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The Procedural Errors of Warshak v. United States:
In this post on Warshak, I want to address why I think the case was obviously wrongly decided as a procedural matter. The court simply had no business trying to imagine all the ways the statute might be applied and resolving the constitutionality of all of those hypothetical applications. No court has ever done that before, and it's a dramatic break with decades of Fourth Amendment practice that the Supreme Court long ago foreclosed. Not only that, as I have argued in this 2004 law article, it's a reckless practice as a matter of policy: courts simply lack the institutional ability to enact entire surveilance regimes all at once, and any effort to do so is bound to create major headaches (as this one will, for reasons I'll get to in a future post). Let's start with some background about how Fourth Amendment law is made. The basic starting point of Fouth Amendment decisionmaking is that it is based on concrete facts: a search or seizure occurs and then its legality is challenged, either pursuant to a civil action or a motion to suppress. The court holds a hearing, figures out exactly what happened, and then applies the Fourth Amendment to the facts as found. This does not mean that prospective injunctive relief does not exist in Fourth Amendment law; but it does mean it is rare and its scope is very limited. Courts consider injunctive relief for Fourth Amendment violations when the government has an ongoing program: For example, the police might have enacted a new program putting up a particular kind of road block, or a school might have a policy requiring drug testing of public school students. In these cases, however, the scope of the injunctive relief is always very limited: the court considers whether the recurring known facts as they exist render the government conduct constitutional or unconstitutional. The court's role is limited to giving the existing program the Constitutional thumbs-up or thumbs-down. The Warshak court took a radically different approach. According to Judge Martin, courts can rule on facial challenges to statutes that regulate searches and seizures. In this setting, courts have the power to survey all of the possible applications of the statute and determine which ones will be constitutional and which ones won't be; the court can then draft the appropriate injunction to ensure the government oly acts constitutionality in the types of cases potentially covered by the statute. The Court drew this power from two cases: Berger v. New York, 388 U.S. 41 (1967), which considered a facial challenge to a New York wiretapping statute, and Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the recent abortion case authorizing lower courts to craft injunctive relief for the use of a challenged abortion statute to a set of unconstitutional applications of the statute. But this is pretty clearly incorrect. It is true that the Supreme Court did once entertain a facial Fourth Amendment challenge to a statute, in Berger. (There were very unusual circumstances, in case you're interested: Congress was considering the wiretapping legislation ultimately enacted as Title III, and the Justices wanted to and did get their 2 cents in about what it would say. ) However, the Court quickly shut the door on facial Fourth Amendment challeges just a year later in Sibron v. New York, 392 U.S. 40 (1968).
To return to the truncated post, click here.
Sibron was a companion case to Terry v. Ohio, and it applied the Terry framework to two stops and frisks in New York state. Unlike the Ohio stops and frisks in Terry, however, the stops and frisks in Sibron were made pursuant to the terms of New York's stop and frisk statute, Section 180-a. Section 180-a authorized the police to "stop" individuals, "demand" explanations from them and "search" them for "dangerous weapons" if "reasonable suspicion" existed. The lawyers on both side of Sibron read Berger, saw that the Court approached the New York wiretapping statute as a facial challenge, and wrote their briefs on the assumption that New York's stop and frisk statute would be evaluated facially as well. In an opinion by Chief Justice Warren, the Court concluded that it was improper to subject a statute to facial Fourth Amendment challenge outside the fairly specific context of a statute authorizing the issuance of search warrants. Here's the Court's anaylysis: The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments.
Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967).
Accordingly, we make no pronouncement on the facial constitutionality of 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is "not so much . . . the language employed as . . . the conduct it authorizes." People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions. Sibron, 392 U.S. at 59-62. So how does Judge Martin deal with Sibron, which seems to limit Berger-like facial challenges to testing "the procedure for the issuance of the warrant . . . to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope" — obviously not something implicated by this case? Well, he doesn't. Judge Martin doesn't discuss Sibron. The case is not even cited. Instead, Judge Martin sees Berger as standing for the broad proposition that facial challenges are permitted "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." But isn't that broad reading pretty clearly foreclosed by Sibron? Judge Martin's opinion also ignores the Supreme Court's recent statements discouraging and narrowing the availability of facial challenges in Sabri v. United States, 541 U.S. 600 (2004). In Sabri, a criminal defendant brought a facial challenge to a bribery statute alleging that the statute lacked the needed connection to interstate commerce. The opinion of the Court included a discussion of when facial challenges are permitted; although the reasoning is general, I think it is nonetheless instructive We add an afterword on Sabri’s technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent. See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960) (laws should not be invalidated by “reference to hypothetical cases”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219—220 (1912) (same). Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks. Facial adjudication carries too much promise of “premature interpretatio[n] of statutes” on the basis of factually bare-bones records. Raines, supra, at 22. . . .
Facial challenges of this sort are especially to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. See, e.g., Chicago v. Morales, 527 U.S. 41, 55—56, n. 22 (1999) (plurality opinion). Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973) (free speech); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (right to travel); Stenberg v. Carhart, 530 U.S. 914, 938—946 (2000) (abortion); City of Boerne v. Flores, 521 U.S. 507, 532—535 (1997) (legislation under §5 of the Fourteenth Amendment). See generally Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing role of various doctrinal tests in determining viability of facial attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of substantive First Amendment law). Outside these limited settings, and absent a good reason, we do not extend an invitation to bring overbreadth claims. Like Sibron, Sabri is not mentioned in the Warshak opinion. After determining that Berger permits a facial challenge to a statute on Fourth Amendment grounds, Judge Martin next invokes Ayotte v. Planned Parenthood for the view that a court can craft a narrow injunctive remedy focused on unconstitutional applications of the challenged statute. Ayotte involved abortion, one of the few areas in which facial challenges are common. But if you read Ayotte, it expressly counsels against doing what the panel did in Warshak: the Court warns that courts could not "rewrite" statutes to "salvage" them. According to Ayotte, partial invalidation of statutes should be limited to reinforcing clear and established constitutional lines in ways so as to reconstruct legislative intent with the unconstitutional applications removed. Justice O'Connor explains: [M]indful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180—183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself.
We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid. This is of course exactly the case of e-mail privacy. I spend a full 50 pages in my 2006 Computer Crime Law casebook pondering the many possible arguments for different ways the Fourth Amendment might apply to e-mail (from pages 394-445). My ultimate conclusion is that the law is completely unknown and that a remarkable range of outcomes are possible based on existing authorities. This drives students nuts; as you might imagine, they want some answers. But I can't give them certainty that doesn't exist. What does Judge Martin make of the passage in Ayotte warning judges away from offering comprehensive rules when the law is murky or inherently complex? We don't know; he does not mention it. Judge Martin interprets Ayotte as bestowing upon him broad remedial powers, but he does not address the limitations on those powers found in the opinion itself. In sum, the Warshak court gave itself powers that Supreme Court precedent clearly forecloses. Courts simply lack the power to decide entire fields of Fourth Amendment law based on imagined facts, and the Warshak court lacked the power to do so here. Warshak has already brought a civil suit challenging the two accesses of his e-mail accounts that occurred in 2005, and any judicial pronouncement of how the Fourth Amendment applies to compelling e-mail should be limited to the facts of the searches that occurred. )
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In that sense, it is quite distinguishable from this case, which involves a statute that allows the government to secretly read emails without notice to the investigative target. As I understand it, the feds can extend the notification requirement as long as the district court will oblige them, and I'm sure district courts have no problem accepting the feds' claims that they are still investigating. Here, it seems that Warshak only learned of the intrusion when the government messed up and forgot to get another extension.
So the alternative to striking down the statute is to let these violations continue for unknown numbers of investigative targets unless and until each target finds out and sues. I think Sibron is readily distinguishable in this regard.
But where what is to be searched and seized is written communication, the first and fourth amendments overlap, and there is considerable Supreme Court precedent so indicating. One of the earliest Supreme Court cases so holding was U.S. v. U.S. District Court.
Surely the presence or absence of privacy safeguards will carry a severe impact on freedom of communication by electronic mail. So my question--I haven't kept up on the case law on first amendment and fourth amendment intersection sufficiently to pronounce an opinion--is whether the presence of expressive interests here has any effect on whether overbreadth analysis is appropriate.
That's a very interesting new theory of when facial challenges should or should not be permitted. But aren't we sort of stuck with what the U.S. Supreme Court said in Sibron?
Peter Young,
U.S. v. United States District Court did not involve a facial challenge to a statute. It was an as-applied challenge to specific wiretapping of a specific person in a specific criminal case, albeit one that raised a broadly-applicable legal question.
I also don't see a directive anywhere in Sibron such as "courts may not entertain facial challenges to State statutes under the Fourth Amendment." In the absence of such clear direction, in my opinion, Prof. Kerr overstates the state of the law, putting an adamant, personal gloss on a distinguishable case that is ambiguous about its own extent.
Finally, the facts in Warshak are MILES from a typical facial attack on a statute. In a typical facial attack, someone alleges, "I'm afraid that something bad is going to happen to me by the government." In this case, Warshak became aware that the government had already accessed his email communications, and it refused to refrain from continuing that action. The order authorizing the seizure and ordering the non-disclosure is known. The facts asserted to justify the seizure (and, again, the order of non-disclosure) are also known. Therefore, an injunctive and declaratory judgment action by Warshack under these circumstances is, in my opinion, wholly different from the typical facial attack on a statute.
In the end, Prof. Kerr disagrees with the Sixth Circuit's willingness to review Warshak's case at this stage, and Prof. Kerr disagrees with the nature of the remedy. Those are questions of discretion and judgment, not of law. Prof. Kerr's is entitled to disagree with the wisdom of the Sixth Circuit's approach, but he should not purport that the Sixth Circuit's approach is unlawful.
Is this really just my "adamant, personal gloss"? Let's focus on exactly what the Supreme Court said in Sibron:I think that's actually pretty clear. Let's see it again: "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case."
Notably, the Court didn't say, "the constitutional validity of a warrantless search is pre-eminently the sort of question which would be kinda nice to usually decide in the concrete factual context of the individual case." That seems to be your view, but it's not what the Supreme Court said, right?
Nor did the Court say, " "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case, except when the person whose rights are at issue might not receive timely notice under a provision elsewhere in the the statute, in which case, sure, why not, may as well have a facial challenge. " I gather you would approve if the Supreme Court had said that -- it is what you suggest as a sensible rule, as I understand it -- but as far as I can tell it did not say that.
So I guess I'm gettin this from the U.S. Supreme Court: "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case."
You seem to be accepting every word the Supreme Court says as binding. Although the Supreme Court's language in Sibron may point to the result you suggest, a court has power to create law only on the facts before it. As Judge Leval pointed out in his recent Madison Lecture, even opinions of the Supreme Court contain propositions broader than their holdings.
It seems to me that it is certainly a valid tack to argue that although the Sibron language seems controlling, that language only concerned "concrete factual contexts" in cases where the factual context of a search is actually discernible. Nothing in the Sibron opinion so indicates, but that is because such a fact pattern was not before the Sibron court. A circuit court is certainly free to distinguish Sibron on this basis, and it is legitimate to do so. Whether the Supreme Court would agree with that distinction is another question, but it certainly makes it unwise to assert that a circuit court would "obviously" err in making that distinction.
[OK Comments: Yes, when the Supreme Court says something is the law, I do accept it as binding on a lower court. This may strike some as unsophisticated, but hey, that's how I roll.]
Sibron involved a NY criminal statute that stated:
"1. A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or any of the offenses specified in section five hundred fifty-two of this chapter, and may demand of him his name, address and an explanation of his actions.
2. When a police officer has stopped a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person."
392 U.S. at 44.
In other words, they are talking about something that authorizes activity that is similar to, but not equal to, the type of behavior which was condoned in Terry, its companion case. I don't think this context is meaningless - indeed, a majority of judges found that one of the two searches, both of which the lower court found valid under the statute, constitutional, and the other unconstitutional.
In declining to reach the facial question, the court concludes, as you show above, that a NUMBER of factors play in. The substantive/procedural factor is certainly one of those, but so is the fact that it deals with state law, that it involves the interpretation of terms that relate to, but do not comport with, and with terms defined by the Supreme Court in its 4th amendment inquiries.
What isn't clear whether any of these factors are by themselves decisive. If any is decisive, it would seem more that other two factors - that we are dealing with state laws, which should be "free to develop its own law of search and seizure to meet the needs of local law enforcement," and that the key terms are "susceptible of a wide variety of interpretations."
So while I agree that Berger is limited, and that Sibron definitely limits its holding in ways very relevant to this case, I don't know if I buy that Sibron limits facial challenges to statutes where "the procedure for the issuance of the warrant . . . to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope."
Getting to the actual statute at issue:
"A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."
Well, that's certainly not the standard for a search, no? More to the point, the statute also allows notice-based subpoenas ("(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under [the part I quoted above]" and, NON-NOTICE BASED SUBPOENAS BASED ON A WARRANT. Without actually striking down (even partially) the statute, a holding (you could even quote Sibron here) that the statute cannot authorize searches under those standards that would otherwise require a warrant under the Fourth Amendment. And the court could then go on to rule that in cases such as here where X, Y, and Z, exist, a warrant is necessary. They could do so even if the reasoning managed to encompass all useful benefits of the statute. Imagine a statute that said: :
"The federal government shall be issued a warrant to enter the home of any person, regardless of citizenship, who has been designated a "supporter of terrorism" [an unreviewable designation made by the Secretary of Homeland Security], upon reasonable suspicion that the home contains evidence related to either specific or general criminal activity."
Couldn't one easily see a court take an as applied challenge (even a routine one such as on a motion to suppress) and write an opinion that happens to render the statute useless? (Also, its unclear whether such a statute would prevent a facial challenge under Sibron in any event).
Now, I still agree with you that the court's reasoning as it now stands is way too broad, and that a "facial challenge" should not have been considered. And while I initially agreed with you that the court shouldn't have even bothered with substance, waiting until a motion to suppress at trial, I now While I disagree with the court's proactive procedural role, I don't think I still agree. It wouldn't take a massive leap of statutory interpretation to claim that such notice gives the "real party in interest" a right to make a motion to quash - that is, injunctive relief (in addition to the new cause of action for a motion to quash given to the ISPs). And if so, I think the court could get into an "as-applied" challenge, unless the challenge is moot. The existence of delayed notice in narrow circumstances may prevent this, but given that 2705 still requires the court to make some actual determination, and I don't know if the legislature intended the mere existence of delay in certain circumstances to eliminate any implied cause of action to protect its rights broadly.
Standing and Mootness are the barriers to a substantive judicial decision, not the existence of a facial challenge. And maybe the court also got those two wrong, but the court doesn't provide enough facts to answer the question. All we know that the government wouldn't see "additional orders under section 2703(d) directed at his emails." If the government agreed not to invoke 2705, I think this case is really easy, and its all moot. But if they intend to use 2705 (and note that the government "conceded that it violated [2705] by waiting for a over a year without providing notice of the e-mail seizures to Warshak or seeking extensions of the delayed notification period"), certainly mootness itself can be defeated, as the court notes correctly, describing Lyon.
The rest of my thoughts are pretty rambling and disconnected:
While you call this a "procedural" ruling, I don't know if its exactly that. Whether you agree or disagree (and I disagree as well) with any of the reasoning, the court structures its decision correctly. It first finds that there is standing, and the decision is ripe. (Part A). It then discusses likelihood of success of the merits (Part B). Only then does it get to Part C - and though I agree the court should not have invalidated the statute, that doesn't eliminate standing. Even in Sibron, the court went ON to decide the as applied challenge.
If the court got standing and mootness right, declined to find a facial challenge, and proceeded to an as-applied challenge, which of the holdings would be lost? I honestly can't tell from the decision (and perhaps a remand would have been necessary for more factfinding). But I'm not confident that the answer is "none."
Also, there might be something I'm missing about injunctive relief vis a vis a facial challenge. The court says they get to that argument because the government demanded it, citing Salerno. But nothing in Salerno itself seems to indicate that as applied challenges in these circumstances are forbidden.
Next, I may be reading this wrong, but there are 5 concurring or dissenting opinions in Sibron. Is this a plurality opinion? It's tough to figure out what exactly gets 5 votes, though I see Justice Harlan's concurance in the result gives at least 5 votes to the holding that this statute cannot be subject to a facial challenge, but for different reasons. His concurrence in the result, in relavant part:
"This does not mean, however, that the statute should be ignored here. The State of New York has made a deliberate effort to deal with the complex problem of on-the-street policework. Without giving carte blanche to any particular verbal formulation, we should, I think, where relevant, indicate the extent to which that effort has been constitutionally successful. The core of the New York statute is the permission to stop any person reasonably suspected of crime. Under the decision in Terry a right to stop may indeed be premised on reasonable suspicion and does not require probable cause, and hence the New York formulation is to that extent constitutional. This does not mean that suspicion need not be "reasonable" in the constitutional as well as the statutory sense. Nor does it mean that this Court has approved more than a momentary stop or has indicated what questioning may constitutionally occur during a stop, for the cases before us do not raise these questions."
Finally, please understand that these are my initial reactions. I don't have access to free westlaw or lexis to research, back up, or reconsider my points, and am just going on my general thoughts and the cases at my fingers as I read them. I've probably missed something here or there, that may or may not invalidate my whole position - if so, just kindly point it out. And I am sure this rambling, occasionally less than optimally coherent, and chock full of grammatical and spelling/typing errors. Apologies in advance for not having the time to edit.
U.S. v. United States District Court did not involve a facial challenge to a statute. It was an as-applied challenge to specific wiretapping of a specific person in a specific criminal case, albeit one that raised a broadly-applicable legal question.
You miss my point or I didn't make it clear. What I cited U.S. District Court for was the proposition that searches and seizures of communications impede expressive interests. If you couple that proposition with the proposition, established in other cases, that facial analysis is appropriate where a statute allegedly impedes expressive interests, then facial analysis may be appropriate where a statute authorizes search and seizure of communications.
Berger engaged in facial analysis of a statute that authorized interception of communications, although admittedly it did not mention expressive interests or the first amendment. Sibron, disapproving facial analysis in the normal fourth amendment context, had nothing to do with interception of communications; it was a stop and frisk case that involved no expressive interests at all.
My point is that the presence of expressive interests here may make a difference as to whether facial analysis is appropriate.
Sabri wasn't cited because the section you quoted was pure dicta.
Also, you fail to notice the critical distinction in Ayotte that restrained the court from "rewrit[ing] state law to conform it to constitutional requirements." The law was a state law, so the duty of constitutional saving interpretations, if any, belonged to the state courts in the first instance. The SCA is a federal law, so there is nothing wrong with the federal courts issuing a saving construction. SCOTUS has done such complex saving constructions in cases where it is a murky federal law (see Booker).
Lastly, it is clear that, to the extent that this is a "facial" attack, it is facial in name only. To claim the decision is based on "imagined facts" is a simple lie. This person has already had his rights violated, and the government has refused to promise not to continue to violate his rights in the future, and such violations are likely to cause irreperable harm (e.g. chilling his right of speech). That is the archtypal case for injunctive relief. The only question this, is how prophylactic the relief should be, which is a question that should not be confused with the facial / as applied challenge.
You simplify things. We do not simply get to read pronouncements in Supreme Court opinions and apply them without room for refinement. We have to understand the facts of the case and the issues in dispute to understand if "the law" pronounced in an opinion governs a later situation. That is the common law method. Opinions are not statutes. We interpret them differently.
I would direct you to the Madison Lecture of Judge Pierre Leval: Judging Under the Constitution, 81 N.Y.U. L. Rev. 1249 (2006). The article is largely about dicta, which I am not suggesting the Sibron statement is in full. But the points he makes about common law decisionmaking and the dangers of unthinking acceptance of dicta ring true here.
The category of unknown searches (1) was not before the Supreme Court in Sibron and (2) is plausibly distinguishable from the facts of Sibron in a meaningful way. Thus, in my view, it is not "obviously" wrong to argue that Sibron is distinguishable. That limited point is my only one.
Your vision of introducing "room for refinement" sounds like lawlessness to me. Anyone with a J.D. can come up with an argument for why any case is distinguishable from any other case. This may strike you as naive or unsophisticated, but I believe that the rule of law demands that judges not play those games to get around binding precedents they don't like or think were poorly decided. That may be your vision of what inferior court judges should do, but it isn't mine.
Zooba, and others, while we're at it:
I'm fascinated by all of the interesting new distinctions you want to introduce into the law to get around what the United States Supreme Court has said. Here's a test, though: Name a decision, any United States federal court decision, in which a federal or state statute has been subject to a facial Fourth Amenment challenge other than statutes governing when search warrants are issued. Four decades have passed since Berger, and you seem quite convinced that Sibron can be easily distinguished. So where are the cases? We know Warshak is one. What are the others?
This is a very interesting theory, thanks for offering it. But I wonder, doesn't it prove too much? It seems to me that all Fourth Amendment rules can be used in ways that threaten freedom of expression and chil free speech. Police searching someone's home can really disrupt them and their thoughts; the government wil come in and rifle through all of their things, taking away their papers and computers. Police following individuals around town, talking to the neighbors, or harrassing them through pretextual Terry stops can be incredibly intimidating, interfering with their thoughts and beliefs and freedoms. Similarly, rifling through their bags, installing cameras on the street, and the like would have the same effect.
Given that, shouldn't all Fourth Amendment statutes that regulate such things be subject to facial attack? According to the Warshak court, the only thing that is unconstitutional about the current statute is that notice should't be delayable: is the threat to freedom of expression so great from that one difference that facial challenges should be allowed here but not in any of the other settings?
Lower courts aren't bound by precedent where they can make a good argument that the precedent, expressly or not, was limited to the kind of facts that were then at issue. Whether or not Sibron will necessitate a reversal, depends on whether or not the Court thinks that its earlier precedent is relevant here.
I do agree however that it's sloppy, at best, for the circuit court not to have expressly addressed &distinguished the case. Did the briefs not bring that up?
Nick
i definitly will agree with oyu on the merits in this case...and i also agree with you on the procedural questions here
but just for clairitys sake...
what exactly is the line here between a facial and non facial attack?
the court takes as a given that the US clearly does have a program to sieze emails (much like the drug testing programs or the road block programs you mention)
the court seems to accept this is a facial attack and goes as far as to impost the injuction on any provisions of the statue that allow for ex parte court orders for search of email with less than probable cause...and applies the injuction on using the statue to the entire distrtict.
suppose the injuction had simply required the gov not to do any more email searches of the defendant without either a warrent or notice..but didnt expressly put an injuction of those protions of the statue..as a whole?
in this hypothetical.. would this be considerd 'non facial'? would you enetertain such a hypothetical injuction on procedural grounds (even if you would deny it..as i would..on the merits?)
It's hardly my theory to offer, since it's far from new. But I don't think it would get anywhere with this Court.
Police searching someone's home can really disrupt them and their thoughts; the government wil come in and rifle through all of their things, taking away their papers and computers. Police following individuals around town, talking to the neighbors, or harrassing them through pretextual Terry stops can be incredibly intimidating, interfering with their thoughts and beliefs and freedoms. Similarly, rifling through their bags, installing cameras on the street, and the like would have the same effect.
In the case at hand, the statute on its face is aimed at searches and seizures of communications; the interference with expressive interests is apparent from the face of the law. In the situations you mention, that is not apparent on the face of any law authorizing the police conduct, if there is one.
Facial analysis is appropriate only when it is apparent from the face of the statute that a substantial number of the applications of the law will run afoul of the first amendment.
The equation you draw between very different situations makes no sense to me. Granted, the fatal shooting of a murder suspect by the police interferes with the suspect's first amendment interests; it shuts him up forever. But surely one can fairly distinguish between that and searching/seizing writings. Surely one can reasonably contend that first amendment standards do not apply to one but do apply to the other.
Victims of the kinds of police actions you posit might still have constitutional redress. See Dombrowski v. Pfister, 380 U.S. 479 (1965) (bad faith law enforcement actions); the Sam Giancana case (FBI trailed suspected Mafioso even on the golf course). But it won't be through facial analysis of any authorizing statute.
Sorry, I overlooked this part of your message in my earlier reply.
My answer is yes because, as Justice Frankfurter was fond of declaring, the history of liberty is largely one of the enforcement of procedural guarantees. The importance of prompt notice to the adversary process and thus to safeguarding constitutional rights, cannot be overstated.
So I gather you would think facial challenges should be permitted to the federal statute authorizing "delayed notice" warrants as well? The delay is usually only a few days, but it is still delay.
That being said, it still doesn't reach my thoughts, which state that even though the court got the "facial" part wrong, that doesn't mean they don't correctly reach the substantive arguments, and perhaps even in a way where the logic leaves the statute with no constitutional uses.
Clearly we're both right in a sense. Certainly, judges should not get around language in precedential opinions just because they can come up with *some* distinction of the case. But certainly, judges can and properly do "get around" (in your words) language in precedential opinions when a meaningful distinction exists between the facts of the earlier case and the facts at bar. The question is whether any particular distinction of the decision in a binding case is meaningful.
I merely suggest that the commenters' distinctions in this thread may be meaningful. You object that anyone with a J.D. can come up with a case distinction. I would hope so. That's what we train them to do. That's what we pay them for. And that is how the common law develops (although too often in my years as a federal appellate clerk I have seen lawyers simply quote language from opinions without grasping its purpose and understanding why the language might not apply in the case at bar).
I objected to your reasoning because it seemed to stop at quoting language from the Supreme Court opinion. As I understood you, you dismissed the commenters' distinctions *because* they were distinctions, not because you thought they were unconvincing on their merits. Thus, you explained that the policy arguments underlying the commenters' distinctions were irrelevant. Perhaps I have misunderstood you; apologies if so. But that is my point, which I am not sure you fully grasped (again, perhaps my fault).
(politely-) Why??? How is Warshak different than Berger?
Why is Warshak not just like Berger - a decision on the procedural sufficiency of a "search warrant" issuance? The Warshak court, just like the Berger court, found the issuance of a "warrant" (here called a 2703d order, in Berger a "180a" warrant) 4th-Amendment deficient for failing to meet the 4th Amendment requirement of "Probable Cause" versus a lesser requirement of "reasonableness." In Berger the inadequacy was a statute only requiring "reasonableness", and in Warshak the inadequacy was a statute only requiring "reasonableness". That's why Warshak titled its analysis "Probable Cause versus Reasonableness" in the opinion.
Is it where the court comes down on that distinction that is troublesome?
Does Boyd count?
I've read through Boyd and Berger, and then Sibron again. I think Orin's reliance on Sibron is misplaced due to, what I had pointed out before, the versatile use of the word "procedural" here. The statute in Berger did not use the "warrant" but instead "order." In that light, what the court meant by saying "a warrantless search" is "a search not authorized by a court." Here, I agree with some of the other commenters that Warshak is more like Berger than Sibron.
I still think overall the facial challenge was unwise - particular on the Ayotte reasons that Orin goes on to discuss. But I also think its a red herring - I'm not sure that an "as applied" challenge doesn't come to the same results, with a holding, that if not quite as broad, would still have substantially undercut the "value" of the statute.
Thanks for your continued commentary. To expand a bit, I suppose my view is based on four different claims:
First, what the Supreme Court said in Sibron and later cases, which seems to be pretty clear textually and doesn't really give any leads on which to make a new argument for distinguishing the old precedents.
Second, the fact that I have read thousands of Fourth Amendment decisions and studied electronic surveillance for 10 years, and I have never heard of or seen a facial challenge like this or even heard of anyone thinking that there was a basis for making one.
Third, the fact that allowing facial challenges here would radically transform the nature of Fourth Amendment law, as the limitation on facial challenges is one of the defining characteristics of how Fourth Amendment law is made that is basic to every Fourth Amendment case.
Fourth, the fact that I have thought it widely understood that Berger's facial challenge was a "good for this ride only" fudge. To elaborate a bit, the 5-Justice majority on the Court wanted to be involved in the drafting of Title III, so they ditched the usual rules. They granted cert on an unpublished one-paragph mem-op and wrote a statute for Congress to follow. They didn't try to justify the move -- they just did it, timed just right for the Congressional debates (as the dissenting Justices in Berger noted), in what was pretty obviously a deviation from the usual process needed to impact Congressional action. The court then put the kabosh on the facial challenge thing as soon as they could, in Sibron.
Given this history, the claim that an inferior court judge should free to invent a new way to distinguish Sibron (or, as the Warshak court did, to decline to mention it) seems pretty radical.
We agree on one thing, though: "that is how the common law develops." Or at least that's my understanding: It's been a long time since we had courts regularly interpreting the common law, but it's my understanding that this is indeed how the common law slowly evolved over the centuries. However, the issue here is not common law, it's constitutional law. And I think there is a big difference between how judges should interpret the common law (which the people acting through legislatures can change) and constitutional law (which the people acting through legislatures cannot).
I realize these ideas are old-fashioned in the modern legal academy; we profs generally identify with the judges, so we generally are supposed to embrace theories of broad judicial power. But I operate from really different premises. I'm much more of a process conservative, in which judges follow the law rather than look for creative and interesting ways to change it more to their liking as part of the common law method. Maybe I was just dropped on my head as a child, but it's how I see the proper exercise of the judicial function.
Thanks for the post. I appreciate your four points and don't have any particular thoughts on them. I definitely don't intend to get much more into the legal process school; I didn't intend to get into theory (and I generally see myself as falling in that school as well!).
I may have used the term "common law" in an unusual and potentially confusing way. I recognize that the term usually refers to the uncodified gap-filling law inherited from the English system and developed over the centuries. I used the term to refer not to the source of particular legal theories but rather to the process of how case law develops. In my mind, the term could just as easily refer to doctrine that arises under a statute as doctrine that elaborates on a common law theory. Apologies for any confusion.
For an example adapted from my practice field, consider a Supreme Court case that announced the rule that an admiralty plaintiff may attach electronic funds being sent to or from an admiralty defendant iff the electronic funds are held by a bank in the U.S. In the Supreme Court case, the defendant's own bank account was held in the U.S., and the funds were attached while residing in the defendant's bank account. In a later case, an admiralty plaintiff wants to attach electronic funds flowing from an Australia bank account to the defendant's Portugal bank account, and the funds are temporarily held by a bank in the U.S. for processing purposes only, never in a U.S. account owned by the defendant. The letter of the Supreme Court's rule governs. The facts of the second case are different from those of the first, as they will always be. I think it is legitimate to refer to policy implications of applying the rule to the new factual situation as an argument that the rule should not apply. For example, allowing attachment might work an unfairness to a party with no real connection to the U.S. other than that its transfer is in U.S. dollars. In my view, the policy argument shows the materiality of the factual difference in the degree of nexus to the U.S. And that difference can thus be a material distinction, a distinction that allows a court to justifiably "get around" the Supreme Court's language and reach a different result.
I understood you as saying, "Tough cookies; that may be a good argument for a concurring opinion or for a cert. brief, but the result should follow the Supreme Court's rule as stated." That's what I objected to, and I think my objection is consistent with the tenets of the legal process school.
From your recent posts, I now understand you as saying something else, namely, saying that the commenters' distinctions are so wild that they are not good distinctions. You may have been saying that all along. But that's not what I intended to react to. Rather, I intended to react to my understanding of your views on the much more limited point highlighted above.
I'd offer that Warshak's facial ruling WAS consonant with Sibron, because Sibron explicitly acquiesced to the Berger court's facial challenge process - it may have just limited it to procedural warrant challenges. The Berger process was one that Sibron itself cited as a (arguably the only) acceptable way of for a 4th A. facial challenge. While Sibron may have narrowed Berger at the margins it also acknowledges, and by NO stretch overturns, its core holding. So how, then, is failing to cite Sibron ignoring controlling precedent?
To the extent your argument criticises Warshak's reliance on Berger, I think you may make more headway by doing so directly (a la Berger = "good for this ride only" fudge) than by trying to make a ravine out of the Sibron-Berger fissure.
Well, I don't like them. But, again, I'm addressing only statutes which on their face regulate expressive interests, like this one, which authorizes searches and seizures of written communications and only written communications. It is only those statutes that would be subject to facial analysis under the first amendment. Obviously, a general statute authorizing searches and seizures, including delayed notice warrants, is not directed on its face at expressive interests. So my argument for first amendment facial analysis would not carry force there.