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Michael and Chantell Sackett purchased a small lot upon which they planned to build a house. As they began work on the parcel, they received an Administrative Compliance Order (ACO) from the Environmental Protection Agency (EPA) ordering them to stop work and restore the parcel to its prior, undeveloped condition. Failure to comply, the EPA declared, would expose them to fines of up to $65,000 per day—$32,500 each
for violating the Clean Water Act (CWA) and the ACO. The Sacketts sought to challenge the EPA’s order, as they did not believe their parcel was subject to federal regulation under the CWA, but they were told they would have to wait. In the EPA’s view, the ACO was not subject to judicial review. If the Sackets wanted to contest EPA’s jurisdiction, they would have to wait for the EPA to initiate an enforcement action against them.

According to the EPA, the Sacketts faced a choice: Cease using their own property or continue to develop the parcel and expose themselves to the risk to tens—if not hundreds—of thousands of dollars in fines. Each day of noncompliance would incur more fines, and the EPA could wait years to initiate an enforcement action.

The conundrum faced by the Sacketts is not unlike that faced by abortion providers in Texas under S.B. 8. The law prohibits providing abortions after six-weeks, and subjects violators to substantial penalties, yet because of the law’s structure, abortion providers have no clear way to challenge the prohibition unless and until it is enforced against them. As a consequence, it is difficult, if not impossible, for abortion providers to challenge the law’s constitutionality without exposing themselves to substantial financial and legal risk.

In each case, the choice is between complying with a potentially unlawful command, or refusing to comply at the risk of ruinous financial penalties. In each case, pre-enforcement judicial review appears unavailable. Seeking a day in court to challenge the government’s dictate would only come at great financial risk.

The Sacketts ultimately got their day in court. They argued that the CWA did not bar pre-enforcement review of an ACO and, in the alternative, that a prohibition on pre-enforcement judicial review of the ACO would violate Due Process. The Supreme Court ultimately agreed with the Sacketts, but not on constitutional grounds. Rather, the Court concluded that the ACO was a final agency action subject to judicial review, and therefore CWA actually afforded the Sacketts an opportunity to challenge the ACO before racking up daily fines for noncompliance. The question of whether imposing penalties for failing to comply with an unchallengeable ACO would violate due process, was left undecided.

Unlike the CWA, there is no statutory ground upon which abortion providers can seek review of Texas S.B.8’s prohibitions. There is no alternative interpretation that would enable abortion providers to seek pre-enforcement review (though it may be possible for the federal government to file suit, as is being claimed in current litigation).

Just as some who support extensive wetland regulation thought it was unfair and unjust to expose the Sacketts to penalties while denying them their day in court, some opponents of abortion should be concerned that S.B.8’s structure exhibits some of the same pathologies that (rightfully) concern conservative critics of the administrative state. Noble ends should not be pursued through dastardly means.

The reality is that government entities often take actions in a way calculated to frustrate judicial review. If one is inclined to think this is a problem (and I do) then it should be a problem without regard for the subject matter. Just as environmental protection should not require denying landowners the right to challenge regulatory restrictions on their land, opposition to abortion should not require denying abortion providers or pregnant women the opportunity to contest the lawfulness of restrictions on abortion.

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It’s been 20 years since 9/11, which means it’s also been 20 years since America’s public debates about government surveillance under laws like the PATRIOT Act. It’s a bit amusing to look back and see commentators clashing over hot-button topics like whether the government should have access to things like library records. Two decades, two (plus) wars, and too many exposed warrantless government surveillance programs later, the idea that the biggest threat to liberty is Uncle Sam scrounging around to find out who checked out chemistry books from a Connecticut branch library is almost charming.

We have surveillance fatigue. A lot of people just assume that everything they do online is immediately hoovered up and stored in some massive desert National Security Agency data center for eternity. It’s not a bad heuristic, but there are still some procedural hurdles for the feds to get their hands on what they want.

One of them was recently publicized in a series of court documents obtained by Forbes. It’s called a “keyword warrant,” and it’s basically an open request for information on anyone who searches for particular terms online. Instead of the government saying, “I want all of arson suspect John Doe’s Google searches,” it’s, “I want information on all the people who searched Google for ‘arson.'”

The problem is evident. In the first scenario, investigators have already determined a suspect based on some evidence that they present to a judge, the typical standard for requesting a search warrant. In the second scenario, the government is asking search engines to provide data that they can use for whatever reason. It’s an open invitation for a fishing expedition. And many innocent people could get caught in the net.

Keyword warrants are not new, but they are rare, and they are little known by the broader public. The Forbes documents provide hard proof of the government’s judicial exercise of keyword warrant in a 2019 Wisconsin case tracking down men suspected of kidnapping and abusing a minor. Investigators asked Google for data on anyone who had searched for the victim’s name, her mother’s name, and her address over a period of 16 days.

Other known uses of keyword warrants include demands for information on Google searches for the address of an arson victim who was a witness in the racketeering case against crooner R. Kelly in 2020 and Google searches for a fraud victim in Minnesota in 2017. It’s not just Google. Jennifer Lynch of the Electronic Frontier Foundation points out that keyword warrants were served to Microsoft and Yahoo for searches on things like “pipe bomb” and “low explosives” in the course of tracking down the 2018 Austin bombings. Additionally, Forbes was able to track down the existence of a fifth keyword warrant request in California in late 2020, but it was only noted in a court docket, so we don’t know the extent of the order.

The normal objections apply. Someone could say, “Well, if you’re searching for ‘pipe bomb’ in Austin right before a series of pipe bombings, there is a pretty good chance you’re a pipe bomber.” There is also a chance you’re just a lazy Googler fan of the somewhat cringily-named defunct Pensacola folkpunk band, “This Bike Is A Pipe Bomb,” and have all the trappings and costumes of an Austin-based “anti-establishment” ne’er-do-well. You might fit the profile that some investigator may have of a pipe bomber. And if you happened to look up your old favorite tunes, “The Black Panther Song” and “Murder Bike,” during an unfortunate spate of bombings in a major city, well, maybe you’ve just become a person of interest. Or maybe you’re just put on the police radar in general, all because you pine for the days of the anti-Bush protest song.

It’s not comforting that we only know of a handful of instances of keyword warrants being served, either. First, these are obviously only the warrants that have been unveiled so far. But more fundamentally, we know now for certain that we can be swept up in some investigation merely for the content of our queries. Think of everything you type into Google. Do you want the feds to scrutinize you based on whatever weird thought made its way into the search bar?

Well, at least more people are learning about keyword warrants. And fortunately, there are alternatives. Big search engines like Google and Bing and Yahoo Search track users by default and store search histories in their massive data centers. This is how they can comply with these kinds of warrants in the first place.

Alternative search engines that are privacy-focused do not track users and do not store their search histories. DuckDuckGo, for instance, serves up the same results that you would get from a Bing search, but with enhanced privacy protections. Don’t like the idea of relying on the results that a big tech company decides to spit out? You can use Brave Search, which is independently indexed, which means that it does not use the algorithmic massaging that you get with mainstream engines. Want to have total control over what indexing you use through free and open-source software? You probably don’t need me to tell you about searx. All these options are attractive to people who worry about things like keyword warrants.

The existence of good alternatives is one bit of good news. Another bit is at least investigators had to ask. People have this idea that your local police department can automatically listen in on every Alexa device or something. Again, this is not a bad assumption to nudge your behaviors. But falsely believing that the government is all powerful can make people feel powerless. That’s not productive.

But this cuts both ways. We wouldn’t know about the warrant requests if reporters and activists didn’t accidentally or doggedly get their hands on them. There was no public debate. The vast majority might not care too much either way. The surveillance state has so thoroughly worn us down that we just accept it as a fact of life. You may be bearish on the prospects for heroic public procedural reform in the vein of the vaunted Church Commission. These days, that doesn’t matter too much for your personal life. Just use a privacy-respecting search engine and encourage your loved ones to as well.

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It was just filed Sunday by Michael Millen and by Catherine Short (of the Life Legal Defense Foundation), Aubin v. Bonta (N.D. Cal.):

On or about October 8, 2021, California enacted Senate Bill 742 …, creating Penal Code §594.39 … The Statute imposes various restrictions on First Amendment activity within 100 feet of the entrance to any “vaccination site,” which is defined to include any space or site where vaccines are provided, including hospitals, physician’s offices, clinics, and any retail space or pop-up location.  While parts of the law restrict activity that is already illegal anywhere, such as obstructing movement and threatening people, the heart of the law is a restriction on approaching within 30 feet of another person for the purpose of engaging in various forms of traditional sidewalk free speech.

In 2000, the United States Supreme Court upheld a law imposing a similar restriction on approaching within 8 feet of other person in certain public locations, but size matters.  SB742 is an unconstitutional restriction on free speech….

Public sidewalks are traditional public fora, which for “‘time out of mind’ … have been used for public assembly and debate.” … Governmental bodies may regulate the time, place and manner of speech in traditional public fora, but only if such regulations “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” … A content-based exclusion may only be enforced if it serves a compelling government interest and is narrowly drawn to achieve that end.

[1.] The Statute is not content-neutral.

Section 594.39(d) expressly exempts “lawful picketing arising out of a labor dispute, as provided in Section 527.3 of the Code of Civil Procedure.” Laws that exempt labor picketing are content-based restrictions on speech. Carey v. Brown (1980) (striking down residential picketing ordinance containing an exception for labor picketing); Police Department of Chicago v. Mosley (1972) (striking down ordinance banning picketing of schools, with an exception for labor picketing). Thus, the Statute must be enjoined unless it serves a compelling governmental interest and is narrowly drawn to serve that interest….

[E]ven if the State’s interest in people receiving vaccines were a compelling interest, the Statute is not narrowly drawn to achieve that interest. The Statute bans approaches of any person seeking entry for any reason to any location where any vaccine is provided. Creating speech-free zones around every drug store, stand-alone health clinic, and supermarket in the state in order to re-assure the occasional customer seeking a vaccine of some kind is hardly a narrowly drawn restriction on speech. On the contrary, it is unconstitutionally overinclusive and overbroad….

[N]othing in the Findings and Declarations suggest why labor picketers are less likely to spread COVID or other airborne diseases to persons outside vaccination sites than are picketers on other topics.  Thus, even if the purported state interest were a compelling one, the restriction would be fatally underinclusive… “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint” ….

The Statute is also content-based and underinclusive because of its banning only those approaches made for the purposes of “oral protest, education, or counseling,” as opposed approaching for any other reason, such as asking directions or panhandling. No compelling governmental interest supports this distinction….

[2.] The Statute is not narrowly tailored does nor does it leave open ample alternative channels of communication.

The language of §594.39(c)(1) comes virtually verbatim from a Colorado statute upheld by the Supreme Court in Hill v. Colorado, 530 U.S. 703 (2000), with the significant exception that the Colorado statute only prohibited unconsented approaches within eight feet. Considering a facial challenge to the Colorado law, the Supreme Court found that the restriction was narrowly tailored and left open ample alternative channels of communication. It did so by emphasizing the small size and minimal impact of the 8-foot no-approach zone: “… Unlike the 15-foot zone in Schenck v. Pro-Choice Network of N.Y. (1997), this 8-foot zone allows the speaker to communicate at a “normal conversational distance.” … As we explained above, the 8-foot restriction on an unwanted physical approach leaves ample room to communicate a message through speech. Signs, pictures, and voice itself can cross an 8-foot gap with ease… [The State] enact[ed] an exceedingly modest restriction on the speaker’s ability to approach.”

The Court also emphasized that these speech activities were only impeded where the intended recipient of the leaflet had not consented to the approach.  However, as opposed to an 8-foot space, a 30-foot gap effectively precludes obtaining consent to approach at all and becomes a complete ban on approaching and therefore on leafleting and oral protest, education, counseling.

As a demonstrative exercise, substituting “30 foot” for “8 foot” throughout the Hill decision demonstrates how the greatly increased distance forecloses open ample alternative channels of communication and essentially negates the Supreme Court’s teaching and reasoning that upheld the Colorado statute, e.g.:

• “[T]his [30-foot] zone allows the speaker to communicate at a ‘normal conversational distance.'”
• “The [30-foot] separation between the speaker and the audience should not have any adverse impact on the readers’ ability to read signs displayed by demonstrators.”
• “The [30-foot] restriction on an unwanted physical approach leaves ample room to communicate a message through speech.”
• “Signs, pictures, and voice itself can cross an [30-foot] gap with ease.”
• “Nothing in this statute, however, prevents persons from proffering their literature, they simply cannot approach within [thirty] feet of an unwilling recipient.”

None of these revised statements make sense due to the widely differing effect of a 30 foot buffer zone versus a mere 8 foot zone and highlight why the Hill court would not approve of SB 742.

More recently than Hill, the Supreme Court struck down a Massachusetts law creating 35-foot speech-free buffer zones around the entrances to abortion clinics. McCullen v. Coakley (2014). The Court held that the law was not narrowly tailored and infringed on a core First Amendment activities of one-on-one conversation and leafleting: “It is thus no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.[]  If all that women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

The Court also noted that Massachusetts had failed to explain why its interests could not be protected and furthered by less drastic restrictions on speech, including simply enforcing existing criminal laws against “assault, breach of the peace, trespass, vandalism, and the like.”   Repeat offenders could be enjoined in civil actions. “The point is [] that the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”

The Court also found the Commonwealth’s record of prior disruptive conduct purportedly justifying the buffer zones to be woefully deficient, as was the Commonwealth’s record of having tried, without success, other means of addressing the problems that threatened its interests. “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”

The Findings and Declarations of SB742 contain only one sentence setting out the perceived need for this law: “Protestors at vaccination sites continue to impede delay Californians’ ability to access vaccination sites.”  To establish that the Statute is narrowly tailored, Defendant Bonta will not only have to show that this problem has been substantial, that it continues, and that the government has tried other means of addressing the problem, without success.

The Court found the Massachusetts law unconstitutional because it “burden[ed] substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”  The Statute at issue here also burdens substantially more speech than necessary to achieve the asserted interest of “blunt[ing] and stop[ping] infectious diseases” by ensuring “access” for residents to obtain vaccinations….

Looks like a winner to me. (Millen and Short, by the way, won Hoye v. City of Oakland (9th Cir. 2011), an important free speech content-based prosecution case—a victory for anti-abortion demonstrators, before Judge Marsha Berzon, Judge Stephen Reinhardt, and District Judge Louis Pollak [E.D. Pa.].)

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In my first post, I cited St. George Tucker’s comments about the commonality of arms carrying in the early American Republic. Tucker in the same discussion questioned whether English limitations on the right to keep and bear arms translated to America, “where the right to bear arms is recognized and secured in the constitution itself,” and he elsewhere emphasized that, unlike in England, the right of the people to keep and bear arms recognized in the Second Amendment “was without any qualification as to their condition or degree.” Tucker’s writings indicate that the Second Amendment was understood to expand upon and strengthen the protection of the right to keep and bear arms in important ways.

It therefore will not do for opponents of robust Second Amendment protections to draw a one-to-one correspondence from restrictions on the right in England to the scope of the right in America. Yet that is what New York and its amici seek to do in their reliance on the 14th Century Statute of Northampton, enacted in 1328, during the reign of Edward III. Not even in England, however, was the Statute of Northampton the broad prohibition on carry that New York says it was, and it certainly was not understood to be so in Founding-era America.

The Statute of Northampton forbade any person to come before the King’s justices or ministers “with force and arms,” “nor bring no force in affray of the peace, nor to go nor ride armed” in fairs, markets, before the justices and ministers, “nor in no part elsewhere ….”  2 Edw. III c. 3 (1328).  New York reads this archaic language as a prohibition on carrying arms in public places, even if done so peaceably, and contends that it was handed down as the kind of “reasonable regulation” that was acceptable when the Second Amendment was ratified.

But in the only significant judicial decision on the statute, Sir John Knight’s Case, 87 Eng. Rep. 75 (K.B. 1686), the prosecution charged Knight for “going or riding armed in affray of peace.”  Knight had carried guns on the street and into a church.  The Chief Justice said that the meaning of the Statute “was to punish people who go armed to terrify the King’s subjects.” The jury acquitted Knight because had did not go armed in a manner that terrified the subjects.

As we know from diaries not discovered until centuries later, Knight – a militant Protestant – went armed for self-defense after being attacked by Catholic partisans.

Another version of the decision, Rex v. Knight, 90 Eng. Rep. 330 (K.B. 1686), said that the statute had “almost gone in desuetudinem [disuse],” that an element of the crime was going armed “malo animo [with evil intent],” and that “now there be a general connivance to gentlemen to ride armed for their security) ….”

Since nothing in the above supported a ban on peaceable carry, New York faults the petitioners for relying “exclusively on the cursory summaries in the English Reports.”  Yet the decision was clear and was the only statement of the law at the time.  New York relies on a superficial article published in 2019 that couldn’t figure out what the Knight case meant.

Based on the Knight case, William Hawkins wrote that “no wearing of arms is within the meaning of the statute [of Northampton] unless it be accompanied with such circumstances as are apt to terrify the people,” from which it followed that “wearing common weapons” did not imply any intent “to commit any act of violence or disturbance of the peace.”  2 Treatise of the Pleas of the Crown 21-22 (1716).  New York ignores the former statement – as if no one would notice – and quotes snippets of the latter to assert that Hawkins said that “rules attached even to the public carrying of ‘common weapons’ ….”  But the “rule” was: don’t carry in a way to terrify others.

Northampton analogs reappeared in America, and were on the books in the era that the Second Amendment was adopted, but they only applied to aggressive behavior with arms.  In 1786, Virginia enacted an act on affrays – drafted by Thomas Jefferson – forbidding a person to “go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the country ….”  Going armed peaceably was lawful, going armed in a manner to terrorize others was unlawful.

New York spins this law to ban arms carry at any place “where people congregated and where carrying firearms would be deemed ‘in terror of the Country.'”  But if simply going armed in public was the crime, no need existed to recite the element of terror.  Criminal laws define crimes, they don’t describe the effects of crime.  A prohibition on robbery would not forbid “taking of property from a person by force or threat of force, in terror of the country.”

If going or riding armed was a crime, Jefferson would have been a notorious violator.  His saddle had a pair of pistol holsters, he traveled armed, and he recommended walking with a gun for exercise.  Two of his pocket pistols survive today. Guess where he carried them?  (Hint: In his pocket.)

Similarly, in 1795 Massachusetts enacted a law directing justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth ….”  New York states that “the statutory phrase ‘armed offensively’ unquestionably encompassed carrying firearms.”   But simply “going armed” would do so as well, so why add “offensively, to the fear or terror” of the citizens, unless they were elements of the crime that must be proven?

While New York’s attempt to explain away the word “offensively” is bad enough, elsewhere it misleadingly omits the word altogether. It cites a legal reference work for the proposition that local officials were to “arrest all persons as in your sight shall ride or go armed.” But what the source actually says is that officials were to “arrest all persons as in your sight shall ride or go armed offensively.”

To understand the meaning of going armed in a manner to terrorize, consider the facts in State v. Huntley, 25 N.C. 418 (1843), which recognized it as a common law offense.  Per the indictment, the defendant went armed and threatened “to beat, wound, kill and murder” various persons, causing citizens to be “terrified.”  By contrast, the court held that “the carrying of a gun per se constitutes no offence.  For any lawful purpose – either of business or amusement – the citizen is at perfect liberty to carry his gun.”  New York cites Huntly but mysteriously leaves that part out.

New York strikes out in its attempt to portray the Statute of Northampton as a broad prohibition on public carry. For a more in-depth treatment of these issues, see pages 25–65 of my book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?, and the Firearm Policy Coalition’s amicus brief.

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