Amendment Protection Research Articles

Letting Your Phone Testify: Why the Fifth Amendment Should Be An Absolute Bar to Compulsory Unlocking of Secured Smartphones

Issues often arise when a defendant or witness in a civil or criminal case assert their Fifth Amendment right to be free from self-incrimination when asked to unlock their smartphone. A substantial disagreement has arisen in state and federal courts across the nation as to the extent of the Fifth Amendment's protection of secured smartphones. Two major issues arising from Fifth Amendment jurisprudence are involved in judicial considerations of this issue: whether the communication of the passcode is testimonial and, if it is, whether it can be allowed under the foregone conclusion doctrine. Additionally, the application of law in these areas has differed between cases involving biometric authentication and passcode authentication methods. This article addresses the differing case law in these areas, and makes an argument that the fifth amendment should be an absolute bar to forcing individuals to unlock their devices. Instead, the government should use the multitude of tools businesses offer to gain access to encrypted information.

Advocacy through the Computer Screen: The Legal Permissibility of Jury Trial by Videoconference

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties?While due process concerns might render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, a civil jury trial by Zoom might not only be permissible; it might also be necessary to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts allow digital jury trials, the risk of certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.This paper will appear in an ABA book on online court procedures, set to be published at some point in the future.

Equal Treatment and the Free Speech Clause

The traditional Free Speech Clause burden is a law that directly impedes speech interests and that courts can remedy through invalidation. This model is simple in theory and remedy, but it accounts for surprisingly few cases. Instead, a substantial – and growing – number of cases involve what this Article calls “layered speech regulations”: laws that first impede speech broadly (layer 1), and then exempt some speech or speakers (layer 2). As the Court recently made clear in Barr v. AAPC, challenges to layer 2 attract scrutiny under the Free Speech Clause just like challenges to layer 1. In its analysis, however, the Court has brushed over the fact that such layered speech regulations allow rather than restrict speech with their layer 2 provisions. As a result, layer 2 challenges create a Free Speech Clause paradox, as invalidating the law does not allow the challenger to speak, while leaving it in place authorizes censorship through artful drafting. This Article resolves the paradox of layer 2 challenges by showing that such challenges rely on a mandate of equal treatment within the Free Speech Clause, and links that mandate to broader issues that plague freedom of speech law. After demonstrating the Court’s reliance on the equal treatment mandate, the Article provides two doctrinal grounds for the mandate: one concerned with coercion, and one concerned with how the Equal Protection Clause changed the shape of First Amendment protections. With the speech right in layer 2 cases triggered by unequal treatment, the remedy is equal treatment – striking layer 2 to vindicate the speech right and using legislative intent to determine if layer 1 can be severed. This approach resolves the Free Speech Clause and the Article III problems created by layer 2 challenges. It also has substantial implications for the Free Speech Clause more broadly. Specifically, it demonstrates how much room remains to legislatures to correct unequal treatment, including through redistributive regulation beneficial in today’s environment of digital speech, contrary to the common trend of comparing the Free Speech Clause to Lochner. Finally, it reveals the doctrinal changes required to bring the prohibition against content-based regulations in line with the Free Speech Clause’s equal treatment mandate.

A Legal Right to Clozapine Therapy for Incarcerated Individuals With Treatment-Resistant Schizophrenia.

People with serious mental illnesses increasingly are being treated in jails and prisons, and during incarceration are afforded a constitutional right to medical care. This right pertains to both general medical and mental illnesses and both acute and chronic conditions. However, incarcerated patients with treatment-resistant schizophrenia (TRS) often are not offered clozapine, the only medication for this debilitating illness approved by the U.S. Food and Drug Administration. In this column, the authors argue that incarcerated individuals with TRS have a statutory and constitutional right to treatment with clozapine.

Broadcasting Borders: Why Forensic Extraterritorial Electronic Border Searches for Contraband Do Not Require Reasonable Suspicion under the Fourth Amendment

This Comment will argue that forensic extraterritorial electronic border searches for contraband do not require individualized suspicion. Although forensic electronic border searches for contraband at the U.S. border and ports of entry (e.g., interior airports) may require, at most, reasonable suspicion according to some courts, the further reduced privacy expectations and further magnified government interests involved in extraterritorial border searches dictate that forward-operating border officers merely adhere to the Fourth Amendment requirement of reasonableness with respect to U.S. persons. To support this argument, this Comment will proceed in five parts, first summarizing jurisprudence regarding the border search exception and routine versus non-routine border searches. Second, it will explore recent case law examining the validity of electronic border searches. Third, this Comment will review the relatively sparse jurisprudence regarding the extraterritorial application of the Fourth Amendment. Fourth, it will argue that electronic border searches within or at traditional U.S. borders require, at most, reasonable suspicion, although the necessary level of suspicion in this sphere is far from resolved. Fifth, this Comment will analyze the necessary level of suspicion for electronic border searches at Preclearance locations in light of jurisprudence regarding the extraterritorial application of the Fourth Amendment. It should be noted that this Comment only focuses on those Fourth Amendment protections to which U.S. persons are entitled and does not address electronic border searches for the purpose of finding general evidence of wrongdoing. Further, this Comment examines the required level of suspicion for searches of electronic devices in general because, in addition to ensuring that this Comment is more concise and cogent, if no Supreme Court precedent supports distinguishing between electronic devices and other types of property at the border, it is equally baseless—and imposes unnecessary constraints on CBP officers and introduces complexity that is anathema to the border search doctrine—to distinguish between different types of electronic devices.

Bringing the News from Ghent to Axanar: Fan Works and Copyright after Deckmyn and Subsequent Developments

Fan works offer a lens through which to view the complex future of copyright law. Recent years have seen an explosion in academic interest in fan works, for reasons including the ongoing crisis in copyright law, changes in the way we consume copyrighted content, and increasing interest in fandom itself. Scholarship on fan works has continued to explore the key questions of fair use, parody, and First Amendment protection that allow fan works to exist yet fail to clearly delineate the boundaries of the legal twilight zone in which they reside and thrive. It has also continued to address the intersection between fanfic and gender and what this says about the gendered nature of intellectual property law. Much has also been written about the future of copyright in general, and of fan works in particular, often looking at fan works from new perspectives, including law and economics and the closely related vexing problem, for content owners, of how to address possible infringement without alienating the fanbase. This article looks at recent developments relating to fanfic first by looking at the historical context and current state of fan works, and next by looking at story elements and the ways in which they are and are not protected by copyright. The article devotes special attention to the related issues of cultural appropriation and reinterpretation, looking at Own Voices stories and street murals as a means of reclaiming a right to cultural property appropriated by others. The article then looks at the shrinking space for online fan works, with a look at two fairly recent decisions dealing with works based on existing popular culture franchises. One, Paramount Pictures Corp. v. Axanar Productions, deals with true fan art (a Star Trek fan film), while the other, Deckmyn v. Vandersteen, deals with hate speech masquerading as fan art. Ultimately the article concludes that there is both good and bad news for fans in the current situation. The good news is that the formerly frustratingly nebulous legal status of fan works is increasingly coming to be understood by fan work creators, courts, and content owners. The bad news is that the balance of powers in copyright generally, is increasingly shifting to large content owners.

“Pure Caucasian Blood”: Libel by Racial Misidentification in American Newspapers (1900–1957)

Utilizing critical race theory, we can better understand the role that the American legal system and newspapers played in their efforts to maintain the racial status quo prior to the civil rights movement of the 1960s. At the intersection of race, journalism, and libel law, we see a rich vein of case law spawned from newspapers erroneously identifying white people as black. Such racial misidentification prompted a series of libel suits from 1900 to 1957 before the US Supreme Court placed libel law under First Amendment protection in New York Times v. Sullivan. Jim Crow had long been secure in southern newspapers and some errors in racial identification were inevitable. Before Sullivan, it could indeed be libelous when newspapers falsely identified white people as black.

Putting the First Amendment in Play: Name, Image, and Likeness Policies and Athlete Freedom of Speech

Following their unanimous defeat at the Supreme Court in National Collegiate Athletic Association (NCAA) v. Alston and facing an impending start date for various state laws that would force action on athletes’ ability to profit off of their name, image, and likeness (NIL), the NCAA recently made the decision to simply allow states and member colleges and universities to promulgate NIL restrictions on their own. But while such a delegation helps the NCAA stave off relevant antitrust action against them, placing regulatory authority over college athlete endorsement and sponsorship deals in the hands of government actors like state legislators, governors, and public educational institutions brings constitutional analysis in play in a way that has not been seen in sports due to the wholly private natures of sports leagues and the NCAA. Along these lines, this Article applies First Amendment jurisprudence to three recurring NIL restrictions imposed by states and schools: restrictions on athlete deals that conflict with institutional endorsement deals, restrictions on athlete deals with vice industries like gambling and alcohol, and broad restrictions on deals that conflict with undefined “institutional values.” To do so, we apply several First Amendment doctrinal frameworks—those concerning commercial speech, student speech, public employee speech, and the overbreadth doctrine—to provide a range of different means by which courts may interpret how the rights of college athletes are affected by NIL policies. In the end, we find that the nature of these restrictions as overbroad prior restraints of free speech creates significant doubt as to the constitutionality of many of these restrictions under the First Amendment. We conclude that such restrictions in no uncertain form “present a ‘realistic danger’ [that these actors] could significantly compromise recognized First Amendment protections,” including the advanced protections for political speech.

Wilson’s Foreboding Forecast for Sunshine Laws: Partly Cloudy, With a Chance of Unconstitutionality

During the 2021-22 term, the Supreme Court will hear oral arguments in an under-the-radar First Amendment case with great potential for spillover effect on the enforceability of laws entitling the public to attend government meetings. Houston Community College System v. Wilson is ostensibly a case about whether an elected government board can freely sanction one of its own maverick members for disloyal speech, without implicating the speaker’s First Amendment rights. But the case, if broadly decided, could unsettle four decades’ worth of caselaw finding no First Amendment problem with compelling members of elected public bodies to hold their official-business discussions in duly noticed public meetings only. Open-meeting laws (often called “sunshine” laws) are a venerated feature of contemporary political life. Enacted largely around the time of the Watergate scandal, these laws aim to create both substantively better government decisions (by giving the public an opportunity for input before decisions solidify) as well as an appearance of trustworthiness (by reassuring the public that decisions are not being made corruptly in smoke-filled backrooms). But elected officials who find the strictures of transparency discomforting have, from time-to-time, challenged these statutes as an infringement on their own right to discuss issues of public concern with their colleagues. So far, no court has accepted the invitation to invalidate an open meeting statute entirely. But if college trustee David B. Wilson secures a broad victory in his Supreme Court case, challenging a sanction resolution imposed by the college board on which he served, the movement to invalidate open meeting laws could be reenergized. Courts have disposed of the first generation of constitutional challenges rather summarily, without grappling with the tough question of whether (and to what extent) elected officials surrender First Amendment protections when they assume office. A win for Wilson could force a reckoning on those questions. The authors urge the Court to consider how a decision placing the First Amendment rights of elected officials on a plane comparable to that of all other citizens might adversely affect the enforceability of laws that require public business to be deliberated in public.

Disinformation and the First Amendment: Fraud on the Public

If one deceives another in a manner that profits the deceiver and harms the victim, it is fraud, a crime and a tort. However, if one deceives a great number of people in a manner that profits the deceiver and harms the public, it is generally neither a crime nor a tort. It is often legal to mislead the public for profit. As a result, harmful disinformation is disseminated constantly by politicians, the media, and corporations. This disinformation causes a multitude of harms to human health, life, and property, to the environment, and to democratic institutions and systems. Because of the emergence and growth of the internet, email, and social media, disinformation spreads faster and is, in many measures, more problematic today than it has ever been. And it is getting worse. Disinformation cannot, in general, be stopped without infringing on fundamental First Amendment rights. If Congress or a state passed a law curtailing disinformation, or any broad category within it, such a content-based regulation would not survive a First Amendment challenge under strict scrutiny. Why? Because disinformation and other terms like it (e.g., fake news, lies, and misinformation) are broad and vague, and encompasses both protected and unprotected speech. This Article argues that some of the most harmful disinformation, which results in widespread damage, should be deemed unprotected speech because it is fraudulent speech and not merely false speech. Harmful disinformation that amounts to “fraud on the public” is distinct from (and worse than) other kinds of disinformation. The Article sets forth elements that must be met to qualify as fraud on the public. Conduct that qualifies as fraud on the public, rather than merely spreading disinformation, should be deemed either to fit within the fraud exception to the First Amendment, or to have its own carve-out from First Amendment protections. This argument is, in some ways, a radical one; the fraud exception to the First Amendment normally applies only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraudulent speech, such as securities fraud or false advertising. However, because fraud on the public is carried out in the same manner as fraud on the individual, and because the harm it causes to individuals, society, and the environment is as bad or worse than fraud on the individual, fraud on the public, like fraud, runs counter to the very aims of the free speech provision of the First Amendment. As a result, fraud on the public should be deemed unprotected fraudulent speech. Failure to do this will result in the continued growth and spread of the most harmful disinformation, further damaging public health and the environment, poisoning political discourse, and generating further attacks on democracy.

The Expressive Fourth Amendment

After the eight minute and forty-six second video of George Floyd’s murder went viral, cities across the country erupted in mass protests with people outraged by the death of another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police – like warriors against enemy forces – confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under Section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first part of the article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second part of this article discusses how courts currently evaluate, in § 1983 actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor by reviewing circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation. This part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third part of this article argues that the Fourth Amendment mandates that courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the framer’s intent and the Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth part discusses the difference an expression-specific Fourth Amendment – the expressive Fourth Amendment – reasonableness test would have made in a protest case.

Penises, Nipples, and Bums, Oh My!: An Examination of How Freedom of Expression Applies to Public Nudity

Penises, Nipples, and Bums, Oh My!:An Examination of How Freedom of Expression Applies to Public Nudity Clara Gutwein (bio) Introduction How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order.1 Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples and the strength of a community's moral standards. Despite the First Amendment's deep concern for protecting counter-majoritarian speech and minority points of view,2 recent cases have [End Page 349] shown that the full freedom of speech does not extend to women who wish to repossess the nipple's narrative.3 By exposing their breasts in public, these women attempted to use their nipples as a form of symbolic speech and communicate their antipathy towards laws that sexualize the female body.4 But the laws that sexualized their breasts also silenced their nipples, and these cases both ended in courts denying First Amendment protection to topless protests. America is not the only jurisdiction that does not have an answer to the legal conundrum of public nudity as protest speech. One man recently challenged the United Kingdom and European Union through his single-minded determination to undermine centuries worth of custom and convince people to embrace public nudity. Steven Gough, the so-called "naked rambler," has made it his mission to use his own naked body as an instrument of protest against inherited social norms hostile to public nudity.5 His assertion that his public nudity is a form of expression that merits protection under Article 10 of the European Convention on Human Rights (officially called the Convention for the Protection of Human Rights and Fundamental Freedoms) raises critical questions about how legal systems ought to treat civil liberties that challenge social norms and traditional standards of morality.6 The two US cases that challenged the First Amendment's treatment of the female nipple, Tagami v. City of Chicago and Free the Nipple v. City of Fort Collins, were instructive in their absolute failure.7 The courts in both cases applied long-established tests to determine whether topless protests amounted to symbolic speech with full First Amendment protection. The specifics of the tests themselves, as well as how the courts applied them, demonstrated the predetermined futility of the plaintiffs' plight. Within the context of symbolic speech, the female nipple uniquely challenges existing legal standards by both its multifaceted cultural identity and its physical limitations. Yet, instead of acknowledging that existing standards of symbolic speech do not account for the nipple's particular limitations, the courts in both cases allowed the law to trap the nipple in a self-perpetuating cycle of unprotected speech. [End Page 350] This note will begin by exploring the two recent legal challenges to the First Amendment's treatment of the female nipple. Both cases emerged out of the plaintiffs' reactions to local public-nudity ordinances and their dissatisfaction with laws that legalized disparate treatment of male and female bodies. The courts' treatment of both cases only validated the plaintiffs' arguments that the law does not treat female bodies with careful and unbiased consideration.8 Second, this note will examine two legal tests cited by the courts in their rejection of the plaintiffs' claims that topless protests are constitutionally protected symbolic speech. These are the Spence test, which controls what expression counts as symbolic speech,9 and the O'Brien test, which controls whether the government may suppress symbolic speech.10 This note will also consider the legal struggles of Steven Gough and his unwavering commitment to changing general attitudes towards public nudity. The third section will consider two cases involving Gough: one in which the United Kingdom sought to impose criminal sanctions against him, and another which Gough brought...

False Flags and the First Amendment: Lying Through Symbolic Speech

Federal prosecutors have accused Ivan Hunter, a leader of the right-wing Boogaloo Bois, of participating in a riot when he allegedly fired his AK-47 at the Minneapolis Police Third Precinct during Black Lives Matter protests in May of 2020. Hunter’s alleged target—the home base of Derek Chauvin, the officer captured on video killing George Floyd—burned down at the hands of protesters the same evening. This Essay argues that Hunter’s purported conduct is best understood as symbolic speech under the First Amendment, a conclusion few analyses would bother to reach because such speech would still be categorically excluded from First Amendment protection. Hunter’s alleged actions are not only more fully comprehensible as speech, but they also serve as an exemplar of a novel theoretical category: dishonest symbolic speech. Indeed, through his violence rather than through words, Hunter appears to have trafficked in a powerful form of political propaganda. Drawing on this remarkable yet increasingly representative case, the Essay offers two critiques of First Amendment jurisprudence. First, relying on the First Amendment to identify speech artificially impedes our ability to classify and process communicative events of substantial public consequence, especially as public concern grows about the spread of misinformation. Second, the underappreciated power of symbolic speech to spread lies offers a new and significant basis for skepticism about the longstanding doctrinal distinction between pure and symbolic speech.

Platforms: The First Amendment Misfits

In this essay (coauthored with James Rollins and Vincent Yesue), we explain the practical and doctrinal limits to analogizing social media content moderation practices to other contexts with more established First Amendment precedent. We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and television) as well as their critical differences. Next, we compare the role of social media platforms to basic Internet service providers to better understand how the line between speech participants and mere conduits should be drawn in an online context. We find that First Amendment caselaw and the reasoning that flows through it would categorize platforms like Twitter and Facebook as speech participants. We also consider whether public perception of platforms standing in the role of a “public square” should significantly alter the First Amendment protections afforded to platforms, arguing that it should not (for similar reasons as the critical differences between Facebook and a shopping mall—namely, that online forums cannot lock in participants to the exclusion of other venues.) Finally, we argue that online platforms are their own free speech creature that deserve strong protection from government intervention in hosting and curation choices, but they may be good targets for transparency requirements.

The Incredible Shrinking Fourth Amendment <br/>—The Ongoing Erosion of the Fourth Amendment of the Constitution of the United States of America

During the Prohibition era, the US Supreme Court, “the court” radically deviated from the plain meaning of the Fourth Amendment and precedential authority. The object of this essay is to show that the “trespass” doctrine adopted in this period, was in fact a Prohibition law enforcement doctrine, which took only those parts of the common law that accorded with the court’s recasting of the balance set in the Fourth Amendment. This unprincipled approach construed the Amendment to allow wiretaps, when there was increasing public concern over this expansion of police power. This eventually led to the replacement of the “trespass” doctrine with the privacy doctrine, in Katz v. United States (1967). However, the focus on personal privacy counter-poses a weak value, to the strong value of effective law enforcement, as it pits a personal interest against a public interest. What is lost is the public interest in preventing the expansion of state power, under the veil of law enforcement. It is the central thesis of this work that both the “trespass” doctrine and the privacy doctrine have weakened Fourth Amendment protections and in part, have resulted in a law enforcement culture which is to an extent now out of control. The methodology employed to substantiate this thesis is a close analysis of the central cases, placed within a chronological context.

The New Bailments

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastruc-ture maintained by intermediaries. Consumers entrust their photos to Apple instead of scrap-books; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care and may be liable if they failed to return the property. The parties can use contract to customize the relationship but not to disclaim entirely. Tracing the law of bailment relationships from its ancient roots to the present, this Article argues that cloud storage should be understood as creating a bailment relationship. The law of bailment, though developed in the Middle Ages, provides a robust framework for govern-ing twenty-first century electronic intermediaries. Though the kind of stored property has changed, the parties’ expectations and incentives have not. Yet the decline of litigation, the rise of arbitration, federal diversity jurisdiction, and the ever-growing dominance of contract has thus far prevented courts from applying the law of bailments to these new services. Recognizing cloud storage as a bailment would have significant implications. Most immedi-ately, it would suggest that important provisions in many cloud storage services’ contracts are unenforceable. A hand-collected dataset of 61 cloud storage contracts, reveals that most have include general disclaimers for any liability for lost data. These disclaimers are inconsistent with the duty of care that is the foundation of the law of bailment. In addition, understand-ing cloud storage as a bailment would have important implications for both the law of con-sumer protection and Fourth Amendment protections.

Speak Out: Verifying and Unmasking Cryptocurrency User Identity

Terror attacks pose a serious threat to public safety and national security. New technologies assist these attacks, magnify them and render them deadlier. The more funding terrorist organizations manage to raise, the greater their capacity to recruit members, organize and commit terror attacks. Since the September 11, 2001 terror attacks, law enforcement agencies have increased their efforts to develop more anti-terrorism and anti-money laundering regulations, which are designed to block the flow of financing of terrorism and cut off its oxygen. However, at present most regulatory measures focus on traditional currencies. The more efforts to restrict the financing of terrorism by traditional fiat currencies succeeds, the greater the likelihood that cryptocurrencies will be used in order to fund illicit behavior. Furthermore, the COVID-19 virus and social distancing guidelines that followed it have increased the use of cryptocurrencies for money laundering, material support to terror and other financial crimes. Cryptocurrencies, electronically generated and stored tokens which can be exchanged via a decentralized payment system, are a game changer, significantly affecting market functions like never before and making it easier to finance terrorism and other types of criminal activity. These decentralized and (usually) anonymous usable currencies facilitate a high volume of transactions, allowing terrorists extensive fundraising, management, transfer and spending of money for illegal activities. The ability of terror organizations and those who finance them to increase their activities and attacks by using cryptocurrencies poses a major threat to national security. As cryptocurrencies gain popularity, the issue of how to regulate them becomes more urgent. The scope and utility of financing of terrorism begs for a coherent legal response. This Article proposes to reform the regulation of cryptocurrencies. It advocates the promotion of mandatory obligations directed at cryptocurrency issuers, wallet providers and exchanges to verify the identity of users on the blockchain. Thus, courts could grant warrants obligating companies issuing cryptocurrencies to unmask the identity of cryptocurrency users when there is probable cause that their activities support terrorism or other money laundering activities. Such reforms would make it possible to allow stifling the financing of terrorism and other types of criminal activity financed through cryptocurrencies, and in so doing would make it possible to curb harmful lethal activities and promote national security. As we are aware of the legal challenges our solution poses, this Article also addresses substantial objections that might be raised regarding the proposed reforms, such as jeopardizing innovation, First Amendment freedom of expression objections, Fourth Amendment protection from surveillance and measures for promoting efficiency in the application of the proposed reforms.

To Reform Social Media, Reform Informational Capitalism

Calls for altering First Amendment protections to deal with problems caused by social media are often misdirected. The problem is not First Amendment doctrines that protect harmful or false speech. The problem is the health of the digital public sphere: in particular, whether the digital public sphere, as currently constituted, adequately protects the values of political democracy, cultural democracy, and the growth and spread of knowledge. Instead of tinkering with First Amendment doctrines at the margins, we should focus on the industrial organization of digital media and the current business models of social media companies. Only a handful of social media companies currently dominate online discourse. In addition, the business models of social media companies give them incentives to act irresponsibly and amplify false and harmful content. The goals of social media regulation should therefore be twofold. The first goal should be to ensure a more diverse ecology of social media so that no single company’s construction or governance of the digital public sphere dominates. The second goal should be to give social media companies — or at least the largest and most powerful ones — incentives to become trusted and trustworthy organizations for facilitating, organizing, and curating public discourse. Competition law, consumer protection, and privacy reforms are needed to create a more diverse and pluralistic industry and to discourage business practices that undermine the digital public sphere. Given these goals, the focus should not be on First Amendment doctrines of content regulation, but on digital business models. To the extent that First Amendment doctrine requires any changes, one should aim at relatively recent decisions concerning commercial speech, data privacy, and telecommunications law that might make it harder for Congress to regulate digital businesses.

Lange, Caniglia, and the Myth of Home Exceptionalism

For over a hundred years, the Supreme Court has employed rhetoric in its Fourth Amendment cases that supports the concept of “home exceptionalism”—that is, the idea that protecting the home is the “very core” of the Fourth Amendment. Two cases from this year’s Supreme Court term, Lange v. California and Caniglia v. Strom, appear at first to support this doctrine, since a narrow reading of their holdings appears to enhance Fourth Amendment protection of the home. However, a closer examination of Supreme Court doctrine reveals that home exceptionalism is a myth. Although the home does receive small amounts of special protection in some areas, such as the arrest warrant requirement and the protection of curtilage, these special protections are far weaker than the court’s rhetoric implies. In fact, the recent trend is for the Court to limit the Fourth Amendment protection given to the home. Lange and Caniglia are consistent with this trend, as the Court’s holding in fact did little to increase the protections for the home and re-affirmed many of the doctrines that permit police to enter a home without a warrant. This essay is one of the first to analyze Lange and Caniglia, the Court’s two most recent Fourth Amendment cases. It does so by placing the cases in the proper historical and doctrinal context, first tracing the roots of home exceptionalism back to the 1800s and separating the broad language that the Court has often employed in these cases from the narrow legal rules that the cases actually establish. The essay demonstrates that Lange and Caniglia follow a well-established pattern, beginning with bold precatory language about the sanctity of the home, then delivering a narrow holding, and finally qualifying the reach of that holding with further language limiting its practical effect.

Getting to Privacy More Reasonably: A Partial Property Rights Theory of the Fourth Amendment

Fourth Amendment doctrine has struggled to meet its two objectives: providing meaningful restraints on government action and a conceptually workable basis for deciding what those restraints are. This doctrine’s evolution has often placed these objectives at odds. The prevailing reasonable expectation of privacy test often gets intuitively good results at the expense of conceptual clarity, while the older, property-based approach offers clearer tests but risks being ascetic in application. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.” Note: attached draft is the draft that will be workshopped at the 2021 Privacy Law Scholars Conference.