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Monday, July 15, 2013

Surveillance, chilling, and the First and Fourth amendments

In an earlier post I quoted Justice Sotomayor’s statement (concurring in United States v. Jones) that “[a]wareness that the Government may be watching chills associational and expressive freedoms.”  I have been talking about the Fourth Amendment, not the First, and in the comments Jim von der Heydt asks what I “make of Justice Sotomayor’s clear reliance on FIRST Amendment rights, not privacy rights,” in that sentence.

Will Baude took a shot at an answer a month ago, in his post “How Could Surveillance Violate the First Amendment?”, in which he focused on that same sentence.  Assuming Justice Sotomayor is talking about the First Amendment, he wondered where within First Amendment doctrine this claim might come from. 

Will provides some interesting thoughts, but I think both Jim and Will are barking up the wrong tree.  Contrary to both of them, I do not think Justice Sotomayor is making a First Amendment claim—I think she is making a Fourth Amendment claim.  Of course, “associational and expressive freedoms” are protected by the First Amendment, but they can be (and are) protected by other amendments as well—such as the Fourth.

In Jones, Justice Sotomayor is discussing the Fourth Amendment “reasonable expectation of privacy” test.  (See her opinion, paragraph 2.)  She argues (in agreement with the Alito+Ginsburg+Breyer+Kagan concurrence) that longer-term GPS monitoring infringes on societal expectations of privacy.  (Paragraph 3.)  This is because:  (1) GPS monitoring generates a very detailed record of movement (para. 4); (2) it is cheap and the data lasts forever (para. 4); (3) it is done covertly (para. 4); (4) unrestrained power to assemble this data is susceptible to abuse (para. 5); and (5) when people know the government is watching them, their freedoms are chilled (para. 5).

She then says:  “I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements.”

In other words, the chill to associational and expressive freedoms, in this judicial opinion, is not flagging the First Amendment—it is one of the factors that suggests to Justice Sotomayor that people may have a reasonable expectation of privacy in whether their movements are tracked (at least long-term) by GPS.

She adds that these reasons give her pause to trust the executive to use this tool without judicial oversight, “especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance,’ United States v. Di Re, 332 U. S. 581, 595 (1948).”  (Para. 6.)

This is a Fourth Amendment claim, not a First Amendment one.  Justice Sotomayor is claiming that the Fourth Amendment seeks to prevent a too permeating police surveillance—and one obvious reason to do so is because of the danger to associational and expressive freedoms.  The Fourth Amendment does not (only) protect privacy for its own sake, but for a variety of reasons, including maintaining liberty of thought and association.  No need to track down a First Amendment citation for Justice Sotomayor's statement.  It stands as a good Fourth Amendment claim. 

Posted by Jonathan Witmer-Rich on July 15, 2013 at 02:21 PM | Permalink


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Thanks a ton for responding to my question!

My read was that Justice Sotomayor wrote the sentence this way in order to avoid seeming to contradict the burgeoning body of law that says the harm of speculatively feared government action (i.e., 'chill'), whether felt by plaintiffs or third parties, is not cognizable in litigation except in the First Amendment realm.

However -- I think she may have been wrong to narrow her sentence this way (i.e., I agree with your reading of the spirit of the opinion).
The recent body of law on chill is focused on standing and the distinction between as-applied and facial challenges -- matters of litigation procedure, not substance. And there are other legal principles that get drowned out by it. In another context, chill is a perfectly good basis for the doctrine of unconstitutionality due to vagueness.

So I agree that, without contradicting all that litigation-procedure law, Justice Sotomayor's point could have been made much more broadly. She could have said, "awareness that the Government may be watching chills the exercise of a free and robust private life." This would have been what you call for -- a freestanding Fouth Amendment claim.

But she didn't write it that way. I think this sentence shows that judges are conditioned, because of a focus on how litigation works, to steer clear of the 'chill' concept except in the First Amendment realm.

Your point is that they shouldn't be. But Justice Sotomayor's way of composing this sentence suggests to me that they are.

Posted by: Jim von der Heydt | Jul 15, 2013 3:39:39 PM

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