Amendment Doctrine Research Articles

The Law of Free Expression and New Information Technologies: The First Amendment Isn’t Obsolete

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

Democratic Erosion, Populist Constitutionalism, and the Unconstitutional Constitutional Amendments Doctrine

Abstract The world is experiencing a crisis of constitutional democracies. Populist leaders are abusing constitutional mechanisms, such as formal procedures of constitutional change, in order to erode the democratic order. The changes are, very often, gradual, incremental, and subtle. Each constitutional change, on its own, may not necessarily amount to a serious violation of essential democratic values. Yet, when examined in the context of an ongoing process, such constitutional changes may prove to be part of the incremental, gradual process of democratic erosion in which the whole is greater than the sum of its parts. This Article explores how courts can respond to such constitutional changes. We argue the Unconstitutional Constitutional Amendment Doctrine should be adapted to respond to existing constitutional practices that utilize incremental and subtle amendments to dismantle the democratic order. We suggest that an aggregated judicial review should be developed. We must also rethink the automatic immunity – the result of two hundred years of revolutionary constitutional theory – provided to complete constitutional replacement from constitutional restrictions and scrutiny. Finally, as opposed to the instinct to require judicial self-restraint with respect to constitutional changes that concern the judiciary itself, we suggest that this is perhaps the type of changes that require strictest scrutiny.

Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination. In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty years, ever since the Court’s murky opinion in R.A.V. v St. Paul struck down, as viewpoint based, an ordinance aimed at fighting words that “arouse[d] anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The Court was not clear whether the ordinance was viewpoint biased because it regulated one side of a public debate or limited a mode or manner of debate for both sides. The difference between these two possible readings matters: if limits on modes or manners of speech are deemed to be viewpoint discrimination, then it may be virtually impossible to enact, for example, bans on racial epithets at a public university. But Brunetti clarified matters considerably. The Court struck down the provisions of the Lanham Act prohibiting the registration of “immoral” and “scandalous” marks as viewpoint biased. The conflict between Justice Elena Kagan’s opinion for the Court and the lead opposition opinion written by Justice Sonia Sotomayor illuminated an important area of agreement that appears to control a majority of the Court. That agreement is this: that worries about viewpoint bias do not ordinary come into play when the government regulates the mode and manner of communication as opposed to the ideas conveyed. Such a principle has a number of implications. Perhaps the most important is that R.A.V. is less significant in First Amendment doctrine than it has seemed for thirty years. Also, some kinds of speech codes could survive First Amendment challenge, as long as they apply in certain fora and are aimed at the mode and manner of communication rather than the ideas expressed. Another implication would be that it would be possible for Congress to rewrite the now-defunct provisions of the Lanham Act to survive First Amendment challenge and also satisfy much of Congress’s original goals.

Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination. In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias is rarely a game changer in a given case. One enduring puzzle is whether a limit on the mode or manner of communication – a ban on racial epithets, for example – embodies viewpoint discrimination. This question has been unresolved for almost thirty years, ever since the Court’s murky opinion in R.A.V. v St. Paul struck down, as viewpoint based, an ordinance aimed at fighting words that “arouse[d] anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The Court was not clear whether the ordinance was viewpoint biased because it regulated one side of a public debate or limited a mode or manner of debate for both sides. The difference between these two possible readings matters: if limits on modes or manners of speech are deemed to be viewpoint discrimination, then it may be virtually impossible to enact, for example, bans on racial epithets at a public university. But Brunetti clarified matters considerably. The Court struck down the provisions of the Lanham Act prohibiting the registration of “immoral” and “scandalous” marks as viewpoint biased. The conflict between Justice Elena Kagan’s opinion for the Court and the lead opposition opinion written by Justice Sonia Sotomayor illuminated an important area of agreement that appears to control a majority of the Court. That agreement is this: that worries about viewpoint bias do not ordinary come into play when the government regulates the mode and manner of communication as opposed to the ideas conveyed. Such a principle has a number of implications. Perhaps the most important is that R.A.V. is less significant in First Amendment doctrine than it has seemed for thirty years. Also, some kinds of speech codes could survive First Amendment challenge, as long as they apply in certain fora and are aimed at the mode and manner of communication rather than the ideas expressed. Another implication would be that it would be possible for Congress to rewrite the now-defunct provisions of the Lanham Act to survive First Amendment challenge and also satisfy much of Congress’s original goals.

Free Speech, Rational Deliberation, and some Truths about Lies

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech – promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should count as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also limit the state’s ability to control the way we emotionally experience ideas, beliefs, and even facts. It claims that like art, music, religious expression, and other forms of human communication that do not facilitate rational deliberation in their audiences, fake news can promote a form of expressive experiential autonomy. It can allow individuals to experience individual self-realization and identify formation and also form cultural connections with like-minded people, advancing social cohesion. Drawing on First Amendment theory and on the fields of cognitive and social psychology and political science, the Article views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking to simultaneously distinguish themselves through individualization or self-identification and group association with a community of people with whom they share values. Understood in this way, the inquiry illustrates why the rational deliberation principle is incomplete because it does not explain much of what we ought to recognize as “speech.” This more nuanced understanding of the way that fake news connects with much of its audience has implications for free speech theory, First Amendment doctrine, and policymaking options for addressing the potential harms of fake news. To be clear, this Article is not a defense of fake news or those who intentionally attempt to influence others’ behavior by spreading false facts disguised as legitimate news. Thus, the Article concludes by explaining that while fake news should always be covered by the First Amendment, it should not always be protected.

Facial Recognition and the Fourth Amendment

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling. This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say about this powerful and permeating surveillance technology. But current doctrine and constitutional theory offers little privacy protection and less practical security than one might expect. Even worse, by studying the Fourth Amendment through the lens of facial recognition technology other doctrinal limitations come into focus. Issues of error rates, racial bias, unfairness, and transparency in policing more generally become magnified when trying to design a new surveillance system for law enforcement. The Article then offers a constitutional design solution to some forms of facial recognition surveillance. The Supreme Court’s recent cases on digital technologies suggest a way to “future-proof” the Fourth Amendment in the face of certain types of mass surveillance technologies. In addition, this Article suggests a new legislative framework for facial recognition to fill in the privacy and legitimacy gaps left by the current Fourth Amendment doctrine.

Predictive Surveillance and the Threat to Fourth Amendment Jurisprudence

This Article explores how the use of predictive surveillance to prevent terrorist and criminal activity may shape Fourth Amendment law. Predictive surveillance refers to a potential model of surveillance in which government collects data in bulk and then uses predictive analytics to detect patterns indicating terrorist or criminal activity. The existing model of surveillance regulation presumes that the government’s first step is to target a specific person. Therefore, the first analytical step in evaluating the constitutionality of a given surveillance practice is to determine whether the government had sufficient particularized suspicion about the target. Predictive surveillance, however, confounds the existing model because it requires collection of massive amounts of data with no particularized suspicion. Despite that disconnect, judges will face great pressure to twist existing doctrine rather than ban the data collection that the government claims is necessary to fight terrorism or crime. Assuming that courts will be predisposed to find predictive surveillance constitutional, this Article explores the various doctrinal approaches that courts could take to approve predictive surveillance and assesses the risk that each approach poses to Fourth Amendment doctrine. Part I introduces the concept of predictive analytics and describes predictive surveillance as a potential application of predictive analytics. Part II first identifies the technical and political challenges that the government will face if it tries to implement predictive surveillance and then discusses the reasons to believe that researchers and political actors will overcome these challenges. Part III describes why predictive surveillance threatens Fourth Amendment doctrine itself and offers a cautionary tale of how courts evaluating a prior mass surveillance program twisted the statutory language to authorize the program. Part IV discusses the different ways that courts could apply the Fourth Amendment’s third-party and public-exposure doctrines to predictive surveillance and then assesses how each approach could affect the development of those doctrines. Finally, Part V discusses the different ways that courts could apply the Fourth Amendment reasonableness standard to predictive surveillance and assesses how each approach could affect the reasonableness standard.

Third-Party Doctrine Principles and the Fourth Amendment: Challenges and Opportunities for First Responder Emergency Officials

The unresolved issues between the Fourth Amendment and the third-party doctrine provide first responders with challenges in their approach to meet the needs of any emergency they may be called for. A first responder needs to provide help quickly, and often this does not leave much time to think about the legal implications of some of their actions. With the rise of the Internet, the challenges of terrorism, and WikiLeaks, first responders are no longer sheltered from the legal implications that the use of information from online and other secondary sources may have. Specifically, privacy concerns may be raised when first responders use social media either as a tool to gather information about evolving emergencies, or to engage in the process of monitoring those media to detect potential threats to the safety of the country and its citizens. This paper will address some challenges first responders face when considering the third-party doctrine principles and the Fourth Amendment in their rescue efforts. What are some liability and legal concerns in the context of what first responders encounter when responding to potential threats? The paper will also include a discussion of practical experiences with the Fourth Amendment and third-party doctrine principles and explore liability issues related to first responders’ use of information.

The Kids Are All Right: The Law of Free Expression and New Information Technologies

Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.

The Fourteenth Amendment and the Transformation of Civil Rights

This article traces two genealogies of civil rights, one of a concept, the other a term. At the time of the drafting and ratification of the Fourteenth Amendment, the term civil rights became associated with a concept of rights that had featured in antebellum struggles over the place of free people of color in American society. Republican lawmakers turned to this newly essential term of racial governance to make the case that freedom required government protect certain fundamental rights—such as the right to make contracts, hold property, and testify in court—but that beyond these rights racial discrimination might be permissible. After Reconstruction, civil rights took on different connotations, and by the mid-twentieth century the term became synonymous with racial antidiscrimination policy generally. Yet the Reconstruction concept of civil rights retained a vestigial presence in Fourteenth Amendment doctrine. Twentieth-century jurists revived this partially forgotten concept for the same reasons it had resonated during Reconstruction: because it justified expanded legal protections against racial discrimination while simultaneously justifying limits on those protections. Tracing the history of the two genealogies of civil rights offers a new perspective on the legacy of Reconstruction on modern American law.

True Threats, Self-Defense, and the Second Amendment.

Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities that can be legally proscribed? This article finds guidance in the First Amendment doctrine of true threats, which permits punishment of "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual." The Second Amendment, like the First, should not be read to protect those who threaten unlawful violence. And to the degree that the constitution requires a culpable mental state (mens rea) in such circumstances, the appropriate standard should be recklessness.

Police surveillance of cell phone location data: Supreme Court versus public opinion.

The Fourth Amendment to the US Constitution protects individuals from unreasonable searches and seizures. As technology evolves, courts must examine Fourth Amendment concerns implicated by the introduction of new and enhanced police surveillance techniques. Recent Supreme Court cases have demonstrated a trend towards reconsidering the mechanical application of traditional Fourth Amendment doctrine to define the scope of constitutional protections for modern technological devices and personal data. The current research examined whether public opinion regarding privacy rights in electronic communications is in accordance with these Supreme Court rulings. Results suggest that cell phone location data is perceived as more private and deserving of protections than other types of location data, but the privacy of other types of information recorded on cell phones is valued even more than location data. These results have implications for the police and courts considering how the Fourth Amendment will apply to smart phone technologies.

Transparency is the New Privacy: Blockchain's Challenge for the Fourth Amendment

Blockchain technology is now hitting the mainstream. With the advent of enterprise blockchains, smart contracts, and corporate cryptocurrencies, countless human interactions, legitimate and illegitimate, are being and will be recorded permanently — and visibly — into distributed digital ledgers. Mass surveillance of day-to-day transactions will never have been easier. This article is the first to analyze blockchain protocols within the Fourth Amendment framework. Blockchain’s open, shared digital architecture challenges us to reassess two core premises of modern Fourth Amendment doctrine: that a “reasonable expectation of privacy” upholds the Amendment’s promise of a right to be “secure” against “unreasonable searches,” and that “a reasonable expectation of privacy” is tantamount to total secrecy. The article argues that these current doctrines rest on physical-world analogies that do not hold in blockchain’s unique digital space. Blockchain’s architecture particularly unsettles the physical-world rationales that underpin received Fourth Amendment distinctions such as public/non-public and content/non-content, as well as the third-party and false friend doctrines. Instead, this article argues that blockchain can create security against unreasonable searches, within the Amendment’s meaning, even for data that are shared or public. The key is control, not secrecy. The article weaves together a focused technical analysis of blockchain’s architecture and a careful assessment of current Fourth Amendment jurisprudence and historical context. It builds on scholarly critiques of current Fourth Amendment doctrine, and reveals the surprising connections between blockchain’s philosophical goals and Fourth Amendment theory, showing that blockchain’s open distributed architecture does the work in digital space that privacy does in the physical world to advance Fourth Amendment values such as security, control of information, expression, and personal autonomy. The article also evaluates textualist approaches to blockchain, concluding that blockchain data are an “effect,” subject to trespassory searches under the Supreme Court’s rubric in United States v. Jones. Finally, the article proposes an analytical framework for Fourth Amendment protections for distributed ledgers — corresponding to the levels to which blockchain users evince control of their data — that is grounded in text and theory and that is administratively practicable for courts.

Words, Wounds, and Relationships: Why Social Ties Matter to Free Speech in High-Conflict Protests

Under settled First Amendment doctrine, true threats and incitement to violence fall clearly outside the protection of the United States Constitution. However, the line between violent speech and protected political hyperbole is exceedingly blurry, especially in high-conflict protest environments. This study complements doctrinal analysis with an ethnographic field study of abortion clinic protests in the Southern United States to test assumptions about speech, harm, and political discourse. It recommends that courts modify the analytical frameworks for true threats and incitement to better capture the layers of social and historical context that create social and rhetorical meaning amid political conflict.

Democratic Erosion, Populist Constitutionalism and the Unconstitutional Constitutional Amendment Doctrine

The recent phenomenon of democratic backsliding is characterized, among other things, by what has been referred to in the literature as “constitutional capture”, “constitutional retrogression”, “abusive constitutionalism” or “populist constitutionalism”. These terms describe the practices by which populist politicians, once in power, employ constitutional law to promote their goals and weaken the state’s democratic values, mechanisms and institutions. We examine the applicability of the Unconstitutional Constitutional Amendment doctrine (“the Doctrine”) in the context of democratic backsliding. We argue that the Doctrine has the potential of guarding against the use of constitutional change tools to undermine democracy. However, we also argue that the characteristics of democratic backsliding present special challenges for the application of the Doctrine. The first challenge derives from the incremental nature of democratic backsliding, which renders it difficult to identify the benchmark for applying the Doctrine. The second challenge regards the shortcomings of the Doctrine in responding to constitutional replacement, and, more broadly, the allegedly limited justifications for applying the doctrine when constitutional changes are made using direct democracy measures, such as referendums. The third challenge derives from the manner in which populist constitutionalism targets the judiciary. We outline and analyse these challenges and offer guiding principles and adjustments for applying the Doctrine in response to democratic backsliding. We distinguish between normative and strategic considerations for applying the Doctrine, and while we do not dismiss the latter, we focus on the former. With regards to the challenge of incrementalism, we argue that Courts should consider the accumulative or aggregated effects of a series of constitutional amendments. With regards to constitutional replacements or amendments that were adopted following direct democracy measures, we argue that Courts should focus on examining the depth and inclusiveness of the process. With respect to judicial independence, we argue that despite the strategic risks associated, constitutional changes that infringe upon judicial independence should be especially scrutinized.

Towards an Institutional First Amendment

First Amendment doctrine has traditionally been carved along conceptual rather than institutional lines. Legal categories like public forum, content-neutral, and defamation have dominated the doctrine, with the general understanding being that it was the nature of the speech or the nature of the restriction that determined protection, as opposed to the nature of some institution in which communication or its restriction took place. First Amendment doctrine has been reluctant to take much notice of pre-legal institutional categories, such as press, universities, and libraries, but allowing the increased use of such institutional realities in the design of First Amendment doctrine may well produce a First Amendment doctrine with far fewer anomalies and much greater utility.

When Queries are Searches

Due to limits on the scope of the Fourth Amendment and numerous exceptions to its warrant requirement, Fourth Amendment doctrine permits the government to collect a great deal of information about Americans with limited constitutional constraints. Both courts and commentators have recognized that this vast collection authority raises significant privacy concerns. The conventional response has been to suggest various modifications to the existing information-collection rules. Data collection, however, is only one part of the problem. The government’s post-collection use of information alone can—and often does—have equally disturbing privacy implications. The most troubling example has been labeled the “aggregation problem.” The aggregation and analysis of data in the government’s possession actually can result in revelations that could not have been gleaned from viewing those data in isolation. This article argues that, as a result, collection-focused solutions to privacy concerns—while valuable—are alone insufficient. They must be supplemented by rules regarding the government’s use of information. Where broad collection authority combines with the capacity to aggregate data in ways that reveal new information, the extraction of that information should be subject to constitutionally based limits. Specifically, this article focuses on one such extraction tool: database “queries.” When queries about U.S. persons are reasonably likely to expose knowledge about those individuals discoverable only by aggregating multiple pieces of data, such queries should be considered searches regulated by the Fourth Amendment. Both the purpose of the Fourth Amendment and the intrusive nature of the information that such queries can reveal support this conclusion. And while such an expansion of Fourth Amendment doctrine is no small undertaking, the Foreign Intelligence Surveillance Court’s oversight of government surveillance programs already provides a blueprint for how to implement this regulation.

From an unconstitutional constitutional amendment to an unconstitutional constitution? Lessons from Honduras

Abstract:The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

Byrd v United States: Unauthorized Drivers of Rental Cars Have Fourth Amendment Rights? Not as Evident as It Seems

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment. In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment opinion for a majority of the Court, authored an opinion in favor of a criminal defendant. In Byrd v United States a unanimous Court rejected the government’s argument that unauthorized drivers always lack an expectation of privacy in a rental car and thus can never challenge a police search of the car. Byrd was driving a rental car in violation of the rental agreement but with the permission of the renter; the police searched the trunk of the car, allegedly without consent or probable cause, and found heroin and body armor. The Court in Byrd held that the search was unlawful because “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” This article takes a closer look at Byrd to examine what it means for Fourth Amendment doctrine. It demonstrates that the Court’s holding is not as simple as it seems, and I consider whether the crucial elements of Justice Kennedy’s analysis affect the logic of prior precedents and the Court’s understanding of standing under the Fourth Amendment. While Justice Kennedy wants us to think that the reasoning and holding in Byrd is obvious, his opinion relies on property interests and societal norms that are hardly evident. Despite what Byrd says (and some scholars urge), property rights should not control the meaning and scope of the Fourth Amendment. The Court could have reached the same result in Byrd without relying on property interests or debatable social norms. Police cannot search a motorist’s vehicle unless probable cause exists that the vehicle contains evidence of criminality. If Byrd’s operation of the vehicle was not a crime, why should he not have the same Fourth Amendment rights as other lawful drivers? The Court could have ruled simpliciter that unauthorized drivers (who are not car thieves) occupy the same seat as other drivers: police cannot search their vehicles without probable cause. Period. No need to ponder “property concepts” like a right to exclude third parties. If there is no probable cause, there can be no search. That approach would have avoided future confusion for police, judges, and the public. And it would have promoted a traditional view of the Fourth Amendment: police should not have unbridled discretion to invade the privacy of motorists.

,,,Putting the ‘Public’ Back into Public Employment: A Roadmap for Challenging Prior Restraints That Prohibit Government Employees from Speaking to the News Media

“I’m not allowed to talk to the media” is one of the most frustrating responses a journalist can encounter in seeking information from a government agency. Scientists, police officers and schoolteachers have unique subject-matter expertise, and when they are restrained from sharing their knowledge, the public’s understanding of how government operates suffers. It is accepted as a self-evident article of faith that federal, state and local agencies can prohibit unapproved interactions between their employees and the news media. But that assumption rests on an aggressive interpretation of the scope of employer authority in the public sector, one that is irreconcilable with First Amendment doctrine, as well as with sound governance principles in a participatory democracy. This Article explains why, despite setbacks for employee free-speech rights in recent years, a blanket prohibition on discussing work-related matters remains unconstitutionally overbroad and unenforceable – even though such policies are ubiquitous at all levels of government. Although the Trump administration’s aggressive post-election silencing of federal scientists brought the issue into stark relief, government agencies have long enforced constitutionally untenable “prior restraints” on public employees. The Article documents dozens of instances in which police departments, state universities and other public employers have imposed wholesale prohibitions on unapproved comments to journalists, and explains why those prohibitions are unlawful, both because of their overbreadth and because they confer standardless discretion on supervisors to make viewpoint-based decisions on who may be heard. Drawing on analogous caselaw in the context of news organizations’ challenges to judicially imposed gag orders on trial participants, the Article draws a roadmap for aggrieved journalists to bring facial challenges to restraints that inhibit their sources from freely sharing information. Because employees are highly unlikely to sue in their own right – even though, when they do, their facial challenges invariably succeed – it is essential for courts to recognize standing for news organizations to step into the shoes of their silenced sources. Overturning these restrictive policies, the Article concludes, is a matter of great civic urgency, with fewer professional journalists covering government than at any time in modern history and more public-relations gatekeepers employed to “spin” the few who remain.