it would in any event be inadmissible character evidence.
The better question would be if someone is being prosecuted for beating a
black person because of his race, and the issue is whether the victim was
indeed selected based on race -- or if someone is being prosecuted for
treasonously harboring a saboteur with the intent of helping the Nazis, and
the issue is whether the harboring was motivated by love of Nazism or by
parental love for the saboteur (who's the harborer's son, see Haupt).  I
think that evidence that the person bought a copy of Mein Kampf should be
admitted, just as I think that evidence that the person said "I think Nazism
is a great philosophy" should be admitted.  Of course, evidence that the
person bought the copy just to educate himself about Nazism should be
admissible in rebuttal, as should evidence that the person said "I think
Nazism is a great philosophy" sarcastically, or in order to butter up a
potential employer who was a Nazi sympathizer, or because he was afraid that
otherwise he'd get beaten up by the person he was talking to.

        Eugene

Mark Scarberry writes:

> 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 ideological reasons.
>
> 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>
>
>
>  -----Original Message-----
> 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
> ech activity
>
>
>
>               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?
>
>               Eugene
>
>       Mark Scarberry writes:
>
>               Utilitarian notions are important, aren't they, in the
> justification of
>       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 of course
>       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 a
>       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.
>
>               Mark Scarberry
>       Pepperdine
>
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