Category: Constitutional Law

The Content-Specific Doctrine: The Right to be Secure in Digital Effects

Xander de los Reyes

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2 Prin.L.J. 1

Amendment IV, US Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

INTRODUCTION

The Fourth Amendment’s original intent was to protect Americans from unreasonable searches and seizures. At the time they were drafting the Constitution, the Founding Fathers remembered these violations of privacy as physical trespasses committed by British officials against colonists. This raises the question: Were the seizures of letters from a desk drawer or the broad searches of one’s coat pockets unreasonable searches and seizures because they were physical in nature? Or were they violations of privacy because of the content searched and seized?

I argue that unreasonable searches and seizures can occur without physical intrusion. As technology becomes increasingly prevalent, violations of privacy can occur in non-physical realms (i.e., “cyberspace”). Although these violations lack the physical dimension that characterized early-American conceptions of Fourth Amendment violations, they can nonetheless rise to a level of invasiveness that can be seen as functionally equivalent and can thus fall within the scope of the Fourth Amendment’s prohibitions.

This piece proceeds in the following manner. First, I briefly outline the history of the Fourth Amendment and its original intent, which was to protect Americans’ privacy from improper searches and seizures. Next, I outline twentieth-century case law that has shaped modern understandings of the Fourth Amendment. In this section, I also introduce the third-party doctrine, a legal doctrine that is troubling given society’s contemporary dependence on technology. Then, I discuss technological consent—or the lack thereof. Finally, I introduce a new legal framework, the content-specific doctrine. Instead of focusing on the physical nature of a search or third parties involved, this doctrine considers the content of effects (personal belongings) seized to be the highest-order consideration. The content-specific doctrine can protect privacy, digital civil liberties, and Fourth Amendment rights in this technological age. 

HISTORY

Under British rule, colonists were subject to documents known as writs of assistance or general warrants. Authorized by these documents, British authorities could enter colonists’ homes without probable cause. They could search homes indiscriminately for prohibited items and seize them. Even worse for the colonists, these writs lasted throughout the ruling king’s life and six months past their death. These documents flagrantly subjected the colonists to unreasonable searches and seizures.

When King George II died in 1760, an opportunity to protest the warrants arose. An advocate General from Boston, James Otis, rose to the occasion. Otis resigned his post and opposed the writs’ renewal in court in February of 1761. He could have merely objected to renewal, but went further. He argued that the writs were incompatible with the English constitution and went on to say that the only valid writs were “special writs.” (These were analogous to today’s specific and narrow search warrants.) Otis’s argument in court was one of the first formal colonial challenges to British authority. Scholars have also cited it as one of the earliest instances of colonial inclinations toward independence.

Otis lost the case, but his passionate argument left impressions on attendees and those who later learned of the event. One of the audience members would recall Otis’s speech fifty-six years later in a letter to a friend:

Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants. Then and there was the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born.

These are the words of John Adams, America’s first vice president and second president. For him, the colonial conception of privacy was not just something of value—it was the very thing that set the pursuit of independence in motion.

This incident demonstrates the tremendous extent to which the colonists and Founding Fathers valued privacy. The writers of the Constitution—as survivors of British rule and its indiscriminate supervision—knew the importance of individual privacy and sought to protect people against unreasonable searches and seizures.

Since the ratification of the Constitution, determining violations of the Fourth Amendment has been complicated. As the nation aged, new circumstances and considerations arose. The invention of new technologies like telephones and computers, in addition to the Americans’ increasing dependency on business and service providers, has complicated Fourth Amendment jurisprudence. A synopsis of how courts have responded to these changes will prove useful.

TWENTIETH-CENTURY CASE LAW

Unreasonable searches and seizures were inherently physical in nature during British colonial rule and the early generations of the United States. This remained the case until the late nineteenth century when the invention of the telephone allowed for non-physical violations of privacy. Today, with the internet and interconnected world, physicality is not a requirement for a violation of privacy. This transition has created an entirely new subset of privacy rights: digital civil liberties. Next, I briefly outline case law of the twentieth century to show how courts responded to these technological changes.

Olmstead v United States (1928)

During Prohibition, federal law enforcement was investigating Roy Olmstead, a suspected bootlegger. Agents installed wiretaps on his telephone without a warrant. The agents installed the wires in the basement of the building Olmstead resided in and dug up phone wires underneath the nearby sidewalk. Because no physical intrusions occurred against Olmstead, the government felt it did not need a warrant. Olmstead countered that the warrantless searches violated his Fourth and Fifth Amendment rights.

In a 5-4 decision, the Supreme Court ruled against Olmstead. Chief Justice William Howard Taft authored the majority opinion. In it, he stated that “unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house” then no violation of the Fourth Amendment occurred. This ruling created a precedent that reemphasized the Fourth Amendment’s focus on physical intrusions. For nearly four more decades, as technology developed and spread, this precedent would stand.

Katz v United States (1967)

Federal law enforcement was investigating Charles Katz, a man suspected of illegal gambling. Knowing Katz used public phone booths, the government, acting without a warrant, utilized devices capable of eavesdropping and added them to the exterior of a phone booth. After they collected incriminating evidence, agents charged Katz with eight counts of illegal transmission of wagering information across state lines. After being convicted, he appealed his conviction and argued that the warrantless monitoring of his phone call violated the Fourth Amendment.

Reversing course from Olmstead, the Court ruled 7-1 in favor of Katz. Delivering the opinion of the Court, Justice Potter Stewart stated that the Fourth Amendment, “protects people, not places.” The ruling also created the reasonable expectation of privacy test, which has two requirements:

  1. The person whose Fourth Amendment rights have supposedly been violated must have had a subjective expectation of privacy.
  2. That expectation must be one that society can recognize as reasonable.

An individual’s Fourth Amendment rights are thought to have been violated if both conditions are affirmatively met. Failure to satisfy either condition would result in the determination that privacy rights were not violated.

The Katz ruling overturned the decision in Olmstead. It became the first landmark Supreme Court case that extended Fourth Amendment rights beyond physical intrusions, and its reasonable expectation of privacy test is still used today.

Third-Party Doctrine

Two cases in the 1970s, United States v. Miller and Smith v. Maryland, created a legal framework known as the third-party doctrine. In both of these cases, the petitioners claimed that their Fourth Amendment rights were violated. The searches and seizures of each case lacked a physical component and involved a third-party, such as a phone company or bank. These circumstances forced the Court to confront when individuals’ expectations of privacy were reasonable.

In United States v. Miller, the government accused Mitch Miller of not paying a liquor tax on distillation equipment. To investigate, federal law enforcement subpoenaed two of Miller’s banks. Without a warrant, they obtained records of his accounts. These documents were subsequently used against Miller in court, where he was convicted. Miller appealed and argued that his Fourth Amendment rights were violated when his bank records were obtained without a warrant.

In Smith v. Maryland, Michael Lee Smith was believed to have robbed a woman. Law enforcement also suspected that he was continuously calling the victim to harass her about the robbery. To investigate, the government asked Smith’s phone company to install a “pen register,” or a device that captures numbers dialed but none of the content of a phone call. When records indicated that Smith dialed the victim’s phone number, law enforcement was able to get a search warrant to find further evidence. Smith was later identified by the victim in a line-up and then convicted of robbery. He argued that the pen register violated his Fourth Amendment rights and appealed.

The Supreme Court ruled against the petitioners in both Miller and Smith. According to the Court, both men voluntarily gave their information to third parties (Miller and his bank; Smith and his phone company). Doing so, in the Court’s view, undermines the first requirement of the reasonable expectation of privacy test. When individuals provide information to third parties, they abandon any subjective expectation of privacy. 

Taken together, the decisions in Miller and Smith created the third-party doctrine. Under it, the government’s acquisition of information from third parties does not require a warrant. The soundness of this ruling was debatable in the 1970s. Today, however, society relies deeply on many more third-party services—many of them related to technology and the internet. Therefore, the third-party doctrine exposes Americans to significant intrusions of privacy.

TECHNOLOGY & CONSENT

With each passing day, technology becomes more interwoven into life. Many Americans use some form of instant messaging like iMessage, WhatsApp, or Facebook Messenger to communicate with family, friends, and coworkers. Some utilize navigation applications like Google Maps, Apple Maps, and Waze. When the COVID-19 pandemic began to shut down daily operations in 2020, workplaces, academic institutions, and other organizations moved to video-conferencing services like Zoom, Google Meet, and Microsoft Teams. All of these aforementioned services—whether they are used to video-call with grandparents or to navigate to a political rally—require the consent of users. Recalling the third-party doctrine, the proliferation of technology seems thorny at best and dire at worst.

A concerning fact is that most individuals do not attentively read the terms of service for these services. (User agreements such as “terms and services” go by other names: terms and conditions, terms of use, end-user license agreement, service terms, etc. While some lawyers may say there are slight variations between these definitions, they all functionally refer to a contract between a user and a provider of some service. Within this legal article, all of these terms are used synonymously.) Clicking or tapping the “I agree” box or button is, in the most literal sense, a check in the box for many people. This fact is tacitly, and sometimes explicitly, recognized by service providers. Amazon Web Services (AWS), for example, has included a clause referring to a zombie apocalypse in §42.20 of its service terms. They state that a previously mentioned restriction shall not apply in the situation of:

[A] widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

AWS’s inclusion of zombies in a legally-binding contract implies that many people do not read these terms. It is an “Easter egg” for some vigilant users—or scholars examining contractual consent and relationships—to find.

Other services have left even more ridiculous statements in their terms of service. Purple, a wireless network company in Manchester, UK, embedded a clause within their terms of service that bound those who agreed to 10,000 hours of community service. 22,000 people consented. A European security firm, F-Secure, created a publicly available wireless hotspot for people and included in its terms of service that “the recipient agreed to assign their firstborn child to us for the duration of eternity.” GameStation, a UK video game retailer, included in their terms of service that users’ agreement gave the company ownership of each user’s “immortal soul.” In 2019, a high school teacher in Georgia won $10,000 when she read the terms of service for travel insurance from Squaremouth, which stated that the company would provide a reward to the first person who contacted the company in response to reading their terms of service. These are half-comical, half-frightening examples of the lack of awareness that most users have about the contents of terms of service.

There are strong implications when the third-party doctrine, legally-binding terms of service, and users’ failure to read those terms are considered together. Most users of a service are required to agree to terms of service—i.e., contracts—to use said service. Thus, they have consented to give information to a third party, thereby rendering that information subject to the third-party doctrine. With humanity’s increasing dependence on technology and its abundance of terms of service, there must be a new legal framework for determining privacy rights and digital civil liberties.

THE CONTENT-SPECIFIC DOCTRINE

A doctrine that best protects Americans’ privacy is one that I call the content-specific doctrine. This framework emphasizes consideration of the content being searched and seized by the government. How information is obtained—be it physically or digitally—and a third party’s role are both considerations secondary to the content of a search. The doctrine’s primary concern is the qualitative features of the effects to be searched—the pages in a journal, the audio of a phone call, or the metadata of one’s social media account.

Content as Primary Focus

First, an example may elucidate why content is more important than physical circumstances or whether information was given to a third party. Consider the example of a “peeping Tom.” John is sexually interested in his coworker, Jane. Motivated by voyeurism, he hopes to obtain nude photos of Jane by standing outside her residence and covertly taking photos. Because modern cell phones are capable of capturing high-quality images—some of which are now capable of 100x zoom—John knows that he can easily capture these photos from outside Jane’s curtilage; he need not physically intrude.

Although no physical trespass may occur, this act is clearly immoral. The reason rests solely on the content of the information acquired: Jane, in her home, nude, and with an incredibly reasonable expectation of privacy. Normative judgments are independent of whether the trespass was physical in nature. Although this example does not involve the government, it is a clear example of why the content of what is obtained is more important than the physical circumstances of the acquisition.

Doctrine Use

Consider an example of law enforcement using the third-party doctrine to surveil an individual suspected of aiding women in getting abortions in a state where they have been banned or heavily restricted.1 Sarah, a resident of Texas, has publicly posted on social media that she wholeheartedly believes in bodily autonomy and would offer to drive women in need of an abortion to a provider. County sheriff’s deputies suspect Sarah of following through on her statements and driving low-income women in Houston to and from illegal abortion providers. They are able to see through Texas Department of Transportation records that she drives a Toyota Camry. Deputies find out that Toyota’s end user license agreement and privacy notice inform users that the company’s “ConnectedServices” collects data on vehicle owners, including location and voice recordings. Whether or not Sarah knows what she gave the car manufacturer permission to collect, deputies obtain records of her location and any voice recordings without a warrant.

In ascertaining whether Sarah’s Fourth Amendment rights were violated, the content-specific doctrine first considers the qualitative nature of the effects obtained by police—driving location data and audio recordings. This information can be incredibly personal to an individual. In daily life, most people assume that their whereabouts are not being tracked by others. Similarly, the conversations had in cars are assumed to be private in nature. The primary focus of the doctrine considers these features. In this instance, both categories of information are intimate and personal.

To help understand the content searched and seized, physically analogous scenarios can be helpful. Without technology, deputies would need to do at least one of two things to track Sarah’s whereabouts to the extent that Toyota’s data is functionally capable of doing: affix a GPS device to her vehicle or physically follow her whereabouts. Likewise, to record the conversations inside her vehicle, law enforcement would need to install a microphone inside the cabin of her Camry. In the absence of a warrant, these actions violate the Fourth Amendment.

Bringing these two ideas together yields an answer. The contents of the effects that deputies seek to obtain from Toyota—location and audio—are deeply personal. In physical circumstances, the search would be unreasonable without a warrant. Because the doctrine considers content as its primary focus, an answer is revealed: the government’s warrantless acquisition of Sarah’s location and voice recordings violated her Fourth Amendment rights.

The content-specific doctrine would not, however, protect the searches of Sarah’s public social media posts. The content, publicly available speech, is not as personal of information as location or audio recordings. Just as Sarah cannot reasonably expect that the words she utters in a  grocery store aisle are private, she cannot expect posts on public social media to be free from government observation.

Carpenter v. United States (2018)

An excellent example of actual legal thinking akin to the content-specific doctrine is the majority ruling in Carpenter v. United States. Suspecting Timothy Carpenter of robbery, the government obtained information from Carpenter’s cell phone service provider. Federal agents obtained “cell site location information” (CSLI) data that spanned 127 days. Over this duration, they collected 2,898 location points on Carpenter. This is an average of 101 data points per day. It can also be thought of as, on average, having one’s location documented and retroactively collected every 14 minutes and 15 seconds from August 20 until Christmas. The matter of the case focused on whether the acquisition of CSLI, without a warrant, violated Carpenter’s Fourth Amendment rights.

Fortunately for digital civil liberties, the Court ruled in favor of Carpenter. The majority opinion, authored by Chief Justice John Roberts, focused on the character of CSLI data and its investigative potential for law enforcement. The Chief Justice noted: “Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” He further states that cell phone tracking is even more invasive than GPS-tracking a vehicle because individuals often leave their vehicles but most keep their cell phones on them at all times.2 He emphasizes this habitual proximity by noting that 12% of surveyed Americans confess to using their phones in the shower. The Chief Justice also notes that previous attempts by the government to recreate suspects’ past physical movements were limited by the sheer quantity of records and its ability to collect them. With CSLI, however, the government can achieve near-perfect surveillance. The Chief Justice states that: “Only the few without cell phones could escape this tireless and absolute surveillance.”

In ruling in Carpenter’s favor, the majority opinion functionally used the content-specific doctrine. Rather than determining the warrantless acquisition of Carpenter’s CSLI to be legal based on the third-party doctrine, the majority examined the content of the government’s search and seizure. The content, Carpenter’s whereabouts over a period of 127 days, was extremely sensitive information. The Court recognized this sensitivity and duly considered it to fall under the protections of the Fourth Amendment. In Carpenter, legal thinking similar to the content-specific doctrine recognized that the essence of information collected by the government was more important than the manner in which it was obtained.

It should be noted that the Court’s ruling in Carpenter was split: it was a 5-4 decision. Authoring the dissent, Justice Anthony Kennedy argued that CSLI data is no different than other business records that a third party maintains, and as such, the third-party doctrine should apply in Carpenter. This dissent was joined by Justices Alito and Thomas. The latter Justice filed an additional dissent that emphasized focusing on the physical nature of searches. In it, Justice Thomas discusses other Fourth Amendment precedents. He references a pre-Katz case where a “spike mike” (a microphone that can be physically driven through walls and other barriers for the purpose of eavesdropping) was inserted by federal agents into an individual’s home, without a warrant, which was clearly a physical violation of privacy. Justice Thomas makes this reference to support his disagreement with the Court’s decreased emphasis on physical circumstances since Katz.

Both dissents are grounded in reasoning that the content-specific doctrine would address. It would focus on the content obtained by the government. In this case, nearly 13,000 pieces of location information spanning a period longer than four months and documenting an individual’s physical movements. The content-specific doctrine would acknowledge the intimacy of this information and recognize that its warrantless seizure functionally creates an Orwellian surveillance state. Regardless of whether Carpenter consented to give this information to a third party (Justice Kennedy’s dissent) or the physical circumstances of the search and seizure (Justice Thomas’s dissent), the content-specific doctrine would find such government actions to violate the Fourth Amendment.

Opponents of the content-specific doctrine may say that it weakens the government’s ability to investigate crime. I acknowledge the government’s need to do so in order to maintain order. However, order can be maintained, and crime investigated, through legally granted search warrants. The Fourth Amendment states that, although people are free from unreasonable searches and seizures, they are not absolutely free from reasonable searches and seizures. Presumably, what constitutes a reasonable search is described in the amendment: those conducted with a warrant based on probable cause that “particularly [describes] the place to be searched, and the persons or things to be seized.” This wording was an attempt to prevent broad searches like those conducted under general warrants and writs of assistance.

In the digital age, such a warrant could coexist with the content-specific doctrine. Investigators’ efforts to obtain very specific information—say, a suspect’s whereabouts in a two-hour window on a specific date—could be seen as narrow enough to constitute a reasonable search and seizure. Of course, some privacy rights advocates may disagree (and I myself have hesitations). However, I acknowledge that the law must always seek to prioritize individual liberties while also conceding that some circumstances exist where those liberties can be narrowly encroached upon. Therefore, the content-specific doctrine is not at odds with the government’s acquisition of narrow and specific search warrants. Rather, it seeks to prevent, minimize, and rectify broad and warrantless searches in cyberspace—in other terms: unreasonable digital searches and seizures.

CONCLUSION

This article began with a question about the Founding Fathers’ conceptions of privacy: “Were the seizures of letters from a desk drawer or the broad searches of one’s coat pockets unreasonable searches and seizures because they were physical in nature? Or were they violations of privacy because of the content searched and seized?” After examining the Founding Fathers’ proclivities for privacy, it should be clear the transgressive character of unreasonable searches and seizures rested not on their physicality but on the government’s capture of private belongings and information. Privacy, for colonists and the Founding Fathers, was revered.

Knowing that non-physical violations of privacy exist, this article then considered twentieth-century Fourth Amendment case law, the third-party doctrine, and the implications of new technology. Taken together, they showed exploitative potential. In response, I provided a new legal framework for Fourth Amendment rights in cyberspace: the content-specific doctrine. Above physical circumstances or the role of third parties, the doctrine considers the content of information obtained by the government.

This doctrine will not magically settle all debates on privacy. It does, however, provide jurists with a way to consider Fourth Amendment rights in cyberspace. As technology becomes unavoidably interwoven into society, the content-specific doctrine can help protect Americans’ digital civil liberties. The people have a right to be secure in their digital effects.

1 Given how recent the overturn of Roe v. Wade 410 US 113 (1973) is, whether abortion-restricting states will explicitly ban aiding and abetting abortions is a matter of debate. However, because states generally make aiding and abetting other crimes illegal, it is not unreasonable to think such policies will exist, be they de jure or de facto.

2 A relevant and recent case involving the warrantless GPS tracking of a vehicle is Jones v. United States, 565 US _ (2012)

BIBLIOGRAPHY

“1870s – 1940s: Telephone.” Elon University. https://www.elon.edu/u/imagining/time-capsule/150-years/back-1870-1940/

“A case for reading the small print.” Magazine Monitor.  British Broadcasting Corporation. November 18, 2013. https://www.bbc.com/news/blogs-magazine-monitor-24992518

Allen, William B., and Jonathan Gienapp. “Against Writs of Assistance (1761).” National Constitution Center. https://constitutioncenter.org/the-constitution/historic-document-library/detail/james-otis-against-writs-of-assistance-february-24-1761

“AWS Service Terms.” Amazon Web Services. https://aws.amazon.com/service-terms/

Carpenter v. United States, 585 US _ (2018).

“Constitution of the United States of America: Analysis and Interpretation.” U.S. Government Publishing Office, 112th Congress, 2nd Session. June 27 2016. https://www.govinfo.gov/content/pkg/GPO-CONAN-REV-2016/pdf/GPO-CONAN-REV-2016.pdf

Farrell, James M. “The Writs of Assistance and Public Memory: John Adams and the Legacy of James Otis.” The New England Quarterly 79, no. 4 (December 2006): 535–536, https://www.jstor.org/stable/20474493

Fox-Brewster, Tom. “Londoners give up eldest children in public Wi-Fi security horror show.” The Guardian. September 29, 2014. https://www.theguardian.com/technology/2014/sep/29/londoners-wi-fi-security-herod-clause

“From John Adams to William Tudor, Sr., 29 March 1817.” National Archives. https://founders.archives.gov/documents/Adams/99-02-02-6735

Hern, Alex. “Thousands sign up to clean sewage because they didn’t read the small print.” The Guardian (July 14, 2017). https://www.theguardian.com/technology/2017/jul/14/wifi-terms-and-conditions-thousands-sign-up-clean-sewage-did-not-read-small-print

Katz v. United States, 389 US 347 (1967).

Miller v. United States, 425 U.S. 435 (1976).

Olmstead v. United States, 277 US 438 (1928).

“Privacy and protection,” Toyota, April 11, 2022. https://www.toyota.com/privacyvts

Schwartz, Matthew S. “When Not Reading The Fine Print Can Cost Your Soul.” National Public Radio. March 18, 2019. https://www.npr.org/2019/03/08/701417140/when-not-reading-the-fine-print-can-cost-your-soul

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“Toyota Vehicle End User License Agreement.” Toyota. https://www.toyota.com/privacyvts/assets/images/doc/Vehicle%20Software%20End%20User%20License%20Agreement%20Toyota.pdfUlanoff, Lance. “We need to talk about the Samsung Galaxy S22 Ultra’s zoom photography.” TechRadar. February 17, 2022. https://www.techradar.com/news/we-need-to-talk-about-samsung-galaxy-s22- ultra-zoom

A Plea to Act in Good Faith: How Two State Laws Challenge Social Media Platforms’ Editorial Practices

Tori Tinsley

Recent controversy surrounding the constitutionality of two state laws regulating social media platforms reveals that modern technology is presenting unprecedented challenges for the legal system. Two laws passed in Texas and Florida in 2021, HB 20 and SB 7072 have raised questions about whether states can make laws that regulate social media platforms’ free speech policies. Tech advocacy groups Net Choice and Computer & Communications Industry Association filed a joint lawsuit against Texas and Florida, arguing that the states’ bills unconstitutionally violated first amendment protections for online platforms. The U.S. Court of Appeals for the Fifth Circuit vindicated Texas’ law, which prohibits social media platforms from engaging in viewpoint based censorship1 and requires platforms to be transparent in their policies. Contrarily, the U.S. Court of Appeals for the Eleventh Circuit struck down Florida’s law, which restricts platforms from unfairly censoring users and deplatforming political candidates. 

Despite the similarities in Texas’ HB 20 and Florida’s SB 7072, the courts have handed down two very different rulings. Because of this, both bills have now been brought to the attention of the Supreme Court–a move which The Washington Post claims will bring “the most controversial debates of the internet age to the country’s highest court.”1 While the Supreme Court has vacated the Texas case, there is no update as to whether the Court will hear the Florida one. 

But, a question currently pervading the legal sphere is: how do two courts rule differently on two nearly identical state bills? A look at the Fifth Circuit and Eleventh Circuit rulings reveal that differing legal interpretations of intermediate scrutiny and editorial discretion led to different outcomes for Texas and Florida’s legislation. As such, the rulings raise the following questions: to what extent do social media platforms have immunity in editorial discretion? And, do Texas and Florida have a legitimate state interest for regulating the free speech practices of social media platforms? 

Let us first address the question of editorial discretion. Section 230 of the United States Communications Decency Act is referenced in both the Fifth and Eleventh Circuit court cases. It grants online services immunity in how they choose to moderate their content. It reads: 

(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

It is evident in both rulings that Section 230 of the United States Communications Decency Act has strong implications when determining the extent to which social media companies can exercise editorial discretion. In the Eleventh Circuit court opinion, the judges argued against Florida, claiming that a social media company’s “‘content-moderation’ decisions constitute protected exercises of editorial judgment.” In the court’s perspective, Florida’s law would restrict a platforms’ “content moderation” rights. Implied in the court’s argument is the expectation that social media platforms properly and fairly moderate content on their platforms. The court wrote:

The platform will have exercised editorial judgment in two key ways: First, the platform will have removed posts that violate its terms of service or community standards—for instance, those containing hate speech, pornography, or violent content…Second, it will have arranged available content by choosing how to prioritize and display posts—effectively selecting which users’ speech the viewer will see, and in what order, during any given visit to the site.

Florida and Texas find a problem with these two so-called exercises of editorial judgment: social media companies have unclear community standards and inconsistently “prioritize and display posts.” Recognizing this, the Fifth Circuit came to a conclusion contrary to the Eleventh Circuit: that corporations do not “have a freewheeling First Amendment right to censor what people say.”  

The good faith stipulation in Section 230 2(A) would be beneficial in clarifying the confusion surrounding editorial discretion. While the Fifth Circuit briefly referenced the “good faith” stipulation in Section 230, the Eleventh Circuit did not. According to the Congressional Research Service (CRS), Section 230 (1) offers online platforms immunity when providing content, but Section 230 (2) offers online platforms immunity when regulating content only when their regulation practices are conducted in good faith. Thus, the good faith stipulation is a limitation placed on social media platforms to ensure platforms engaged in fair and reasonable practices. Section 230 2(A) states that “no provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” If an action by a social media provider is not “taken in good faith,” then ought not the provider be held liable? 

A “good faith” test ought to be applied when determining whether a platform is properly exercising its editorial discretion. The fact that both Texas’ HB 20 and Florida’s SB 7072 articulate that social media companies are not currently engaging in good faith practices should call into question platforms’ editorial practices. SB 7072 states that “social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents are not acting in good faith.” And, Texas’ HB 20 mentions that platforms should actively “make a good faith effort to evaluate the legality of the content or activity.” So, if platforms are engaging in bad faith practices by favoring some views over others and applying their policies unfairly, then this calls back into question a key consideration in the appellate court rulings: do states then have a legitimate interest in ensuring platforms act in good faith?

Florida and Texas argued that they had legitimate state interests in regulating social media platforms’ free speech policies, yet only Texas’ law was upheld by the Courts. Texas argued that it had a “fundamental interest in protecting the free exchange of ideas and information,” which the Fifth Circuit affirmed. Florida’s argument that it had “a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms,” however, was not a substantial reason for the Eleventh Circuit. The Eleventh Circuit upheld the decision of the district court, arguing that “there’s no legitimate—let alone substantial—governmental interest in leveling the expressive playing field.” Florida’s law, which aimed to ensure that social media companies treat conservatives and liberals fairly on their platforms, was considered unconstitutional.

In part, the district and appellate court rejected Florida’s claims to a substantial state interest since the bill was advertised by the state’s governor as an attack on big tech bias. As such, both courts came to the conclusion that the bill was nothing more than a scheme to advance conservative ideology. The Eleventh Circuit court claimed that the district court found “the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal ‘big tech’ bias.” Both courts focused on the potential agenda behind the bill that they seemed to miss the relevance of the bill. 

Florida’s law held social media companies accountable for their unfair practices. So did Texas’ law. As the Fifth Circuit recognized, Texas’ law could “make censors think twice before removing speech from Platforms in a viewpoint-discriminatory manner.” Both HB20 and SB 7072 were aimed at preventing censorship, ensuring fairness, and maintaining transparency on social media platforms. When social media companies cannot ensure good faith practices and apply their own policies without discrimination, states should have a legitimate interest to intervene and ensure private companies treat their citizens’ viewpoints with equal dignity and respect. 

These two state laws have several implications for future congressional action, as the CRS notes. But there are also considerations for the Supreme Court. If the Florida case makes its way to the Supreme Court, justices will have to clarify what constitutes editorial judgment, what the apparent implications of Section 230 are, the relevance of the “good faith” clause, and whether states have a substantial interest in regulating the private sphere of online communications. As Supreme Court justices have noted in review of Texas’ HB 20, these issues concerning state regulations and digital speech rights are unprecedented “issues of great importance.”  

The Legality of Tattoo Discrimination in Employment

Leyuan Ma

Background

In recent years, tattoos have become increasingly popular as a form of body art in the United States. According to a 2019 survey, 30% of Americans have at least one tattoo, an increase from 21% in 2012. However, even as tattoos are now recognized as part of mainstream culture, many people are still judgmental towards tattoos due to their negative connotations, associating them with risky behavior, criminality, or gangs. As a result, people with tattoos are often concerned that their body art will hinder their chances of employment. Though a recent study argues that in practice “tattoos are not significantly associated with employment or earnings discrimination,” other research has shown that body art can be a source of employment discrimination, and individuals have indeed been dismissed from their jobs because of their tattoos.

Current Legislation

Is it legal for employers to discriminate against prospective or actual employees with tattoos? Currently, Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin, but does not yet prohibit discrimination based on tattoos or other forms of body art. In addition, federal law allows employers to establish dress codes and grooming policies that require employees to cover up their tattoos in the workplace, as long as they are applied consistently and adhere to the Equal Employment Opportunity Commission’s  guidelines. For instance, employers can order all employees to cover up visible tattoos, but cannot apply such a rule only to males or people of a certain ethnicity.

On September 29th, 2022, New York City Councilman Shaun Abreu introduced a new bill that would amend New York’s administrative code and prohibit employment, housing, and public accommodations discrimination on the basis of having a tattoo. It would create an exception for employment and apprentice training programs in which covering a tattoo is a bona fide occupational qualification, a vocational qualification that is reasonably necessary to carrying out a particular job function in the normal operation of a business or apprentice training program, and where there exists no less discriminatory means of satisfying the qualification. The bill does allow for additional exceptions, but it does not specify what those might be in its current draft language. For instance, the bill may still permit employers to discriminate against employees and applicants with tattoos featuring hate speech. Currently, the bill has been referred by Council to the Committee on Civil and Human Rights. Though Abreu’s new bill is certainly a progressive step, unfortunately no existing legislation—federal, state, or municipal—prohibits the discrimination against people with tattoos in the workplace.

Does banning tattoos in the workplace violate the First Amendment?

The most powerful argument against tattoo discrimination is that it is a violation of Americans’ First Amendment rights. According to Councilman Abreu, “tattoos are a form of personal self-expression that, too often, incur bias and discrimination from employers, landlords and service providers.” Tattooing can be seen as artistic creation. Bearing a tattoo on one’s skin also makes a strong statement about one’s personality and identity, and thus can also be a form of personal expression. Therefore, tattoos could be considered  free speech protected under the First Amendment, and thus ordering employees to cover up their tattoos is an infringement of freedom of speech. However, it should be noted that the First Amendment does not apply to private employers. It states that “Congress shall make no law […] abridging the freedom of speech,” thus only regulating the government. In other words, even though tattoos constitute free speech, private employers would not be violating the First Amendment if they ban tattoos in the workplace.

The First Amendment argument has indeed been used against governmental restrictions on tattooing. In Yurkew v. Sinclair (D. Minn. 1980), commercial tattooist David Yurkew challenged the refusal of the Minnesota State Fair to rent space for commercial tattooing at the fair. Yurkew contended that tattooing is an art form and that the process of creating a tattoo is protected First Amendment activity. The defendants disputed this claim, arguing instead that protection of the health of fair patrons and consumers justifies the exclusion of tattooing from the fair. In the end, the court ruled against Yurkew and held that the “actual process of tattooing […] is not sufficiently communicative in nature as to rise to the plateau of important activity encompassed by [the] First Amendment.”

In more recent years, courts have gradually come to recognize tattooing as a form of free speech. The Yurkew v. Sinclair rationale was rejected in Buehrle v. City of Key West in 2015, when the United States Court of Appeals for the Eleventh Circuit determined that “the act of tattooing is artistic expression protected by the First Amendment, as tattooing is virtually indistinguishable from other protected forms of artistic expression; the principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper.” In addition, in Anderson v. City of Hermosa Beach (2010), the United States Court of Appeals for the Ninth Circuit held that “in matter of first impression, [the] tattoo itself, [the] process of tattooing, and [the] business of tattooing are First Amendment protected forms of pure expression.” In Coleman v. City of Mesa (2012), the Supreme Court also ruled that a “tattoo itself is pure speech, and the process of tattooing is also expressive activity for First Amendment purposes.” In sum, according to the federal courts’ latest jurisprudents, tattoos and the act of tattooing are now forms of expression protected by the First Amendment.

So, a question arises: would federal employers be infringing on First Amendment rights if they ordered employees to cover up tattoos? Currently, many governmental jobs have restrictions on tattoos, though they vary in strictness; for example, the Connecticut State Police requires that no tattoo should be visible while on-duty in the summer uniform, while the New York State Police allows the exception of a single band tattoo on one finger, and both police departments prohibit offensive or extremist tattoos. What is the legal ground for such restrictions?

In Medici v. City of Chicago (2015), police officers alleged that the city’s policy requiring on-duty officers to cover their tattoos violated their First Amendment rights. The Court  recognized the officers’ tattoos as a form of personal expression, but held that a government employer can enact “certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” Moreover, the Court supported the Chicago Police Department’s (CPD) “interest in ensuring that professionalism and uniformity is maintained,” and granted that “due to a tattoo’s unique character,” allowing on-duty police officers to display their tattoos “would undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.” Thus, in the federal sector, employers are also allowed to ban tattoos in the workplace. 

Inherent Discrimination

Through a close analysis of regulations and legal cases, we see that it is in fact legal to discriminate against tattoos in the workplace, both in private and federal sectors. This is to say, under current legislation, employers are allowed to use tattoos as a basis to distinguish candidates, and can require employees to cover up tattoos while on the job.

In Yurkew v. Sinclair (1980), the State Fair refused to rent space to a tattoo artist because it saw tattooing as a dangerous procedure which could cause the “transmission of communicable disease such as hepatitis.” In the following decades, tattooing has been proved to be safe under sterilized conditions, and the public has become more accepting of tattoos. However, thirty-five years after Yurkew, in Medici v. City of Chicago, the Court still held that “an on-duty police officer’s public display of any tattoo imaginable may, among other things, cause members of the public to question whether allegiance to their welfare and safety is paramount.” This in truth reflects people’s inherent bias towards tattoos, still seeing them as negative reflections on one’s character, which is contrary to the reality at present: though tattoos might have once been symbols of gang affiliation or risky conduct, nowadays they are more a form of personal expression with a variety of meanings. 

Is forcing servers or police officers to cover their tattoos really necessary for them to fulfill their duties? Are all people with tattoos really more risk-taking or less trustworthy? As Abreu proposed in his new bill, employers should be required to justify their restrictions on tattoos, and prove that covering a tattoo is the least discriminatory way to fulfill necessary vocational qualifications. Though federal jobs might require employees to adhere to stricter rules, employers should nevertheless reconsider the requirements in a contemporary setting.

The Unconstitutionality of California’s State of Emergency

Alexandra Orbuch

On March 4, 2020, California Governor Gavin Newsom relied on the California Emergency Services Act to declare a state of emergency as a result of the outbreak of COVID-19. On October 17, 2022, Newsom announced that “the COVID-19 State of Emergency will end on February 28, 2023.” The termination date was set for 103 days after it was declared. I argue that the four month long gap between declaration and termination violates the intended parameters of the California Emergency Services Act.

The California Emergency Services Act grants the governor to extensive and essentially unchecked power. It declares:

During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter.

The law makes clear that “the Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant’ (emphasis added). While the law does not spell out the circumstances during which the termination of the state of emergency becomes necessary, the law appears to be tailored to an immediate termination, not a forward-looking one. 

It is impossible to know anything about the “conditions” of the future and whether they will meet expectations. This is especially true for pandemics, which are especially unpredictable in their patterns; no one knows exactly what it will look like in one month from now, let alone four. If Governor Newsom is confident enough to discuss the termination and give it a date, perhaps that earliest possible date is already upon us. If he was truly unsure, then he would not have put a time stamp on it.

Moreover, Governor Newsom’s actions have made it clear that the circumstances today are vastly different than those of March 2020. Of the 596 pandemic-era executive orders Governor Newsom signed, just 27 still stand. If he truly believed that an emergency existed with as much conviction as he did in 2020, he would not have ended 95% of his emergency orders. He has even said as much himself. When revoking the state’s Stay-At-Home order in June 2021, Newsom wrote that “the effective actions of Californians over the past fifteen months have successfully curbed the spread of COVID-19, resulting in dramatically lower disease prevalence and death” (emphasis added). It was already clear from Newsom’s decision to terminate 95% of his pandemic-era executive orders that the “earliest possible moment” to end the state of emergency has long since passed. Now his words add to the case as well.

In 2021, The Orange County Board of Education and the Children’s Health Defense filed a lawsuit against Governor Newsom, asking the courts to order the Governor to bring an end to California’s state of emergency on the grounds that the “earliest possible moment” to lift it, as designated by state statute, had passed. After lifting almost 90% of his COVID-19 related executive orders and removing the state’s stay-at-home order, the plaintiffs argued that Newsom had no right to continue exercising lawmaking authority that would, under normal circumstances, be vested in the legislative branch.  Their case for the immediate termination of the state of emergency is even stronger now that the governor has made it crystal clear that he can already see the light at the end of the tunnel. 

Leaders of other states – even ones politically aligned with California – support near-immediate terminations of pandemic-related states of emergency. In New York, Governor Cuomo announced on June 23, 2021 that “the state of emergency will expire after Thursday, June 24.” In a similar move, Governor Carney of Delaware declared on March 1, 2022, that the state of emergency would end that day.

Even New Jersey, which was not as clear cut as the two above examples, trends toward near-immediate termination. On June 4, 2021, Governor Phil Murphy signed legislation ending the COVID-19 Public Health Emergency. This action meant the immediate termination of the public health emergency, though it allowed for 30 days for the majority of executive orders issued as a result of the Public Health Emergency to expire. While he provided a short grace period – far less than the four months Governor Newsom laid out – to undo existing legislation, the emergency itself was immediately undone so that Governor Murphy could no longer pass more executive orders.

Checks and balances are a cornerstone of the American governmental structure. The beauty of checks and balances is that they allow each branch of government to keep the others from overextending their authority. This ensures that the people retain power, as is definitionally required in a democracy. In a state of emergency, this safeguard is temporarily removed, because the good that swift and unfettered action can produce in the eye of a hurricane or the height of a pandemic may just outweigh the dangers of an all-powerful executive. That emergency power is not meant to last forever, though. Once it continues past its necessary date, the balance tilts. The dangers of an all-powerful executive outweigh the good that can come from it. Considering precedent in other states and Governor Newsom’s own words and actions, the “earliest possible date that conditions warrant” has clearly passed. The courts should exercise their power of judicial review and call for the immediate termination of California’s state of emergency. In the words of Robert Tyler, President of Advocates for Faith & Freedom, “our democratic system was never intended to give the Governor the unconscionable authority to hold a death-grip on civil liberties.” The courts should do everything in their power to free California from that grip and reinstate the checks and balances that hold our democracy together.

A Look Back at Washington State’s Senate Bill (SB) 5843: Constitutional or Not?

Alexandra Orbuch ‘25

Introduced by the Washington State legislature in January 2022, Senate Bill (SB) 5843 attempted to criminalize statements made by elected officials or candidates that:   

(a) Are intended to incite or produce imminent lawless action and do incite or produce such action resulting in harm to a person or to property; (b) Are made for the purpose of undermining the election process or the election results; (c) Falsely claim entitlement to an office that an elected official or candidate did not win after any lawful challenge made pursuant to this title is completed and the election results are certified. 

The bill failed to gain sufficient support in the house, so it failed. But the politicians opposed simply struck it down with no discussion as to why. Because they stayed silent, I am here to discuss the serious constitutional issues with the latter two types of speech banned by the bill (sections b and c), as they shunt aside the “imminent lawless action” test and a host of other legal precedents. 

Washington Governor Jay Inslee put out a statement in support of SB 5843, alluding to President Trump’s message preceding the January 6 Capital riots. “The defeated president and his allies…are perpetuating the belief that this election was stolen from them,” he said. The language of the bill itself echoes this fear, highlighting “false statements and claims regarding the validity of the 2020 election” as the cause of “January 6.” 

Inslee declared that Trump “yell[ed]” fire in the crowded theater of democracy,” harkening back to Schenck v. United States, in which the Supreme Court said that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.” Schenck created the “clear and present danger” test, which protected speech unless there is a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” 

Inslee seems to have missed the memo that the “clear and present danger” test is no longer the free speech barometer. Brandenburg v. Ohio replaced it with the “imminent lawless action” test, which forbids curbing speech unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court made an important distinction in its ruling, writing that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (emphasis added). 

While SB5843 does include speech likely to incite imminent lawless action as one of its offenses (section a), it also lays out two other types of speech that would qualify: speech “made for the purpose of undermining the election process or the election results” and speech “falsely claim[ing] entitlement to an office” after losing an election. 

Banning the latter two types of speech is unconstitutional. In order to fall outside of protected speech as set forth in Brandenburg, it would not be enough for a statement to attempt to “undermin[e]” elections or “falsely claim entitlement” to a political office. The burden of proof is much higher than that. The statement would need to call for lawless action in such a way that the speech mobilized action on the part of the parties on the receiving end of the speech. Moreover, the bill forgoes any mention of a timeframe at all for the latter two types of speech, completely shunting aside the “imminent” portion of Shenk’s free speech metric (emphasis added). 

The bill’s attempt to purge false claims of entitlements to political office is one that swims against the tides of precedent even beyond Schenck. In Bond v. Floyd, the court unequivocally declared that “erroneous statements must be protected to give freedom of expression the breathing space it needs to survive.” 3. Further, in U.S. v. Alvarez, the court asserted that banning lies “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”

In Alvarez, Justice Kennedy wrote that “when the Government seeks to regulate protected speech, under the First Amendment the restriction must be the least restrictive means among available, effective alternatives.” There is almost always “an available, effective alternative” to censoring false narratives, one more in line with the value of freedom so integral to the American ethos: “counterspeech.” The court had faith in the intelligence and judgment of the American people, and rightfully so. Alvarez was “perceived as a phony” and “ridiculed” even before his FBI investigation. “There is good reason to believe that a similar fate would befall other false claimants,” said the court. 

The court aptly reminded the public that “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” Calling “speech we do not like” illegal is contrary to established law and legal precedent. 

When the “government seeks to orchestrate public discussion through content-based mandates,” we wade into dangerous territory. Governor Inslee and the Washington legislature would do well to remember that American society “has the right and civic duty to engage in open, dynamic, rational discourse.” As the court so trenchantly wrote, “truth needs neither handcuffs nor a badge for its vindication.” It is not–and ought not be–the government’s place to police electoral discourse. America’s distinctiveness lies in the freedoms enshrined in its Bill of Rights. We live in a constitutional Republic, not a fascist censorial regime dedicated to protecting the government from even the most indistinct whiff of ‘untruth’ or critique.  

In U.S. v. Alvarez, the court proclaimed that “[a]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It stated that content-based speech restrictions are relegated to limited “historic and traditional categories [of expression] long familiar to the bar.” 

These “categories” include incitement, obscenity, defamation, child pornography, fraud, fighting words, true threats, and speech integral to criminal conduct. Obscenity and pornography are clearly not at issue here, so I’ll table discussion of them. As for the fraud exception, it applies solely to false commercial advertisements and considering Inslee’s legislation has nothing to do with commerce and advertising, the fraud exception to the first amendment is inapplicable here.

In U.S. v. Williams, the court declared that the speech integral to criminal conduct, “offers to engage in illegal transactions,” do not fall under “First Amendment protection.” Solicitation of crime is illegal, but abstract advocacy of illegality is not. The scope of the speech integral to criminal conduct is limited to the “imminent lawless action” test set forth in Brandenburg. And, as already discussed, two-thirds of the criminalized actions set forth in the bill would not pass the test. 

Also subject to the “imminent lawless action” are fighting words, “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The court has made it very clear that words are protected unless they “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Cohen v. California further narrowed the definition, ruling that speech that does not directly aim its message at an individual or group is in fact protected by the first amendment. Thus, making a statement challenging or lying about election results would not apply. In the court’s words, “an ‘undifferentiated fear or apprehension of disturbance’…is not enough to overcome the right to freedom of expression.” 

The last exception to protection under the first amendment are true threats, which “encompass those 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 individuals.” The court, in Virginia v. Black, limited true threats to speech “with the intent of placing the victim in fear of bodily harm or death.” SB 5843 targets political speech, not speech threatening physical violence, therefore the true threat exception is neither relevant nor applicable. Clearly, neither speech “undermining the election process or the election results” nor speech “falsely claim[ing] entitlement to an office” fall under the categories of speech that the Supreme Court has said the First Amendment does not protect.

Both the spirit of the proposed legislation and the language itself, taking issue with subjective ‘lies’ that may be otherwise deemed as opinion, conjecture, or assessments differing from the ‘conventional wisdom’ or infringing upon the comforts of elected officials, are ultimately dangerous attempts to legislate contrary to the intent of the Founding Fathers and the subsequent clarifications by the Courts defining protected rights under the Constitution.

The Supreme Court’s Perversion of Property Rights

by Beck Reiferson

Political philosophers have long regarded the right to property as one of man’s most essential rights. John Locke, whose writings were among the most influential on the political thought of America’s Framers, believed the primary purpose of governments is to protect its citizens’ property rights. In his Two Treatises of Government, he argued that the “great and chief end… of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.” The Framers agreed that protections of property rights were of paramount importance, as the pervasiveness of precisely such protections throughout the Constitution makes clear. Among the Constitution’s explicit protections of Americans’ property rights is the Fifth Amendment, which says that “private property [shall not] be taken for public use, without just compensation.” Known as the Takings Clause, this clause lays out the proper scope of the federal government’s eminent domain power: it may seize private property, but only if it justly compensates the property-owner and the property will serve a public use. The public use requirement—called the Public Use Clause—is central to Takings Clause jurisprudence. I will argue, however, that through its rulings in Hawaii Housing Authority v. Midkiff and Kelo v. New London, the Supreme Court has whittled away at Americans’ property rights by erroneously contorting the Public Use Clause into a “Public Utility Clause.”

In 1967, Hawaii passed a law to address the fact that only seventy-two private landowners owned almost half of the property in the State. The law transferred legal titles from these landowners to lessees. In Midkiff (1984), the Court unanimously held that this law did not violate the Takings Clause of the Fifth Amendment because the “‘public use’ requirement is… coterminous with the scope of a sovereign’s police powers.” In other words, as long as the government is seizing property to advance the public good, the taking satisfies the Public Use Clause. Justice O’Connor, writing for the Court, put this point bluntly: “The mere fact that property taken outright by eminent domain is transferred… to private beneficiaries does not condemn that taking as having only a private purpose.” Since the law in question could plausibly be said to benefit the public, the Court deemed it constitutionally permissible. 

The Court’s emphasis on the law serving a public purpose has no basis in the text of the Fifth Amendment. The Public Use Clause means exactly what it says: for a taking to be constitutionally valid, the property that is being taken must be made available for the public to use—not just confer some indirect benefit on the public. And for the public to use property, one of two criteria must be met: either the public must have a right to enter the property or the property must be publicly owned. A park, for example, obviously meets the first of these criteria, while a government building meets the second. The privately owned homes at issue in Midkiff, however, met neither of these criteria. Therefore, contrary to the Court’s decision in the case, the Public Use Clause prohibits the actions of the Hawaiian legislature. If the Framers wanted governments to be able to seize private property that would be used in any way to benefit the public, they would have written a Public Utility Clause. Instead, they wrote the Public Use Clause, and “public use” means “public use.”

Kelo v. New London (2005) presented the Court with an opportunity to correct its error in Midkiff. Instead, the Court doubled down, declaring that the City of New London’s transfer of private property from private homeowners to private companies satisfied the Public Use Clause because the City could plausibly argue that the transfer served the public purposes of improving the local economy and raising tax revenues. Just as in Midkiff, the majority in Kelo did not contend that the public would literally use the seized property. Rather, they weighed the merits of the City’s argument that the property transfer would be economically beneficial and decided that the public utility derived from the seizure was enough to satisfy the Public Use Clause. The majority thus again wrongly conflated public use, which the Constitution requires, and public utility, which, by itself, is insufficient to make a government’s exercise of the eminent domain power constitutionally valid. 

The distinction between “use” and “utility” is more than just semantic: the Court’s misguided interpretation of the Public Use Clause has significant implications for the security of Americans’ property rights. By interpreting the Public Use Clause as a Public Utility Clause, the Court has greatly expanded the scope of the government’s eminent domain powers. A government that can only seize private property if either the government itself or the citizenry at large will use that property is a government with a very limited ability to seize private property. Such a government could permissibly seize private property if it planned to turn it into something like a government building, park, highway, or school, but seizing private property just to transfer it to other private owners for their own use would be strictly off-limits. On the other hand, a government that can seize private property as long as its plan for that property can plausibly be said to indirectly benefit the public is a government with a nearly limitless ability to confiscate property. This is particularly true when courts afford legislatures broad discretion to determine what constitutes public utility, as the Supreme Court promised to do in Midkiff. When a government has that much latitude to seize private property, property rights are extremely insecure. For the Court to supply Americans’ property rights with a greater degree of protection—the degree of protection the Framers intended Americans to enjoy—it must interpret the Public Use Clause as a strict requirement that governments can only seize private property if the public or government will actually use the property. The overruling of Midkiff and Kelo is long overdue.

When Two Worlds Collide: Evaluating Free Speech and National Security Claims around Trump’s WeChat Ban

by Nalin Ranjan

Introduction

Immigrants have come a long way from hopelessly striving toward the 20th-century ideal of full assimilation into American society. Descendants of Jewish immigrants, whom many believed could not be trusted, can now proudly take credit for developments in the sciences, politics, medicine, and the arts; blossoming Chinatowns have replaced enclaves that once shied away from any expression of their heritage for fear of persecution; Mexicans whose ancestors worked under poor conditions and compensation in the fields founded the United Farm Workers to ensure their voices were heard. The stories of immigrants who refused to merely conform to the expectations placed upon them are endless. They have long known that the immigrant experience entails keeping close to — and not abandoning — their unique cultures and communities.

It was thus that President Trump’s August 2020 ban on Chinese messaging service WeChat was met with large-scale trepidation amongst the Chinese-American community. For the unfamiliar, WeChat is the world’s third-largest messaging service and by far the most popular means of communication amongst first-generation Chinese immigrants, with nearly three million active daily users in the US. For many, it is the primary — if not only — means of keeping in touch with fellow Chinese immigrants and families back home. However, given its Chinese ownership, the app has been subject to intense scrutiny amid escalating tensions between the two countries. 

Legal action against the ban was swiftly taken, resulting in a preliminary injunction of the original order. And before further arguments were made, the Biden administration walked back the Trump-era restrictions. However, they also made it clear that they would continue probing the issue and that a further ban was not entirely out of the question just yet. In this article, I examine relevant constitutional arguments that may have been made in favor of the ban had further litigation continued. Whether or not the ban stands to constitutional muster will ultimately determine whether it is a legal restriction with unfortunate consequences or a fundamental violation of certain Americans’ right to communicate freely.

Background

President Trump initially issued Executive Order 13943 in August 2020, prohibiting “any transaction that is related to WeChat by any person, or with respect to any property… with Tencent Holdings Ltd [the parent company of WeChat]… or any subsidiary of that entity.” The order outlined seven restrictions — each prohibiting a certain type of transaction with WeChat or its parent company —that together would have immediately rendered WeChat services both useless and illegal to use. In particular, restrictions 1-4 would have crippled WeChat’s technological infrastructure and content-distribution backbone, while restriction 6, which bars “any utilization of the WeChat mobile application’s constituent code, functions, or services,” would have been nothing short of an explicit ban on using WeChat’s services for then-users in the United States. 

Make no mistake: most of the restrictions of the order could only be reasonably challenged in court by Tencent itself.1 But restriction 6, whose target is the American populace rather than a service/network/other technology managed by Tencent, could reasonably be challenged by American WeChat users, as it places an explicit restriction on a place Americans may go to express speech. My analysis hereinafter will focus on restriction 6, because 1) resolving first amendment challenges to restriction 6 entails tackling issues that would arise in challenges to other portions of the ban, and 2) first amendment challenges to restriction 6 most closely echo the concerns of American WeChat users, who are the most important stakeholders in this issue. 

Constitutionally, time, place, or manner (TPM) restrictions are permissible, but they must 1) apply equally to all forms of speech subject to the TPM restriction (i.e. be content-neutral), and 2) pass the test of intermediate scrutiny.2 Given that the ban seeks to impose a broad and sweeping restriction on the use of WeChat, it is clear that it passes the content-neutrality criterion: no particular message substance would be favored over another since all communication on WeChat would be prohibited. Thus, the only — albeit substantial — remaining obstacle that the ban must overcome is the test of intermediate scrutiny, which requires that a TPM restriction 1) serve a significant governmental interest unrelated to speech content, 2) be narrowly tailored, and 3) leave open adequate channels for communication. 

Does there exist a significant government interest that would be served by the ban?

As stated in President Trump’s initial executive order, the central motivation for issuing the ban is to protect national security. (The executive order clarifies that other threats, such as those to foreign policy and the economy, derive from the primary threat to US national security.) The precise definition of “national security” is somewhat elusive, but most would agree with the National Law Review’s characterization, which says that it “encompasses safeguarding the nation’s borders against foreign threats and terrorism… [which, in particular, may include] cyber-crimes, cyber-attacks, and other internet-based crimes.” And like most, we will grant that national security is a significant governmental interest unrelated to the particular content of restricted speech in this case.

Would the ban — as outlined in the original executive order and implemented in the Commerce Secretary’s addendum — prevent some action that gravely endangers US national security? The executive order would answer affirmatively, holding that the relevant action it prevents is the capture of “vast swaths of information from its users, which threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” This conclusion, however, is based on multiple unsound foundations.

First, the characterization of the information WeChat collects as “personal and proprietary” is misleading, if not plainly incorrect. Upon registering, users must agree to a privacy policy that explicitly describes how one’s information will be shared with other subdivisions of Tencent, service providers (middlemen providing services that enable the functioning of the app), third parties with whom the user interacts, advertising partners, and notably, governments/regulatory agencies that request it.  Of course, this finding is wholly unsurprising to the average WeChat user. In addition to the common knowledge that using an online service will expose one’s information to its administrator, there is also a common cultural element at play: many WeChat users, as first-generation Chinese immigrants, are familiar with the authoritative role the CCP takes in regulating the flow of information and communication. A sentiment of an anonymous user on tech forum SlashDot sums up the typical WeChat user’s attitudes on this issue: “WeChat is a great app, and I use it all the time. But I have never considered it to be private.” Ultimately, users are knowingly consenting to share their data with WeChat and its wide range of affiliates, so the suggestion that users’ “personal and proprietary” information will land into the hands of an actor that shouldn’t have access to it — including the CCP — is both legally and empirically incorrect. 

Second, the mere collection of “vast swaths of data” on consenting American users is not in itself a threat to national security, even if this data lands into the hands of presumed US adversaries like the CCP. It is certainly true that WeChat follows the typical social media company strategy of collecting a wide range of identifying information and day-to-day activity data from users that may compromise their individual privacy, but it is difficult to see how such perfunctory data could be used to threaten US national security as a whole. Knowledge of what certain consenting individuals are doing, where they are going, and what some of their preferences are seldom, if ever, provides the edge needed to engineer large-scale attacks on US citizens or institutions. And the US government has implicitly recognized this fact: the combined revenue of the data analytics and online advertising market — both heavily reliant on collection and exchange of highly specific personalized data — totaled almost $100 billion in 2020 with no indication of slowing down. These markets, which feature thousands of companies of varying sizes, are officially sanctioned — and even participated in — by the US government. Were the possession of terabytes of perfunctory data truly a prospect with imminent national security concerns, history suggests governmental oversight would be swift and uncompromising — or at the very least, more stringent than the lax attitude currently adopted that treats personal data as little more than an arbitrary, freely exchangeable good.3 

In short, there is little evidence to suggest that a blanket ban on the use of WeChat would significantly remedy any existing national security vulnerability.

Would the WeChat ban leave open adequate channels for communication?

As established in Ward v. Rock of Racism, “the basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.” In other words, the subject of a TPM speech restriction must be afforded another venue in which the intended audience may reasonably participate in a similar capacity. Appellate court precedent has established this requirement as one admitting a strict interpretation. For example, refusal to grant a permit to the Million Youth March sufficiently close to the movement’s desired location in Harlem was ruled in 1998 to be a First Amendment violation, because the city’s proposed relocation to Randall’s Island would have “adversely affect[ed] plaintiff’s ability to reach its target audience” by “limit[ing] [the movement’s] reach to [only] those who make an affirmative decision to travel to [Randall’s Island].” 

The alternatives afforded to WeChat users, unfortunately, are quite worse than a two-mile walk eastward to Randall’s Island. As Peng notes in her testimony, the only available alternatives to contact relatives abroad are costly and provide vastly inferior functionality:

“Without WeChat, I will have to go back to the old way of buying calling cards and making expensive international calls. I will also not be able to reach all of my family members with one click. I will not be able to look at them through video calls with my own eyes. Nor can they see that I am well with their own eyes.” 

For the unfamiliar, the reason that Peng would have to go back to calling cards is that most apps that seem like viable alternatives (WhatsApp, Snapchat, Messenger, Line, etc.) are blocked by the Great Chinese Firewall. 

And for those whose only proficient language is Mandarin (or another dialect spoken in China),4 the lack of other Chinese-friendly messaging apps would all but require attaining sufficient proficiency in another language. Even if we discount the many cases where this is effectively impossible (e.g., for senior citizens), such a requirement would fundamentally run contrary to the American notion of free expression. Learning a particular language should never be an explicit prerequisite to communicate, nor is the government within its right to revoke access to platforms so as to implicitly institute this as a requirement.

Conclusion

For now, Chinese-American WeChat users can breathe a sigh of relief. Yet it is clear that the issue is far from resolved, as the Biden Administration has indicated that a subsequent restriction is well within the realm of possibility. However, amid ever-changing political headwinds, American WeChat users can cling steadfastly to the legal rock that is intermediate scrutiny. Indeed, striking down the Trump-era ban would have only required that one intermediate scrutiny criterion be unmet. That the ban spectacularly fails multiple criteria is a serious indication that subsequent administrations will need to dedicate genuine, good-faith effort to crafting a more measured response that does not irreparably sever certain Americans’ access to their most significant outlet of communication.

1 Foreign entities may bring suit in US courts; see Servicios Azucareros v. John Deere.

2 First developed in Craig v. Boren.

3 See this article, for example. Most data exchanged over US networks is unregulated. That is, most companies are not under any obligation not to share your data with third parties, who can in turn do as they wish with that data (including selling it again). And none of them are obligated to tell you what they do with your data.

4 No publicly available sources have an estimate on the true number of English-deficient WeChat users in the United States. But an extremely conservative estimate would likely lie in the hundred-thousands.