Fourth Amendment Can Strengthen Free Speech as Trump Administration Promises Assault
A couple of weeks ago, I posted here with a caveat that it’s easier to tweet than to secure an indictment. I meant that there’s no need to interpret everything a government official says as an actual threat. This time, things are different. Following the assassination of conservative commentator Charlie Kirk, President Trump, Vice President Vance, White House adviser Stephen Miller, and other officials have insisted that the federal government is going to go after left-wing groups. Although the Constitution forbids First Amendment retaliation, these threats are serious and will require legal ingenuity to resist.
First, the immediate context: it is not at all clear that Kirk’s killer was a left-wing ideologue, and there’s no evidence at this point that he was part of a broader leftist conspiracy to commit the murder. At most, he appears to have been obsessed with internet gaming culture. He also seems to have acted as a lone wolf.
Now, the legal context. The Supreme Court has long said that the government can’t retaliate against people for exercising their freedom of speech. The freedom of speech also covers shockingly offensive language, hyperbolic threats, and even generalized references to violence. Invite TV reporters to your Ku Klux Klan rally where you show off your weaponry, promise violence if the government interferes with you, and say exactly where you think American Jews and Blacks belong? Protected. Hold up signs near a funeral saying the deceased died in Iraq because God hates America for tolerating homosexuality? Protected. Have meetings where you talk about the need to overthrow the American government as part of a worldwide workers’ revolution? Mostly protected. You get the point.
The activity the administration is currently focusing on—mostly idiotic social media posts celebrating Kirk’s death—fits well within the protection of the First Amendment. And those kinds of posts generally *aren’t* being put out by the various non-profits, policy groups, and other organizations the government plans to target as parts of a supposed vast radical left domestic terror network. If only the government would tell us exactly who they have in mind. Because without that, we’re left with the insinuation that the FBI means to use the Kirk killing as a pretext for monitoring the ACLU.
Like I said, the Supreme Court has said the government can’t retaliate against people for exercising their freedom of speech, and freedom of speech surely covers anything the government would rely on here. So why did I say it’ll take legal ingenuity to fight back against this abuse? Because it’s not clear what actually counts as retaliation. We know the government can’t drop hints to your business partners that they should drop you, because the Supreme Court ruled in favor of the NRA when New York tried to do that to it. The government probably can’t twist social media platforms’ arms to censor you, because that came up in a major case on COVID-19-era critics of the government. (Funny how who demands free speech and who tries to restrict it can flip so quickly, thanks to a presidential election.)
But we don’t know what the government can do to put a group under surveillance. That’s actually a problem of Fourth Amendment law, not First Amendment doctrine. The Supreme Court has yet to say whether tracking someone’s every movement, even over the course of months and on their own property, is a search. The Supreme Court has yet to definitively say whether requesting someone’s bank, cell phone provider, or search engine to hand over all their records on a group triggers the Fourth Amendment. It has yet to say that the government needs a warrant before using tower data to pinpoint the locations of hundreds of people who were in a certain place at some point during an afternoon. And it has yet to require the government to even tell people whether they’re on secret lists that may keep them from flying, buying a gun, or being free of heightened police suspicion.
There are fixes for these problems under the Fourth Amendment. Cato has long argued that the Supreme Court should hold that people’s records and data are protected from government snooping even if (as is virtually always the case nowadays) they’re being held by a third party, such as a company. Cato has invited the Court to define a search as any action meant to uncover hidden information. That would help block investigative stalking and 24/7 surveillance. We’ve also challenged the existence of secret databases that are used to restrict American liberty. And we’ve characterized a Fourth Amendment seizure as any government infringement on liberty of movement. But the Court has yet to bite on any of those lines.
So, yeah, there are limits to what the government can do to any given dissident group publicly. But as of today, it can do an awful lot privately to squeeze groups whose views it doesn’t like (on high-profile deaths, sure, but more likely on wars, guns, vaccines, immigration, corruption, or anything else).
Ensuring the strength of freedoms of speech and association will require more than just vindicating First Amendment protections. It also has to mean strengthening Fourth Amendment rights against unreasonable searches and seizures.