Online

Government Speech and First Amendment Capture

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court’s developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like. First Amendment capture—categorizing contested speech as government speech and then eliminating contrary viewpoints—is an increasingly frequent occurrence and risks giving the government too much power to suppress those who would criticize it or blow the whistle on it. While one solution is to resist the government speech label, this Essay also proposes recognizing “mixed speech” as a potential means of curtailing the expansiveness of the government speech doctrine.

Introduction

Government speech is inevitable; the government cannot operate without speaking.1 1.See infra notes 21–25 and accompanying text.Show More Because government speech can educate, inform, and make positive contributions to the marketplace of ideas, government speech is not necessarily problematic.2 2.See generally Abner S. Greene, Government of the Good, 53 Vand. L. Rev. 1, 7–12 (2000) (listing four ways that government speech can be viewed as an affirmative good).Show More At the same time, government speech may threaten free speech values if it overwhelms critics or distorts debate.

What role government should play in our political discourse was the subject of much debate in the 1980s.3 3.See, e.g., John E. Nowak, Using the Press Clause to Limit Government Speech, 30 Ariz. L. Rev. 1, 9 (1988) (“In recent years, perhaps due to an awareness of the changing factors that increase the danger to our society from government speech, several scholars have examined the topic of whether the judiciary could use the free speech clause of first amendment to limit governmental speech.”); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565, 570 (1980) (“The government speech problem is to determine when and by what means government may promote controversial values and when it may not.”); see alsoRichard Delgado, The Language of the Arms Race: Should the People Limit Government Speech?, 64 B.U. L. Rev. 961 (1984) (discussing prominent themes in the government speech debate); Robert D. Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Cal. L. Rev. 1104 (1979) (arguing that the First Amendment prohibits government from advocating political ideas); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979) (arguing that governments should not have free speech rights); Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. Rev. 578 (1980) (arguing that partisan government speech does not and should not receive First Amendment protection).Show More Scholars worried that the government might monopolize speech marketplaces and drown out other views.4 4.See, e.g., Kamenshine, supranote 3, at 1104 (“[P]articipation by the government in the dissemination of political ideas poses a threat to open public debate . . . .”); Shiffrin, supra note 3, at 601 (“[O]ne of the problems to be faced in assessing government speech [is] the concern that government speech could result in unacceptable domination of the marketplace and the need for measures to confine the danger.”).Show More The concern that government speech might distort a marketplace of ideas remains, but thanks to the newly developed government speech doctrine,5 5.See infra Part I (describing the development of the government speech doctrine).Show More the government need not be the loudest speaker because it can become the only speaker. According to the Supreme Court’s government speech doctrine, once speech is deemed government speech, it falls outside the purview of the Free Speech Clause.6 6.Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (“The Court has also said that ‘government speech’ escapes First Amendment strictures.”).Show More That is, while suppressing a viewpoint in private speech triggers strict scrutiny and is presumptively unconstitutional,7 7.Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”).Show More the same action under the government speech label is perfectly constitutional as the government may exert complete control over its own speech.8 8.See infra Part I.Show More A free speech challenge will consequently fail if the contested speech is classified as government speech9 9.See infra notes 26–34 and accompanying text (discussing cases involving specialty license plates and monuments in public parks).Show More rather than private speech.10 10.Governments often provide spaces, such as the plaza in front of the town hall, for private citizens to speak. These are known as forums. Different doctrinal rules might apply depending on the type of forum, but viewpoint regulations are always subject to strict scrutiny. See generally Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev. 1975, 1980–89 (2011) (describing public forum doctrine).Show More Thus, the former fear that competing viewpoints will be buried under government speech has given way to the fear that competing viewpoints will be altogether eliminated by the government speech doctrine.11 11.See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”).Show More

I call this move—classifying contested speech as government speech and then clamping down on certain viewpoints—“First Amendment capture.” “Agency capture” occurs when the regulated gain control of the agency charged with regulating them.12 12.Rachel E. Barkow, Insulating Agencies: Avoiding Agency Capture Through Institutional Design, 89 Tex. L. Rev. 15, 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”).Show More Likewise, the government, which is supposed to be regulated by the First Amendment, gains control of speech in First Amendment capture.

One obvious way to prevent First Amendment capture is to categorize contested speech as private speech. But that may come with its own costs, such as forcing government to support or sponsor denigrating speech or highly religious speech.13 13.See infra Part III.B.Show More Another way to address exponential expansion of government speech is to recognize a new category of speech in addition to private speech and government speech. This new category—“mixed speech”—would cover speech that has both private and government components, and it would trigger intermediate scrutiny.14 14.In contrast, regulations of private speech regularly trigger strict scrutiny while regulations of government speech trigger no scrutiny at all. See infra Part I.Show More This recognition would allow more speech to be subject to the free speech prohibition on viewpoint discrimination yet still allow a degree of government control.15 15.I have discussed this proposal in an earlier work. See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev. 605, 675–77 (2008) [hereinafter Corbin, Mixed Speech]. Unlike this Article, the earlier one did not focus on the problems of First Amendment capture.Show More

This Article has three parts. Part I describes the current government speech doctrine. Part II describes the problems raised by government speech. It begins with a brief review of early government speech literature. It then examines how these concerns manifest today. Part III considers Free Speech Clause solutions,16 16.This Essay focuses on how the Free Speech Clause itself might be mobilized, though obviously solutions might be found elsewhere as well.Show More including the recognition of mixed speech as a potential limit on unregulated government speech.

I.  Government Speech Doctrine

The government speech doctrine is a late twentieth century judicial creation.17 17.Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). The 1991 Rust v. Sullivan, 500 U.S. 173 (1991), decision is now heralded as one of the first government speech cases, though the decision itself did not use that term. Rather, a decade later Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), identified Rust as a government speech decision: “The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.” Id. at 541.Show More Its primary rule is fairly straightforward: If the speech is the government’s, then the Free Speech Clause does not apply.18 18.Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“[O]ur cases recognize that ‘[t]he Free Speech Clause . . . does not regulate government speech.’”).Show More One of the core tenets of the Free Speech Clause is that the government may not censor viewpoints it does not like.19 19.Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against speech based on the ideas or opinions it conveys.”); see also supra note 7.Show More However, “[t]he Government’s own speech . . . is exempt from First Amendment scrutiny.”20 20.Johanns, 544 U.S. at 553.Show More

The starting assumption for the government speech doctrine is that the government must be able to control its own speech in order to function.21 21.Matal, 137 S. Ct. at 1757 (“[I]mposing a requirement of viewpoint-neutrality on government speech would be paralyzing.”).Show More Government officials are chosen because of their political platforms, and “[w]hen a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others.” 22 22.Id.Show More As the Supreme Court has observed, when the government promoted the war effort during World War II, the First Amendment did not demand that it simultaneously discourage those efforts.23 23.Id. at 1758.Show More Similarly, the government could not effectively promote vaccinations if it also had to balance its pro-vaccine message by supporting anti-vaxxers.24 24.Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015).Show More The government cannot do the job it was elected to do without the ability to decide what it says and does not say.25 25.Id. at 2246 (“But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”).Show More

Two recent cases—Pleasant Grove City v. Summum (2009)26 26.555 U.S. 460 (2009).Show More and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015)27 27.135 S. Ct. 2239 (2015).Show More—have cemented the government speech doctrine. In Summum, a small religious group offered to donate a Summum religious monument to a public park that hosted several previously donated monuments, including one of the Ten Commandments.28 28.Pleasant Grove City, 555 U.S. at 466.Show More When the town refused, the group accused it of unconstitutional viewpoint discrimination.29 29.Id.Show More The Supreme Court held that monuments in a public park constitute government speech, and therefore the town could welcome a Ten Commandments monument while refusing Summum’s Seven Aphorisms monument.30 30.Id. at 472.Show More

In Walker, Texas found itself accused of unconstitutional viewpoint discrimination because, despite offering drivers dozens of specialty license plates, it had refused to make one bearing the confederate flag for the Sons of Confederate Veterans group.31 31.Walker, 135 S. Ct. at 2245.Show More Again, the Supreme Court found the contested speech to be government speech.32 32.Id. at 2246.Show More As a result, Texas was free to reject the Sons of Confederate Veterans license plate.33 33.Id. at 2253.Show More “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”34 34.Id. at 2245; see also id. at 2245–46 (“Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”).Show More

Although government speech is not subject to the Free Speech Clause, other clauses might limit it. For example, government speech might violate the Equal Protection Clause, which bars discrimination on the basis of race,35 35.Cf. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”).Show More or the Establishment Clause, which bars endorsing one religion over others.36 36.Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must comport with the Establishment Clause.”).Show More However, the Supreme Court has argued that the primary check on government speech is the democratic process.37 37.Walker, 135 S. Ct. at 2245 (“[I]t is the democratic electoral process that first and foremost provides a check on government speech.”).Show More People express their approval or disapproval of the government and its speech with their vote. Because the government “is ultimately ‘accountable to the electorate and the political process for its advocacy,’”38 38.Pleasant Grove City, 555 U.S. at 468 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)).Show More the government may discriminate against certain viewpoints in its own speech. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.”39 39.Id. at 468–69 (quoting Bd. of Regents, 529 U.S. at 235).Show More

In short, under the government speech doctrine, the government can choose its own words. If the electorate does not like the government’s chosen viewpoint, it can act to change the government.

II. Problems of Government Speech

Three justifications are regularly offered for why free speech is so important that government regulation of speech triggers concern and heightened scrutiny.40 40.Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev. 119, 120 (1989) (arguing that any attempt to articulate a single unifying theory of free speech risks oversimplification).Show More First, free speech promotes a marketplace of ideas, which helps us in our search for knowledge, including political knowledge.41 41.See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.”).Show More Second, free speech is key for our system of democratic self-governance; a free flow of information ensures that people can keep tabs on the government and make informed political decisions.42 42.See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”).Show More Finally, free speech furthers autonomy and self-expression and is thus an end in itself.43 43.See, e.g., C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev. 979, 980 (1997) (“Speech can relate to autonomy in two ways: as itself an exercise of autonomy or as an informational resource arguably essential for meaningful exercise of autonomy.”).Show More Just as a government monopoly over speech might distort the marketplace of ideas, and with it, our ability to govern ourselves, so too does First Amendment capture.

A. First Generation Concerns: Monopoly

To the extent that free speech scholarship in the 1980s examined government speech, the debate focused primarily on the degree to which the government should be permitted to act as a speaker within the marketplace of ideas. Animating these early discussions was a fear that government might overwhelm private speakers and monopolize the market. A government speech monopoly would not only inhibit a robust exchange of ideas but the resulting distorted free speech markets might also undermine the consent of the governed—a cornerstone of our democracy.

At the birth of the government speech doctrine (and before), scholars differed on the degree to which the government should be a speaker in the marketplace of ideas on controversial subjects. While acknowledging the government’s need to communicate in order to enact the democratic will,44 44.Yudof, supra note 3, at865 (“Government expression is critical to the operation of a democratic polity . . .”).Show More some believed the government should speak only when necessary.45 45.Ziegler, supra note 3, at 585–86 (“If the democratic process is to operate with a minimum of distortion, government information and communication functions in connection with structured political questions must be limited by law to those activities necessary for the effective operation of the process.”).Show More Others argued that the government’s speech could actually enrich the marketplace of ideas.46 46.Greene, supra note 2, at 8–11. As Greene points out, government can make distinctive contributions to public debate. Id.at 8. For example, it can subsidize arts and science. Id. at 9. It can use its power of persuasion to alter social norms regarding race, smoking, and overeating. Id. at 10. Government can also check concentrations of private power. Id. at 11; see also John Fee, Speech Discrimination, 85 B.U. L. Rev. 1103, 1137 (2005). (“[G]overnment can and should make a positive difference in the world of ideas . . .”).Show More

In spite of these differences, there was general consensus that a government monopoly would pose a problem with potential constitutional implications.47 47.See, e.g., Shiffrin, supranote 3, at 607 (“If a system of free expression is to be preserved, either custom, or statutes, or constitutionally based limitations must provide assurances that government speech will not unfairly dominate the intellectual marketplace.”).Show More As Richard Delgado noted: “A prominent theme in this ‘government speech’ debate is that the government’s powerful voice can easily overwhelm weaker private voices, creating a monopoly of ideas and inhibiting the dialectic on which we rely to reach decisions.”48 48.See Delgado, supranote 3, at 961–62.Show More Even those like Abner Greene, a strong supporter of the government as a participant in debate,49 49.Greene, supra note 2, at 5 (“Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint.”).Show More agreed that “government speech is highly problematic when it is the only voice in a relevant speech market.”50 50.Greene, supra note 2, at 27.Show More Mark Yudof argued that such a government monopoly was tantamount to censoring of private speech: “The passage of time since adoption of the Bill of Rights has revealed that laws and practices that permit massive government communications activities may as effectively silence private speakers as a direct regime of censorship.”51 51.Yudof, supra note 3, at897.Show More Most agreed that government speech that monopolizes might be constrained by the First Amendment.52 52.Greene, supra note 2, at 27 (“[A]ctual monopolization [of the speech market] should be understood to violate the Constitution.”); see also Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1487 (2001) (“We conclude that government speech should receive little or no immunity from the rules that otherwise apply to government regulations when the government’s speech creates a monopoly for a particular point of view.”).Show More

B. Second Generation Concerns: First Amendment Capture

The worry that the government will drown out private speakers in a particular forum has given way to the worry that the forum will vanish altogether because the speech in it has been deemed government speech.53 53.See, e.g., Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev.1259, 1264 (2010) (“The real point of these [government speech] cases may not be, as the Court innocuously suggests, to facilitate government speech. Rather, the point may be to give the government another tool with which to silence its critics.”).Show More Thus, the fear is not that competing viewpoints will be buried under government speech. Instead, the fear is that the contested speech will be categorized as government speech, giving the government the ability to eliminate competing viewpoints entirely. After all, under the government speech doctrine, government speech lies outside the protection of the Free Speech Clause. 54 54.See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”).Show More

As described in the introduction, I call this move “First Amendment capture.” In “agency capture,” the regulated gain control of the agency that is supposed to regulate them. For example, the Food and Drug Administration is the agency charged with regulating the food industry. However, if the FDA falls under the influence of the food industry and its lobbyists, it has been captured.55 55.Barkow, supra note 12, at 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”).Show More In “First Amendment capture,” the government, which is supposed to be regulated by the First Amendment, gains control of speech. As explained above, free speech is protected given the crucial role it plays in advancing knowledge (including political knowledge) and in fostering democratic self-governance.56 56.See supra notes 41–42 and accompanying text.Show More First Amendment capture undermines these free speech goals by curtailing political speech markets and political accountability.

1. Capture of Forums

This First Amendment capture is evident in the two government speech cases mentioned in Part I, both of which presented the question of whether the speech at issue was private speech in a forum (and therefore protected by the Free Speech Clause) or government speech (and therefore under complete government control).

Recall that in Pleasant Grove City v. Summum,57 57.555 U.S. 460 (2009).Show More a small religious group known as the Summum attempted to place a monument in a town park. The park already had a donated Ten Commandments monument (along with ten other donated displays),58 58.Id. at 464–65.Show More and the Summum wanted to donate an equivalent monument representing their religion’s main commandments, the Seven Aphorisms.59 59.Id. at 465.Show More The Tenth Circuit debated what kind of forum for private speech the Park represented, eventually deciding that the City violated the Summums’ free speech rights.60 60.Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–54, 1057 (10th Cir. 2007).Show More The Supreme Court reversed, holding that, unlike speech in public parks, permanent monuments in public parks represented government speech, and “[are] therefore not subject to scrutiny under the Free Speech Clause.”61 61.Pleasant Grove City, 555 U.S. at 464.Show More As a result, the only monuments seen will be those chosen by the government.

A similar denouement occurred with specialty license plates. These are plates like “Choose Life” that are approved, manufactured, and owned by the government but appear on private vehicles because private individuals select and pay for them.62 62.“First surfacing in the late 1980s, specialty license plates are now available in most states.” The number of choices varies, with some states offering more than a hundred different options. Corbin, supra note 15, at 608–09.Show More Several states were sued on free speech grounds for issuing pro-life plates while refusing to issue pro-choice ones.63 63.Hill v. Kemp, 478 F.3d 1236, 1239 (10th Cir. 2007); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 371–72 (6th Cir. 2006); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 787–88 (4th Cir. 2004).Show More In Walker v. Texas Division, Sons of Confederate Veterans, Inc., Texas declined to issue a Sons of Confederate Veterans plate featuring a confederate flag.64 64.Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2243–44 (2015).Show More While the Fifth Circuit held that Texas had unconstitutionally discriminated in a forum on the basis of viewpoint,65 65.Id. at 2245.Show More the Supreme Court ruled that specialty license plates were actually government speech, and “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”66 66.Id.Show More Consequently, the only viewpoints emblazoned on specialty license plates will be the ones endorsed by the government.67 67.See, e.g., ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (allowing North Carolina to issue pro-life specialty license plates without issuing pro-choice plates).Show More

These may seem like insignificant forums, or rather, former speech forums.68 68.In each case, the court held that the speech was not private speech in a forum, but rather government speech outside the protection of the Free Speech Clause. See supra note 10 (describing forums as government-owned spaces open to private speakers and subject to the Free Speech Clause).Show More How much harm can the government do by controlling park statutes and the messages on specialty license plates? Nevertheless, complete control of even these presumably low-stakes forums may have repercussions. After Summum, for example, the primary religious monuments people will see in public parks and other public spaces are likely to be Christian ones.69 69.Cf. Aleksandra Sandstrom, Majority of States Have All-Christian Congressional Delegations, Pew Res. Ctr. (Mar. 21, 2017), https://www.pewresearch.org/fact-tank/2017/03/21/majority-of-states-have-all-christian-congressional-delegations/ [https://perma.cc/U6C3-3U6Y] (“The vast majority of the nation’s federal lawmakers (91%) describe themselves as Christians, compared with 71% of U.S. adults who say the same.”).Show More This link between American government and Christianity, when made again and again,70 70.For example, municipalities across the country erect a nativity scene, which depicts the birth of Jesus Christ, during Christmastime. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 689–90 (6th Cir. 2013) (upholding holiday display with nativity in atrium of civic center despite refusing to include Winter Solstice display); Wells v. City & Cty. of Denver, 257 F.3d 1132, 1152–53 (10th Cir. 2002) (upholding City and County Building’s holiday display with nativity scene despite rejecting Winter Solstice sign).Show More in multiple contexts,71 71.For example, in addition to displays, many towns and cities open their legislative sessions with Christian prayers. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014) (upholding town’s practice of starting town board meetings with prayer despite most prayers being overwhelmingly Christian).Show More inevitably sends a subtle message that America is a Christian nation and that real Americans are Christian Americans.72 72.Cf. Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev. 1545, 1582 (2010) (“The power of government expression to reinforce the outsider status of certain groups should not be underestimated. While many factors determine a group’s status, symbols of government are one of them, and government’s religious speech signals who belongs and who does not, who is preferred and who is second-class.”).Show More This message from the government runs contrary to the constitutional promise to reject religious hierarchies in favor of religious equality.

Moreover, government speech has not been limited to parks and plates,73 73.In fact, federal appeals courts have held that speech ranging from advertising banners displayed at public schools, Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d 1070, 1072 (11th Cir. 2015), to tourism brochures displayed for a fee at state rest areas, Vista-Graphics, Inc. v. Va. Dep’t of Transp., 682 F. App’x 231, 236 (4th Cir. 2017), was government speech, thereby allowing the government to exclude viewpoints it found objectionable.Show More and future decisions may more directly implicate democratic self-governance. Erwin Chemerinsky, for example, has wondered, “Could a city library choose to have only books by Republican authors by saying that it is the government speaking?”74 74.Erwin Chemerinsky, Free Speech, Confederate Flags and License Plates, Orange County Reg. (June 25, 2015, 12:00 AM), http://www.ocregister.com/articles/government-668320-texas-license.html [https://perma.cc/6UWX-PPH4].Show More Or could a government Facebook page eliminate unfavorable hyperlinks or public comments on the grounds that everything on its webpage is government speech?75 75.Cf. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (holding that Town website, including hyperlinks to private websites, was government speech); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that school district’s website, which included links to private websites, was government speech).Show More

In fact, Trump’s Twitter feed was the focus of a free speech lawsuit by litigants arguing that the feed was a forum.76 76.Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018); Knight First Amendment Inst. v. Trump, 928 F.3d 226, 233–34 (2d Cir. 2019).Show More Twitter is a modern-day marketplace of ideas.77 77.Two-thirds of adults in the United States now get some of their news from social media, and almost three-quarters of those on Twitter use it at least in part for news. See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Res. Ctr. (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/ [https://perma.cc/Y7ZN-P98R] (finding that 67% of users get news on social media at least occasionally and 74% of Twitter users get news on Twitter).Show More Anyone can follow someone and see their “tweets,” whether they contain news or opinion. Moreover, anyone can then comment on the original tweet, either by replying directly or by retweeting the original tweet with added commentary.78 78.Knight, 928 F.3d at 230.Show More Both replies and retweets are publicly visible and amenable to comment.79 79.Id.Show More As is well known, Donald Trump was a prolific tweeter,80 80.Kevin Breuninger, Trump’s Most Memorable Twitter Bombshells of 2018, CNBC.com (Dec. 31, 2018, 11:44 AM), https://www.cnbc.com/2018/12/31/trumps-top-10-biggest-twitter-bombshells-made-history-in-2018.html [https://perma.cc/F6C2-9ZR7] (noting that Trump averaged nearly 10 tweets per day in 2018).Show More and the tweets from his @realDonaldTrump account generated extensive response and media coverage.81 81.Knight, 928 F.3d at 231 (“The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies.”).Show More (Although Trump inherited @POTUS from Barack Obama for the duration of his presidency, he preferred @realDonaldTrump, which predated his administration.82 82.Meredith MacLeod, We’ve Read All President Trump’s Tweets, So You Don’t Have to, CTVNews.ca (Apr. 28, 2017, 7:09 PM), https://www.ctvnews.ca/world/analysis-we-ve-read-all-president-trump-s-tweets-so-you-don-t-have-to-1.3389513 [https://perma.cc/ZK4N-7CED].Show More)

Before a court declared his conduct unconstitutional,83 83.Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018) (“We hold that . . . the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”); Knight, 928 F.3d at 234 (“Because we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination, we affirm.”).Show More Trump had taken to blocking people who criticized him on his @realDonaldTrump account.84 84.Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:30 PM), https://www.wired.com/story/donald-trump-twitter-blocked/ [https://perma.cc/94KS-VCLZ].Show More He blocked everyday people, celebrities, nonprofit organizations, and even journalists.85 85.Id.Show More Seven of these blocked Twitter users sued Trump, arguing that his actions violated the Free Speech Clause by discriminating against them on the basis of viewpoint.86 86.Knight, 302 F. Supp. 3d at 549, 553.Show More Trump did not deny that he blocked them because he did not like their comments.87 87.Knight, 928 F.3d at 234 (“The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies.”).Show More Instead, he argued that the act of blocking did not implicate the Free Speech Clause because his Twitter feed was not a public forum run by the government, but rather, was a purely personal account.88 88.Assoc. Press, Judge to Trump: Muting, Not Blocking Twitter Followers, May End Lawsuit, NBCNews.com (Mar. 8, 2018, 2:56 PM), https://www.nbcnews.com/tech/social-media/judge-trump-muting-not-blocking-twitter-followers-may-end-lawsuit-n854951 [https://perma.cc/7SSC-KWC8]. (“The government says Trump’s Twitter feed is a personal account and not a public forum requiring him to welcome all voices.”).Show More

While President, Trump’s claim that his Twitter feed was purely private was untenable, and every court to consider it has firmly rejected his defense.89 89.A district court, Knight, 302 F. Supp. 3d at 549, and Second Circuit panel, Knight, 928 F.3d at 230–31, have both rejected Trump’s claim, and the Second Circuit declined to rehear the case en banc. Knight First Amendment Institute v. Trump, 953 F.3d 216, 217 (2d Cir. 2020).Show More As one court observed, Trump “use[d] the account to take actions that can be taken only by the President as President.”90 90.Knight, 302 F. Supp. 3d at 567.Show More For example, Trump made official proclamations and announced executive policy from his @realDonaldTrump account.91 91.For example, Trump announced his ban on transgender troops for the first time on Twitter. Jessica Estepa, We’re All Atwitter: Three Times President Trump Made Major Announcements Via Tweets, USA Today (Mar. 13, 2018, 4:33 PM), https://www.usatoday.com/story/news/politics/onpolitics/2018/03/13/were-all-atwitter-3-times-president-trump-made-major-announcements-via-tweets/420085002/ [https://perma.cc/D2HC-KC6A].Show More In fact, the National Archives and Records Administration advised that as official records, the @realDonaldTrump tweets must be preserved pursuant to the Presidential Records Act.92 92.Knight, 928 F.3d at 232.Show More In short, Trump’s Twitter feed, including the interactive part, was not purely private speech, and Trump’s actions with regard to it were government actions that are subject to constitutional limits.93 93.Id. at 236 (“In sum, since [Trump] took office, the President has consistently used the Account as an important tool of governance . . . ”).Show More

Given that Trump used his Twitter account for official purposes, the real risk to the interactive part of Trump’s Twitter feed was not that it would be found to be purely private, but that it would be found to be purely governmental.94 94.Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (endorsing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ”).Show More After all, if a court had deemed Trump’s feed to be government speech, then Trump could have exerted total control over its content and excluded anyone who criticized him or challenged his claims. In fact, Trump argued in the alternative that “to the extent [his Twitter] Account [was] government-controlled, posts on it are government speech to which the First Amendment does not apply.”95 95.Knight, 928 F.3d at 234; see also id. at 237, 239.Show More

There is no gainsaying the importance of the President’s feed to the marketplace of political ideas and democratic self-governance. Before he was banned for inciting a violent insurrection,96 96.Brian Fung, Twitter Bans President Trump Permanently, CNN Business (Jan. 9, 2021, 9:19 AM ET), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html [https://perma.cc/6HDT-GTCZ] (quoting Twitter explaining that “we have permanently suspended the account due to the risk of further incitement of violence”).Show More Twitter was one of President Trump’s primary channels for communicating with the public. Given Trump’s love of Twitter, blocking people meant depriving them of a crucial in-real-time source of information.97 97.Even if other people retweet Trump, the blocked user sees only a gray box.Show More As one plaintiff lamented, “I may not be crazy about President Trump, but he is my president, and I want to know what he is saying.”98 98.Rebecca Pilar Buckwalter-Poza, Philip Cohen, Eugene Gu, Holly Figueroa & Brandon Neely, I Was Blocked by @realDonaldTrump, Knight First Amend. Inst. (Mar. 25, 2019), https://knightcolumbia.org/content/i-was-blocked-realdonaldtrump [https://perma.cc/YH5M-ZUMB] (quoting Holly Figueroa) [hereinafter I Was Blocked].Show More

In addition, Trump’s Twitter feed provided a rare forum for the exchange of different points of view. In the past, Americans typically shared a common source of news, which exposed them to a range of viewpoints.99 99.Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity in Media Use, 59 J. Comm. 19, 20 (2009) (“Forty years ago, the great majority of Americans got their daily news from one of three network newscasts [that] offered a homogeneous and generic ‘point-counterpoint’ perspective on the news, thus ensuring that exposure to the news was a common experience.”).Show More Today, the abundance of news sources allows people to select those outlets that tend to confirm their pre-existing world views.100 100.Patricia Donovan, Study Demonstrates How We Support Our False Beliefs, U. Buff. News Ctr. (Aug. 21, 2009), http://www.buffalo.edu/news/releases/2009/08/10364.html [https://perma.cc/XL9X-Z8LK]. (“[R]ather than search rationally for information that either confirms or disconfirms a particular belief, people actually seek out information that confirms what they already believe.”); see also Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav. 303, 307 (2010) (“[R]espondents may engage in a biased search process, seeking out information that supports their preconceptions and avoiding evidence that undercuts their beliefs.”).Show More Studies show that this is especially true for Trump voters, who have an affinity for conservative media such as Fox News and Breitbart.101 101.Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda, Colum. Journalism Rev. (Mar. 3, 2017), https://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php [https://perma.cc/33JP-HBY5] (noting that Clinton supporters “were highly attentive to traditional media outlets” but Trump supporters inhabited a “distinct and insulated” right-wing media system anchored around Breitbart that “transmit[ted] a hyper-partisan perspective”); see also id. (“[O]ur study suggests that polarization was asymmetric.”); Jeffrey Gottfried, Michael Barthel & Amy Mitchell, Trump, Clinton Voters Divided in Their Main Source for Election News, Pew Res. Ctr. (Jan. 18, 2017), http://www.journalism.org/2017/01/18/trump-clinton-voters-divided-in-their-main-source-for-election-news/ [https://perma.cc/YNL2-2F4J] (noting that Fox News was the main source of news for 40% of Trump voters).Show More Trump’s Twitter feed was arguably one of the few places where people with divergent political outlooks might interact with each other. For the President to block his critics denied them access to a diverse audience and denied them the opportunity to contribute to the formation of public opinion. As one blocked user, and litigant in the suit against Trump, put it, “[b]eing blocked has kept me from participating in critical public conversations.”102 102.I Was Blocked, supra note 98 (quoting Rebecca Buckwalter-Poza); see also id. (quoting Philip Cohen) (“Being blocked by Trump diminished my ability to respond and engage in the political process.”).Show More

Finally, blocking dissenters created a false sense of consensus. It allowed Trump to “create a space on Twitter—where there are millions of people—that he can manipulate to give the impression that more agree with him than actually do.”103 103.I Was Blocked, supra note 98 (quoting Philip Cohen).Show More Erasing opposing viewpoints enhances the persuasiveness of the remaining ones because studies show that positions perceived as popular wield outsized influence.104 104.This proposition, that a position perceived as popular is likely to wield greater influence, was established by the famous Asch studies. In these studies, when subjects were questioned alone, 99% correctly identified the length of a line. When questioned in the presence of those who intentionally gave the same incorrect answer, 70% agreed with the incorrect answer at least once. Solomon E. Asch, Social Psychology 450–59 (1952); see Solomon E. Asch, Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority, 70 Psychol. Monographs: Gen. & Applied 1, 1, 9–24 (1956).Show More “It is a ‘social psychological truism that individuals tend to yield to a majority position even when that position is clearly incorrect.’”105 105.Saumya Manohar, Comment, Look Who’s Talking Now: “Choose Life” License Plates and Deceptive Government Speech, 25 Yale L. & Pol’y Rev. 229, 236 (2006) (quoting Anne Maass & Russell D. Clark, III, Internalization Versus Compliance: Differential Processes Underlying Minority Influence and Conformity, 13 Eur. J. Soc. Psychol. 197, 197 (1983)); see also Stephan Lewandowsky, Ullrich K.H. Ecker & John Cook, Beyond Misinformation: Understanding and Coping with the “Post-Truth” Era, 6 J. Applied Res. Memory & Cognition 353, 361 (2017) (People tend to believe things “that they believe to be widely shared—irrespective of whether or not they are actually widely shared.”).Show More In sum, a free and robust exchange of political ideas should occur on the Twitter feed of the President and other public officials. While Trump is no longer in office, political officials’ use of social media is growing all the time.106 106.See, e.g., Patrick Van Kessel, Regina Widjaya, Sono Shah, Aaron Smith & Adam Hughes, Congress Soars to New Heights on Social Media, Pew Res. Ctr.,(July 16, 2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/JH78-BWU6].Show More Declaring these feeds government speech, subject to total government control, risks distorting the marketplace of political ideas.

2. Capture of Whistleblowers

Potential speech forums are not alone in their importance to democratic self-governance or their vulnerability to First Amendment capture. Government employee speech likewise plays an important role in our democracy, and it has already suffered from the expansion of the government speech doctrine. Citizens in democracies must be able to hold government officials accountable for their actions. To do this, they need information on their public servants.107 107.Lewandowsky, Ecker & Cook, supra note 105, at 354 (“It is a truism that a functioning democracy relies on a well-informed public.”).Show More Because public employees are uniquely well-placed to know what government officials are doing, they are some of the best government whistleblowers.108 108.Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev. 601, 642 (2016) (“Because political accountability is the primary means by which the public seeks to ensure that public managers are pursuing public goals, speech by public employees plays a particularly important role in self-governance.”).Show More

Unfortunately, the government speech doctrine’s expansion into the government employee speech context discourages whistleblowing by government employees. Previously, the Free Speech Clause would cover this speech.109 109.Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that the idea “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens . . . has been unequivocally rejected in numerous prior decisions of this Court.”).Show More It did not always protect it, but the Court would perform a balancing test, weighing the public’s interest in hearing speech on matters of public concern against the government employer’s interest in avoiding disruption in the workplace.110 110.City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (describing the Pickering-Connick balancing test).Show More Since the Supreme Court’s decision in Garcetti v. Ceballos,111 111.547 U.S. 410 (2006).Show More however, if the employees’ speech is “pursuant to . . . official duties,” it is essentially the government’s speech, and therefore not covered by the Free Speech Clause.112 112.Id.at 436 (Souter, J., dissenting) (“The majority accepts the fallacy . . . that any statement made within the scope of public employment is (or should be treated as) the government’s own speech.”).Show More Regardless of how important it may be for political accountability, it lies outside free speech protection.113 113.Id. at 421 (majority opinion) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”).Show More

Due to this new government speech rule, countless public officials lost constitutional protection for reporting government malfeasance in the course of their official duties.114 114.See, e.g., Caroline Mala Corbin, Government Employee Religion, 49 Ariz. St. L.J. 1193, 1244 (2017) (collecting cases).Show More “In fact, in the years following Garcetti, the lower federal courts denied protection to numerous government employees who objected to their employers’ illegal practices, health and safety violations, and financial improprieties.”115 115.Kim, supra note 108, at 644; see also Mark Strasser, Whistleblowing, Public Employees, and the First Amendment, 60 Clev. St. L. Rev. 975, 993 (2013) (“Regrettably, lower courts have learned the lessons of Garcetti quite well. Numerous individuals have suffered adverse employment actions when seeking to expose the kinds of practices that whistleblower protections are designed to bring to light.”).Show More

If government employees can be fired for trying to hold the government to account, then they may just stop trying. As Helen Louise Norton summarized, the Garcetti rule “allows government officials to punish, and thus deter, whistleblowing and other on-the-job speech that would otherwise inform voters’ views and facilitate their ability to hold the government politically accountable for its choices.” 116 116.Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 4 (2009).Show More In short, the expansion of the government speech doctrine—essentially the First Amendment capture of government employee speech—has undermined government accountability.

Thanks to the government speech doctrine, the government does not need to overpower to dominate the marketplace of ideas. Rather, it manages to eliminate the competition with a doctrinal sleight of hand. Once a stream of information is labeled governmental, the state may completely control it and exclude any contrary opinion or whistleblowing it does not like. The Free Speech Clause provides no protection in these cases of First Amendment capture. As the Supreme Court itself acknowledged, “while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse.”117 117.Matal v. Tam, 137 S. Ct. 1744, 1758 (2017).Show More

III. Solutions to First Amendment Capture

There are two potential approaches to limiting the risks of censorship created by an ever-expanding government speech doctrine. The first is to limit what is classified as government, as opposed to private, speech. But as discussed below, this may be an imperfect solution if the speech is not, in fact, purely private. The second is to change free speech doctrine by recognizing “mixed speech” as a new category of speech protected by the Free Speech Clause. Thus, which approach is preferable may be case-specific, but a reevaluation of the doctrine is ultimately needed.118 118.Note that while this Article explains the usefulness of a mixed speech category in containing the excesses of the government speech doctrine, it does not recapitulate the comprehensive analysis of mixed speech available in earlier work. See generallyCorbin, supra note 15.Show More

A. Private Speech Not Government Speech

The less-government-speech approach dictates that when the status of speech is in dispute, the speech should usually be categorized as private speech rather than government speech. In other words, private speech is the default. If the contested speech is deemed private speech, then the government cannot censor private speakers under the guise of government speech because any viewpoint restrictions on private speech are subject to strict scrutiny under the Free Speech Clause.119 119.Regardless of the forum, whether traditional, designated, limited, or nonpublic, the government may not discriminate on the basis of viewpoint without passing strict scrutiny. Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Rosenberger v. Rector & Visitors of Univ. of Va, 515 U.S. 819, 829–30 (1995).Show More And only in the rarest of circumstances will speech regulations survive strict scrutiny.120 120.Indeed, the Court tends to characterize them as “presumptively unconstitutional.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“A law found to discriminate based on viewpoint . . . is ‘presumptively unconstitutional.’”).Show More

Accordingly, a court faced with a claim that a President’s or other politician’s Twitter feed was government speech rather than a government forum hosting private speech should hold that it is a forum for private speech. In this way, the debate on the politician’s policy decisions will remain “uninhibited, robust, and wide-open.”121 121.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).Show More Everyone would be able to participate in the discussion, and all viewpoints would be aired at one of the few online sites where people with radically different points of view might still interact with each other. Furthermore, the government would no longer be able to manipulate the political conversation to make it seem like its viewpoint was more popular than it really was.122 122.See supra notes 103–105 and accompanying text.Show More

B. Mixed Speech Not Government Speech

The problem with relying on the less-government-speech approach alone is that sometimes the speech in dispute is not actually private speech, or at least it is not only private speech. Take the specialty license plates at issue in Walker v. Texas Division, Sons of Confederate Veterans, Inc., discussed earlier.123 123.135 S. Ct. 2239, 2243 (2015).Show More There is a strong private element. Private individuals select the plate with the message they want, pay extra money for it, and fasten it on their vehicles.124 124.Corbin, supra note 15, at 646–47 (“[N]o one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.”).Show More In my family, we have a “Save the Manatee” specialty license plate because we care enough about these sea creatures to announce that fact and to serve as a “mobile billboard” for their cause.125 125.Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (describing standard license plates “as a ‘mobile billboard’ for the State’s ideological message”).Show More But specialty license plates are also governmental and irreducibly so. After all, the State approves the plates, manufactures them, owns them, and has its name emblazoned across the top.126 126.Corbin, supra note 15, at 647.Show More People will inevitably attribute the plate’s message not just to the car’s owner, but also to the State that issued it. “When the government component in mixed speech is undeniably strong, as it is with specialty license plates, the messages very likely will be linked to the government, regardless of how courts analyze them.”127 127.Id. at 654.Show More

Consequently, a state has a legitimate interest in not endorsing certain messages on plates that bear its name. In Walker, to avoid condoning racism and violating equal protection norms, Texas declined to issue plates with a confederate flag.128 128.Walker, 135 S. Ct. at 2245 (explaining that the state declined the plate because many find the confederate flag offensive and associate it with hate groups); Corbin, supra note 15, at 657 (“States that hoped to keep the Confederate flag off their specialty license plates realized that for many, it represents a celebration of slavery and a not-so-subtly coded message of racial superiority.”).Show More Other states might not want to issue “Say Yes to Jesus” plates to avoid endorsing religion and violating establishment norms.129 129.Corbin, supra note 15, at 659 (“If specialty license plates are treated as purely private speech, then the establishment clause does not forbid, and the free speech clause may require, plates with religious messages. But as discussed above, because the plates are actually mixed speech, the state may well be seen as endorsing these religious messages and will thereby run afoul of the establishment clause.”).Show More Yet, had the Supreme Court held that the license plates—or any other contested speech—were private speech, then the State would not be able to discriminate on the basis of viewpoint.130 130.See supra note 119 and accompanying text (explaining viewpoint regulations are subject to strict scrutiny).Show More If speech is private, then all viewpoints, including racist viewpoints and religious viewpoints, must be allowed.131 131.See supra note 120 and accompanying text (explaining speech regulations subject to strict scrutiny are almost never constitutional).Show More This viewpoint-neutral regime would force the government to associate itself with messages that it should not endorse or tolerate. The same problem may present itself in other situations, whether it be speech by a police chief,132 132.Cf. Cochran v. City of Atlanta, 289 F. Supp. 3d 1276, 1289 (N.D. Ga. 2017) (involving an anti-LGBTQ book written by fire chief and disseminated at work).Show More commemorative bricks on school property,133 133.Cf. Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 185 (N.D.N.Y. 2006) (involving commemorative bricks on school property); Demmon v. Loudoun Cty. Pub. Sch., 342 F. Supp. 2d 474, 476 (E.D. Va. 2004) (involving bricks on school property).Show More or advertisements on public transportation.134 134.Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1168 (9th Cir. 2015) (involving advertisements on city’s transit system); Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947, 949–50 (7th Cir. 2016) (involving advertisements on city’s buses); see also Corbin, supra note 15, at 623–26 (describing examples of mixed speech).Show More

Under the current binary regime, where speech must be labeled either private speech or government speech, there seems to be no satisfactory solution when elements of both are undeniably present. Labeling a contested stream of speech as government speech removes it entirely from free speech protection, creating the problem of First Amendment capture and government censorship.135 135.See supra Part II.B.Show More But insisting that such speech is private speech, with its bar on viewpoint discrimination, risks giving short shrift to the government interests in disassociating from certain speech.136 136.Corbin, supra note 15, at 656 (“From the government’s perspective, a viewpoint neutrality regime would be objectionable because it would force the government to associate itself with messages that it would not voluntarily endorse or tolerate.”).Show More

A third option is warranted. When contested speech cannot be fairly treated as purely private or purely governmental, it should be treated as falling within a new category: mixed speech.137 137.Id. at 671–72.Show More That is, instead of treating mixed speech as private speech or government speech, acknowledge that it is mixed speech, with both private and government interests present. In contrast to strict scrutiny (for private speech) or no scrutiny (for government speech), any government restrictions on viewpoint would be subject to a rigorous intermediate scrutiny.138 138.Id. at 675 (“This three-part test is a rigorous intermediate scrutiny. Its ‘intermediate scrutiny’ counterpart is the heightened scrutiny given to sex classifications under equal protection rather than the cursory scrutiny given to content-neutral restrictions on expressive conduct.”).Show More

A rigorous intermediate scrutiny means that contested streams of information would no longer fall outside the purview of the Free Speech Clause, thereby guarding against attempts to suppress contrary viewpoints simply because the government disapproves of them. At the same time, it would not leave the government without any control over speech that may be attributed to it. If the government articulates a strong enough reason, such as complying with constitutional values (e.g., equal protection or establishment), and a sufficiently tailored means, then the regulation could survive intermediate scrutiny.

Labeling speech as government speech makes it too easy for the government to censor speech it does not like. Classifying such speech as private speech (when appropriate) and recognizing a category of mixed speech (when the government component precludes classification as private speech) would help forestall the expansion of government speech into realms where it does not belong, and as a result, would preserve the marketplace of ideas and protect government whistleblowers.

Conclusion

Although inescapable and not necessarily detrimental, government speech has the potential to undermine the necessary mechanisms of democracy. In particular, the expansion of the government speech doctrine allows for First Amendment capture. Once speech is labeled government speech, the government may exercise complete control over it. Such control may stymy robust political discussion needed for informed political decision-making or suppress whistleblowing needed for political accountability.

One solution to First Amendment capture is to categorize speech as private speech, rather than government speech, so that any viewpoint-based restrictions are presumptively unconstitutional. Another is to recognize a new category of speech—mixed speech—where viewpoint regulations must pass intermediate scrutiny, thereby allowing the government to regulate when it has a valid reason, yet at the same time preventing First Amendment capture and censorship.

  1. * Professor of Law and Dean’s Distinguished Scholar, University of Miami School of Law. B.A., Harvard University; J.D., Columbia Law School. I would like to thank the participants at the Sixth Annual Freedom of Expression Scholars Conference at Yale Law School. I would also like to thank Michael Cheah and Jean Phillip Shami, my research assistants Alejandra De La Camera and Luciana Jhon Urranaga, and the Virginia Law Review Online staff. Copyright © 2021 by Caroline Mala Corbin. ↑

  2. See infra notes 21–25 and accompanying text. ↑

  3. See generally Abner S. Greene, Government of the Good, 53 Vand. L. Rev

    .

    1, 7–12 (2000) (listing four ways that government speech can be viewed as an affirmative good). ↑

  4. See, e.g., John E. Nowak, Using the Press Clause to Limit Government Speech, 30 Ariz. L. Rev

    .

    1, 9 (1988) (“In recent years, perhaps due to an awareness of the changing factors that increase the danger to our society from government speech, several scholars have examined the topic of whether the judiciary could use the free speech clause of first amendment to limit governmental speech.”); Steven Shiffrin, Government Speech, 27 UCLA L. Rev

    .

    565, 570 (1980) (“The government speech problem is to determine when and by what means government may promote controversial values and when it may not.”); see also Richard Delgado, The Language of the Arms Race: Should the People Limit Government Speech?, 64 B.U. L. Rev

    .

    961 (1984) (discussing prominent themes in the government speech debate); Robert D. Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Cal. L. Rev

    .

    1104 (1979) (arguing that the First Amendment prohibits government from advocating political ideas); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev

    .

    863 (1979) (arguing that governments should not have free speech rights); Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. Rev

    .

    578 (1980) (arguing that partisan government speech does not and should not receive First Amendment protection). ↑

  5. See, e.g., Kamenshine, supra note 3, at 1104 (“[P]articipation by the government in the dissemination of political ideas poses a threat to open public debate . . . .”); Shiffrin, supra note 3, at 601 (“[O]ne of the problems to be faced in assessing government speech [is] the concern that government speech could result in unacceptable domination of the marketplace and the need for measures to confine the danger.”). ↑

  6. See infra Part I (describing the development of the government speech doctrine). ↑

  7. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (“The Court has also said that ‘government speech’ escapes First Amendment strictures.”). ↑

  8. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”). ↑

  9. See infra Part I. ↑

  10. See infra notes 26–34 and accompanying text (discussing cases involving specialty license plates and monuments in public parks). ↑

  11. Governments often provide spaces, such as the plaza in front of the town hall, for private citizens to speak. These are known as forums. Different doctrinal rules might apply depending on the type of forum, but viewpoint regulations are always subject to strict scrutiny. See generally Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev

    .

    1975, 1980–89 (2011) (describing public forum doctrine). ↑

  12. See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev

    .

    33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”). ↑

  13. Rachel E. Barkow, Insulating Agencies: Avoiding Agency Capture Through Institutional Design, 89 Tex. L. Rev

    .

    15, 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”). ↑

  14. See infra Part III.B. ↑

  15. In contrast, regulations of private speech regularly trigger strict scrutiny while regulations of government speech trigger no scrutiny at all. See infra Part I. ↑

  16. I have discussed this proposal in an earlier work. See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev

    .

    605, 675–77 (2008) [hereinafter Corbin, Mixed Speech]. Unlike this Article, the earlier one did not focus on the problems of First Amendment capture. ↑

  17. This Essay focuses on how the Free Speech Clause itself might be mobilized, though obviously solutions might be found elsewhere as well. ↑

  18. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). The 1991 Rust v. Sullivan, 500 U.S. 173 (1991), decision is now heralded as one of the first government speech cases, though the decision itself did not use that term. Rather, a decade later Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), identified Rust as a government speech decision: “The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.” Id. at 541. ↑

  19. Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“[O]ur cases recognize that ‘[t]he Free Speech Clause . . . does not regulate government speech.’”). ↑

  20. Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against speech based on the ideas or opinions it conveys.”); see also supra note 7. ↑

  21. Johanns, 544 U.S. at 553. ↑

  22. Matal, 137 S. Ct. at 1757 (“[I]mposing a requirement of viewpoint-neutrality on government speech would be paralyzing.”). ↑

  23. Id. ↑

  24. Id. at 1758. ↑

  25. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015). ↑

  26. Id. at 2246 (“But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”). ↑

  27. 555 U.S. 460 (2009). ↑

  28. 135 S. Ct. 2239 (2015). ↑

  29. Pleasant Grove City, 555 U.S. at 466. ↑

  30. Id. ↑

  31. Id. at 472. ↑

  32. Walker, 135 S. Ct. at 2245. ↑

  33. Id. at 2246. ↑

  34. Id. at 2253. ↑

  35. Id. at 2245; see also id. at 2245–46 (“Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”). ↑

  36. Cf. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”). ↑

  37. Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must comport with the Establishment Clause.”). ↑

  38. Walker, 135 S. Ct. at 2245 (“[I]t is the democratic electoral process that first and foremost provides a check on government speech.”). ↑

  39. Pleasant Grove City, 555 U.S. at 468 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)). ↑

  40. Id. at 468–69 (quoting Bd. of Regents, 529 U.S. at 235). ↑

  41. Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev

    .

    119, 120 (1989) (arguing that any attempt to articulate a single unifying theory of free speech risks oversimplification). ↑

  42. See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.”). ↑

  43. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”). ↑

  44. See, e.g., C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev

    .

    979, 980 (1997) (“Speech can relate to autonomy in two ways: as itself an exercise of autonomy or as an informational resource arguably essential for meaningful exercise of autonomy.”). ↑

  45. Yudof, supra note 3, at 865 (“Government expression is critical to the operation of a democratic polity . . .”). ↑

  46. Ziegler, supra note 3, at 585–86 (“If the democratic process is to operate with a minimum of distortion, government information and communication functions in connection with structured political questions must be limited by law to those activities necessary for the effective operation of the process.”). ↑

  47. Greene, supra note 2, at 8–11. As Greene points out, government can make distinctive contributions to public debate. Id. at 8. For example, it can subsidize arts and science. Id. at 9. It can use its power of persuasion to alter social norms regarding race, smoking, and overeating. Id. at 10. Government can also check concentrations of private power. Id. at 11; see also John Fee, Speech Discrimination, 85 B.U. L. Rev. 1103, 1137 (2005). (“[G]overnment can and should make a positive difference in the world of ideas . . .”). ↑

  48. See, e.g., Shiffrin, supra note 3, at 607 (“If a system of free expression is to be preserved, either custom, or statutes, or constitutionally based limitations must provide assurances that government speech will not unfairly dominate the intellectual marketplace.”). ↑

  49. See Delgado, supra note 3, at 961–62. ↑

  50. Greene, supra note 2, at 5 (“Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint.”). ↑

  51. Greene, supra note 2, at 27. ↑

  52. Yudof, supra note 3, at 897. ↑

  53. Greene, supra note 2, at 27 (“[A]ctual monopolization [of the speech market] should be understood to violate the Constitution.”); see also Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1487 (2001) (“We conclude that government speech should receive little or no immunity from the rules that otherwise apply to government regulations when the government’s speech creates a monopoly for a particular point of view.”). ↑

  54. See, e.g., Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev.

     

    1259, 1264 (2010) (“The real point of these [government speech] cases may not be, as the Court innocuously suggests, to facilitate government speech. Rather, the point may be to give the government another tool with which to silence its critics.”). ↑

  55. See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev

    .

    33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”). ↑

  56. Barkow, supra note 12, at 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”). ↑

  57. See supra notes 41–42 and accompanying text. ↑

  58. 555 U.S. 460 (2009). ↑

  59. Id. at 464–65. ↑

  60. Id. at 465. ↑

  61. Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–54, 1057 (10th Cir. 2007). ↑

  62. Pleasant Grove City, 555 U.S. at 464. ↑

  63. “First surfacing in the late 1980s, specialty license plates are now available in most states.” The number of choices varies, with some states offering more than a hundred different options. Corbin, supra note 15, at 608–09. ↑

  64. Hill v. Kemp, 478 F.3d 1236, 1239 (10th Cir. 2007); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 371–72 (6th Cir. 2006); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 787–88 (4th Cir. 2004). ↑

  65. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2243–44 (2015). ↑

  66. Id. at 2245. ↑

  67. Id. ↑

  68. See, e.g., ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (allowing North Carolina to issue pro-life specialty license plates without issuing pro-choice plates). ↑

  69. In each case, the court held that the speech was not private speech in a forum, but rather government speech outside the protection of the Free Speech Clause. See supra note 10 (describing forums as government-owned spaces open to private speakers and subject to the Free Speech Clause). ↑

  70. Cf. Aleksandra Sandstrom, Majority of States Have All-Christian Congressional Delegations, Pew Res. Ctr

    .

    (Mar. 21, 2017), https://www.pewresearch.org/fact-tank/2017/03/21/majority-of-states-have-all-christian-congressional-delegations/ [https://perma.cc/U6C3-3U6Y] (“The vast majority of the nation’s federal lawmakers (91%) describe themselves as Christians, compared with 71% of U.S. adults who say the same.”). ↑

  71. For example, municipalities across the country erect a nativity scene, which depicts the birth of Jesus Christ, during Christmastime. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 689–90 (6th Cir. 2013) (upholding holiday display with nativity in atrium of civic center despite refusing to include Winter Solstice display); Wells v. City & Cty. of Denver, 257 F.3d 1132, 1152–53 (10th Cir. 2002) (upholding City and County Building’s holiday display with nativity scene despite rejecting Winter Solstice sign). ↑

  72. For example, in addition to displays, many towns and cities open their legislative sessions with Christian prayers. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014) (upholding town’s practice of starting town board meetings with prayer despite most prayers being overwhelmingly Christian). ↑

  73. Cf. Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev

    .

    1545, 1582 (2010) (“The power of government expression to reinforce the outsider status of certain groups should not be underestimated. While many factors determine a group’s status, symbols of government are one of them, and government’s religious speech signals who belongs and who does not, who is preferred and who is second-class.”). ↑

  74. In fact, federal appeals courts have held that speech ranging from advertising banners displayed at public schools, Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d 1070, 1072 (11th Cir. 2015), to tourism brochures displayed for a fee at state rest areas, Vista-Graphics, Inc. v. Va. Dep’t of Transp., 682 F. App’x 231, 236 (4th Cir. 2017), was government speech, thereby allowing the government to exclude viewpoints it found objectionable. ↑

  75. Erwin Chemerinsky, Free Speech, Confederate Flags and License Plates, Orange County Reg. (June 25, 2015, 12:00 AM), http://www.ocregister.com/articles/government-668320-texas-license.html [https://perma.cc/6UWX-PPH4]. ↑

  76. Cf. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (holding that Town website, including hyperlinks to private websites, was government speech); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that school district’s website, which included links to private websites, was government speech). ↑

  77. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018); Knight First Amendment Inst. v. Trump, 928 F.3d 226, 233–34 (2d Cir. 2019). ↑

  78. Two-thirds of adults in the United States now get some of their news from social media, and almost three-quarters of those on Twitter use it at least in part for news. See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Res. Ctr

    .

    (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/ [https://perma.cc/Y7ZN-P98R] (finding that 67% of users get news on social media at least occasionally and 74% of Twitter users get news on Twitter). ↑

  79. Knight, 928 F.3d at 230. ↑

  80. Id. ↑

  81. Kevin Breuninger, Trump’s Most Memorable Twitter Bombshells of 2018, CNBC.com (Dec. 31, 2018, 11:44 AM), https://www.cnbc.com/2018/12/31/trumps-top-10-biggest-twitter-bombshells-made-history-in-2018.html [https://perma.cc/F6C2-9ZR7] (noting that Trump averaged nearly 10 tweets per day in 2018). ↑

  82. Knight, 928 F.3d at 231 (“The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies.”). ↑

  83. Meredith MacLeod, We’ve Read All President Trump’s Tweets, So You Don’t Have to, CTVNews.ca (Apr. 28, 2017, 7:09 PM), https://www.ctvnews.ca/world/analysis-we-ve-read-all-president-trump-s-tweets-so-you-don-t-have-to-1.3389513 [https://perma.cc/ZK4N-7CED]. ↑

  84. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018) (“We hold that . . . the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”); Knight, 928 F.3d at 234 (“Because we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination, we affirm.”). ↑

  85. Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:30 PM), https://www.wired.com/story/donald-trump-twitter-blocked/ [https://perma.cc/94KS-VCLZ]. ↑

  86. Id.

     

    ↑

  87. Knight, 302 F. Supp. 3d at 549, 553. ↑

  88. Knight, 928 F.3d at 234 (“The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies.”). ↑

  89. Assoc. Press, Judge to Trump: Muting, Not Blocking Twitter Followers, May End Lawsuit, NBCNews.com (Mar. 8, 2018, 2:56 PM), https://www.nbcnews.com/tech/social-media/judge-trump-muting-not-blocking-twitter-followers-may-end-lawsuit-n854951 [https://perma.cc/7SSC-KWC8]. (“The government says Trump’s Twitter feed is a personal account and not a public forum requiring him to welcome all voices.”). ↑

  90. A district court, Knight, 302 F. Supp. 3d at 549, and Second Circuit panel, Knight, 928 F.3d at 230–31, have both rejected Trump’s claim, and the Second Circuit declined to rehear the case en banc. Knight First Amendment Institute v. Trump, 953 F.3d 216, 217 (2d Cir. 2020). ↑

  91. Knight, 302 F. Supp. 3d at 567. ↑

  92. For example, Trump announced his ban on transgender troops for the first time on Twitter. Jessica Estepa, We’re All Atwitter: Three Times President Trump Made Major Announcements Via Tweets, USA Today (Mar. 13, 2018, 4:33 PM), https://www.usatoday.com/story/news/politics/onpolitics/2018/03/13/were-all-atwitter-3-times-president-trump-made-major-announcements-via-tweets/420085002/ [https://perma.cc/D2HC-KC6A]. ↑

  93. Knight, 928 F.3d at 232. ↑

  94. Id. at 236 (“In sum, since [Trump] took office, the President has consistently used the Account as an important tool of governance . . . ”). ↑

  95. Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (endorsing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ”). ↑

  96. Knight, 928 F.3d at 234; see also id. at 237, 239. ↑

  97. Brian Fung, Twitter Bans President Trump Permanently, CNN Business (Jan. 9, 2021, 9:19 AM ET), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html [https://perma.cc/6HDT-GTCZ] (quoting Twitter explaining that “we have permanently suspended the account due to the risk of further incitement of violence”). ↑

  98. Even if other people retweet Trump, the blocked user sees only a gray box. ↑

  99. Rebecca Pilar Buckwalter-Poza, Philip Cohen, Eugene Gu, Holly Figueroa & Brandon Neely, I Was Blocked by @realDonaldTrump, Knight First Amend. Inst

    .

    (Mar. 25, 2019), https://knightcolumbia.org/content/i-was-blocked-realdonaldtrump [https://perma.cc/YH5M-ZUMB] (quoting Holly Figueroa) [hereinafter I Was Blocked]. ↑

  100. Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity in Media Use, 59 J. Comm

    .

    19, 20 (2009) (“Forty years ago, the great majority of Americans got their daily news from one of three network newscasts [that] offered a homogeneous and generic ‘point-counterpoint’ perspective on the news, thus ensuring that exposure to the news was a common experience.”). ↑

  101. Patricia Donovan, Study Demonstrates How We Support Our False Beliefs, U. Buff. News Ctr. (Aug. 21, 2009), http://www.buffalo.edu/news/releases/2009/08/10364.html [https://perma.cc/XL9X-Z8LK]. (“[R]ather than search rationally for information that either confirms or disconfirms a particular belief, people actually seek out information that confirms what they already believe.”); see also Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav

    .

    303, 307 (2010) (“[R]espondents may engage in a biased search process, seeking out information that supports their preconceptions and avoiding evidence that undercuts their beliefs.”). ↑

  102. Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda, Colum. Journalism Rev

    .

    (Mar. 3, 2017), https://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php [https://perma.cc/33JP-HBY5] (noting that Clinton supporters “were highly attentive to traditional media outlets” but Trump supporters inhabited a “distinct and insulated” right-wing media system anchored around Breitbart that “transmit[ted] a hyper-partisan perspective”); see also id. (“[O]ur study suggests that polarization was asymmetric.”); Jeffrey Gottfried, Michael Barthel & Amy Mitchell, Trump, Clinton Voters Divided in Their Main Source for Election News, Pew Res. Ctr

    .

    (Jan. 18, 2017), http://www.journalism.org/2017/01/18/trump-clinton-voters-divided-in-their-main-source-for-election-news/ [https://perma.cc/YNL2-2F4J] (noting that Fox News was the main source of news for 40% of Trump voters). ↑

  103. I Was Blocked, supra note 98 (quoting Rebecca Buckwalter-Poza); see also id. (quoting Philip Cohen) (“Being blocked by Trump diminished my ability to respond and engage in the political process.”). ↑

  104. I Was Blocked, supra note 98 (quoting Philip Cohen). ↑

  105. This proposition, that a position perceived as popular is likely to wield greater influence, was established by the famous Asch studies. In these studies, when subjects were questioned alone, 99% correctly identified the length of a line. When questioned in the presence of those who intentionally gave the same incorrect answer, 70% agreed with the incorrect answer at least once. Solomon E. Asch, Social Psychology 450–59 (1952); see Solomon E. Asch, Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority, 70 Psychol. Monographs: Gen. & Applied 1, 1, 9–24 (1956). ↑

  106. Saumya Manohar, Comment, Look Who’s Talking Now: “Choose Life” License Plates and Deceptive Government Speech, 25 Yale L. & Pol’y Rev

    .

    229, 236 (2006) (quoting Anne Maass & Russell D. Clark, III, Internalization Versus Compliance: Differential Processes Underlying Minority Influence and Conformity, 13 Eur. J. Soc. Psychol

    .

    197, 197 (1983)); see also Stephan Lewandowsky, Ullrich K.H. Ecker & John Cook, Beyond Misinformation: Understanding and Coping with the “Post-Truth” Era, 6 J. Applied Res. Memory & Cognition 353, 361 (2017) (People tend to believe things “that they believe to be widely shared—irrespective of whether or not they are actually widely shared.”). ↑

  107. See, e.g., Patrick Van Kessel, Regina Widjaya, Sono Shah, Aaron Smith & Adam Hughes, Congress Soars to New Heights on Social Media, Pew Res. Ctr.

    ,

    (July 16, 2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/JH78-BWU6]. ↑

  108. Lewandowsky, Ecker & Cook, supra note 105, at 354 (“It is a truism that a functioning democracy relies on a well-informed public.”). ↑

  109. Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev

    .

    601, 642 (2016) (“Because political accountability is the primary means by which the public seeks to ensure that public managers are pursuing public goals, speech by public employees plays a particularly important role in self-governance.”). ↑

  110. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that the idea “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens . . . has been unequivocally rejected in numerous prior decisions of this Court.”). ↑

  111. City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (describing the Pickering-Connick balancing test). ↑

  112. 547 U.S. 410 (2006). ↑

  113. Id. at 436 (Souter, J., dissenting) (“The majority accepts the fallacy . . . that any statement made within the scope of public employment is (or should be treated as) the government’s own speech.”). ↑

  114. Id. at 421 (majority opinion) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). ↑

  115. See, e.g., Caroline Mala Corbin, Government Employee Religion, 49 Ariz. St. L.J

    .

    1193, 1244 (2017) (collecting cases). ↑

  116. Kim, supra note 108, at 644; see also Mark Strasser, Whistleblowing, Public Employees, and the First Amendment, 60 Clev. St. L. Rev

    .

    975, 993 (2013) (“Regrettably, lower courts have learned the lessons of Garcetti quite well. Numerous individuals have suffered adverse employment actions when seeking to expose the kinds of practices that whistleblower protections are designed to bring to light.”). ↑

  117. Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 4 (2009). ↑

  118. Matal v. Tam, 137 S. Ct. 1744, 1758 (2017). ↑

  119. Note that while this Article explains the usefulness of a mixed speech category in containing the excesses of the government speech doctrine, it does not recapitulate the comprehensive analysis of mixed speech available in earlier work. See generally Corbin, supra note 15. ↑

  120. Regardless of the forum, whether traditional, designated, limited, or nonpublic, the government may not discriminate on the basis of viewpoint without passing strict scrutiny. Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Rosenberger v. Rector & Visitors of Univ. of Va, 515 U.S. 819, 829–30 (1995). ↑

  121. Indeed, the Court tends to characterize them as “presumptively unconstitutional.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“A law found to discriminate based on viewpoint . . . is ‘presumptively unconstitutional.’”). ↑

  122. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). ↑

  123. See supra notes 103–105 and accompanying text. ↑

  124. 135 S. Ct. 2239, 2243 (2015). ↑

  125. Corbin, supra note 15, at 646–47 (“[N]o one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.”). ↑

  126. Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (describing standard license plates “as a ‘mobile billboard’ for the State’s ideological message”). ↑

  127. Corbin, supra note 15, at 647. ↑

  128. Id. at 654. ↑

  129. Walker, 135 S. Ct. at 2245 (explaining that the state declined the plate because many find the confederate flag offensive and associate it with hate groups); Corbin, supra note 15, at 657 (“States that hoped to keep the Confederate flag off their specialty license plates realized that for many, it represents a celebration of slavery and a not-so-subtly coded message of racial superiority.”). ↑

  130. Corbin, supra note 15, at 659 (“If specialty license plates are treated as purely private speech, then the establishment clause does not forbid, and the free speech clause may require, plates with religious messages. But as discussed above, because the plates are actually mixed speech, the state may well be seen as endorsing these religious messages and will thereby run afoul of the establishment clause.”). ↑

  131. See supra note 119 and accompanying text (explaining viewpoint regulations are subject to strict scrutiny). ↑

  132. See supra note 120 and accompanying text (explaining speech regulations subject to strict scrutiny are almost never constitutional). ↑

  133. Cf. Cochran v. City of Atlanta, 289 F. Supp. 3d 1276, 1289 (N.D. Ga. 2017) (involving an anti-LGBTQ book written by fire chief and disseminated at work). ↑

  134. Cf. Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 185 (N.D.N.Y. 2006) (involving commemorative bricks on school property); Demmon v. Loudoun Cty. Pub. Sch., 342 F. Supp. 2d 474, 476 (E.D. Va. 2004) (involving bricks on school property). ↑

  135. Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1168 (9th Cir. 2015) (involving advertisements on city’s transit system); Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947, 949–50 (7th Cir. 2016) (involving advertisements on city’s buses); see also Corbin, supra note 15, at 623–26 (describing examples of mixed speech). ↑

  136. See supra Part II.B. ↑

  137. Corbin, supra note 15, at 656 (“From the government’s perspective, a viewpoint neutrality regime would be objectionable because it would force the government to associate itself with messages that it would not voluntarily endorse or tolerate.”). ↑

  138. Id. at 671–72. ↑

  139. Id. at 675 (“This three-part test is a rigorous intermediate scrutiny. Its ‘intermediate scrutiny’ counterpart is the heightened scrutiny given to sex classifications under equal protection rather than the cursory scrutiny given to content-neutral restrictions on expressive conduct.”). ↑

Race, Ramos, and the Second Amendment Standard of Review

Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We argue that courts’ reliance on these restrictions is illegitimate. Drawing on original research, we reveal how the post-war South restricted gun-ownership for racist reasons, deployed its new laws to disarm free Blacks, yet allowed whites to bear arms with near impunity. We then show how modern reliance on these laws contravenes the Supreme Court’s decision in Ramos v. Louisiana, which deemed similarly tainted statutes unconstitutional. Since the Court will soon consider the validity of modern limits on concealed carry, placing Southern gun restrictions in their proper historical context matters today more than ever. While Southern gun control after the Civil War might tell us something about how the South sought to preserve white supremacy, it tells us almost nothing about the true scope of the Second Amendment.

Introduction

Imagine that a federal court must decide whether some challenged state action impermissibly burdens a constitutional right; say, the First-Amendment right to peacefully assemble. To discern how “fundamental” that right is, the court surveys the historical burdens past state legislatures have imposed upon it. It turns out that several states throughout the South enacted unlawful-assembly statutes from about 1870 to 1920. Relying on those historical restrictions, the court determines that it was then broadly agreed that states could curtail peaceful assembly. And that historical evidence, in the court’s view, shows that such a right must not be very “fundamental.” So on that basis, it upholds a modern law that likewise infringes the right to assemble.

But imagine, too, that the historical evidence the court relied upon was “tainted.” Further research reveals that Southern states enacted unlawful-assembly statutes in that period for racist reasons and enforced them disproportionately against racial minorities. Fearing newly freed slaves’ participation in political life, states passed facially neutral restrictions that they deployed in practice to bust up minority gatherings. The modern court invoking these laws apparently never discerned that critical context, taking them instead at face-value. Would anyone think the court wise to have relied on such tainted history in diluting modern assembly rights?

The answer, surely, is “no.” As the Supreme Court explained last year in Ramos v. Louisiana, laws enacted for racially discriminatory reasons that continue to burden constitutional rights deserve special scrutiny.1 1.140 S. Ct. 1390, 1410 (2020).Show More “[T]he racially discriminatory reasons” for which states originally adopted such laws cannot simply be “[l]ost in the accounting.”2 2.Id. at 1401.Show More To the contrary, laws’ “racially biased origins . . . uniquely matter,” especially when those laws continue to burden rights enshrined in the Constitution.3 3.Id. at 1408 (Sotomayor, J., concurring).Show More In Ramos itself, for instance, the Court deemed unconstitutional tainted state laws that denied criminal defendants their Sixth-Amendment right to be convicted only by a unanimous jury.4 4.Id. at 1394–95.Show More

But if it’s really so clear that courts must discount racially tainted laws in their calculus of how “fundamental” society considers a right, then something has gone seriously awry in our federal courts in the context of another constitutional guarantee: the Second Amendment. In its Heller decision, the Supreme Court recognized that the Second Amendment protects an individual right to keep arms.5 5.District of Columbia v. Heller, 554 U.S. 570, 592 (2008).Show More Two years later, the Court’s McDonald decision incorporated that right against the states.6 6.McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010). Uncertainty lingers over how the Second Amendment was incorporated against the states. In McDonald, four Justices opted to incorporate the Second Amendment via the Fourteenth Amendment’s Due Process Clause. Id. at 742. Justice Thomas wrote alone to suggest that the Fourteenth Amendment’s Privileges or Immunities Clause was the proper vehicle to accomplish incorporation. Id. at 838 (Thomas, J., concurring). Whether the right is incorporated under the Due Process Clause or the Privileges or Immunities Clause matters. The Due Process Clause protects persons, while the Privileges or Immunities Clause extends only to citizens. SeeU.S. Const. amend. XIV. Lower courts have largely ignored this distinction. SeeRyan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 833 (2017) (noting that “lower courts have given little outward sign of even recognizing McDonald as a case calling for analysis under the Marks framework”); see alsoMaxwell L. Stearns, Constitutional Law’s Conflicting Premises, 96 Notre Dame L. Rev. 447, 504 (2020) (discussing the significance of Justice Thomas’s separate concurrence in McDonald). We take the position that though five Justices agreed to the judgment that the Second Amendment applies to the states, whether it does so via the Due Process Clause or, instead, the Privileges or Immunities Clause remains an open question. We also note that the clauses’ distinct language may affect the outcome in certain cases. Consider, for instance, whether a non-citizen may challenge a state law that restricts public carriage of firearms.Show More And recently, the Court agreed to hear a challenge to New York’s concealed-carry restrictions in the case New York State Rifle & Pistol Association v. Corlett (“NYSRPA II”).7 7.N.Y. State Rifle & Pistol Ass’n v. Corlett, 804 F.3d 242 (2d Cir. 2015), cert. granted, (Apr. 26, 2021) (No. 20-843).Show More But for the last decade, the Court has said nothing further about the scope of the individual right. So the task of grappling with basic questions that remain in Heller’s wake, like the Second Amendment’s standard of review, has fallen to the lower courts. In that process, many courts have latched on to the sort of evidence that we just agreed was suspect: Southern gun restrictions enacted from about 1870 to 1920—the South’s race-relations “nadir.”8 8.Rayford W. Logan, The Negro in American Life and Thought: The Nadir, 1877–1901 (1954); see also Alton Hornsby, Jr., ed., A Companion to African American History 312, 381, 391 (2008).Show More Modern courts claim that those laws establish a historical consensus that states enjoy wide latitude to curtail the right to bear arms. And just as often, those courts have invoked such laws without a hint of appreciation that they might be marred by racial taint.

Though hardly unique, the Ninth Circuit’s decision in Young v. Hawaii provides the latest example of this trend.9 9.Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).Show More There, a majority of the en banc Ninth Circuit affirmed Hawaii’s functional ban on bearing arms outside the home. As part of its analysis, the majority presented a historical survey of state gun regulations, focusing in particular on the post-war American South, where such regulations were common. Its survey of Southern cases and statutes, the majority said, revealed that it was then “broadly agreed” that “firearms [ ] could be banned from the public square.”10 10.Id.at 801.Show More Indeed, the majority reasoned, the legislatures of states like Texas, Alabama, Georgia, and Louisiana evidently did not think those gun-control laws inconsistent with the right to bear arms. Since that historical conception apparently tolerated copious restrictions on the right, the plaintiffs had no firm historical basis to challenge Hawaii’s law.

Writing in dissent, Judge O’Scannlain urged caution about drawing too much from the “legislative scene following the Civil War.”11 11.Id.at 839 (O’Scannlain, J., dissenting).Show More He noted that the antebellum South had a long history of explicitly race-based bans on gun ownership, and he suggested that Southern states might have been up to something similar after the war, too. Post-war “Black Codes,” for example, sought to infringe “freedmen’s fundamental constitutional rights.”12 12.Id. at 840.Show More And he noted that the majority offered “no enforcement history” for the later, ostensibly race-neutral statutes that it invoked.13 13.Id. at 844.Show More

For the majority, though, Judge O’Scannlain’s warning was hardly a speedbump in its path to affirming Hawaii’s law. In its 113-page opinion, the majority devoted a solitary footnote to his concern about the racial motivations behind the Southern laws the majority relied upon. It “d[id] not disagree” that the Black Codes were a relevant part of “the post-Civil War history.”14 14.Id.at 822 n.43.Show More But it happily noted that soon after the Black Codes’ advent, the nation adopted the Fourteenth Amendment to facilitate anti-discrimination laws and to bolster freedmen’s rights. Thus, according to the majority, “it is not clear how th[e] history” of racially discriminatory Southern laws—supposedly snuffed out by the Fourteenth Amendment—“informs the issue before us.”15 15.Id.Show More

It is that remarkable statement this Essay seeks to correct. Southern race discrimination via gun-control statutes did not evaporate in 1868. Sadly, it persisted long after and even through facially neutral statutes. By missing that insight, the Young majority and like-minded courts have erred by uncritically invoking gun-control laws from the postbellum South as serious evidence that a broad historical consensus supported limiting gun rights. In response, this Essay employs original primary-source research to establish two key points. First, the desire to limit Black gun ownership often motivated Southern states’ enactment of gun-control laws from around 1870 to 1920. Indeed, white society considered Black gun ownership conducive to chaos and disorder. Second, these racially biased motivations led to disproportionate enforcement of gun-control measures against Black citizens. In other words, these laws do not necessarily show a Southern distaste for the right to bear arms. But they certainly show disdain for exercise of that right by Blacks. So it is ironic—indeed, perverse—that courts should deploy these same tainted laws 150 years later to once again dilute American citizens’ constitutional rights.

The case against courts’ laundering of these racially tainted statutes proceeds in three parts. Part I details the present circuit split on the Second-Amendment standard of review and how various courts of appeals have deployed tainted historical statutes to dilute that standard. Part II presents the historical evidence that these Southern statutes were both racially motivated and unfairly enforced, even when neutral on their face. And Part III shows why continued reliance on such tainted statutes cannot be squared with the Supreme Court’s decision in Ramos. Put simply, when courts evaluate modern restrictions on the right to keep and bear arms, they should reject sullied statutes and rely instead on untainted historical evidence.

I. A Splintered Standard and a Tainted Record

Like its neighbors in the Bill of Rights, the Second Amendment anticipates that citizens may exercise in distinct ways the right that it protects. By the Amendment’s terms, individuals may “keep . . . Arms” for self-defense, but they may also “bear” them.16 16.U.S. Const. amend. II.Show More The Supreme Court’s last words on the subject focused on the former issue—whether states may ban the “keeping” of commonly used arms.17 17.District of Columbia v. Heller, 554 U.S. 570, 581–82 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010).Show More Though answering that question in the negative, the Court gave no definitive guidance about the validity of state bans on the bearing of guns via open or concealed carry. Lacking further direction, lower courts have intractably split on whether states may restrict the right to bear arms and on the standard of review that courts must apply to such restrictions.

Some courts have endorsed the view that states may not ban citizens from carrying handguns for self-defense outside the home. The Seventh and D.C. Circuits are notable examples.18 18.Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).Show More Both shunned reliance on the “tiers of scrutiny” framework familiar to other areas of constitutional law, instead extending Heller to protect the bearing of arms outside the home. In reaching that conclusion, the Seventh Circuit declined “another round of historical analysis” to determine the scope of the “bear” right.19 19.Moore, 702 F.3d at 942.Show More In its view, Heller had already “decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.”20 20.Id.Show More But other circuits have resisted that conclusion. The First, Second, Third, Ninth, and Tenth Circuits have all adopted an “intermediate scrutiny” standard, under which they have upheld laws severely restricting the right to bear arms.21 21.Gould v. Morgan, 907 F.3d 659, 673 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Peterson v. Martinez, 707 F.3d 1197, 1208 (10th Cir. 2013); Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012).Show More And critically, circuits in this camp—along with legion academic commentators—have all relied upon postbellum Southern gun control to bolster their rejection of that right.22 22.Many academics have relied on racially tainted postbellum Southern gun-control laws to reinforce their anti-gun-rights arguments. SeeEric J. Mogilnicki & Alexander Schultz, The Incomplete Record in New York State Rifle & Pistol Association v. City of New York, 73 SMU L. Rev. F. 1, 4–6 (2020); David T. Hardy, The Rise and Demise of the “Collective Right” Interpretation of the Second Amendment, 59 Clev. St. L. Rev. 315, 339 (2011) (referencing facially neutral Southern gun control laws passed after the Civil War as historical evidence of constitutional limitations on the Second Amendment); Joseph Blocher, Firearm Localism, 123 Yale L. J. 82, 119 n.193, 120 n.195 (2013) (citing postbellum Southern gun-control laws without acknowledging possible tainted motivation for their enactment); see also Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 Tex. A&M L. Rev. 95, 95 (2016) (fighting back against the “current state of scholarship on Second Amendment history [that] paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence.”); Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 L. & Contemp. Prob. 55, 62–64 nn.34–48 (2017) (listing a host of gun restrictions in different states).Show More

First to address the public-carry question was the Second Circuit in the 2012 case Kachalsky v. County of Westchester.23 23.Kachalsky, 701 F.3d at 81.Show More The dispute involved a New York law that requires citizens to show “proper cause” before obtaining a handgun-carry license—a requirement difficult to meet in practice.24 24.Id.at 84.Show More To analyze that restriction’s validity, the Second Circuit reviewed the “history and tradition of firearm regulation” to select the appropriate level of scrutiny.25 25.Id. at 101.Show More In so doing, the court detailed those historical laws that it thought supported “restrictions on the public carrying of weapons.”26 26.Id.at 90.Show More Among them were several postbellum Southern statutes that, in various ways, restricted gun ownership. Examples the Circuit cited included an 1870 law from Virginia, an 1871 law from Texas, an 1880 law from Kentucky, 1881 laws from Arkansas and North Carolina, and an 1885 law from Florida. That historical survey led the Circuit to conclude that “[i]n the nineteenth century, laws directly regulating concealable weapons for public safety became commonplace and far more expansive in scope.”27 27.Id.at 95.Show More Thus, in its view, “extensive state regulation of handguns has never been considered incompatible with the Second Amendment.” 28 28.Id.at 100.Show More And with that historical gloss, the Circuit settled on intermediate scrutiny to uphold New York’s “proper cause” requirement.29 29.Id.at 96.Show More

Likewise, in the 2013 case Drake v. Filko, the Third Circuit looked back to the South to judge a current law in the North.30 30.Drake v. Filko, 724 F.3d 426, 433 (3d Cir. 2013).Show More The New Jersey law at issue required handgun-license applicants to demonstrate their “‘justifiable need’ to publicly carry a handgun.”31 31.Id.at 429.Show More In response to the appellants’ contention that this requirement violated the Second Amendment, the Third Circuit claimed that “[i]t remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home.”32 32.Id.at 430.Show More To select the appropriate level of scrutiny, the Third Circuit followed Kachalsky and undertook a review of historical gun regulations. The Circuit cited Kachalsky several times for the proposition that “19th Century” history undermined the notion that self-defense outside the home belongs to “the core of the [Second] Amendment.”33 33.Id.at 436.Show More Thus, after settling on intermediate scrutiny, the Third Circuit upheld New Jersey’s “justifiable need” requirement.34 34.Id.at 440.Show More

Dissenting, Judge Hardiman objected to the majority’s repeated invocation of Kachalsky. In his view, the Southern statutes that Kachalsky marshaled were distinguishable from New Jersey’s “justifiable need” requirement.35 35.Id.at 451 (Hardiman, J., dissenting).Show More For instance, he argued, Southerners considered those historical bans permissible only because the weapons they targeted were not the sort of “arms” thought core to the right.36 36.Id.Show More And “[t]o the extent that th[ose] state laws prohibited the carry of weapons used in war”—in other words, “arms”—“they were struck down.”37 37.Id.Show More So Judge Hardiman thought the historical statutes had “little bearing” on modern laws regulating concealed carry.38 38.Id.Show More But he left his criticism there, mentioning no further concern about possible racial taint.

In their own respective treatments of the issue, the First and Tenth Circuits have also invoked Kachalsky to reject Second-Amendment claims. In the 2013 case Peterson v. Martinez, the Tenth Circuit parried a challenge to a Colorado concealed-weapons law after concluding “that the carrying of concealed firearms is not protected by the Second Amendment[.]”39 39.Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013).Show More Citing Kachalsky, the Circuit noted that “concealed carry bans have a lengthy history” and that “most states banned concealed carry in the nineteenth century.”40 40.Id.at 1211.Show More Thus, it concluded, “the Second Amendment does not confer a right to carry concealed weapons.”41 41.Id.Show More Likewise, the First Circuit relied on Kachalsky to conclude “that there is no national consensus, rooted in history, concerning the right to public carriage of firearms.”42 42.Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018).Show More Rather, the restrictions Kachalsky detailed led the Circuit to suggest that history “conflict[ed]” about the scope of the right to bear arms.43 43.Id.Show More And given that supposed conflict, the court upheld the targeted restriction under intermediate scrutiny.44 44.Id. at 676.Show More

While most Circuits have been content to recycle Kachalsky, the Ninth Circuit offered a broader defense of why history undercuts the right to publicly bear arms. In its aforementioned Young decision, the en banc Ninth Circuit considered whether Hawaii’s functional ban on public carry violates the Second Amendment.45 45.Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).Show More Judge Bybee, writing for the majority, held that it does not. Much of the historical record he dissected—for instance, the Statute of Northampton, ancient English treatises, and early colonial restrictions—falls well outside this Essay’s scope.46 46.Id.at 788–805.Show More But after analyzing those sources, the majority, like its sister-circuits, discussed several postbellum Southern statutes. It noted that Tennessee enacted a law in 1870 banning “publicly or privately carry[ing] a dirk, swordcane, Spanish stiletto, belt or pocket pistol[,] or revolver.”47 47.Id.at 806.Show More Three years later, Texas restricted “the carrying of ‘any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife.”48 48.Id. at 800.Show More The Louisiana Constitution of 1879, likewise, “provided that the right to keep and bear arms did ‘not prevent the passage of laws to punish those who carr[ied] weapons concealed.’”49 49.Id. at 817.Show More And Alabama, for its part, not only “prohibited persons from carrying a ‘pistol concealed,’ but [ ] also made it ‘unlawful for any person to carry a pistol about his person on premises not his own or under his control.’”50 50.Id.at 811.Show More

The majority then offered “several observations” about these statutes.51 51.Id.at 801.Show More First, it said, this historical survey revealed that “states broadly agreed that small, concealable weapons, including firearms, could be banned from the public square.”52 52.Id.Show More And “[s]econd, although many of the states had constitutional provisions that guaranteed some kind of right to keep and bear arms, state legislatures evidently did not believe that the restrictions [ ] discussed here were inconsistent with their state constitutions.”53 53.Id.at 801–02.Show More All told, then, the relevant history supposedly undercut any “general right to carry arms into the public square for self-defense.”54 54.Id.at 813.Show More

Judge O’Scannlain’s dissent, as we mentioned, broached several important criticisms of the majority’s reasoning. First, it noted the lack of any “record of enforcement” for the statutes at issue.55 55.Id.at 847 (O’Scannlain, J., dissenting).Show More Merely symbolic gun laws that state governments never enforced presumably tell us little about the polity’s true thoughts on the right to bear arms. Next, Judge O’Scannlain observed that Southern states had long sought to regulate the possession of weapons by Blacks. In support of that point, he noted several sources from the 1860s that decried Southern attempts to strip freedmen of their right to keep and bear arms—a right those sources described as fundamental.56 56.Id.at 839–41, 847.Show More

The majority swept aside those points, however, with almost-blithe facility. It noted that soon after stories of the Black Codes emanated from the South, the nation ratified the Fourteenth Amendment.57 57.Id.at 822 n.43.Show More Its Privileges or Immunities and Equal Protection Clauses “guaranteed that all citizens would enjoy the same rights as ‘white citizens,’ including Second Amendment rights.”58 58.Id.Show More But, said the majority,

those provisions do not tell us anything about the substance of the Second Amendment, any more than an equal right to enter into contracts or inherit property tells us whether the state may alter the Statute of Frauds or the Rule Against Perpetuities, so long as it does so for all citizens.59 59.Id.Show More

And with that, in an opinion that purported to exhaustively survey the historical evidence, the majority dismissed concerns about how race and discrimination might have informed its analysis.

II. “Every Negro in the City a Walking Arsenal”: The Racial Motivations Underlying Postbellum Southern Gun Control

For about the first two-hundred years of American history, the colonies and early states enacted various racially explicit gun bans. By frustrating slaves’ ability to rebel, these laws preserved white supremacy and the slave-based American economy. As early as 1640, for example, Virginia prohibited Blacks, slave and free, from carrying weapons.60 60.T. Markus Funk, Comment, Gun Control and Economic Discrimination: The Melting-Point Case-in-Point, 85 J. Crim. L. & Criminology 764, 796 (1995) (“In 1640, Virginia set up the first recorded restrictive legislation which prevented blacks from owning a firearm”).Show More And it enacted a more extensive “act for preventing Negroes Insurrections” in 1680.61 61.Act X: An Act for Preventing Negroes Insurrections (June 1680), reprinted in 2 The Statutes at Large; Being a Collection of all the laws of Virginia, From the First Session of The Legislature in The Year 1619, 481 (William Waller Hening ed., n.d.), https://encyclopediavirginia.org/entries/an-act-for-preventing-negroes-insurrections-1680/. [https://perma.cc/X98X-PEP3]. Many of the historical sources we have quoted employ non-standard English. Rather than flagging each idiosyncrasy with a [sic] notation, we have chosen instead to present the source-language as it originally appeared.Show More The law forbade “any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence.”62 62.Id.Show More A slave could possess such arms only with “a certificate from his master, mistris or overseer” for “perticuler and necessary occasions.”63 63.Id.Show More Without a permit, a slave in possession of arms would be “sent to the next constable, who [was] hereby enjoyned and required to give the said negroe twenty lashes on his bare back.”64 64.Id.Show More Those lashes, the law specified, were to be “well layd on.”65 65.Id.Show More

Similar laws pervaded other jurisdictions. In 1740, for instance, South Carolina enacted a statute making it illegal “for any slave, unless in the presence of some white person, to carry or make use of fire-arms.”66 66.1741-32 S.C. Acts 168, § 23.Show More A slave could bear arms only with a “license in writing from his master, mistress or overseer.”67 67.Id.Show More Whites who discovered slaves in possession of unlicensed weapons could seize the arms on the spot. If the slave resisted and seriously injured the white person, the law subjected the slave to a mandatory penalty of death.68 68.Id. §§ 23–24.Show More In the same vein, Florida, Georgia, Texas, Louisiana, North Carolina, and Mississippi passed their own racially explicit gun bans from around 1800 to 1860.69 69.Black Code, ch. 33, sec. 19, Laws of La. 150, 160 (1806); Act of April 8, 1811, ch. 14, sec. 3, Laws of La. 50, 52–54 (1811); An Act to Govern Patrols, secs. 8–9, Acts of Fla. 52, 55 (1825); Act of Jan. 28, 1831, Fla. Laws 28, 30 (1831); Act of Dec. 23, 1833, sec. 7, 1833 Ga. Laws 226, 228 (1833); An Act Concerning Slaves, ch. 58, sec. 6, 1841 Laws of Tex. 171, 172 (1841); State v. Newsom, 27 N.C. 250 (1844) (upholding North Carolina’s race-based ban); Act of Jan 1, 1845, ch. 87, 1845 Acts of N.C. 124; Act of Mar. 15, 1852, ch 206, sec. 1, 1852 Laws of Miss. 328; Act of Dec. 19, 1860, no. 64, Sec. 1, 1860 Acts of Ga. 56; see alsoStephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev. 629, 653 (1989) (“On November 6, 1866, the Texas legislature passed its first gun control measure, which was also the closest Texas came to adopting a black code provision to disarm freedmen.”).Show More Louisiana forbade slaves from possessing weapons, while Florida authorized whites to enter Black persons’ homes to search for and seize any firearms.70 70.Black Code, ch. 33, sec. 19, Laws of La. 150, 160 (1806); Act of Dec. 17, 1861, ch. 1291, sec. 11, 1861 Fla. Laws 38, 40.Show More Mississippi, too, heavily restricted slaves’ and free Blacks’ possession of arms. As late as 1865, it barred any “freedman, free negro or mulatto” from possessing “fire-arms of any kind” without a license from “the board of police of his or her county.”71 71.Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, §1, reprinted in 1 Documentary History of Reconstruction 289 (Walter L. Fleming ed. 1950).Show More

Soon after, of course, Mississippi and the broader South lost the American Civil War. One consequence was the panoply of new laws the United States imposed upon that region that aimed to secure the fundamental rights of free Blacks. Those included several Civil Rights and Enforcement Acts, along with the Fourteenth Amendment. The latter’s ratification sought to ensure that freedmen might enjoy “the privileges or immunities of citizens of the United States,” along with “the equal protection of the laws.”72 72.U.S. Const. amend. XIV. Show More In the Young Court’s view, apparently, the advent of these guarantees heralded the end of invidious discrimination via Southern gun-control restrictions.73 73.Young v. Hawaii, 992 F.3d 765, 822 n.43 (9th Cir. 2021) (en banc).Show More

But as this Essay shows, that was unfortunately not the case. Rather, Judge O’Scannlain’s dissenting appraisal was nearer the mark in three respects. First, to the extent that Southern states enacted new gun bans after the Civil War, race appears to have often motivated their decision to do so.74 74.Robert J. Cottrol & Raymond T. Diamond, “Never Intended to be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?, 70 Chicago-Kent L. Rev. 1307, 1318 (1995) (“Free blacks were subject to a variety of measures meant to limit black access to firearms through licensure or to eliminate such access through outright prohibitions on firearms ownership.”).Show More Second, Southern states enforced these laws against their white populations only loosely. Third, to the extent that Southern states did enforce such laws, they enforced them disproportionately against their Black citizenry.75 75.F. Smith Fussner, That Every Man Be Armed, the Evolution of a Constitutional Right, 3 Const. Comment. 582, 585 (1986) (reviewing Stephen P. Halbrook, That Every Man Be Armed (1984)) (“After the Civil War the states of the old Confederacy tried to use pretexts of various kinds to keep blacks from acquiring and using arms.”); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1415–16 (1998) (noting that “gun control in the nineteenth century was almost exclusively a Southern phenomenon. In the post-Civil War period, the Southern gun laws were clearly aimed at controlling the Freedmen; although written in racially neutral terms, the laws were meant for, and applied almost exclusively to, blacks.”).Show More We examine these points in turn.

A. How Race Informed the South’s Perceived Need for Gun Control

Across both time and space in the Reconstruction and Jim Crow South, white society reflected antipathy for the newfound phenomenon of Black gun ownership. Southern whites understood the relationship between guns and power. Precisely because the keeping of arms undergirds security and autonomy,76 76.Noted constitutional commentator St. George Tucker described the Second Amendment as “the true palladium of liberty” and “[t]he right of self defense [a]s the first law of nature.” 1 St. George Tucker, Blackstone’s Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 300 (1803). Frederick Douglass likewise famously remarked “that the liberties of the American people were dependent upon the Ballot-box, the Jury-box, and the Cartridge-box[.]” The Life and Times of Frederick Douglass: From 1817–1882, 333 (John Lobb ed., 1882).Show More the antebellum South had denied that right to its Black population. So when, for instance, Black militias formed after the war’s end to protect voting freedmen and to repel lynch mobs, whites lamented Blacks’ nascent capacity for self-defense. That capacity engendered “[t]he white man’s fundamental enmity,” in other words, because it impugned his “position of authority.”77 77.Otis A. Singletary, The Negro Militia Movement During Radical Reconstruction, LSU Historical Dissertations and Theses, at vii (1954).Show More

In response, whites crafted narratives that reframed Black gun ownership not as a means of legitimate self-defense, but as a source of disorder and chaos. Already by 1866, a Norfolk periodical lamented “a mania which seems to exist among a portion of the negro population for carrying concealed weapons.”78 78.Virginia News, Alexandria Gazette and Virginia Advertiser, Dec. 6, 1866, at 1.Show More Likewise, a writer in Memphis, Tennessee complained in 1867 that “[n]early all the negroes in th[is] city carry concealed weapons.”79 79.Locals in Brief, Public Ledger, July 20, 1867, at 1.Show More “As a natural consequence,” the author wrote, “colored shooting affrays are becoming very frequent.”80 80.Id.Show More In 1871 South Carolina, Black gun ownership was said to have “brought the negroes into troubles, for without [arms], they would not have arrayed themselves in hostility to the white people.”81 81.The Fight at Carmel Hill, The Courier, Mar. 17, 1871, at 1.Show More And later writers in both South Carolina and Tennessee explicitly connected Black gun ownership to election fraud and voter intimidation. In 1879, for instance, a Democratic paper in South Carolina rued that the state’s Republican governor had, “in violation of every right of a free citizen, [disarmed] the whites . . . while the negro militia, in the midst of a heated political contest, [was] not only allowed to keep their rifles and muskets, but encouraged to use[ ] them, to menace the whites, and overawe and intimidate colored voters.”82 82.J.H. Evins, Unexampled Forbearance of the Whites, The Weekly Union Times, Apr. 4, 1879, at 1.Show More This show of force supposedly corrupted “the free choice of the voter,” thus rigging the system in favor of Republicans.83 83.Id.Show More In Mississippi too, alleged Republican encouragement for “negroes to carry pistols to the polls” had led to an “inexcusably brutal outrage” in 1881: when a white voter tried to cane a Black man at a polling place over a supposed insult, another Black man pulled a gun, shooting and killing the white assailant.84 84.Murder at Marion, The Memphis Daily Appeal, Nov. 11, 1881, at 1.Show More

These narratives on disorder and chaos persisted over time. In 1882, Kentucky’s Daily Evening Bulletin opined that “[t]his thing of negroes carrying concealed deadly weapons is a growing evil that should receive the strictest enforcement of the law.”85 85.The State of Lewis at Large, Daily Evening Bulletin, Nov. 22, 1882, at 1.Show More An 1883 column from Jacksonville, Florida likewise warned that “every negro in the city” had become “a walking arsenal.”86 86.Crimes in Jacksonville, The Savanah Morning News, Sept. 5, 1883, at 1.Show More Jacksonville police reported that “a large proportion of the negroes in this city are provided with a dirk knife, razor[,] or pistol”—a trend the column suggested should merit severe punishment.87 87.Id.Show More In Georgia too, the Lyons Morning News argued in 1893 for a new concealed-weapons law, since “[a]lmost every negro that one meets is armed.”88 88.The Concealed Weapon Evil, The Morning News, Sept. 8, 1893, at 6.Show More “Some of them,” according to the editor, even “carr[ied] two pistols and a Winchester rifle”—a behavior that “cursed” the population and merited “strictly enforced” legislative countermeasures.89 89.Id.Show More

One incident in North Carolina that drew on these narratives of chaos and disorder deserves special examination. Around the fall of 1898, white-supremacist Democrats, led in part by future North Carolina congressman John D. Bellamy, organized white resistance to the city of Wilmington’s biracial government. Bellamy and other prominent figures conspired to foment anger among white citizens about this so-called “Negro Rule” before the congressional elections of 1898.90 90.LeRae Umfleet, et al., 1898 Wilmington Race Riot Report, North Carolina Dep’t of Cultural Resources 59–60, 76, 78, 83–84, 125, 371 (May 31, 2006).Show More After several increasingly violent attacks on Wilmington’s Black citizens, Bellamy’s associate Alfred Waddell assembled a posse of about 2,000 whites.91 91.1898 Wilmington Race Riot Report supra note 90, at 129.Show More After equipping itself at Wilmington’s armory, the posse roamed the streets, killing the Black persons they could find and destroying Wilmington’s Black-owned businesses.92 92.Id. at 121, 133.Show More Perhaps 60 Black citizens perished, while thousands of others fled and took shelter in nearby swamps.93 93.Id. at 1.Show More

Yet when Bellamy was later sued for his role in the massacre, he reframed the event as a “race riot” that ensued only after “a negro mob” had armed itself in “utter disregard . . . for law and order.”94 94.Dockery v. Bellamy: The Taking of Depositions Resumed, The Semi-Weekly Messenger, Apr. 14, 1899, at 3.Show More Bellamy argued that this was to be expected: “[N]egroes constantly carry concealed weapons,” he testified, “and . . . the razor, the pistol, the slingshot[,] and the brass knuckle seem to be their inseparable accompaniments as a class.”95 95.Id.Show More “[A]lthough there are some very respectable law-abiding and property acquiring citizens of that race,” he conceded, “it is a very small portion of them.”96 96.Id.Show More So, in Bellamy’s view, the posse’s brutality did not stem from the violent white-supremacist movement that he had cultivated. The true culprit, he said, was Black citizens’ carriage of arms. Bellamy eventually prevailed in the litigation, allowing him to take his seat in Congress.97 97.1898 Wilmington Race Riot Report supra note 90, at 200–01.Show More But while his actions were especially horrific, his rhetoric was familiar—that Black citizens’ possession of arms had instigated violence and disorder.

These themes continued to reverberate throughout the South during and after the turn of the twentieth century. In 1899, for instance, Cheneyville, Louisiana passed an ordinance that aimed to restrain the “custom among a certain class of worthless negroes to carry concealed weapons upon their persons[.]”98 98.To Restrain Worthless Negroes, New York Tribune, Aug. 14, 1900, at 1.Show More Similar rhetoric surfaced soon after in Georgia. In a 1901 lecture delivered at a Valdosta prison, Judge Estes of the Valdosta superior court opined that it was hard to believe the “worthless[ ],” “pistol toting negroes of the present generation are the descendants of the . . . good old negroes of the former days.”99 99.The Good Old Negroes: Judge Estes’ Lecture to Prisoners at Valdosta, The Morning News, Nov. 24, 1901, at 9.Show More A 1907 Mississippi paper, likewise, bemoaned “negro . . . pistol toting” and suggested “that there is needed extreme legislation for suppression of pistol toting; especially for protection of lives of the peace officers who are called on almost daily to arrest turbulent and recklessly murderous negroes.”100 100.The Pistol Toting Negro in Evidence, The Greenville Times, Dec. 28, 1907, at 1.Show More

Other contemporary sources were just as frank about the racial bias that had motivated Southern gun-control measures. While debating a 1901 South Carolina proposal, State Senator Stanwix Mayfield introduced an amendment requiring applicants for a concealed-carry permit to pay the princely sum of $50.101 101.Synopsis of the Daily Proceedings of the House and Senate, The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More “If a man thinks he ought to go armed let him pay a license,” Mayfield argued.102 102.Id.Show More Moreover, “[n]egroes will not take out a license and one-half of the population will thus be eliminated.”103 103.Id.Show More And that was the problematic half, in Mayfield’s view, since “[t]here is little trouble” arising from concealed carry “among white people.”104 104.Id.Show More In a similar vein, Charles R. Tarter of Brevard County, Florida suggested in 1907 to Virginia’s Clinch Valley News some lessons that Virginia might take from Florida’s treatment of “the race problem.”105 105.Charles R. Tarter, The Race Problem in Florida, Clinch Valley News, June 28, 1907, at 2.Show More In Florida, Tarter opined, “[w]e have no race problem [ ] in Brevard [C]ounty.”106 106.Id.Show More Rather, “[t]he ‘n——r’ is held in humble submission here.”107 107.Id. (racial slur censored).Show More One aspect of that “submission” was Brevard County’s law requiring that whoever wished to carry a long gun have a bond guaranteed by “two good men.”108 108.Id.Show More As Tarter explained, “[i]t’s purpose was to keep fire arms out of the nigroes hands[,] and it did all it was intended for. No nigro can get a bond accepted,” and “few ever try.”109 109.Id.Show More In Tarter’s view, such a restriction bolstered law and order. “There has never been an assault, or an insult offered a white woman by a n——r in this county,” he claimed, and “in fact, there’s practically but few cases of criminal assault ever in the state.”110 110.Id. (racial slur censored).Show More

Sources in Alabama, too, connected Black gun ownership to themes of disorder and the status of white supremacy. In 1907, Alabama State Senator Evans Hinson warned that “black belt negroes are better armed than whites.”111 111.Evans Hinson, Black Belt Negroes are Better Armed Than Whites, The Age-Herald, May 1, 1907, at 9.Show More Thus, he thought, Alabama needed a “new law regarding carrying weapons.”112 112.Id.Show More Though laws on the books regulated possession of pistols, he thought the law should also cover long guns. Otherwise, he worried that “negroes would have on hand for immediate use incomparably more improved firearms than would the whites.”113 113.Id.Show More Thus, he feared that whites might be outgunned in the event of a future “race riot.”114 114.Id.Show More Alabama newspaperman Edward Ware Barrett, owner of Birmingham’s Age-Herald,115 115.George M. Cruikshank, 2 A History of Birmingham and Its Environs: A Narrative Account of Their Historical Progress, Their People, and Their Principal Interests, 180 (1920).Show More likewise suggested that Black citizens’ gun ownership placed respectable whites under siege. “A man with a home and family,” Barrett remarked, “feels that he cannot go out of town without employing an armed squadron to protect his home against pistol toting negroes[.]”116 116.Edward Ware Barrett, Ned Brace Talks About Things At Home and Makes A Few Suggestions, The Age-Herald, Jan. 7, 1912, at 28.Show More Otherwise, he feared, they might “go out to shoot up his servants and endanger[ ] the lives of his wife and children.”117 117.Id.Show More

So what has this historical survey told us? A couple of things, we think. First, it shows that racist attitudes about Black gun ownership pervaded the post-war American South. White society, or at least those portions of it captured in the cited periodicals, thought Black gun ownership a particularly dangerous reality; one conducive to disorder and corrosive to the Southern social fabric. It was a problem, the sources tell us, in need of novel restrictions and “extreme legislation.”118 118.The Pistol Toting Negro in Evidence, The Greenville Times, Dec. 28, 1907, at 1.Show More Second, and concomitantly, it reveals that courts today should hesitate to invoke Southern gun restrictions as evidence about Southern society’s views on the right to bear arms generally. To the contrary, this evidence reflects Southern society’s specific desire to counter a particular “problem”: its disdain for Black citizens’ keeping and bearing of arms. Parts II.B and II.C, in turn, present the evidence for that observation’s logical corollaries: that Southern states did not enforce these restrictions rigorously against whites, but enforced them with alacrity against Blacks.

B. Southern States’ Under-Enforcement of Gun Control Laws
Against White Society

As noted above, Judge O’Scannlain also criticized the Young majority’s statutory survey for omitting a serious discussion of the laws’ “enforcement history.”119 119.Young v. Hawaii, 992 F.3d 765, 844 (9th Cir. 2021) (en banc) (O’Scannlain, J., dissenting).Show More The majority conceded that the question of enforcement was “a fair one.”120 120.Id.at 823.Show More Unenforced statutes may eventually fall “into desuetude,” the majority noted, rendering such legislative proscriptions “merely symbolic.”121 121.Id.Show More But after admitting that enforcement questions were “beyond the materials that [it] ha[d] seen,” the majority incongruously argued that the Southern statutes it cited were “not merely symbolic.”122 122.Id. (emphasis added).Show More Instead, it suggested that the statutes’ commonality across the South was somehow self-proving evidence of their enforcement. And the majority noted that it had assembled a few Southern cases involving weapons prosecutions, which it claimed “proves that the statutes were enforced.”123 123.Id. (first emphasis added).Show More

The majority’s leap from confessing that it had no evidence of enforcement history to its conclusion that it had “prove[n]” the statutes’ enforcement was sophistical.124 124.Id.Show More A few instances of enforcement in reported cases do not show that such laws were enforced broadly or that Southerners considered them an enforcement priority. Indeed, one scholar has labeled reasoning like the majority’s the “lonely fact” fallacy.125 125.Ilan Wurmin, Law Historians’ Fallacies, 91 N.D. L. Rev. 161, 203 (2015). Show More Having identified a few discrete historical examples, the majority then assumed without support that those data points represented general trends.

But they did not, at least according to the evidence we have uncovered. To the contrary, contemporary Southern sources consistently noted two important points. First, the carrying of concealed weapons throughout the postwar South was extremely common. And second, Southern states rarely enforced their laws against that practice. (Save for those occasions when the unfortunate defendant belonged to a racial minority; a trend we discuss in Part II.C.) So Judge O’Scannlain’s dissent was nearer the mark yet again. For the laws the majority cited often were “merely symbolic.”126 126.Young, 992 F.3d at 823.Show More

Already in 1880, for example, a Mississippi periodical observed that the state’s concealed-weapons law “[wa]s not enforced anywhere in the State.”127 127.Concealed Weapons, St. Landry Democrat, Feb. 7, 1880, at 4.Show More And it pointed out the likelihood that “the concealed weapon law will never be strictly enforced in this or any other State, unless the law should go further and give officers the right to search every man to ascertain whether he had concealed weapons on his person or not.”128 128.Id.Show More Such a law, it said, would be both “unconstitutional,” given its imposition on liberty, and “absurd,” given the resources required to enforce it.129 129.Id.Show More Likewise, Louisiana’s Meridional noted in 1878 that the state had “an act prohibiting persons from carrying concealed weapons,” but that it was “not enforced[.]”130 130.The Lafayette Advertiser, Mar. 30, 1878, at 2.Show More The author suggested that some enforcement might be wise, since “one cannot travel fifty yards from the parish seat” without meeting persons armed with concealed pistols.131 131.Id.Show More South Carolina’s Weekly Union Times sounded similar themes in 1880. It noted that while “[t]he law against carrying concealed weapons may be enforced in the towns and cities where special ordinances are passed . . . the State laws on this subject are not worth the paper they are written on, from the fact that they will never be enforced.”132 132.Sins Which the Law Cannot Reach, The Weekly Union Times, Nov. 12, 1880, at 1.Show More Predictably, “nobody [was ever] tried for the offence.”133 133.Id. Likewise, Richmond, Virginia’s Daily State Journal reported a concealed-weapons prosecution in 1872. But it noted that this was “the first case of the kind for some time.” Carrying Concealed Deadly Weapons, The Daily State Journal, Jan. 10, 1872, at 1.Show More

These themes persisted throughout the South for decades. Mississippi’s Magnolia Gazette noted in 1883 that a new weapons law might be desirable. But the column’s author doubted that “it can or will be done,” given the practical difficulties of enforcing such a statute.134 134.An Alarming State of Affairs, Magnolia Gazette, Aug. 30, 1883, at 1.Show More “The law as it exists,” the author noted, “is almost inoperative.”135 135.Id.Show More Five years later, South Carolina’s Laurens Advertiser observed that “the law in regard to carrying concealed weapons[ ] [wa]s never enforced,” given that citizens lacked any “sense of duty” to obey it.136 136.Dials, The Laurens Advertiser, May 2, 1888, at 3.Show More And in Kentucky, similar laws’ enforcement fared no better. In 1891, for instance, Kentucky Governor John Y. Brown simply stopped enforcing the state’s concealed-weapons law for several years.137 137.W.P. Walton, Semi-Weekly Interior Journal, Nov. 20, 1891, at 2.Show More

Again, it must be said, the rarity of prosecutions did not stem from the rarity of concealed carry. To the contrary, a Missouri periodical noted in 1897 that “[t]housands of the so called ‘best men’ of every community in many of the southern states carry daily the faithful revolver in the pistol pocket.”138 138.Concealed Weapons, The Age Herald, Oct. 10, 1897, at 4.Show More It was despite that fact that only “at rare intervals . . . men are prosecuted for carrying concealed weapons.”139 139.Id.Show More Indeed, prosecutions were rare not because carrying was rare, but because there was so “much looseness in the enforcement of the statutes[.]”140 140.Id.Show More

Turn-of-the-century South Carolina was no more enthusiastic about enforcing its own concealed-weapons law. The Union Times wondered in 1900 why the “law against carrying concealed weapons is not more rigidly enforced.”141 141.Carrying Concealed Weapons, The Union Times, Oct. 26, 1900, at 1.Show More It noted that there were “few convictions for violations” and that no one seemed willing to report fellow citizens for concealed carrying.142 142.Id.Show More Perhaps members of South Carolina’s legislature took heed. For a year later, The Yorkville Enquirer reported the passage of a new concealed-weapons law. But it predicted that the new law, like its predecessors, would have little practical consequence. “Other concealed weapon laws,” the paper noted, “have been indifferently enforced.”143 143.The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More Thus, “there is reason to fear this one will not fare any better.”144 144.Id.Show More That prediction proved accurate. As South Carolina’s Anderson Intelligencer noted in 1905, while the “statute books” had a new law “against the carrying of concealed weapons . . . the enforcement of it is a regular farce.”145 145.Editorial Bull’s Eyes, The Yorkville Enquirer, Oct. 10, 1905, at 1.Show More “Occasionally some poor, unfortunate fellow” was fined,146 146.Id.Contemporary court records from South Carolina also seem to confirm that the state’s concealed-weapons law was not an enforcement priority. The Watchman and Southron reported in 1903 that one South Carolina police court processed 448 arrests throughout 1902. Doings of the Police Force for 1902, The Watchman and Southron, Feb. 25, 1903, at 1. But only a paltry three of those were for carrying concealed weapons. Id.Show More but the law did little overall to deter Southerners’ prolific carriage of arms.

Enforcement also lagged in Arkansas and Alabama. Birmingham’s Age-Herald reported in 1912 that “there seems to be practically no enforcement” of “[t]he law against carrying concealed deadly weapons.”147 147.The Grand Jury’s Report, The Age-Herald, Oct. 28, 1912, at 1.Show More And Arkansas’s Daily Picayune noted in 1921 that “[t]he law against carrying concealed weapons is not enforced, as witness the courts.”148 148.A Celebration, The Daily Picayune, Jan. 8, 1921, at 1.Show More Yet, that journal remarked, there was apparently “no inclination for repeal.”149 149.Id.Show More So the law was indeed symbolic, rather than a robust proscription.150 150.Id.Show More

Indeed, this Part has shown that much the same could be said for concealed-weapons laws across the South. As the cited sources reflect, contemporary Southerners considered the laws “inoperative” and their enforcement impractical.151 151.An Alarming State of Affairs, Magnolia Gazette, Aug. 30, 1883, at 1.Show More “[I]ndifferent[ ]” enforcement had rendered the statutes “not worth the paper they [were] written on” and “a regular farce.”152 152.Sins Which the Law Cannot Reach, The Weekly Union Times, Nov. 12, 1880, at 1; The Yorkville Enquirer, Feb. 16, 1901, at 1; Editorial Bull’s Eyes, Yorkville Enquirer, Oct. 10, 1905, at 1.Show More As a result, convictions came only at “rare intervals.”153 153.Concealed Weapons, The Age-Herald, Oct. 10, 1897, at 4.Show More And those convicted appear to have been the “unfortunate fellow[s]” who simply happened to stand out from the rest of their gun-toting countrymen.154 154.Editorial Bull’s Eyes, The Yorkville Enquirer, Oct. 10, 1905, at 1.Show More

Given these sources’ depiction of the South’s spotty gun-control regime, one might wonder whether those laws were ever seriously enforced against any segment of Southern society. The answer to that question, it turns out, is “yes.” For contemporary evidence also suggests that despite the laws’ “indifferent[ ]” enforcement as to the South’s alleged best men—its whites—the same laws quite often ensnared its Black citizens.155 155.The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More Of course, we uncovered no evidence that Blacks carried guns at a higher rate than whites in this period. Instead, sources remarked that the pistol was the Southern gentleman’s constant companion. But as Part II.C now reveals, Blacks almost certainly were punished at a much higher rate for concealed carry.

C. How Southern States Disproportionately Enforced Their Gun-Control Laws Against Racial Minorities

We now turn to the third way that the historical sources we uncovered vindicate Judge O’Scannlain. Recall how he admonished the majority to temper its enthusiasm for “the legislative scene following the Civil War” given his suspicion that such laws, though facially neutral, “sought to suppress the ability of freedmen to own guns.”156 156.Young v. Hawaii, 992 F.3d 765, 839, 847 (9th Cir. 2021) (en banc) (O’Scannlain, J., dissenting).Show More His intuition was correct, but his critique—much like the majority opinion—lacked a key piece of evidence: the laws’ enforcement history. Without it, the majority brushed aside Judge O’Scannlain’s concerns and appointed the statutes it cited as serious evidence of Southerners’ appetite for gun control.

That was a mistake. As this Part reveals, contemporaneous evidence suggests that the Reconstruction and Jim Crow South enforced these laws “almost exclusively” against Blacks.157 157.Elections a Farce: The Republicans of South Carolina Issue a Strong Address to Congress, The Indianapolis Journal, Jan. 18, 1889, at 7.Show More That is perhaps unsurprising, given our background knowledge about that period in Southern history and the evidence of the laws’ racial motivations detailed in Part II.A. At the same time, though, it guts the Young majority’s view that racially disparate enforcement ceased after the Fourteenth Amendment’s ratification. Precisely because these laws were not equally applied to all citizens, singling out Black citizens instead, they may tell us something about a tool the postwar South used to preserve white supremacy. But they tell us almost nothing about a broad Southern consensus in favor of diluting the right to keep and bear arms.

A year after the Civil War’s end, for instance, the city of Norfolk, Virginia deployed a recently passed concealed-weapons law to disarm free Blacks. Indeed, “[u]nder a recent law of the city of Norfolk, . . . the police arrested a large number of negroes for carrying concealed weapons.”158 158.Miscellaneous News Items, Bedford Inquirer, Dec. 21, 1866, at 1.Show More The seizure was especially significant, since it was alleged “that a negro rising was planned for Christmas week[,] in which the authorities were to be overturned.”159 159.Id.Show More Later in 1904, Virginia authorities similarly suggested that they had defused a “race riot” with concealed-weapons arrests.160 160.Another Race Riot is Feared in Norfolk, The Evening Journal, Oct. 26, 1904, at 1.Show More Fearing an “outbreak by the blacks” after a lynching, authorities arrested “[m]any negroes” for weapons possession.161 161.Id.Show More These “culprits” were then “severely dealt with . . . under the Virginia law covering concealed weapons.”162 162.Id.Show More So, much like Virginia’s 1680 “negroes insurrections” law sought to suppress slave revolts with a racially explicit weapons ban, Virginia’s later, facially neutral laws were apparently thought to serve a similar purpose.163 163.Id.; see supranotes 61–65 and accompanying text.Show More

South Carolina, too, enforced its concealed-weapons law along racial lines. South Carolina Republican Ellery M. Brayton complained to the federal Congress in 1887 about how disparate enforcement infected the statute. “[T]he law against carrying concealed weapons,” he noted, “is enforced almost exclusively against negroes.”164 164.Elections a Farce: The Republicans of South Carolina Issue a Strong Address to Congress, The Indianapolis Journal, Jan. 18, 1889, at 7. Contemporary arrest records from South Carolina reflect the racial enforcement disparity. In 1905, for instance, one South Carolina court handled thirty-four concealed weapons arrests; thirty offenders were Black and just four were white. The Sinners’ Record: Annual Summary of Arrests—Charges, Convictions and Acquittals in Recorder’s Court, The Watchman and Southron, Feb. 1, 1905, at 1.Show More And even when the law was enforced against whites, their sentences vis-à-vis Black offenders were radically disparate. An 1883 periodical noted that two South Carolina offenders—one Black, one white—were both tried during the same term of court for the offense of carrying concealed weapons.165 165.Sentences of Court, The Anderson Intelligencer, Nov. 15, 1883 (quoting the Abbeville Press and Banner).Show More The white offender received the opportunity to pay a fine. But the Black offender got six months’ time at the penitentiary.166 166.Id.Show More How, the periodical wondered, could one possibly distinguish those cases?167 167.Id. After noting this race-based sentencing disparity, the original column in the Abbeville Press and Banner lamented, “Does not such discriminations [sic] against the brother in black offend our sense of justice?” Id. Yet when the same column was reprinted in The Anderson Intelligencer, the Intelligencer defended judges’ discretion to impose disparate sentences.Show More

The situation in South Carolina apparently did not improve with time. In 1891, a South Carolina judge recommended that “the law against carrying concealed weapons . . . be more rigidly enforced.”168 168.“The Easter Egg,” The Newberry Herald and News, Mar. 19, 1891, at 1.Show More The paper agreed: “[a]s it is the law is a dead letter, and only an occasional negro is brought to trial for the offense.”169 169.Id.Show More Another source, this time in 1893, also pointed out South Carolina’s enforcement disparity. Twelve Black inmates, it noted, languished “in the South Carolina penitentiary for the simple offense of carrying concealed weapons, a thing that about every white man in the state does.”170 170.Outrages on the Negro: Rev. Dr. Seaton Says that They Must be Stopped, What Prison Records Show, The Evening Star, Aug. 14, 1893, at 7.Show More But while whites did so freely, Black offenders faced hard labor in the convict-lease system.171 171.Id.Show More

Famed journalist and early civil-rights activist Ida B. Wells similarly criticized the South for its obvious enforcement hypocrisy regarding concealed weapons. In a 1900 address, she noted that “[t]here is a law in the south against carrying concealed weapons.”172 172.Ida B. Wells, Negro Lynching: Deprecated by Speakers and a Remedy Suggested, Topeka State Journal, Feb. 17, 1900, at 5. The Anti-Lynching Crusaders, Republican and Herald, Feb. 19, 1900, at 2.Show More “White men carry them with impunity,” she pointed out.173 173.Id.Show More “[B]ut if the negro is caught with a gun[,] he is fined $50 and put in the chain gang for 60 days.”174 174.Id.Show More She was incorrect only insofar as a mere 60 days’ imprisonment was apparently a light sentence for a Black offender.175 175.For instance, one 1893 survey of the rolls of a South Carolina penitentiary revealed that twelve Black prisoners were serving ten-year sentences “for the simple offense of carrying concealed weapons.” Outrages on the Negro: Rev. Dr. Seaton Says that They Must be Stopped, What Prison Records Show, The Evening Star, Aug. 14, 1893, at 7. The prisoners had been given such lengthy sentences, the source suggested, so that they could be impressed into the “lease system of convict labor” then prevalent in the South. Id.Show More

Much like Wells, periodicals across the South noted the enforcement disparity between white “Southern gentlemen” and Black offenders. As the Houston Daily Post remarked in 1902, “[t]here is one law for the ‘n——r and the Chinaman’ who tote pistols . . . and there is another law for the gentleman who arms himself[.]”176 176.The Gentleman Outlaw, Houston Daily Post, Aug., 14, 1902, at 4 (racial slur censored).Show More In other words, minorities risked severe punishment if caught with weapons. Yet “[g]entlemen of high social and commercial standing” could “walk the streets or ride the roads” while armed without question.177 177.Id.Show More Similarly, a South Carolina paper noted in 1911 that while “[t]here are laws upon the statute books against the carrying of concealed weapons, and occasionally some insignificent ‘n——r’ is haled before the courts and fined . . . but it is very rare that a white man is made to pay the penalty.”178 178.The People Alone Responsible, The Manning Times, Nov. 1, 1911, at 8 (racial slur censored).Show More A Missouri periodical, too, noted in 1903 that both Blacks and whites often carried concealed weapons. But it was Black offenders, not whites, that police made the enforcement priority. Indeed, East St. Louis had begun a “roundup of [the] lawless negro class” with “concealed weapons in their possession.”179 179.Police Start on Roundup of Lawless Negro Class, The Republic, May 11, 1903, at 5.Show More Believing that most crimes were “committed by negroes” whose concealed weapons “enabl[ed them] to commit crime quicker,” the police had arrested “a score of negroes” in recent days.180 180.Id.Show More And in Kentucky, too, there was one law for the white “gentleman” but another for the Black offender. As one writer noted in 1908, “[w]hen old Kentucky tries to convict a white lawbreaker[,] she has an awful job.”181 181.Public Ledger, October 15, 1908, at 2.Show More When a white lawyer shot at someone else, for example, “[h]e got off with a light fine for the offense.”182 182.Id.Show More “[A]nd a jury refused to fine him for carrying a pistol.”183 183.Id.Show More But “a N——r,” he noted, “would have been given the limit in half an hour.”184 184.Id. (racial slur censored).Show More

Likewise, South Carolina openly celebrated the use of its weapon laws to disarm Black citizens. In 1911, two South Carolina periodicals commended the efforts of a particular magistrate, William M. Dorroh, to seize Blacks’ firearms. The Herald and News noted that Magistrate Dorroh had “achieved State-wide mention for his fine record in disarming negroes of their concealed weapons.”185 185.Various and All About, The Herald and News, Aug. 29, 1911, at 8.Show More And The Yorkville Enquirer, too, praised Dorroh for his “fine record in the enforcement of the concealed weapons law since he has been in office.”186 186.South Carolina News, The Yorkville Enquirer, July 7, 1911, at 2.Show More But it was a “fine record” precisely because it was so biased against Blacks.187 187.Id.Show More “Thirty-eight is the number of pistols he has taken from negroes in sixty days,” the Enquirer observed.188 188.Id.Show More While it was “a large number of pistols secured at a good rate per day,” even still, “it would take Magistrate Dorroh a considerable time to disarm all the negroes” in his township.189 189.Id.Show More In the meantime, though, “he [was] being generally commended for his efforts.”190 190.Id.Show More

Perhaps a final quotation in the Atlanta Constitution, from a column penned in 1910, best captures the themes we have developed in this Part: “It has not as yet been shown that the Afro-American is more addicted to the habit of pistol-toting than his white brother, but it is evident that he is much more liable to arrest. For centuries, all over the world, it has been regarded as the prerogative of a gentleman to carry arms and a Southern gentleman knows that, in such case, no peace officer is apt to interfere with him. Indeed, one of the class, when challenged for violating the law against carrying concealed weapons remarked, very truthfully, ‘That law was made for n——rs.’”191 191.The Pistol-Toters, The Appeal, July 2, 1910, at 2 (racial slur censored).Show More

III. Why The Racially Biased Origins of Southern Gun Control Uniquely Matter After Ramos

While Part II dealt largely in original research, scholars have long made the broader point that gun control in the United States has racist origins. What has been less clear, though, is why those origins matter today. Some who support a narrow view of the Second Amendment appear to understand these laws’ biased origins yet draw no broader implications from that fact.192 192.See Spitzer, supra note 22, at 78–79.Show More Others have sought to dismiss the relevance of past racism to the present dialogue.193 193.See Frassetto, supra note 22 at 95–97 (arguing that, in Texas, it was pro-freedman, pro-civil-rights Radical Republicans who supported restrictions on the right to carry firearms).Show More In response, we argue that scholars must grapple with gun control’s racist origins—origins that “uniquely matter” since they continue to burden constitutional rights.194 194.Ramos v. Louisiana, 140 S. Ct. 1390, 1408 (2020) (Sotomayor, J., concurring); see alsoBrief of Italo-American Jurists and Attorneys, as Amici Curiae Supporting Petitioners, New York State Rifle & Pistol Association Inc. v. Corlett (No. 20-843) (arguing that the Court in Corlett should consider New York’s restrictive gun law in light of historical evidence reflecting the state’s efforts to single out and disarm Italians).Show More Indeed, the Supreme Court’s recent decision in Ramos v. Louisiana obliges them to do so.

In Ramos, the Court considered the validity of two state statutes—one from Oregon; the other from Louisiana—that permitted conviction by non-unanimous juries in felony trials.195 195.Ramos, 140 S. Ct. at 1394.Show More While non-unanimity would cause a mistrial anywhere else, in these states, it could support a sentence of life without parole. In a majority opinion by Justice Gorsuch, the Court noted as an initial matter that both states’ laws were “facially race-neutral.”196 196.Id.Show More Nothing about the allowance of a 10-to-2 verdict inherently suggested invidious discrimination. And the reasons for these states’ modern adherence to the non-unanimity rule seemed obscure.

Upon further reflection, though, the Court explained that the “origins” of those laws “are clear.”197 197.Id. (emphasis added).Show More “Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898,” where all the talk had concerned preserving “the supremacy of the white race.”198 198.Id.Show More Its delegates were well-aware that “overt discrimination against African-American jurors [would] violat[e] the Fourteenth Amendment.”199 199.Id.Show More So, instead, they adopted a facially neutral rule that permitted non-unanimous verdicts. But the real point was “to ensure that African-American juror service would be meaningless.”200 200.Id.Show More Even when a Black person managed to get on the jury, his vote could be overridden by his white peers. Oregon’s rule, too, could “be similarly traced to the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’”201 201.Id.Show More None of Ramos’s litigants even disputed those points, and courts in both states had “frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.”202 202.Id.Show More

So what? Previous parties, amici, and scholars had all urged the Court to treat certain other laws and precedents as “tainted” or “poisoned” for their infection with bias or bigotry.203 203.See, e.g., Charles L. Barzun, Impeaching Precedent, 80 U. Chi. L. Rev. 1625, 1626–30 (2013) (detailing such attempts).Show More But the Court had demurred on those past occasions. Such “extralegal” concerns, as Chief Justice Rehnquist once called them, were “not the usual stuff of Supreme Court debate,” and considering them would be a “disservice to the Court’s traditional method of adjudication.”204 204.Id. (quoting John C. Jeffries & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 280 (2001); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 68–69 (1996)).Show More

It was surprising, then, that the Ramos Court seemed to place such import on “the racist origins of Louisiana’s and Oregon’s laws.”205 205.Ramos, 140 S. Ct. at 1405.Show More And it did so despite these states arguably having “purged” the laws’ earlier taint through subsequent reenactments. Indeed, the majority explained that given the laws’ modern implications for a fundamental right, it could not leave “an uncomfortable past unexamined.”206 206.Id. at 1401 n.44.Show More The majority’s tactic also engendered two concurrences that further endorsed its analytical move. Justice Kavanaugh was left wondering why the Court should sanction a law “that is thoroughly racist in its origins,”207 207.Id. at 1419 (Kavanaugh, J., concurring in part).Show More while Justice Sotomayor believed that “the racially biased origins of the Louisiana and Oregon laws uniquely matter here.”208 208.Id.at 1408 (Sotomayor, J., concurring in part).Show More

Scholars noticed the import of Ramos’s novel approach soon after. “It is not often that the Supreme Court ratifies an entirely new form of judicial argument,” noted Professor Charles Barzun.209 209.Charles Barzun, The Constitution and Genealogy, Balkinization (July 6, 2020), https://balkin.blogspot.com/2020/07/the-constitution-and-genealogy.html. [https://perma.cc/EH4M-B3TZ].Show More “But that may be what happened this past term.”210 210.Id.Show More The Ramos Court had elevated laws’ genealogy from an anti-modality to a new and apparently “legitimate modality.”211 211.Id.; see alsoBarzun, supra note 203, at 1631 (“My claim, in short, is that the effort to historicize or impeach a past decision is a legitimate and potentially useful means of evaluating a decision’s authority as a matter of precedent.”).Show More Still, Professor Barzun struggled to explain precisely why the Court thought genealogy relevant. Though laws may be invalid if conceived with animus, Oregon’s and Louisiana’s later reenactments seemed to have purged it. And genealogical arguments may often be logically fallacious. Indeed, logicians call it the “genetic fallacy” to “assume[ ] that a statement, position, or idea must be flawed” simply because its source happens to be flawed.212 212.Jacob E. Van Vleet, Informal Logical Fallacies 19 (2011).Show More

We think, though, that Ramos was not flawed or fallacious or, as the dissent charged, dealing in “ad hominem rhetoric.”213 213.140 S. Ct. at 1426 (Alito, J., dissenting). Justice Alito, joined by Chief Justice Roberts and Justice Kagan, argued that the tainted “origins of the Louisiana and Oregon rules have no bearing on the broad constitutional question that the Court decides.” Id. But having “lost” in Ramos, Justice Alito switched gears two months later when the Court in Espinoza considered whether the Montana Supreme Court had violated the Free Exercise Clause when it applied the “no-aid provision” of the Montana Constitution to bar religious schools from benefiting from a state program that provided tuition assistance. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2268 (2020) (Alito, J., concurring). In his concurring opinion, Justice Alito argued that Ramos established that the Court may examine the motivation behind the passage of a statute or a state constitutional provision to smoke out illicit bigotry. Justice Alito, quoting Ramos, concluded that Montana’s no-aid provision remained “‘[t]ethered’ to its original ‘bias”’ against Catholics because the state had not “‘actually confront[ed]’ the provision’s ‘tawdry past in reenacting it.”’ Id. at 2274 (quoting 140 S. Ct. at 1410) (Sotomayor, J., concurring in part). Combining the opinions of Ramos and of Espinoza, six Justices—all but Justices Kagan and Barrett and Chief Justice Roberts—have endorsed and applied the genealogical taint principle.Show More Rather, it told us something important about how future courts and scholars should approach historical analysis and, ultimately, originalism. As many scholars have persuasively argued, we can think of constitutional exegesis as having a pair of key stages: interpretation and then construction.214 214.Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 65–66 (2011); Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 455–56 (2013).Show More When we interpret a text, we seek to discover its communicative content—what the words meant at the time of their ratification.215 215.Solum, supra note 214, at 457.Show More When we then construe the text, we determine what legal effect we should give to that meaning.216 216.Id.Show More The clearer the text, the smaller the “construction zone.” But sometimes constitutional provisions are “general, abstract, [or] vague,” so we must resort to other heuristics of meaning when applying them “to concrete constitutional cases.”217 217.Id. at 458.Show More

One of those heuristics of meaning, of course, is historical practice.218 218.We are primarily referring here to liquidation. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 1961); see also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 11–12 (2001); William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More To discern how fundamental a right really is, we might look to how people in the past viewed the right—how they exercised it and which restrictions upon it they tolerated or endorsed. But Ramos gives us a critical caveat about how we should conduct this historical research. When assessing a past restriction’s probative weight on the true scope of a constitutional guarantee, we cannot simply ignore past actors’ illegitimate and ulterior motives in enacting such restrictions. Rather, illegitimate motives tell us that past actors restricted a right not necessarily because they considered it trivial, but because they thought their impermissible motive—for instance, preservation of white supremacy—the greater priority. So ignoring historical motives (and, perhaps even more important, historical enforcement patterns) might lead us to wrongly over-value certain historical evidence in a modern constitutional calculus. Translated to the controversy before the Court in Ramos itself, concluding that historical actors did not consider jury unanimity an important right because of their longstanding decision to permit nonunanimity would be a mistake. Rather, the impermissible motives behind that historical practice gutted those restrictions’ probative weight in assessing how broad or fundamental was the burdened right.

With that context in mind, understanding Ramos’s import for the Second Amendment becomes simple. When courts—and, later this term, the Supreme Court—assess the scope of the “bear” right, they may consider historical practice relevant in that assessment. But that does not involve simply looking at old laws written on a page. Judges instead must grapple with those laws’ historical motivations and enforcement patterns. And to the extent that such analysis reveals impermissible motives and disparate enforcement, judges must discount the probative weight of that evidence accordingly. In other words, Ramos tells us that it is illegitimate to conclude that the modern “bear” right is susceptible to copious restrictions because racist Southern authorities restricted Black citizens’ past exercise of that right. Such evidence may be powerfully probative of historical racism, but its probative weight regarding history’s true verdict on the scope of the Second Amendment should be considered slim. Otherwise, courts risk laundering past racist restrictions to validate modern burdens on constitutional rights.

Conclusion

On May 10, 1865, Frederick Douglass delivered an address in New York City that advocated for a constitutional amendment to make guarantees in the Bill of Rights directly applicable to the states.219 219.“In What New Skin Will the Old Snake Come Forth?: An Address Delivered in New York, New York, on 10 May 10, 1865,” reprinted in 4 The Frederick Douglass Papers 79, 83–84 (John W. Blassingame & John R. McKivigan eds., 1991).Show More Without one, he said, state legislatures could “take from [free Blacks] the right to keep and bear arms . . . [n]otwithstanding the provision in the Constitution of the United States.”220 220.Id.Show More As we now know, the nation responded by ratifying the Fourteenth Amendment. Ironically, New York today seeks to defend its “proper cause” requirement by invoking old laws of just the sort that Douglass decried. Its brief in opposition to certiorari in NYSRPA II, for instance, cited Kachalsky twenty-nine times and advanced multiple Southern gun-control statutes to argue that history supports continued restrictions on public carry.221 221.Brief of Respondents at iii, v–vi, N.Y. State Rifle & Pistol Ass’n v. Corlett, 20-843 (2021), 2021 WL 723110 (citing Kachalsky and several Southern gun-control statutes).Show More Apparently, that historical evidence did not dissuade the Court from taking up the case. Nor, when it turns to the merits, should the Court reinvigorate tainted artifacts of a bygone era to burden constitutional rights in the modern one.

  1.  

Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police

Throughout the thirty years between the televised beating of Rodney King and the videotaped murder of George Floyd, recordings of police misconduct have given a face to the perpetrators and victims of police brutality. Given the accessibility of these recordings today over social media, anyone with a smartphone can demand the nation’s attention on one of racial discrimination’s cruelest manifestations.

In spite of their utility to social movements, though, recordings of the police have occupied a legally nebulous space. Federal courts have consistently affirmed the First Amendment’s protection of individuals’ rights to publicly record the police, but they have been unclear as to whether that protection extends to secret recordings. Federal and state wiretap laws can be interpreted to make secret recordings unlawful, and courts have—until late—largely avoided deciding the question.

In December 2020, however, the First Circuit expressly held that individuals have a right to secretly record the police. Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020). In its decision, the court affirmed the value of surreptitious recordings and found that the state’s ban on producing such recordings violates individuals’ First Amendment rights. This case comment argues that courts across the country should follow the First Circuit’s model. We maintain that the production of secret recordings serves a critical First Amendment interest by providing social movements with a means to shed light on misconduct and hold power to account. Moreover, we contend that the established constitutionality of surreptitious recordings lends certainty, and therefore protection, to would-be recorders that is unavailable through other alternatives. Finally, we posit that the conventional rationales for circumscribing the right to record the police—such as preserving individuals’ right to privacy and securing public safety—cannot justify a constitutionally meaningful distinction between secret and open recordings, as the First Circuit has affirmed.

Introduction

On May 25, 2020, Darnella Frazier did an ordinary thing of extraordinary consequence—she pressed “record.”1 1.Joshua Nevett, George Floyd: The Personal Cost of Filming Police Brutality, BBC News (June 11, 2020), https://www.bbc.com/news/world-us-canada-52942519 [https://perma.cc/‌VC7P-C3RU].Show More Her video recording of George Floyd’s murder spread like wildfire across news and social media platforms, inspiring longstanding activists and newcomers alike to speak out against racial discrimination and police brutality.2 2.Audra D. S. Burch & John Eligon, Bystander Videos of George Floyd and Others Are Policing the Police, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2020/05/26/us/‌george-floyd-minneapolis-police.html [https://perma.cc/4G2N-DVA5]. See also Eliot C. McLaughlin, How George Floyd’s Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down, CNN (Aug. 9, 2020), https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html [https://perma.cc/D7UC-Y6AR] (highlighting that the protests following George Floyd’s death were unique in that they saw an influx of “myriad White faces”).Show More One study estimates that the June protests brought out as many as 26 million people to the streets, exceeding the crowds of any other single social movement in American history.3 3.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Social Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/‌interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/6XAT-9MJE]. The 2017 Women’s March previously held this title, which saw crowds of 3 to 5 million in marches nationwide. Id.; McLaughlin, supranote 2.Show More By leveraging the ubiquity of smart phones and the broad reach of social media networks, Darnella Frazier reaffirmed that civilian bystanders like her can play a pivotal role in the public square and shine a light on police misconduct that might otherwise go unnoticed. She showed that, to paraphrase Scott Gant, we can all be journalists now.4 4.Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age 6 (2007).Show More

The scope of one’s right to record the police, however, has remained somewhat unclear in federal courts. Recent developments in case law have emphasized the important First Amendment interests inherent to the production of these recordings. Federal appellate courts across the country have consistently recognized the existence of a valid First Amendment right in recording the police in public spaces.5 5.See Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–600, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).Show More However, these decisions have not defined the scope of this right, particularly so in the context of secret recordings. Some have argued that the secret recording of police officers violates state wiretap statutes and that those responsible should be criminally sanctioned.6 6.SeeProject Veritas Action Fund v. Rollins, 982 F.3d 813, 819–20 (1st Cir. 2020).Show More While this theory has yet to be widely considered by federal courts, there is reason to believe they may find it persuasive.7 7.See, e.g., Alvarez, 679 F.3d at 606–07, 607 n.13 (“The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”).Show More

In December 2020, however, the First Circuit concluded in Project Veritas Action Fund v. Rollins that a state may not explicitly proscribe surreptitious recordings of the police in public spaces without violating the First Amendment.8 8.982 F.3d at 833.Show More The case concerned a Massachusetts statute9 9.Mass. Gen. Laws ch. 272, § 99 (2018) (‘‘Section 99’’).Show More that prohibits the secret recording of interactions between civilians and public officials.10 10.Project Veritas, a far-right non-profit organization whose methods have sparked controversy, brought a separate challenge to Section 99 that, on appeal, was consolidated with K. Eric Martin and Rene Perez’s suit against the Suffolk County District Attorney. Martin and Perez are unaffiliated with Project Veritas. Project Veritas went beyond Martin and Perez’s requested remedy by seeking to enjoin the enforcement of this statute against the secret recording of any public official. Given the broader nature of this claim, this essay will not contest whether or not the rationales justifying the court’s decision in this case should be applied to cover all such figures. However, it is worth noting that the First Circuit rejected Project Veritas’s broader argument on the grounds that it was unripe. See Project Veritas, 982 F.3d at 817.Show More The plaintiffs were civil rights activists who wished to secretly record police-civilian interactions and promote accountability for misconduct.11 11.Brief for Plaintiff-Appellees at 1–2, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).Show More While both had previously openly recorded the police in the past, they had faced violent reprisals for doing so, and, consequently, argued that their personal safety required their future recordings be made secretly.12 12.Id. at 9–11.Show More Such fears are often warranted; individuals across the country—such as Andre James,13 13.Gary Man Arrested for Recording Police Officer, Now Considering Legal Action, NBC Chicago (Aug. 9, 2020), https://www.nbcchicago.com/news/local/gary-man-arrested-for-recording-police-officer-now-considering-legal-action/2319456/ [https://perma.cc/CB8J-7YBK].Show More Peter Ballance,14 14.Ray Sanchez, Growing Number of Prosecutions for Videotaping the Police, ABC News (July 16, 2010), https://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=‌11179076 [https://perma.cc/E3NH-N6HJ].Show More Joe Bennett,15 15.Mayor: 3 Charged in Fraudulent Check Scheme; Internal Investigation Launched After Cops Scuffle with Man Videotaping Scene, WHAS-TV (Nov. 29, 2020), https://www.whas11.com/article/news/crime/jeffersontown-officers-arrest-man-videotaping-kentucky-investigation-3-charged-check-fraud/417-a32470a8-5810-4b5e-a095-4e1105c3d331 [https://perma.cc/BJS5-L85D].Show More Sharron Tasha Ford,16 16.Press Release, ACLU, ACLU Sues After Mother Falsely Arrested by Boynton Beach Police Officers (June 25, 2010), https://www.aclu.org/press-releases/aclu-sues-after-mother-falsely-arrested-boynton-beach-police-officers [https://perma.cc/9HU9-LB2K].Show More Gregory Rizer,17 17.Press Release, ACLU Pa., Lawsuit on Behalf of Man Arrested for Recording Police Officer Settles (Oct. 9, 2013), https://www.aclupa.org/en/press-releases/lawsuit-behalf-man-arrested-recording-police-officer-settles [https://perma.cc/7DWJ-545F].Show More and Alfredo Valentin18 18.Man Arrested for Recording Police Awarded $275,000, CBS Sacramento (Nov. 29, 2017), https://sacramento.cbslocal.com/2017/11/29/man-arrested-for-recording-police-awarded-275000/ [https://perma.cc/8YNP-3SV5].Show More—have faced physical and legal reprisals following their recording of the police.

Given the critical nature of this right, we argue that the First Circuit’s holding in Project Veritas should be adopted nationally, both in the context of express prohibitions on secret recordings and its broader application to state wiretap statutes. While the Massachusetts law is unique in that it expressly prohibits secret recordings,19 19.Mass. Gen. Laws ch. 272, § 99(C)(1) (2018).Show More other wiretap statutes across the country do so implicitly.20 20.See infraPart I.A.Show More Under federal and state law, individuals cannot legally record an interaction without the consent of at least one party, so long as the relevant party can legitimately claim a reasonable expectation of privacy in that interaction.21 21.See id.Show More In the context of police-citizen encounters, then, these wiretap statutes imply that bystanders have no legal right to surreptitiously document the public activity of law enforcement without first making their intention to record known. We contend, as the First Circuit affirmed in Project Veritas, that such blanket prohibitions are unconstitutional when applied to surreptitious recordings of police activity.

In this piece, we argue that the First Circuit’s decision is sound, that an individual’s right to secretly record the police in public spaces is protected by the First Amendment, and thus any laws outlawing this activity are unconstitutional as applied. The First Amendment protects the rights of individuals in the United States to record and report matters of interest to the public.22 22.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281–83 (1964).Show More We argue here that such a right must extend to bystander secret recordings too. This is a novel claim: Scholars have argued in favor of granting First Amendment protection to public23 23.SeeMargot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 170–71 (2017); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 339 (2011); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 997–99 (2016); Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 442 (2016); Elizabeth J. Frawley, Note, No Calling Cut: The Political Right to Record Police, 17 U. Pa. J. Const. L. 287, 298 (2014).Show More and secret24 24.See Timothy D. Rodden Jr., Note, Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters, 47 Suffolk U. L. Rev. 905, 926–27 (2014); Taylor Robertson, Note, Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen’s Right to Record the Police in Public, 23 B.U. Pub. Int. L.J. 117, 137–39 (2014).Show More recordings of the police, and against the application of wiretap statutes to recordings from a policy perspective,25 25.See Mary D. Fan, Democratizing Proof: Pooling Public and Police Body-Camera Videos, 96 N.C. L. Rev. 1639, 1667–68 (2018); Rebecca G. Van Tassell, Comment, Walking a Thin Blue Line: Balancing the Citizen’s Right to Record Police Officers Against Officer Privacy, 2013 BYU L. Rev. 183, 184 (2013); Mark Brncik, Note, A Case for Non-Enforcement of Anti-Recording Laws Against Citizen Recorders, 62 Case W. Rsrv. L. Rev. 485, 515 (2011); Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1011 (2009).Show More but there has not yet been engagement with how the First Circuit’s opinion advances these arguments. We argue that laws implicitly or explicitly prohibiting the secret recording of law enforcement are unconstitutional as-applied, and that the assertions of privacy interests made by those depicted in the recordings, earnest though they may be, cannot justify imposing sanctions on those who seek to illuminate wrongful conduct that could otherwise go without rebuke.

Secret recordings of police misconduct are particularly consequential because, by recording the behavior of police officers in the line of duty without their knowledge, the broader public can gain access to and awareness of conduct that would otherwise go without scrutiny. With the information depicted in these recordings, we as a society can examine potential instances of misconduct and create a mechanism for accountability.26 26.The increased prevalence of citizen recordings shifts the balance of power between police officers and the communities they serve. See Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J. 1559, 1568 (2016) (arguing that changing the video’s perspective transfers power and serves a valuable social purpose).Show More The documentation and public dissemination of evidence of police misconduct by bystanders will enable the public to fully reckon with the harms propagated by those in power and work to hold them to account in ways that extant checks on police misconduct do not.27 27.See, e.g., Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers’ Power, 117 Yale L.J. 1549, 1553–55 (2008) (arguing that citizen recording supplements existing checks against law enforcement abuses, such as the exclusionary rule and Section 1983 actions); Simonson, supra note 23,at 407–21 (explaining how copwatching can serve as a form of deterrence to, data collection of, and constitutional engagement with police misconduct).Show More

In Part I, we provide an overview of the Project Veritas decision and examine the current state of the law regarding a civilian’s right to record the public conduct of police officers. We then, in Part II, explain how the First Amendment interests underpinning a right to openly record should extend to cover the production of secret recordings and contend with opposing views, before briefly concluding.

I. The Right to Record

In Project Veritas Action Fund v. Rollins, the First Circuit reviewed a pre-enforcement action brought by plaintiffs K. Eric Martin and Rene Perez.28 28.982 F.3d 813, 817, 820 (1st Cir. 2020), aff’gMartin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).Show More the First Circuit reviewed a pre-enforcement action brought by plaintiffs K. Eric Martin and Rene Perez. They had initiated this challenge under Section 1983 to enjoin the Commissioner of the Boston Police and the District Attorney for Suffolk County from enforcing “Section 99,” a Massachusetts statute that prohibits the secret recording of interactions between civilians and public officials.29 29.Mass. Gen. Laws ch. 272, § 99 (2018); Project Veritas, 982 F.3d at 817, 820.Show More The plaintiffs were civil rights activists who had secretly recorded—and wished to continue secretly recording—police-civilian interactions as a mechanism for accountability.30 30.Project Veritas, 982 F.3d at 820. Though they could not predict for the court the particular moments at which they would need to make such recordings, the plaintiffs argued that their prior experience in openly recording police officers suggested that such moments would certainly occur. Brief for Plaintiff-Appellees at 9, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).Show More However, given the history of active of enforcement of Section 99, Martin and Perez felt they had no safe, legal avenue forward.31 31.Project Veritas, 982 F.3d at 820.Show More

Though brought in a pre-enforcement action, the issue, according to the First Circuit, required no further factual development to address the plaintiffs’ claim on the merits.32 32.Id. at 828–29. It was not necessary for the court’s review that the plaintiffs specify the particular circumstances in which they would produce future secret recording, as their challenge was limited to the production of secret recordings in public spaces, a phrase the First Circuit had itself previously used to “describe the geographic bounds of the citizen’s right to record police officers.” Id.at 827 (citing Glik v. Cunniffe, 655 F.3d 78, 84–85 (1st Cir. 2011); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014)).Show More Further, the court asserted that the statute’s recent history of enforcement could credibly create a fear of future prosecution in the absence of judicial intervention, and, therefore, was ripe for review.33 33.Id. at 829–30.Show More The court then found for the plaintiffs on the merits, concluding a statute that prohibits the surreptitious recording of police officers’ conduct in public spaces could not comply with the First Amendment.34 34.Id. at 830–31, 836.Show More While this decision was limited to the particular statute at issue, we argue its implications should inform courts across the country of the impermissible application of wiretap statutes against surreptitious citizen recordings of the police.

A. Background on Federal and State Wiretap Laws

In the United States, individuals generally cannot legally record a conversation without the consent of at least one party involved, when those parties have a reasonable expectation of privacy in the interaction. Federal law dictates that a recording is legal only so long as one of the individuals involved in the conversation or encounter agrees to be recorded; in other words, one party must consent to being recorded.35 35.18 U.S.C. § 2511(2)(d) (2018).Show More State laws differ as to which parties must consent in order for a recording to be legal; while most have adopted similar one-party consent laws,36 36.See, e.g., Kan. Stat. Ann. § 21-6101(a)(1) (2019).Show More a minority of states are two-party consent jurisdictions, meaning the permission of both parties is required to record.37 37.Cal. Penal Code § 632 (West 2017); Del. Code Ann. tit. 11, § 1335(a)(4) (2017); Fla. Stat. § 934.03(2)(d) (2019); Haw. Rev. Stat. Ann. § 711-1111(1)(d)–(e) (LexisNexis 2016); Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019); Mich. Comp. Laws § 750.539c–d (2016); Mont. Code Ann. § 45-8-213(1)(c) (2019); N.H. Rev. Stat. Ann. § 570-A:2(I) (2017); 18 Pa. Cons. Stat. Ann. § 5704(4) (West 2020); Wash. Rev. Code § 9.73.030(1) (2019). In 2014, the Illinois Supreme Court held the state’s two-party consent statute was unconstitutional as written, as it banned the recording of conversations or situations when the parties had no reasonable expectation of privacy, thus violating the First Amendment. People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014).Show More

Of note, the legislative history of these statutes suggests that they were designed, broadly speaking, with two goals in mind: First, to provide law enforcement officials with a clearly lawful means to conduct wiretaps, often with the aim of facilitating the prosecution of organized crime, and second, to protect the privacy of citizens from the overreach of electronic surveillance.38 38.Brncik, supranote 25, at 492–93.Show More

Massachusetts state law goes further and explicitly prohibits the secret recording of non-consenting parties. Their wiretapping statute bans “the secret use of [modern electronic surveillance devices] by private individuals,” as the legislature worried their proliferation and use had placed the privacy of citizens in danger.39 39.Mass. Gen. Laws ch. 272, § 99(A) (2018) (“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.”). Notably, a recording is secret, according to the Supreme Judicial Court of Massachusetts, when it is made without the actual knowledge of the depicted subject, though that finding may be established by “unequivocal objective manifestations of knowledge.” Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976).Show More As interpreted by the Supreme Judicial Court of Massachusetts, a recording was made secretly if the recorded subject had no “actual knowledge of the recording,” though such knowledge may also be shown through “clear and unequivocal objective manifestations.”40 40.Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). See also Commonwealth v. Hyde, 750 N.E.2d 963, 968 (Mass. 2001) (reaffirming this interpretation).Show More In practice, though, this statute also prevents bystanders from secretly recording what they perceive to be police misconduct in public spaces. In 2007, activist Peter Lowney was found in violation of this statute for recording an on-duty Boston University police sergeant during a protest.41 41.Sam Bayard, Massachusetts Wiretapping Law Strikes Again, Digit. Media L. Project (Dec. 12, 2007), http://www.dmlp.org/blog/2007/massachusetts-wiretapping-law-strikes-again [https://perma.cc/ADJ9-ZZ9Q].Show More When ordered by the police to stop filming, Lowney returned the device to his pocket but did not stop recording.42 42.Id.Show More He was convicted under the statute and received a suspended sentence of up to two years in jail, a $500 fine, and was made to remove the relevant video from the internet.43 43.Daily Free Press Admin, BU Protester Fined, Could Face Jail Time, Daily Free Press (Dec. 6, 2007), https://dailyfreepress.com/2007/12/06/bu-protester-fined-could-face-jail-time/ [https://perma.cc/MG7H-4H5X].Show More

Over recent years, the use of these state wiretap laws to penalize recordings of police-civilian interactions has been challenged repeatedly in federal court, most often when such recordings were made openly.44 44.See supra note 5.Show More Each federal court of appeal facing the issue has held the application of these statutes to public (i.e. non-secret) recording of police-citizen interactions is unconstitutional as a violation of the First Amendment.45 45.Id.Show More Since the First Amendment protects expressive activity, it also must protect the activity required to produce or create such expression.46 46.See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Fields v. City of Philadelphia, 862 F.3d 353, 358–59 (3d Cir. 2017) (affirming that the First Amendment protects the act of “capturing inputs that may yield expression”) (quoting Brief for the Cato Institute as Amicus Curiae at 7); Kreimer, supra note 23, at 408–09 (concluding that given how, in public spaces, “pervasive image capture grants authority to a range of unofficial voices . . . [and] provides a means of holding the conduct of the powerful to account,” it must be that “the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories”).Show More The Department of Justice has also affirmed that citizens must have at least some right to record the police, as “[t]he First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”47 47.Statement of Interest of the United States at 4, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888, 2012 WL 9512053 (D. Md. filed Jan. 10, 2012); see also Justin Fenton, DOJ Urges Judge to Side with Plaintiff in Baltimore Police Taping Case, Balt. Sun (Jan. 11, 2012), https://www.baltimoresun.com/news/bs-xpm-2012-01-11-bs-md-ci-aclu-doj-videotaping-20120111-story.html [https://perma.cc/7XVA-W4SW ] (describing the case).Show More And notably, the courts have affirmed that this right cannot be limited to news reporters, but must also extend to recordings made by private individuals.48 48.Glik, 655 F.3d at 83–84 (“[T]he public’s right of access to information is coextensive with that of the press.”).Show More

This should not come as a surprise. Longstanding Supreme Court precedent has recognized the existence of a First Amendment interest in criticizing public officials,49 49.See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).Show More and in particular, police officers.50 50.City of Houston v. Hill, 482 U.S. 451, 460–62, 467 (1987) (invalidating a city ordinance which made it illegal to interrupt an officer in the performance of his duties).Show More A necessary prerequisite to such expression is the gathering of information about these public officials “from any source by means within the law,”51 51.Glik, 655 F.3d at 82 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)).Show More which has been construed broadly enough to include audio and video recordings.52 52.SeeFirst Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (emphasizing that First Amendment protections go “beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw”).Show More Such action helps to facilitate “the free discussion of governmental affairs,”53 53.Glik, 655 F.3d at 82(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).Show More uncover governmental abuse,54 54.Id.Show More and generally improve the government’s functioning.55 55.Id. at 83(quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)).Show More

Further, while such forms of newsgathering criticism often emerge spontaneously, they also take organized forms. For example, Professor Jocelyn Simonson has highlighted the fifty-year history of “copwatching,” a civic practice in which “organized groups of local residents . . . patrol their neighborhoods, monitor police conduct, and create videos of what they see.”56 56.Simonson, supranote 23, at 408.Show More She argues that copwatching is a form of constitutional engagement, as it enables local neighborhoods to “challeng[e] the control that courts and police officers have in determining what is ‘reasonable’ or ‘suspicious’ with regard to the Fourth Amendment,” and to demand that law enforcement respect the dignity of those they encounter.57 57.Id. at 421.Show More

This right to record, though, is not without limit. Some scholars and advocates argue that countervailing factors—such as the privacy interests of the police officers and civilians depicted in the recordings—justify secret recordings’ restriction.58 58.See, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 611 (7th Cir. 2012) (Posner, J., dissenting).Show More Courts have long held that a person does not entirely forfeit their privacy when entering public spaces.59 59.See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (clarifying that “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable” as an invasion of one’s right to privacy).Show More In fact, as Professor Margot Kaminski has explained, statutes that regulate recording protect legitimate privacy interests, since that which an individual does not reveal to the recorder is meant to remain private and should be protected against another’s intrusions.60 60.Kaminski, supra note 23, at 171. It should be noted, though, that privacy is a notoriously difficult value to characterize, and it often depends upon the context in which it is claimed. See Daniel J. Solove, Understanding Privacy 101–70 (2008) (proposing a taxonomy of privacy interests); Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904, 1907–08 (2013) (arguing that attempts to define privacy as deriving a single overarching principle are inevitably unworkable).Show More Professor Kaminski further asserts that the distribution of such recordings—such as the posting of video and audio recordings of police misconduct on social media—implicate a second, distinct privacy interest in preserving one’s dignity from harm.61 61.Kaminski, supra note 23, at 202–03. But cf. Kreimer, supra note 23, at 404 (arguing that the primary privacy harm of recording is in its public dissemination).Show More

Police officers, however, cannot claim to have as robust expectations of privacy when acting as public officials as they might when off-duty.62 62.See, e.g.,Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (“[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance.”).Show More Some courts have emphasized that police officers shed any expectation of privacy when they act in public spaces, particularly if the conduct at issue is easily observable by members of the public.63 63.See e.g., State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992) (“The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.”).Show More Other courts have focused on the prominent and important nature of the police officer’s position in the community to determine that they cannot expect the same kind of privacy when on-duty as a private citizen might otherwise claim.64 64.See, e.g., Rotkiewicz v. Sadowsky, 730 N.E. 2d 282, 287 (Mass. 2000) (finding that a police officer is a public official for purposes of defamation claims because of “the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers[’] high visibility within and impact on a community.”).Show More Moreover, the Supreme Court has made clear that an individual can claim no protection under the Fourth Amendment for information consensually disclosed to a police officer.65 65.See Lopez v. United States, 373 U.S. 427, 437–39 (1963).Show More

Other scholars claim that recording officers in public might impede the execution of important police investigations. This concern becomes most salient if the officers are acting undercover, as recording them may legitimately compromise the officer’s safety.66 66.Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1219–20 (10th Cir. 2007) (highlighting the importance of protecting officer safety but nonetheless finding that the public interest in revealing officer misconduct outweighed that concern under the facts of this case).Show More In a similar vein, some fear that the threat of recording might deter members of the public from seeking assistance from or giving critically important information to the police.67 67.SeeACLU of Ill. v. Alvarez, 679 F.3d 583, 611–12 (7th Cir. 2012) (Posner, J., dissenting). Surveys show that a majority of police officers often suggest they are supportive of wearing body cameras. See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Behind the Badge, Pew Rsch. Ctr. 75 (Jan. 11, 2017), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2017/01/Police-Report_FINAL_web.pdf [https://perma.cc/CG6C-FTCW]. But that support does not often extend to citizen recorders, as law enforcement feel they would unduly interfere with the execution of their duties. See, e.g., Alysia Santo, Why Cops Aren’t Ready for Their Close-Up, Marshall Project (Apr. 24, 2015), https://www.themarshallproject.org/2015/04/24/why-cops-aren-t-ready-for-their-close-up [https://perma.cc/29Y3-3ZL4] (highlighting police support for a 2015 Texas state bill that would criminalize photographing on-duty police officers).Show More For situations in which recorders hamper law enforcement’s ability to maintain public safety, though, officers have the ability to impose reasonable time, place, and manner restrictions to prevent the conduct.68 68.Alvarez, 679 F.3d at 607; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). See alsoKelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (observing “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”).Show More In a recent Section 1983 action, one plaintiff alleged an officer impermissibly interfered with his First Amendment right to record the police when the officer seized the plaintiff’s drone, which was flying over a car accident.69 69.Rivera v. Foley, No. 3:14-cv-00196, 2015 WL 1296258, at *1–2 (D. Conn. March 23, 2015).Show More The court found no violation of his First Amendment rights, because despite the plaintiff’s interest in obtaining footage, the drone’s “trespass[] onto an active crime scene” hampered the police investigation.70 70.Id. at *10. The court expressly contrasted the plaintiff’s actions with the attempts by citizens to record the police using handheld devices at a distance from the ongoing investigation, like those at issue in Glikand Alvarez. Id.Show More

B. The First Circuit’s Project Veritas Decision

In December 2020, the First Circuit became the first federal court of appeals in the country to weigh in on the constitutionality of secret recordings. Judge Barron, writing for a unanimous panel, first found that the act of producing secret recordings is deserving of First Amendment protection, given the critical role such actions play in newsgathering.71 71.Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020).Show More In fact, the court agreed with the plaintiffs that secret recordings can “sometimes be a better tool for ‘gathering information about’ police officers conducting their official duties in public, and thereby facilitating ‘the free discussion of governmental affairs’ and ‘uncovering . . . abuses,’ than open recording is” because it is less likely to disrupt police operations and less likely to engender resistance from police officers.72 72.Id. at 832–33.Show More Admittedly, the production of the recording is not a form of expressive speech in the same way that Professor Jocelyn Simonson has described regarding open recordings.73 73.Simonson, supranote 23, at 435–36 (describing how organized copwatching takes “the shape of a confrontational practice that seeks change through a combination of official and grassroots channels”).Show More Nonetheless, the court argued that the secret recordings “can constitute newsgathering every bit as much as a credentialed reporter’s after-the-fact efforts to ascertain what had transpired.”74 74.Project Veritas, 982 F.3d at 833.Show More

The court then affirmed the lower court’s conclusion that Section 99, like other state wiretap laws, is a “content-neutral law of general applicability.”75 75.Id. at 834 (quoting Jean v. Mass. St. Police, 492 F.3d 24, 29 (1st Cir. 2007)).Show More While First Circuit precedent had not cleanly articulated what level of scrutiny should apply to such a law, the court concluded that the lower court’s evaluation under intermediate scrutiny—whether the statute “is ‘narrowly tailored to serve a significant government interest’”—was correct.76 76.Id. (quoting Rideout v. Gardner, 838 F.3d 65, 71–72 (1st Cir. 2016)).Show More

Having identified the relevant First Amendment interest at issue and the level of scrutiny to apply, the Court then revisited the two interests Section 99 was designed to realize: to “prevent[] interference with police activities and protect[] individual privacy.”77 77.Id. at 836.Show More The court conceded these qualified as important government interests but nevertheless found that an outright ban on secret recordings was not a narrowly tailored means to pursue those ends. First, any secret recording, by definition, would be produced out of plain sight and without the actual knowledge of the officer depicted.78 78.Id.Show More Accordingly, it would be hard to imagine how the recording itself could be understood to interfere with police activity.79 79.Id. at 836–37. The court did nod to Judge Posner’s concern in ACLU of Illinois v. Alvarez, 679 F.3d 583, 613 (7th Cir. 2012) (Posner, J., dissenting)—that the potential for secret recordings could deter confidential informants from cooperating with police officers. However, the court found it was largely without merit, given that officers meeting with informants are likely careful about the circumstances in which they do so and the defendants offered no concrete evidence of such deterrence, only conjecture. Id. at 837.Show More

The court devoted considerably more attention to the second potential government interest: protecting individual privacy. At oral argument, the District Attorney argued the relevant interest was not a freedom from being filmed, but a freedom from being filmed without notice to ensure “the vibrancy of [] public spaces” and assure citizens “they will not be unwittingly recorded.”80 80.Project Veritas, 982 F.3d at 837–38.Show More While acknowledging the importance of this interest, Judge Barron countered that on-duty police officers “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”81 81.Id. at 838 (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)).Show More To that end, the court concluded that even where a police officer might have some privacy interest in their actions, a total ban of surreptitious audio recordings is “too unqualified to be justified in the name of protecting that degree of privacy.”82 82.Id.Show More Even the privacy concerns of individuals who interact with police officers cannot justify “the blunderbuss prohibitory approach embodied in Section 99,” given the public nature of the private individual’s speech.83 83.Id. at 839. For example, the court noted the potential privacy interest in the identity of rape victims. Id. (citing Fla. Star v. B.J.F., 491 U.S. 524, 537 (1989)).Show More Given the critically important role that surreptitious recordings play in the ability of private individuals to gather news about police officer conduct without fear of retaliation for their actions, the statute failed intermediate scrutiny.84 84.For that reason, the court found that there was no alternative kind of recording that would serve the same function as surreptitious recordings. Their outright prohibition under Section 99 could not survive intermediate scrutiny. Id. at 839–40.Show More

Police officers, as agents of the state, are entrusted with the protection of the public safety and are authorized to exert force, including deadly force if necessary, to achieve that mission.85 85.SeeBarry Friedman, Unwarranted: Policing without Permission5 (2017) (“Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. . . . Possession of these powers . . .  is what defines policing, what sets it apart.”).Show More However, to render that permission legitimate, the public must be able to seek redress when its trust is abused. As Robert Post argues, this process requires that “citizens have access to the public sphere so that they can participate in the formation of public opinion” and “that governmental decision making be somehow rendered accountable to public opinion.”86 86.Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 482 (2011). Show More Within the context of policing, the production of recordings by citizens can play a critical role in that democratic process by broadening the scope of perspectives that informs the public’s understanding of the police.

Given the extent to which many activists, like Martin and Perez, credibly fear retribution, it may be that surreptitious recordings are the only kind that activists feel safe to produce. While recordings of law enforcement officers are often made openly, with the intention of making the officer aware they are being recorded,87 87.See, e.g.,Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011). These kinds of tactics have consistently been used in protests over police brutality. Karen Hao, How to Turn Filming the Police into the End of Police Brutality, M.I.T. Tech. Rev. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-end-police-brutality-filming-witnessing-legislation/ [https://perma.cc/LLB7-686G].Show More this is not the case for those who fear reprisals. Recordings bringing attention to the most salient examples of police brutality have often come at a heavy cost to those who created them, including through violent retaliation, intimidation, and pretextual arrest at the hands of law enforcement.88 88.Officers often render citations to civilian recorders for broadly defined and difficult to disprove charges, such as obstruction. See, e.g.,Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Some of the most prominent civilian recorders, like those who filmed the police killings of Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling, have faced continued harassment at the hands of the police. Dragana Kaurin, The Price of Filming Police Violence, Vice (Apr. 27, 2018), https://www.vice.com/en/article/evqw9z/filming-police-brutality-retaliation [https://perma.cc/9PUX-6DAG].Show More Cities have also enacted ordinances imposing sanctions on those recording public police activity if an officer determines the recording unduly interferes with their ongoing investigation.89 89.See, e.g.,Tucson, Ariz., Code art. I, §§ 11-70.3, 11-70.4 (2020) (prohibiting individuals from “physically entering crime scenes or areas immediately surrounding where such enforcement activity . . . [is] taking place” and criminalizing activity that “materially inhibits, obstructs, hinders, or delays any Police Officer . . . in the exercise of the Officer’s official duties”).Show More Under such threats, it is no wonder individuals wish to keep secret their act of recording.

And just as the ability to produce secret recordings incentivizes the “democratization of proof,”90 90.Fan, supranote 25, at 1645.Show More so too does it ensure that officers cannot hide from public scrutiny by changing their behavior when they know others may see it. Counsel for the government of Massachusetts, in the oral argument for Project Veritas, raised this very point, ironically asserting that secret recordings should be prohibited so that public officials can know when they are being recorded and censor their behavior accordingly.91 91.See Oral Argument at 14:20, Project Veritas Action Fund v. Rollins, No. 19-1629 (1st Cir. argued Jan. 8, 2020), sub nom. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018), available at https://www.courtlistener.com/audio/67830/project-veritas-action-fund-v-rollins/ [https://perma.cc/NCP4-82GU] (“Under the statute, the principle that the legislature subscribed to . . . is the notion that people have an interest in knowing when they’re being recorded, so that they can make appropriate choices about how to conduct themselves.”).Show More We assert, however, that this is directly contrary to the public’s interest. We should not want police officers to modify how they would otherwise behave when the public is not watching. In fact, surreptitious recording is the only way we can truly know how public officials are acting when the cameras are no longer rolling. Embracing secret recording, as the First Circuit demonstrated in Project Veritas, would supplement the range of perspectives that the public can access. It would bring life to the idea that “[W]e are the police. What is done by the police is done by all of us.”92 92.Friedman, supranote 85, at 321.Show More

C. Other Circuit Precedent on Surreptitious Recordings

The First Circuit’s decision is groundbreaking, in large part, because no other federal circuit has addressed the question of surreptitious recordings so squarely. Though a variety of courts have identified a generalized right to record the police in public, none have examined the contours of this right in such great detail.93 93.SeeTurner v. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“This right [to record the police], however, ‘is not without limitations.’ Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.’ In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable.”) (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)); see also Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (declining to address the limits of the constitutional right to record); ACLU of Ill. v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (stating that the court need not address surreptitious recordings or recordings of private conversations); Glik, 655 F.3d at 84 (declining to address the limits of the right to film); Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (noting that the Washington Supreme Court had not yet interpreted whether its wiretapping statute covered private conversations); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record but not defining its scope).Show More Further, in circuits that have not considered the issue, courts have granted police officers qualified immunity for actions taken to prevent civilian recorders from documenting officers’ actions in public, or for retaliating against these recorders, so long as they were not otherwise infringing upon the recorder’s constitutional rights.94 94.For example, the Tenth Circuit recently found that four officers were entitled to qualified immunity in a Section 1983 action that alleged the officers had unconstitutionally infringed on the plaintiff’s First Amendment right to record the police in public spaces because no such right had been clearly established at the time of the purported violation. Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021). However, the court then “exercise[d] [its] discretion to bypass the constitutional question of whether such right even exists.” Id. at 1020 n.4.Show More This reality has endangered citizens’ ability to surreptitiously record the police.

Notably, the Seventh Circuit, in ACLU of Illinois v. Alvarez, went so far as to evince explicit skepticism that the First Amendment would protect surreptitious recordings made in public spaces.95 95.See Alvarez, 679 F.3d at 605–07.Show More This was despite holding that private citizens have a right to produce public recordings of police-civilian interactions.96 96.Id. at 608 (enjoining the State’s Attorney from applying the Illinois wiretap statute against the ACLU and its employees who openly record law enforcement).Show More The court distinguished the public nature of the recording at issue from surreptitious recordings, suggesting that the regulation of the latter might survive intermediate scrutiny because secret recordings fail to provide adequate notice to subjects that they are being recorded.97 97.Id. at 605–06. Under this standard, courts ask whether the regulation is narrowly tailored to serve a substantial government interest, meaning the government must prove its interest “would be achieved less effectively absent the regulation” and that the regulation can accomplish this end without burdening “substantially more speech than is necessary.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).Show More According to the court, the secret nature of the recording could “bring[] stronger privacy interests into play.”98 98.Alvarez, 679 F.3d at 607 n.13 (citing Bartnicki v. Vopper, 532 U.S. 514, 529 (2001)).Show More The Seventh Circuit’s skepticism about the legality of secret recordings was, until now, the only forecast of how regulations of surreptitious recordings under state and federal wiretap statutes might be treated.

In addition, prior to the First Circuit’s decision in Project Veritas, federal courts had largely avoided questions involving the constitutionality of secret recording of the police. Federal and state courts alike often found that the act of recording does not violate state wiretap statutes, as officers cannot reasonably claim an expectation of privacy in public places.99 99.See State v. Graber, No. 12-K-10-647, 2010 Md. Cir. Ct. LEXIS 7, at *19 (Md. Cir. Ct. Sept. 27, 2010); State v. Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992); Jones v. Gaydula, No. CIV. A. 85-1859, 1989 WL 156343, at *3 (E.D. Pa. Dec. 22, 1989).Show More And while courts have been clear that bystanders have a right to record police-civilian interactions, they have avoided exploring whether an officer might claim a privacy interest in cases involving recordings produced by third parties by finding that the bystander recorder violated another statute while producing their recording (such that police intervention was necessary), or, conversely, that the bystander’s right to record had not been clearly established.100 100.See Bleish v. Moriarty, No.11-cv-162, 2012 WL 2752188, at *10–*12 (D.N.H. 2012) (finding a Section 1983 plaintiff’s arrest for disorderly conduct did not violate the Fourth Amendment and that the plaintiff failed to show she was arrested for exercising her First Amendment rights); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that the plaintiffs failed to show that the police had violated their First Amendment right to record); Gravolet v. Tassin, No.08-3646, 2009 WL 1565864, at *4 (E.D. La. June 2, 2009) (finding a Section 1983 plaintiff’s arrest while recording did not violate his Fourth Amendment rights because the officers had probable cause to arrest him for stalking and that the plaintiff failed to clearly establish his right to record).Show More That path, however, was unavailable to the First Circuit. Section 99, as described above, is unique among wiretap statutes in that it prohibits all secretly produced audio recordings, irrespective of whether the person depicted could claim any reasonable expectation of privacy in the content of their recorded speech.101 101.Seesupra notes 35–39 and accompanying text.Show More As a result, the court, for the first time in the country, fully confronted the constitutionality of such a regulation.

II. Impact Beyond Boston

The implications of the First Circuit’s decision in Project Veritas will reach far outside the state of Massachusetts. While Section 99 is unique in its express prohibition of secret recordings, the underlying principle has direct consequences to other states’ wiretap laws. We argue here that, as similar First Amendment interests are at play in both public and secret contexts, constitutional protection for secret recordings should be extended across the country,102 102.Scholars have previously discussed the compelling justifications for extending constitutional protection to surreptitious recordings. See, e.g., Rodden, supra note 24, at 907.Show More as has successfully happened in the First Circuit. While the Seventh Circuit may be correct in highlighting that surreptitious recording of police might implicate different privacy interests than open recordings,103 103.Alvarez, 679 F.3d at 607 n.13.Show More the distinction between them is not sufficiently meaningful, on its own, to override these important First Amendment interests. Further, solutions outside of constitutionally securing the right to secretly record the police provide insufficient protection and certainty to would-be recorders. To reach an opposite conclusion would frustrate police accountability efforts and threaten the public’s understanding of police misconduct.

A. The Contours of This Argument

The claim we make here is a limited one: The First Circuit was correct to hold that a right to record should protect bystanders who secretly record on-duty officers engaging with citizens in public spaces.104 104.There are valid, constitutionally cognizable concerns that may limit the right to secretly record police-civilian interactions, for example, in private spaces. See Kaminski, supra note 23, at 238–42. However, these distinctions are not constitutionally meaningful when comparing secret and open recordings of the police in public.Show More However, such a right is not unlimited. For example, if the making of a recording might legitimately interfere with police activities, or, per the First Circuit, lead an officer to “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties,” such recordings may be proscribed by reasonable time, place, and manner restrictions.105 105.Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014). But see Simonson, supranote 23, at 1563 (arguing that an officer may only prevent those acts of recording which would create a “concrete, physical impediment to a police officer or to public safety”).Show More It is admittedly more complicated to proscribe such measures in circumstances where the recording in question was made surreptitiously—but it would be correspondingly difficult to prove such secret recordings actually interfered with the officer’s exercise of their duties.106 106.See supra note 79 and accompanying text.Show More

An echo of this concern rings through in Judge Posner’s dissent in Alvarez. He argues that in some circumstances, a private citizen might want to engage a police officer in public without their interaction “being broadcast on the evening news or blogged throughout the world.”107 107.Alvarez, 679 F.3d at 611 (Posner, J., dissenting).Show More Just as the threat of civilian oversight might discourage members of the public—from the covert informant to the crime victim—from seeking out an officers’ aid, so too might a policeman’s ability to protect the public safety be diminished if he were to be constantly watching for any would-be recorders.108 108.See id. at 611–12 (Posner, J., dissenting).Show More It would follow that such an effect would be all the more pronounced where an officer, and the public with which he interacts, know that any passerby could record and publish their interaction, without either of them having ever been made the wiser.

The concern is not without merit, but it is one that can be addressed with tools officers already have at their disposal. First, they might meet with private citizens in private settings, where an officer’s privacy interest is stronger.109 109.See, e.g., Commonwealth v. Bradley, 232 A.3d 747, 755–56 (Pa. Sup. Ct. 2020) (holding that a no-filming condition in the lobby of a police department was a reasonable time, place, manner restriction to “ensure the safety, security and privacy of officers, informants and victims”).Show More While the public has a legitimate interest in observing the public behavior of police officers, the “Constitution itself is [not] a Freedom of Information Act.”110 110.Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (quoting Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636 (1975)).Show More Thus, individuals cannot expect the government to disclose private information regarding police officer engagements, particularly if such a disclosure might “place[] their personal security, [or] that of their families, at substantial risk.”111 111.Kallstrom v. City of Columbus, 136 F.3d 1055, 1067–69 (6th Cir. 1998) (finding that the city’s release of the police personnel files, which included, among other things, officers’ home addresses, phone numbers, banking information, social security numbers, of the police officers who participated as witnesses in a criminal defense trial to defense counsel violated the officers’ due process rights by rendering them vulnerable to “private acts of vengeance”). See alsoWhalen v. Roe, 429 U.S. 589, 599–600 (1977) (holding that there is a constitutionally protected right to privacy in an individual’s interest in avoiding the disclosure of highly sensitive, personal information).Show More Second, to the extent that there may exist a legitimate need to engage a civilian without public observation, there is, of course, nothing preventing an officer from establishing reasonable time, place, and manner restrictions to do so. In an instance in which an officer might not be sure whether or not privacy is necessary to pursue an investigatory lead or promote the public safety, reasonable preemptive measures could well be taken to prevent the interference of a surreptitious recording.112 112.See, e.g.,Hill v. Colorado, 530 U.S. 703, 725–26 (2000) (holding that an eight-foot zone around persons entering a healthcare facility was “a valid time, place, and manner regulation”). Where the production of a secret recording would contravene such reasonable time, place, manner restrictions, the police may legitimately stop the citizen recorder’s production and dissemination of that recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017). It should be noted, though, that Supreme Court precedent suggests that the police still may not prohibit the dissemination of such recordings by third parties. SeeBartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); see alsoJean v. Mass. St. Police, 492 F.3d 24, 31 (1st Cir. 2007) (finding that the publication of another’s surreptitiously produced recording, thereby violating Section 99, is entitled to First Amendment protection and therefore immunized the publisher from prosecution, even where the publisher “arguably participated . . . in a conspiracy to disclose the content of [an] illegally recorded oral communication”).Show More

Furthermore, regardless of whether a recording is produced openly or surreptitiously, it remains true there is not a cognizable constitutional claim to privacy in conversations between police officers and civilians. As in the case of openly made recordings, officers do not have a legitimate privacy interest in their conduct when acting in an official capacity in public spaces.113 113.See supra notes 62–65 and accompanying text; see also Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 513 (2013) (explaining that “police officers qua police officers do not own a personal privacy expectation in their official acts under prevailing judicial interpretations”).Show More As a result, creating a distinction between open and surreptitious recordings lacks constitutional significance. Giving notice to those recorded does not change the public nature of the exchange or the public’s interest in them.

As discussed in Part I, though, private citizens captured in secret recordings have different privacy interests at stake than police officers.114 114.See supranotes 58–61 and accompanying text. Some have argued that any person who engages a police officer in a public space loses any reasonable expectation of privacy that they might otherwise be able to claim. See Alderman, supra note 113, at 513–14.Show More Private civilians interacting with the police might legitimately argue that surreptitious recordings violate their right to be let alone, particularly if the interaction devolves into violence or, as it has for too many, death. Some commentators have observed how the production, and subsequent viral consumption, of such videos can become exploitative and even echo the lynch mobs of years past.115 115.See Allissa V. Richardson, Why Cellphone Videos of Black People’s Deaths Should Be Considered Sacred, Like Lynching Photographs,The Conversation (May 28, 2020), https://theconversation.com/why-cellphone-videos-of-black-peoples-deaths-should-be-considered-sacred-like-lynching-photographs-139252 [https://perma.cc/XRH4-XL75].Show More Such privacy concerns extend to bystanders who happen to be captured by a recording, especially when they are engaged in personally or politically sensitive activity.116 116.Consider a recording of protestors that could expose them to criminal or civil liability. Depending on the circumstances of the conduct depicted, the protestor may have a colorable claim that the recording of their actions was an invasion of their privacy. See Thomas Germain, How to Record Video During a Protest, Consumer Reports (June 5, 2020), https://www.consumerreports.org/audio-video/how-to-record-video-during-a-protest/ [https://perma.cc/7BN6-QPM7].Show More

These claims, as the First Circuit found, should fail under a standard of intermediate scrutiny, as they do in the public recording context. The viability of any privacy interest underlying such claims necessarily depends on the circumstances of the interaction in question, the means of recording, and the reasonability of the party’s expectation of privacy. Scholars have presented a number of ways to determine whether an expectation of privacy is reasonable;117 117.See Scott Skinner-Thompson, Recording as Heckling, 108 Geo. L. J. 125, 169–73 (2019); see also Richard C. Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill. L. Rev. 871, 877–78 (1989) (suggesting a three-pronged analysis to adjudicate the reasonability of an individual’s claim to privacy within the context of disclosing a patient’s HIV status); Doris DelTosto Brogan, Privacy’s Place at the Table: A Reflection on Richard Turkington’s Approach to Valuing and Balancing Privacy Interests, 61 Vill. L. Rev. 437, 445, 456–64 (2016) (arguing that Professor Turkington’s framework is broadly applicable and analyzing its potential application to the NSA data sweeping program and the deployment of police body cameras as examples).Show More an underlying theme of these proposals involves determining the costs inflicted on other important social values, including the ability for the public to critique matters of public interest.118 118.See, e.g., DelTosto Brogan, supra note 117, at 443–45 (comparing such an analysis to that proposed by Judge Learned Hand to analyze whether or not a defendant acted negligently in the canonical United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).Show More Where such costs cannot be found to outweigh the value of maintaining one’s assertion of privacy, the privacy interest should give way.119 119.DelTosto Brogan, supra note 117, at 443–45.Show More Moreover, there are less restrictive means to protecting these privacy interests. When one is surreptitiously recorded, they can redress harm through a private tort action against the recorder as an invasion of their privacy, to the extent such a relevant interest exists.120 120.Among other causes of action, a plaintiff might successfully argue a recording was an undue invasion of their privacy if it created “unreasonable publicity,” so long as the matter publicized was “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Restatement (Second) of Torts §§ 652D, 652D cmt. C (1977).Show More

And, from a pragmatic perspective, a legal distinction between open and secret recordings is not workable in a world where recording technology is ever-evolving. Today’s iPhone may well be supplanted by tomorrow’s eyeglass camera. Given the subjective nature of the inquiry of the depicted subject’s knowledge, determining whether a recording was made surreptitiously would require a court to identify the kind of recording technology of which a depicted subject was aware before even considering whether the officer understood a recording was being taken.121 121.Analogous inquiries have plagued courts. For example, the Supreme Court has previously instructed lower courts to determine whether a police officer’s use of a given piece of technology in the course of an investigation constituted a search under the Fourth Amendment by asking whether that technology was in “general public use” at the time. Kyllo v. United States, 533 U.S. 27, 34–35 (2001). Critics have argued that such an inquiry is inadequate because it fails to consider how “courts [are] to deal with the rapid pace of technological development in deciding whether something is in the general public use.” SeeChristopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo’s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1412–13 (2002) (furthering that “[a]dvanced technology can find its way in to the average home very quickly. When that happens . . . the courts will either have to change their stance, manipulate the meaning of the general public use doctrine, or ignore it”).Show More Even if a court could salvage a standard to apply to such situations, such a test would hardly provide the level of necessary certainty to those who hope to record police-civilian interactions without fear of retribution or legal sanction.

In short, prohibiting the secret recording of police-civilian interactions under wiretap laws constitutes a broad overreach that fails to account for the valid First Amendment interests such actions serve.122 122.See supranotes 75–84 and accompanying text.Show More Applying such laws to secret recordings leads to chilling effects felt by those fearing criminal prosecution and retaliation.123 123.See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.”).Show More To most effectively promote the First Amendment interests in bringing light to misconduct that might otherwise go unnoticed, surreptitious recordings should be granted constitutional protection.124 124.For an exploration of this argument, seegenerally Rodden, supranote 24.Show More In other words, a strong implication of the Project Veritas decision is that the application of one-party consent wiretap laws against secret recordings should be held unconstitutional.

B. The Insufficiency of Alternatives

In the alternative, some scholars argue that granting constitutional protection to secret recorders is unnecessary. To fix this social problem, police departments and prosecutors’ offices should simply commit to a policy of non-enforcement of wiretap statutes against civilian recorders.125 125.Brncik, supranote 25, at 515–19.Show More Or, instead, these entities should lead educational campaigns about the potential criminal liability associated with recording the police in public spaces, so as to protect potential violators from sanction.126 126.Id. at 520–21.Show More From this perspective, amending wiretap statutes would be too difficult, given the privacy interests implicated and the opposition such efforts would engender from groups like police unions.127 127.Id. at 514–15 (citing attempts at reform in Congress and the Mississippi legislature that were stymied, in large part, by police union opposition).Show More Instead, a policy of non-enforcement would enjoy support from such special interests (who might otherwise balk at the idea of dramatic policy change) while accomplishing the same policy ends.128 128.Id. at 516–17 (pointing out police departments that have adopted such a policy and advising prosecutors’ offices to follow suit).Show More

We agree that Congress, state legislatures, and police departments would serve the public well by implementing policies that dissuade officers from arresting or harassing those who record public police conduct. And, in the absence of other developments, such a policy choice may be warranted. However, the very conceit of this argument—that the production of these recordings implicates societal values of sufficient importance to encourage policy change129 129.Id. at 502–03 (“These recordings help to inform the public and to enrich the public debate over what is or is not abusive behavior. Video evidence is particularly valuable because videos provide the viewer . . . a credible account of the interaction.”).Show More—highlights the weakness of the position. As the First Circuit’s decision makes clear, civilians’ ability to surreptitiously record the police in public spaces implicates a critical First Amendment interest that, absent a significant and countervailing government interest, cannot be infringed by state or federal policy.130 130.Project Veritas v. Rollins, 982 F.3d 813, 831 (1st Cir. 2020) (affirming the “particular significance of First Amendment newsgathering rights with respect to government”) (internal quotation marks and citations omitted).Show More The important nature of the right thereby requires that any protection granted for it be unyielding to the whims of those who may later find it inconvenient, a quality not exhibited by a policy of non-enforcement. Such a practice is only a temporary fix for a larger, structural problem and leaves individuals’ rights vulnerable to future violation. The salience of this interest necessitates constitutional protection, both inside Massachusetts and beyond.131 131.See Rodden, supranote 24, at 906–07 (advocating that the secret recording of the police be permissible under all wiretap statutes, as a discrepancy between the standards applied to secret and open recordings “gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions”). The First Circuit’s decision, in many ways, serves as a model for how Rodden’s argument can be given effect nationally.Show More

Further, a policy of non-enforcement is incapable of supplying the requisite level of certainty to would-be secret recorders, in either the short or long term, to guarantee they will not face criminal penalties for their activity.132 132.For an extensive discussion on the merits and dangers of nonenforcement, see generally Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937 (2017).Show More While a policy of non-enforcement may temporarily abate a recorder’s fear of criminal prosecution, it is neither legally binding nor free from the prospect of its future renouncement.133 133.As explored by Professor Price, whether or not one’s reliance interests would be protected under a policy of nonenforcement depends on how a particular jurisdiction would weigh that interest against the rights of executives to enforce the law. Id. at 947.Show More As a result, those interested in recording surreptitiously may be discouraged from doing so under such guidelines. It is only by recognizing the right to secretly record that the balance of power can be shifted and third-party bystanders can be empowered to shed light on police misconduct—not merely when those in power allow it. As the First Circuit acknowledged, this aim is best accomplished through a widely-recognized constitutional guarantee of the First Amendment right to secretly record the police.134 134.See supranotes 90–92 and accompanying text.Show More In this way, Project Veritas can serve as a model for how the right to record intersects with, and by and large outweighs, other political and social interests.

Conclusion

On March 3, 1991, Rodney King was brutally beaten during a routine traffic stop by officers of the Los Angeles Police Department. A plumber named George Holliday—who observed the altercation from a nearby, second-story balcony—pulled out his newly-purchased Sony Handycam and hit “record.”135 135.Paul Martin Lester, Visual Ethics: A Guide for Photographers, Journalists, and Filmmakers 87 (2018); Erik Ortiz, George Holliday, Who Taped Rodney King Beating, Urges Others to Share Videos, NBC News (June 9, 2015), https://www.nbcnews.com/nightly-news/george-holliday-who-taped-rodney-king-beating-urges-others-share-n372551 [https://perma.cc/NM3F-Z9KZ].Show More

A direct line connects George Holliday to Darnella Frazier and the social movements their actions have inspired. These movements would not have been possible without bystander recording of the police.136 136.See McLaughlin, supra note 2.Show More In a recent statement marking the one year anniversary of George Floyd’s murder, Frazier put it simply: “If it weren’t for my video, the world wouldn’t have known the truth.”137 137.Hannah Knowles, Teen Speaks Out a Year After Filming George Floyd’s Death, Saying Her Video ‘Put His Murderer Away’, Wash. Post (May 25, 2021), https://www.washingtonpost.com/nation/2021/05/25/darnella-frazier-floyd-statement/ [https://perma.cc/4XMH-A2UZ].Show More While the interactions filmed by George Holliday and Darnella Frazier graphically illustrated the real, brutal, and unauthorized tactics of law enforcement, it was the recording of these circumstances that pushed an understanding of this reality into our public consciousness.

The First Circuit’s decision in Project Veritas affirms this reality and, in response, correctly extends constitutional protection to surreptitious recorders. A legal regime that would draw unintelligible distinctions between secret and open recordings would restrict the tools available to the Fraziers and Hollidays of tomorrow. The secret recording of the police is a particularly crucial tool, as it enables the public reporting of police activity in a way that exposes police misconduct, better informs public discourse, and makes democratic redress and reform possible, free from fear of police retaliation or legal sanction. In this way, secret recordings of the police serve a valid First Amendment interest that open recordings cannot. While these recordings implicate the privacy interests of those depicted, particularly for third-party bystanders who act without notice that their words and conduct are being recorded for public observation, these interests are not sufficient to justify the prohibition of secret recordings.

The First Circuit’s decision boldly, and correctly, gives purchase to the claim that secret recordings allow us to internalize not just what police permit us to see, but what happens at the hands of law enforcement agents when cameras are off. As other courts should soon recognize, the secret recording of police by bystanders is—and must be—a First Amendment-protected right, and wiretap statutes restricting this practice must be found unconstitutional as applied. The robustness of our public reporting and, consequently, our ability to remedy police misconduct depends on it.

  1. * Aidan J. Coleman, University of Virginia School of Law, J.D. 2021; University of Virginia, M.A. (History) 2021. Katharine M. Janes, University of Virginia School of Law, J.D. 2021; University of Virginia, M.A. (History) 2021. We would like to thank Professor Frederick Schauer, William Scheffer, and Chinmayi Sharma for their helpful feedback on early drafts of this Comment. A special thanks to the editors of the Virginia Law Review—and in particular Elizabeth Adler, Tyler Demetriou, and Anna Cecile Pepper—for their insightful comments and edits. ↑
  2. Joshua Nevett, George Floyd: The Personal Cost of Filming Police Brutality, BBC News (June 11, 2020), https://www.bbc.com/news/world-us-canada-52942519 [https://perma.cc/‌VC7P-C3RU]. ↑
  3. Audra D. S. Burch & John Eligon, Bystander Videos of George Floyd and Others Are Policing the Police, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2020/05/26/us/‌george-floyd-minneapolis-police.html [https://perma.cc/4G2N-DVA5]. See also Eliot C. McLaughlin, How George Floyd’s Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down, CNN (Aug. 9, 2020), https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html [https://perma.cc/D7UC-Y6AR] (highlighting that the protests following George Floyd’s death were unique in that they saw an influx of “myriad White faces”). ↑
  4. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Social Movement in U.S. History, N.Y. Times (July 3
    , 2020),

    https://www.nytimes.com/‌interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/6XAT-9MJE]. The 2017 Women’s March previously held this title, which saw crowds of 3 to 5 million in marches nationwide. Id.; McLaughlin, supra note 2. ↑

  5. Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age
    6 (2007).

    ↑

  6. See Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–600, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). ↑
  7. See Project Veritas Action Fund v. Rollins, 982 F.3d 813, 819–20 (1st Cir. 2020). ↑
  8. See, e.g., Alvarez, 679 F.3d at 606–07, 607 n.13 (“The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”). ↑
  9. 982 F.3d at 833. ↑
  10. Mass. Gen. Laws ch. 272, § 99 (2018) (‘‘Section 99’’). ↑
  11. Project Veritas, a far-right non-profit organization whose methods have sparked controversy, brought a separate challenge to Section 99 that, on appeal, was consolidated with K. Eric Martin and Rene Perez’s suit against the Suffolk County District Attorney. Martin and Perez are unaffiliated with Project Veritas. Project Veritas went beyond Martin and Perez’s requested remedy by seeking to enjoin the enforcement of this statute against the secret recording of any public official. Given the broader nature of this claim, this essay will not contest whether or not the rationales justifying the court’s decision in this case should be applied to cover all such figures. However, it is worth noting that the First Circuit rejected Project Veritas’s broader argument on the grounds that it was unripe. See Project Veritas, 982 F.3d at 817. ↑
  12. Brief for Plaintiff-Appellees at 1–2, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez). ↑
  13. Id. at 9–11. ↑
  14. Gary Man Arrested for Recording Police Officer, Now Considering Legal Action, NBC Chicago (Aug. 9, 2020), https://www.nbcchicago.com/news/local/gary-man-arrested-for-recording-police-officer-now-considering-legal-action/2319456/ [https://perma.cc/CB8J-7YBK]. ↑
  15. Ray Sanchez, Growing Number of Prosecutions for Videotaping the Police, ABC News (July 16, 2010), https://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=‌11179076 [https://perma.cc/E3NH-N6HJ]. ↑
  16. Mayor: 3 Charged in Fraudulent Check Scheme; Internal Investigation Launched After Cops Scuffle with Man Videotaping Scene, WHAS-TV (Nov. 29, 2020), https://www.whas11.com/article/news/crime/jeffersontown-officers-arrest-man-videotaping-kentucky-investigation-3-charged-check-fraud/417-a32470a8-5810-4b5e-a095-4e1105c3d331 [https://perma.cc/BJS5-L85D]. ↑
  17. Press Release, ACLU, ACLU Sues After Mother Falsely Arrested by Boynton Beach Police Officers (June 25, 2010), https://www.aclu.org/press-releases/aclu-sues-after-mother-falsely-arrested-boynton-beach-police-officers [https://perma.cc/9HU9-LB2K]. ↑
  18. Press Release, ACLU Pa., Lawsuit on Behalf of Man Arrested for Recording Police Officer Settles (Oct. 9, 2013), https://www.aclupa.org/en/press-releases/lawsuit-behalf-man-arrested-recording-police-officer-settles [https://perma.cc/7DWJ-545F]. ↑
  19. Man Arrested for Recording Police Awarded $275,000, CBS Sacramento (Nov. 29, 2017), https://sacramento.cbslocal.com/2017/11/29/man-arrested-for-recording-police-awarded-275000/ [https://perma.cc/8YNP-3SV5]. ↑
  20. Mass. Gen. Laws ch. 272, § 99(C)(1) (2018). ↑
  21. See infra Part I.A. ↑
  22. See id. ↑
  23. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281–83 (1964). ↑
  24. See Margot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 170–71 (2017); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 339 (2011); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 997–99 (2016); Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 442 (2016); Elizabeth J. Frawley, Note, No Calling Cut: The Political Right to Record Police, 17 U. Pa. J. Const. L. 287, 298 (2014). ↑
  25. See Timothy D. Rodden Jr., Note, Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters, 47 Suffolk U. L. Rev. 905, 926–27 (2014); Taylor Robertson, Note, Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen’s Right to Record the Police in Public, 23 B.U. Pub. Int. L.J. 117, 137–39 (2014). ↑
  26. See Mary D. Fan, Democratizing Proof: Pooling Public and Police Body-Camera Videos, 96 N.C. L. Rev. 1639, 1667–68 (2018); Rebecca G. Van Tassell, Comment, Walking a Thin Blue Line: Balancing the Citizen’s Right to Record Police Officers Against Officer Privacy, 2013 BYU L. Rev. 183, 184 (2013); Mark Brncik, Note, A Case for Non-Enforcement of Anti-Recording Laws Against Citizen Recorders, 62 Case W. Rsrv. L. Rev. 485, 515 (2011); Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1011 (2009). ↑
  27. The increased prevalence of citizen recordings shifts the balance of power between police officers and the communities they serve. See Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J.
    1559, 1568 (2016) (

    arguing that changing the video’s perspective transfers power and serves a valuable social purpose). ↑

  28. See, e.g., Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers’ Power, 117 Yale L.J. 1549, 1553–55 (2008) (arguing that citizen recording supplements existing checks against law enforcement abuses, such as the exclusionary rule and Section 1983 actions); Simonson, supra note 23,

    at 407–21 (explaining how copwatching can serve as a form of deterrence to, data collection of, and constitutional engagement with police misconduct)

    .

    ↑

  29. 982 F.3d 813, 817, 820 (1st Cir. 2020), aff’g Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018). ↑
  30. Mass. Gen. Laws ch. 272, § 99 (2018); Project Veritas, 982 F.3d at 817, 820. ↑
  31. Project Veritas, 982 F.3d at 820. Though they could not predict for the court the particular moments at which they would need to make such recordings, the plaintiffs argued that their prior experience in openly recording police officers suggested that such moments would certainly occur. Brief for Plaintiff-Appellees at 9, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez). ↑
  32. Project Veritas, 982 F.3d at 820. ↑
  33. Id. at 828–29. It was not necessary for the court’s review that the plaintiffs specify the particular circumstances in which they would produce future secret recording, as their challenge was limited to the production of secret recordings in public spaces, a phrase the First Circuit had itself previously used to “describe the geographic bounds of the citizen’s right to record police officers.” Id. at 827 (citing Glik v. Cunniffe, 655 F.3d 78, 84–85 (1st Cir. 2011); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014)). ↑
  34. Id. at 829–30. ↑
  35. Id. at 830–31, 836. ↑
  36. 18 U.S.C. § 2511(2)(d) (2018). ↑
  37. See, e.g., Kan. Stat. Ann. § 21-6101(a)(1) (2019). ↑
  38. Cal. Penal Code § 632 (West 2017); Del. Code Ann. tit. 11, § 1335(a)(4) (2017); Fla. Stat. § 934.03(2)(d) (2019); Haw. Rev. Stat. Ann. § 711-1111(1)(d)–(e) (LexisNexis 2016); Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019); Mich. Comp. Laws § 750.539c–d (2016); Mont. Code Ann. § 45-8-213(1)(c) (2019); N.H. Rev. Stat. Ann. § 570-A:2(I) (2017); 18 Pa. Cons. Stat. Ann. § 5704(4) (West 2020); Wash. Rev. Code § 9.73.030(1) (2019). In
    2014,

    the Illinois Supreme Court held the state’s two-party consent statute was unconstitutional as written, as it banned the recording of conversations or situations when the parties had no reasonable expectation of privacy, thus violating the First Amendment. People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014). ↑

  39. Brncik, supra note 25, at
    492–93.

    ↑

  40. Mass. Gen. Laws ch. 272, § 99(A) (2018) (“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.”). Notably, a recording is secret, according to the Supreme Judicial Court of Massachusetts, when it is made without the actual knowledge of the depicted subject, though that finding may be established by “unequivocal objective manifestations of knowledge.” Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). ↑
  41. Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). See also Commonwealth v. Hyde, 750 N.E.2d 963, 968 (Mass. 2001) (reaffirming this interpretation). ↑
  42. Sam Bayard, Massachusetts Wiretapping Law Strikes Again, Digit. Media L. Project (Dec. 12, 2007), http://www.dmlp.org/blog/2007/massachusetts-wiretapping-law-strikes-again [https://perma.cc/ADJ9-ZZ9Q]. ↑
  43. Id. ↑
  44. Daily Free Press Admin, BU Protester Fined, Could Face Jail Time, Daily Free Press (Dec. 6, 2007), https://dailyfreepress.com/2007/12/06/bu-protester-fined-could-face-jail-time/ [https://perma.cc/MG7H-4H5X]. ↑
  45. See supra note 5. ↑
  46. Id. ↑
  47. See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Fields v. City of Philadelphia, 862 F.3d 353, 358–59 (3d Cir. 2017) (affirming that the First Amendment protects the act of “capturing inputs that may yield expression”) (quoting Brief for the Cato Institute as Amicus Curiae at 7); Kreimer, supra note 23, at 408–09 (concluding that given how, in public spaces, “pervasive image capture grants authority to a range of unofficial voices . . . [and] provides a means of holding the conduct of the powerful to account,” it must be that “the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories”). ↑
  48. Statement of Interest of the United States at 4, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888, 2012 WL 9512053 (D. Md. filed Jan. 10, 2012); see also Justin Fenton, DOJ Urges Judge to Side with Plaintiff in Baltimore Police Taping Case, Balt. Sun (Jan. 11, 2012), https://www.baltimoresun.com/news/bs-xpm-2012-01-11-bs-md-ci-aclu-doj-videotaping-20120111-story.html [https://perma.cc/7XVA-W4SW ] (describing the case). ↑
  49. Glik, 655 F.3d at 83–84 (“[T]he public’s right of access to information is coextensive with that of the press.”). ↑
  50. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”). ↑
  51. City of Houston v. Hill, 482 U.S. 451, 460–62, 467 (1987) (invalidating a city ordinance which made it illegal to interrupt an officer in the performance of his duties). ↑
  52. Glik, 655 F.3d at 82 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)). ↑
  53. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (emphasizing that First Amendment protections go “beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw”). ↑
  54. Glik, 655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). ↑
  55. Id. ↑
  56. Id. at 83 (quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)). ↑
  57. Simonson, supra note 23, at 408. ↑
  58. Id. at 421. ↑
  59. See, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 611 (7th Cir. 2012) (Posner, J., dissenting). ↑
  60. See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (clarifying that “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable” as an invasion of one’s right to privacy). ↑
  61. Kaminski, supra note 23, at
    171.

    It should be noted, though, that privacy is a notoriously difficult value to characterize, and it often depends upon the context in which it is claimed. See Daniel J. Solove, Understanding Privacy 101–70 (2008) (proposing a taxonomy of privacy interests); Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904, 1907–08 (2013) (arguing that attempts to define privacy as deriving a single overarching principle are inevitably unworkable). ↑

  62. Kaminski, supra note 23, at 202–03. But cf. Kreimer, supra note 23, at
    404

    (arguing that the primary privacy harm of recording is in its public dissemination). ↑

  63. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (“[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance.”). ↑
  64. See e.g., State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992) (“The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.”). ↑
  65. See, e.g., Rotkiewicz v. Sadowsky, 730 N.E. 2d 282, 287 (Mass. 2000) (finding that a police officer is a public official for purposes of defamation claims because of “the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers[’] high visibility within and impact on a community.”). ↑
  66. See Lopez v. United States, 373 U.S. 427, 437–39 (1963). ↑
  67. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1219–20 (10th Cir. 2007) (highlighting the importance of protecting officer safety but nonetheless finding that the public interest in revealing officer misconduct outweighed that concern under the facts of this case). ↑
  68. See ACLU of Ill. v. Alvarez, 679 F.3d 583, 611–12 (7th Cir. 2012) (Posner, J., dissenting). Surveys show that a majority of police officers often suggest they are supportive of wearing body cameras. See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Behind the Badge, Pew Rsch. Ctr. 75 (Jan. 11, 2017), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2017/01/Police-Report_FINAL_web.pdf [https://perma.cc/CG6C-FTCW]. But that support does not often extend to citizen recorders, as law enforcement feel they would unduly interfere with the execution of their duties. See, e.g., Alysia Santo, Why Cops Aren’t Ready for Their Close-Up, Marshall Project (Apr. 24, 2015), https://www.themarshallproject.org/2015/04/24/why-cops-aren-t-ready-for-their-close-up [https://perma.cc/29Y3-3ZL4] (highlighting police support for a 2015 Texas state bill that would criminalize photographing on-duty police officers). ↑
  69. Alvarez, 679 F.3d at 607; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). See also Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (observing “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”). ↑
  70. Rivera v. Foley, No. 3:14-cv-00196, 2015 WL 1296258, at *1–2 (D. Conn. March 23, 2015). ↑
  71. Id. at *10. The court expressly contrasted the plaintiff’s actions with the attempts by citizens to record the police using handheld devices at a distance from the ongoing investigation, like those at issue in Glik and Alvarez. Id. ↑
  72. Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020). ↑
  73. Id. at 832–33. ↑
  74. Simonson, supra note 23, at 435–36 (describing how organized copwatching takes “the shape of a confrontational practice that seeks change through a combination of official and grassroots channels”). ↑
  75. Project Veritas, 982 F.3d at 833. ↑
  76. Id. at 834 (quoting Jean v. Mass. St. Police, 492 F.3d 24, 29 (1st Cir. 2007)). ↑
  77. Id. (quoting Rideout v. Gardner, 838 F.3d 65, 71–72 (1st Cir. 2016)). ↑
  78. Id. at 836. ↑
  79. Id. ↑
  80. Id. at 836–37. The court did nod to Judge Posner’s concern in ACLU of Illinois v. Alvarez, 679 F.3d 583, 613 (7th Cir. 2012) (Posner, J., dissenting)—that the potential for secret recordings could deter confidential informants from cooperating with police officers. However, the court found it was largely without merit, given that officers meeting with informants are likely careful about the circumstances in which they do so and the defendants offered no concrete evidence of such deterrence, only conjecture. Id. at 837. ↑
  81. Project Veritas, 982 F.3d at 837–38. ↑
  82. Id. at 838 (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)). ↑
  83. Id. ↑
  84. Id. at 839. For example, the court noted the potential privacy interest in the identity of rape victims. Id. (citing Fla. Star v. B.J.F., 491 U.S. 524, 537 (1989)). ↑
  85. For that reason, the court found that there was no alternative kind of recording that would serve the same function as surreptitious recordings. Their outright prohibition under Section 99 could not survive intermediate scrutiny. Id. at 839–40. ↑
  86. See

    Barry Friedman, Unwarranted: Policing without Permission

    5 (2017) (“Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. . . . Possession of these powers . . .  is what defines policing, what sets it apart.”). ↑

  87. Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 48
    2 (2011).

    ↑

  88. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011). These kinds of tactics have consistently been used in protests over police brutality. Karen Hao, How to Turn Filming the Police into the End of Police Brutality, M.I.T. Tech. Rev. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-end-police-brutality-filming-witnessing-legislation/ [https://perma.cc/LLB7-686G]. ↑
  89. Officers often render citations to civilian recorders for broadly defined and difficult to disprove charges, such as obstruction. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Some of the most prominent civilian recorders, like those who filmed the police killings of Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling, have faced continued harassment at the hands of the police. Dragana Kaurin, The Price of Filming Police Violence, Vice (Apr. 27, 2018), https://www.vice.com/en/article/evqw9z/filming-police-brutality-retaliation [https://perma.cc/9PUX-6DAG]. ↑
  90. See, e.g., Tucson, Ariz., Code art. I, §§ 11-70.3, 11-70.4 (2020) (prohibiting individuals from “physically entering crime scenes or areas immediately surrounding where such enforcement activity . . . [is] taking place” and criminalizing activity that “materially inhibits, obstructs, hinders, or delays any Police Officer . . . in the exercise of the Officer’s official duties”). ↑
  91. Fan, supra note 25, at 1645. ↑
  92. See Oral Argument at 14:20, Project Veritas Action Fund v. Rollins, No. 19-1629 (1st Cir. argued Jan. 8, 2020), sub nom. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018), available at https://www.courtlistener.com/audio/67830/project-veritas-action-fund-v-rollins/ [https://perma.cc/NCP4-82GU] (“Under the statute, the principle that the legislature subscribed to . . . is the notion that people have an interest in knowing when they’re being recorded, so that they can make appropriate choices about how to conduct themselves.”). ↑
  93. Friedman, supra note 85, at 321. ↑
  94. See Turner v. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“This right [to record the police], however, ‘is not without limitations.’ Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.’ In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable.”) (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)); see also Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (declining to address the limits of the constitutional right to record); ACLU of Ill. v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (stating that the court need not address surreptitious recordings or recordings of private conversations); Glik, 655 F.3d at 84 (declining to address the limits of the right to film); Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (noting that the Washington Supreme Court had not yet interpreted whether its wiretapping statute covered private conversations); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record but not defining its scope). ↑
  95. For example, the Tenth Circuit recently found that four officers were entitled to qualified immunity in a Section 1983 action that alleged the officers had unconstitutionally infringed on the plaintiff’s First Amendment right to record the police in public spaces because no such right had been clearly established at the time of the purported violation. Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021). However, the court then “exercise[d] [its] discretion to bypass the constitutional question of whether such right even exists.” Id. at 1020 n.4. ↑
  96. See Alvarez, 679 F.3d at 605–07. ↑
  97. Id. at 608 (enjoining the State’s Attorney from applying the Illinois wiretap statute against the ACLU and its employees who openly record law enforcement). ↑
  98. Id. at 605–06. Under this standard, courts ask whether the regulation is narrowly tailored to serve a substantial government interest, meaning the government must prove its interest “would be achieved less effectively absent the regulation” and that the regulation can accomplish this end without burdening “substantially more speech than is necessary.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). ↑
  99. Alvarez, 679 F.3d at 607 n.13 (citing Bartnicki v. Vopper, 532 U.S. 514, 529 (2001)). ↑
  100. See State v. Graber, No. 12-K-10-647, 2010 Md. Cir. Ct. LEXIS 7, at *19 (Md. Cir. Ct. Sept. 27, 2010); State v. Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992); Jones v. Gaydula, No. CIV. A. 85-1859, 1989 WL 156343, at *3 (E.D. Pa. Dec. 22, 1989). ↑
  101. See Bleish v. Moriarty, No.11-cv-162, 2012 WL 2752188, at *10–*12 (D.N.H. 2012) (finding a Section 1983 plaintiff’s arrest for disorderly conduct did not violate the Fourth Amendment and that the plaintiff failed to show she was arrested for exercising her First Amendment rights); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that the plaintiffs failed to show that the police had violated their First Amendment right to record); Gravolet v. Tassin, No.08-3646, 2009 WL 1565864, at *4 (E.D. La. June 2, 2009) (finding a Section 1983 plaintiff’s arrest while recording did not violate his Fourth Amendment rights because the officers had probable cause to arrest him for stalking and that the plaintiff failed to clearly establish his right to record). ↑
  102. See supra notes 35–39 and accompanying text. ↑
  103. Scholars have previously discussed the compelling justifications for extending constitutional protection to surreptitious recordings. See, e.g., Rodden, supra note 24, at 907. ↑
  104. Alvarez, 679 F.3d at 607 n.13. ↑
  105. There are valid, constitutionally cognizable concerns that may limit the right to secretly record police-civilian interactions, for example, in private spaces. See Kaminski, supra note 23, at 238–42. However, these distinctions are not constitutionally meaningful when comparing secret and open recordings of the police in public. ↑
  106. Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014). But see Simonson, supra note 23, at 1563 (arguing that an officer may only prevent those acts of recording which would create a “concrete, physical impediment to a police officer or to public safety”). ↑
  107. See supra note 79 and accompanying text. ↑
  108. Alvarez, 679 F.3d at 611 (Posner, J., dissenting). ↑
  109. See id. at 611–12 (Posner, J., dissenting). ↑
  110. See, e.g., Commonwealth v. Bradley, 232 A.3d 747, 755–56 (Pa. Sup. Ct. 2020) (holding that a no-filming condition in the lobby of a police department was a reasonable time, place, manner restriction to “ensure the safety, security and privacy of officers, informants and victims”). ↑
  111. Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (quoting Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636 (1975)). ↑
  112. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067–69 (6th Cir. 1998) (finding that the city’s release of the police personnel files, which included, among other things, officers’ home addresses, phone numbers, banking information, social security numbers, of the police officers who participated as witnesses in a criminal defense trial to defense counsel violated the officers’ due process rights by rendering them vulnerable to “private acts of vengeance”). See also Whalen v. Roe, 429 U.S. 589, 599–600 (1977) (holding that there is a constitutionally protected right to privacy in an individual’s interest in avoiding the disclosure of highly sensitive, personal information). ↑
  113. See, e.g., Hill v. Colorado, 530 U.S. 703, 725–26 (2000) (holding that an eight-foot zone around persons entering a healthcare facility was “a valid time, place, and manner regulation”). Where the production of a secret recording would contravene such reasonable time, place, manner restrictions, the police may legitimately stop the citizen recorder’s production and dissemination of that recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017). It should be noted, though, that Supreme Court precedent suggests that the police still may not prohibit the dissemination of such recordings by third parties. See Bartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); see also Jean v. Mass. St. Police, 492 F.3d 24, 31 (1st Cir. 2007) (finding that the publication of another’s surreptitiously produced recording, thereby violating Section 99, is entitled to First Amendment protection and therefore immunized the publisher from prosecution, even where the publisher “arguably participated . . . in a conspiracy to disclose the content of [an] illegally recorded oral communication”). ↑
  114. See supra notes 62–65 and accompanying text; see also Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 513 (2013) (explaining that “police officers qua police officers do not own a personal privacy expectation in their official acts under prevailing judicial interpretations”). ↑
  115. See supra notes 58–61 and accompanying text. Some have argued that any person who engages a police officer in a public space loses any reasonable expectation of privacy that they might otherwise be able to claim. See Alderman, supra note 113, at 513–14. ↑
  116. See Allissa V. Richardson, Why Cellphone Videos of Black People’s Deaths Should Be Considered Sacred, Like Lynching Photographs, The Conversation (May 28, 2020), https://theconversation.com/why-cellphone-videos-of-black-peoples-deaths-should-be-considered-sacred-like-lynching-photographs-139252 [https://perma.cc/XRH4-XL75]. ↑
  117. Consider a recording of protestors that could expose them to criminal or civil liability. Depending on the circumstances of the conduct depicted, the protestor may have a colorable claim that the recording of their actions was an invasion of their privacy. See Thomas Germain, How to Record Video During a Protest, Consumer Reports (June 5, 2020), https://www.consumerreports.org/audio-video/how-to-record-video-during-a-protest/ [https://perma.cc/7BN6-QPM7]. ↑
  118. See Scott Skinner-Thompson, Recording as Heckling, 108 Geo. L. J. 125, 169–73 (2019); see also Richard C. Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill. L. Rev. 871, 877–78 (1989) (suggesting a three-pronged analysis to adjudicate the reasonability of an individual’s claim to privacy within the context of disclosing a patient’s HIV status); Doris DelTosto Brogan, Privacy’s Place at the Table: A Reflection on Richard Turkington’s Approach to Valuing and Balancing Privacy Interests, 61 Vill. L. Rev. 437, 445, 456–64 (2016) (arguing that Professor Turkington’s framework is broadly applicable and analyzing its potential application to the NSA data sweeping program and the deployment of police body cameras as examples). ↑
  119. See, e.g., DelTosto Brogan, supra note 117, at 443–45 (comparing such an analysis to that proposed by Judge Learned Hand to analyze whether or not a defendant acted negligently in the canonical United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)). ↑
  120. DelTosto Brogan, supra note 117, at 443–45. ↑
  121. Among other causes of action, a plaintiff might successfully argue a recording was an undue invasion of their privacy if it created “unreasonable publicity,” so long as the matter publicized was “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Restatement (Second) of Torts §§ 652D, 652D cmt. C (1977). ↑
  122. Analogous inquiries have plagued courts. For example, the Supreme Court has previously instructed lower courts to determine whether a police officer’s use of a given piece of technology in the course of an investigation constituted a search under the Fourth Amendment by asking whether that technology was in “general public use” at the time. Kyllo v. United States, 533 U.S. 27, 34–35 (2001). Critics have argued that such an inquiry is inadequate because it fails to consider how “courts [are] to deal with the rapid pace of technological development in deciding whether something is in the general public use.” See Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo’s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1412–13 (2002) (furthering that “[a]dvanced technology can find its way in to the average home very quickly. When that happens . . . the courts will either have to change their stance, manipulate the meaning of the general public use doctrine, or ignore it”). ↑
  123. See supra notes 75–84 and accompanying text. ↑
  124. See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.”). ↑
  125. For an exploration of this argument, see generally Rodden, supra note 24. ↑
  126. Brncik, supra note 25, at 515–19. ↑
  127. Id. at 520–21. ↑
  128. Id. at 514–15 (citing attempts at reform in Congress and the Mississippi legislature that were stymied, in large part, by police union opposition). ↑
  129. Id. at 516–17 (pointing out police departments that have adopted such a policy and advising prosecutors’ offices to follow suit). ↑
  130. Id. at 502–03 (“These recordings help to inform the public and to enrich the public debate over what is or is not abusive behavior. Video evidence is particularly valuable because videos provide the viewer . . . a credible account of the interaction.”). ↑
  131. Project Veritas v. Rollins, 982 F.3d 813, 831 (1st Cir. 2020) (affirming the “particular significance of First Amendment newsgathering rights with respect to government”) (internal quotation marks and citations omitted). ↑
  132. See Rodden, supra note 24, at 906–07 (advocating that the secret recording of the police be permissible under all wiretap statutes, as a discrepancy between the standards applied to secret and open recordings “gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions”). The First Circuit’s decision, in many ways, serves as a model for how Rodden’s argument can be given effect nationally. ↑
  133. For an extensive discussion on the merits and dangers of nonenforcement, see generally Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937 (2017). ↑
  134. As explored by Professor Price, whether or not one’s reliance interests would be protected under a policy of nonenforcement depends on how a particular jurisdiction would weigh that interest against the rights of executives to enforce the law. Id. at 947. ↑
  135. See supra notes 90–92 and accompanying text. ↑
  136. Paul Martin Lester, Visual Ethics: A Guide for Photographers, Journalists, and Filmmakers 87 (2018); Erik Ortiz, George Holliday, Who Taped Rodney King Beating, Urges Others to Share Videos, NBC News (June 9, 2015), https://www.nbcnews.com/nightly-news/george-holliday-who-taped-rodney-king-beating-urges-others-share-n372551 [https://perma.cc/NM3F-Z9KZ]. ↑
  137. See McLaughlin, supra note 2. ↑

  138. Hannah Knowles, Teen Speaks Out a Year After Filming George Floyd’s Death, Saying Her Video ‘Put His Murderer Away’, Wash. Post (May 25, 2021), https://www.washingtonpost.com/nation/2021/05/25/darnella-frazier-floyd-statement/ [https://perma.cc/4XMH-A2UZ]. ↑

©Virginia Law Review Association. All rights reserved.