First Amendment and investigations

[Volokh, Eugene]

	Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002), upheld an
injunction that barred the government from "initiat[ing] an
investigation of a physician solely on the basis of a recommendation of
marijuana within a bona fide doctor-patient relationship, unless the
government in good faith believes that it has substantial evidence of
criminal conduct.  Because a doctor's recommendation does not itself
constitute illegal conduct, the portion of the injunction barring
investigations solely on that basis does not interfere with the federal
government's ability to enforce its laws."  Denney v. DEA, 2007 WL
2344900 (E.D. Cal. Aug. 15), extended this to bar "retaliationary
investigation" of a doctor who has publicly testified in favor of the
use of medical marijuana.

	I sympathize with the courts' thinking here, and their desire to
prevent investigations that might well deter protected speech.  At the
same time, given that speech can be used as evidence at trial (even when
it's merely relevant, not dispositive), why couldn't it be used as
evidence that the government considers in deciding whether to
investigate, i.e., look for more evidence?  

	Say that a government agent believes that people who express
certain views -- pro-marijuana, pro-racist-violence, fiercely
anti-abortion-provider, and the like -- tend to be involved in criminal
activities as well.  He therefore focuses on some people who say that,
and tries to uncover more evidence that would support probable cause for
a search or for an arrest.  He naturally doesn't yet have probable
cause, or even "substantial evidence," but he's also not yet engaging in
activity that would normally require probable cause:  He might just be
going undercover to talk to the person, or asking around about the
person, or even searching through publicly available things that the
person has said or records of what he has done.  Should that be
unconstitutional?  Or should a person's speech be usable as a basis for
an investigator's investigating further, though not searching,
arresting, or convicting?

	Eugene