Why Rely on the Fourth Amendment to Do the Work of the First?

Alex Abdo
October 25, 2017

This essay is published in full at the Yale Law Journal Forum.

Government surveillance implicates the freedom of speech as well as the right to privacy, and yet our courts usually evaluate the lawfulness of government surveillance solely through the lens of the Fourth Amendment rather than the First. Is that approach defensible?

This term in Carpenter v. United States, for example, the Supreme Court will consider whether the warrantless and long-term collection of an individual’s “cell site location information,” revealing the movements and locations of the user, violates the Fourth Amendment. But the case has clear implications for First Amendment freedoms, too—particularly the ability to express dissent. Dissent’s fragile lifecycle—from formulation to ferment—requires privacy and often confidential association to flourish. Warrantless location tracking threatens these conditions, exposing to the government both the participants that initiate and the private places that incubate dissent. And yet the legal fight in Carpenter and many other surveillance cases is taking place almost entirely on Fourth Amendment grounds.

This trend is problematic because the Fourth Amendment is not up to the task of safeguarding dissent from the threat of new technology. As explored below, the Fourth Amendment differs from the First substantially in both its coverage and the strength of its protections. First, Fourth Amendment doctrine addresses invasions of privacy, not speech, and has been held to ignore a whole class of surveillance—the collection of third-party records—with significant implications for expression. Second, unlike the First Amendment, the Fourth Amendment is often blind to the cumulative effect of invasions of privacy that are small in isolation but substantial in combination. Third, and relatedly, the Fourth Amendment tends to focus narrowly on individual harms, not collective or societal ones. Fourth, even when it does apply, the Fourth Amendment offers much weaker protection than does the First, which requires a heightened government interest and means narrowly tailored to that interest. Finally, Fourth Amendment doctrine has been developed largely in the context of criminal prosecutions, in which both the claimants and the relief available tend to generate judicial antipathy.

In other words, we should not expect the Fourth Amendment to pull double constitutional duty, and yet courts routinely act as though it can. The result is that First Amendment freedoms are often at the mercy of a Fourth Amendment doctrine not designed to protect them.