- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
In the United States, “equal justice under law” is at the very forefront of our American justice system. “Equal justice” is meant to guarantee equal access to the justice system. “Equal access to the judicial process is the sin qua non of a just society.” Many Americans, however, do not have any access to the justice system, never mind that of equal access. “Equal justice” has not reached the nation’s indigent, or even many of our moderate-income citizens.
When does the Constitution require procedural safeguards for infringements on First Amendment rights? Surprisingly, this general question has never been answered. The absence of procedural protections for First Amendment rights can yield enormous and substantive implications. One particular investigative tool, the National Security Letter (NSL), is illustrative. Each year, the FBI uses tens of thousands of NSLs to obtain customer “toll billing” information, or transactional records—such as records related to telephone calls, emails, text messages, online forums, tweets, or Facebook messages—from service providers. FBI nondisclosure orders, which usually accompany NSLs, prevent the recipient from speaking about the requests. Since 2001, there have been only a handful of known challenges to NSLs.
This Article argues that the near total absence of procedural safeguards for NSL issuance violates the First Amendment rights of subscribers whose records the FBI obtains.
The United States Supreme Court has long recognized the importance of certain types of speech, and as a result, any law regulating speech of serious societal value must survive strict scrutiny—an extremely rigorous level of constitutional review. At the same time, the Constitution affords other types of speech little to no protection. The Supreme Court’s jurisprudence regarding laws regulating socially important speech is separated into two categories, created to separate the way the law affects speech. If the reviewing court holds the law is content based, meaning the law regulates speech based on the message conveyed, then the law is subject to strict scrutiny. Alternatively, if the law is content neutral, meaning its regulation is not based on the expression itself, then the law is subject to intermediate scrutiny, a lower level of judicial review.
Part II.A of this Note will outline the basic principles of the content- neutrality doctrine and the general implications of a positive determination. Parts II.B and II.C will discuss specific aspects of the Supreme Court’s jurisprudence, namely the secondary effects doctrine and the distinction between speech on public and private property. Part II.D will describe the role of governmental motive in courts’ determinations and the conflicting approaches within court cases. Part II.E will detail the current federal circuit split and the Supreme Court’s responsibility to formulate a more effective rule or test. Finally, Part III will argue that the determination of governmental motive should not be a necessary component of the content-neutrality determination, and that the absolute approach is preferable, particularly when evaluating laws that regulate speech on private property.
In an increasingly digital society, individuals store information online and occupy a social media presence more than ever. Whether through Facebook or other social networking platforms, email accounts, online banking, music providers, or other digital outlets, society occupies and possesses vast digital property. Many types of digital property are replacing—or have already replaced—outdated types of tangible personal property. Further, unlike our friends and family, whose lives must, unfortunately, come to a halt, digital property can exist into perpetuity. Because laws addressing digital property implications upon death cannot keep pace with society’s rapid technological revolution, digital estate law across the United States remains complicated and inconsistent.
This Note argues that federal and state law can coexist in this arena, as recent state law is complementary, not incompatible, with federal laws governing digital communications. Further, this Note emphasizes the unique privacy concerns relevant to digital asset management, arguing sweeping state legislation that categorically divulges private account contents neglects the important privacy interests associated with such digital property. Additionally, this Note highlights the importance of deferring to the decedent account holder’s intent when determining whether fiduciary access or control over account content is appropriate after death. This Note discusses areas of strength in current model legislation, namely the Privacy Expectation Afterlife and Choices Act (PEAC), which provides a useful example for states seeking to adopt comprehensive legislation recognizing the intimate and private nature of online property, even after death. This Note concludes suggesting a court ruling is necessary to clarify the law concerning postmortem digital assets.