Wednesday, August 23, 2006
This article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion.
The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people's private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure.
Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls “First Amendment criminal procedure.” Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide. [Mark Godsey]