Protecting the Precursors to Speech and Action

The Constitution cares deeply about the pre-cursors to speech. Calo wondered where my paper, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, parts ways with Solove; it does and it doesn’t. On the one hand, I agree with Dan’s work and build it out. I of course look to the First Amendment as part of understanding what associational freedom is. I also want that understanding to inform criminal procedure. On the other hand, I think that the Fourth Amendment on its own has strong protection for associational freedom. I thus argue that we have missed that aspect of the Fourth Amendment. Furthermore, since Solove and after him Kathy Strandburg, wrote about First Amendment connections to privacy, there has been some great work by Ashutosh Bhagwat, Tabatha Abu El-Haj, John Inazu, on the First Amendment and associational freedom. And Jason Mazzone started some of that work in 2002. I draw on that work to show what associational freedom is. Part of the problem is that when we look to how and why we protect associational freedom, we mistake what it is. That mistake means Fourth Amendment becomes too narrow. We are stuck with protection only for speech acts and associations that speak.

As I put it in the paper:

Our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech—the ability to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects many activities that are not speech, for example petition and assembly, because the activities enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether the acts are speech or whether they are private.

In that sense I give further support to work by Julie Cohen, Neil Richards, Spiros Simitis, and Solove by explaining that all the details that many have identified as needing protection (e.g., our ability to play; protection from surveillance of what we read and watch) align with core ideals of associational freedom. This approach thus offers a foundation for calls to protect us from law enforcement’s ability to probe our reading, meeting, and gathering habits—our associational freedom—even though those acts are not private or speech, and it explains what the constitutional limits on surveillance in the age of data hoarding must be.

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6 Responses

  1. Ryan Calo says:


    Thank you for this helpful follow up!


  2. Joe says:

    It is nice when the Constitution cares. It is so reassuring.

    Seriously, this is sort of where that “penumbra” and “emanations” stuff (rightly) comes in. Or, as Brennan noted in Lamont v. Postmaster

    “It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.”

    or as Douglas noted in Griswold:

    “freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach”

    I appreciate your work on fleshing out such things.

  3. Orin Kerr says:

    In your view, does the constitutional right to associational freedom also govern the interpretation of the Second and Third Amendments? Or does it only govern the First and Fourth?

  4. Ryan Calo says:

    Sorry, Deven, the other question is what the payoff is. What do we get out of protecting association with one versus another amendment? Thanks again!

    • Ryan Calo says:

      Deven, my question was a little thin, apologies. Please let me elaborate. What I like about your project is the recognition that the Fourth Amendment “cares” about association. You cite People v. Weaver where a New York appellate court says so expressly, years before Jones perhaps implies it. I had personally failed to make this connection and like that you’re developing it here.

      The logic behind Weaver—and correct me if I’m wrong—seems to be that a citizen’s expectation of privacy in public and/or information in the hands of third parties is actually one that society should be prepared to accept as reasonable, in part because the association right is involved. I think that’s an elegant argument, but note that your project shies away from reasonableness, which you characterize (at *12) as something of “a black hole.”

      Hence I’m wondering, on your view, (1) how the Fourth Amendment’s concern over association should manifest in practice and (2) how this manifestation differs from the remedy (or lack thereof) for associational harms under the First Amendment.

      Again, thanks for taking aim at the heart of a difficult problem in privacy. I enjoyed reading your draft an am eager to hear more of your views here. Best,


  5. Deven says:

    Orin, have not reached your question in all honesty. It could be that the logic I think I see in First and Fourth is in the Second and Third. Quick (and perhaps ill-advised) response, Third Amendment probably has historical and other connections to the idea, but I’d want to read up and dig a bit before I say anything certain.

    Interesting idea though. Did you have anything in particular in mind that you think should apply or where I ought to look to bolster or rethink my argument?