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In Cady v. Dombrowski (1973), the U.S. Supreme Court introduced a legal doctrine that has come to be known as the “community caretaking exception” to the Fourth Amendment. The case centered on a warrantless police search of a car that had been disabled and towed after an apparent drunk driving accident. The police “frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions,” the Court said. And that sort of “caretaking ‘search,'” the ruling continued, “conducted…of a vehicle that was neither in the custody nor on the premises of its owner…was not unreasonable solely because a warrant had not been obtained.”

In the coming months, the Supreme Court will hear arguments in a new case that asks whether that exception to the Fourth Amendment’s normal search warrant requirement should be extended to cover warrantless police searches of homes and residences.

The case is Caniglia v. Strom. It originated in 2015 when Cranston, Rhode Island, police paid a “well call” on 68-year-old Edward Caniglia. His wife had been unable to reach him after they had a fight and she was worried that he might be suicidal. So she called the authorities. The police took Caniglia to the hospital, where he was examined by a nurse and a social worker and discharged that same day. Meanwhile, the police entered his home without a warrant while he was gone and seized his two handguns. The present case centers on Caniglia’s claim that this warrantless police action violated his Fourth Amendment rights.

Caniglia lost before the U.S. Court of Appeals for the 1st Circuit last year when that court upheld the officers’ actions under the community caretaking exception to the Fourth Amendment. The circuit court did acknowledge that its decision “extended the community caretaking exception beyond the motor vehicle context.” It justified that extension on the grounds that doing otherwise would place too many restrictions on the cops. The community caretaking doctrine, the 1st Circuit declared, “is designed to give police elbow room to take appropriate action.”

Caniglia now wants the Supreme Court to overrule that lower court decision. Extending the community caretaking doctrine “into the home—the most protected of all private spaces—would create a loophole in the Fourth Amendment’s warrant requirement wide enough to drive a truck through,” Caniglia and his lawyers told the justices. “So long as an officer reasonably claims to be taking care of the community, he can disregard the Fourth Amendment’s protections.”

Oral arguments in Caniglia v. Strom have not yet been scheduled.

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In pressing his case for a deficit-funded $1.9 trillion legislative response to the COVID-19 pandemic and its effects on the economy, President Joe Biden has consistently argued for bigness as a virtue. After a meeting with a group of Senate Democrats yesterday he tweeted: “One thing is clear: we all agree that now is the time for big, bold action to change the course of the pandemic and begin economic recovery.” The real risk, he said, “isn’t that we do too much—it’s that we don’t do enough.”

Biden all but dismissed a counterproposal by a group of Senate Republicans, who presented him with a plan to scale back the package to a little more than $600 billion—still fairly large by any historical comparison, especially following the roughly $4 trillion worth of COVID relief passed last year. It was simply “not in the cards.” 

Biden isn’t totally averse to compromise, he told House Democrats on a call. But, he said, “We have to take care of the people who are hurting.”

Whatever it is you think of when you hear the words “people who are hurting,” I suspect it does not include two-earner families with stable jobs making $120,000 a year. Yet that’s who Biden’s plan would help. 

That is not just speculation or extrapolation based on an outline of his plan. That is the explicit position staked out for Biden by his press secretary, Jen Psaki, who said the following at a press briefing this week. 

There are some, you know, bottom lines I think the President has—which he has conveyed in the meeting last night and reiterated to us this morning—which is, you know, to put it simply or accessibly for people: You know, he believes a married couple—let’s say they’re in Scranton, just for the sake of argument; one is working as a nurse, the other as a teacher—making $120,000 a year should get a check. That’s in his plan.  In the plan presented by Republicans, they would not get a check. 

And his view is that at this point in our country, when one in seven American families don’t have enough food to eat, we need to make sure people get the relief they need and are not left behind. 

The juxtaposition between families who do not have enough food as a category of people that Biden wants his stimulus to help and a two-earner family with a solid six-figure income is more than a little jarring. It is certainly possible to be in a precarious financial position, to feel financially strapped and stretched, with six figures in earnings, and COVID-19 has exacerbated some challenges for families, particularly where schooling is concerned. But Psaki’s hypothetical $120,000 family is not struggling to afford enough food. 

Indeed, families with incomes like Psaki describes have, by some measures, done relatively well during the pandemic. Personal savings rates have hit record highs, and job losses have largely been concentrated in a few industries, and a few categories of workers, most of whom ordinarily make quite a bit less than Psaki’s imaginary stimulus beneficiaries. 

As the U.S. Chamber of Commerce recently pointed out in a letter to Biden, Census Bureau data show that “a majority of households with less than $50,000 in income have experienced a loss of employment income, a majority of household with more than $50,000 in income–including those between $50,000 and $150,000–have not experienced any loss in earned income.” 

The COVID-19 recession, in other words, has not hit everyone equally. As an analysis of Biden’s relief package by the University of Pennsylvania team behind the Penn Wharton Budget Model (PWBM) notes, “Unemployment has been disproportionately concentrated among lower wage and young workers in specific sectors, e.g., retail and leisure and hospitality.”

Much of this is a result of public reticence in the face of a deadly novel virus. But it’s not surprising to see that the industries facing the biggest challenges are also those that have been most affected by mandatory closures and other state restrictions on commerce. Meanwhile, the report notes, most other sectors of the economy “now appear to be operating at near pre-recession levels.” 

This is a hospitality recession that has had devastating effects on a class of relatively young, relatively low-income service workers—but not on two-income families currently earning $120,000 a year.

Even some of Biden’s own economic advisers are reportedly uncomfortable with the breadth and expansiveness of his plan, particularly when it comes to the distribution of checks. “At least two of the president’s top economic advisers, Heather Boushey and David Kamin, have privately expressed reservations about the size of the checks and at what level they would begin to phase out for higher-income people,” Bloomberg News reported earlier this week. 

Meanwhile, Biden’s plan to go big would come with long-term macroeconomic costs. The Congressional Budget Office often notes that, all else being equal, larger debt burdens drag down economic growth. The PWBM analysis published this week attempted to put a price tag on the long-term cost of Biden’s $1.9 trillion plan: While it would increase gross domestic product (GDP) by 0.6 percent in 2021, the model projects that “the additional public debt resulting from the Biden plan would decrease GDP by 0.2 percent in 2022 and 0.3 percent in 2040.” 

Yes, these projections are based on economic models, and as with all models, there are limitations and caveats. But this sort of conclusion is broadly in line with what macroeconomists have long thought about the long-term effects of persistently high national debt levels. 

Biden has said he might be willing to negotiate the household income thresholds for the checks he plans to send out, though he is not willing to budge on the amount of those checks. But the fact that this is where he started shows the flaw in Democrats’ insistence on going big for the sake of bigness.  

Biden is portraying his relief package as a necessary response to an extreme health and economic crisis. But his plan to go big is really a plan to fail to target the actual problem at hand. And in the years to come, it would probably make the nation’s economy somewhat worse. 

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From Tuesday’s decision by in Viewpoint Neutrality Now! v. Regents of the Univ. of Minn.:

Each semester, the University collects a mandatory student-services fee of approximately $443.00 from every student enrolled in six or more credits. The fee “funds non-instructional programs and activities; supplements the academic curriculum; and is an integral part of the University’s educational experience.” The fee is divided into three parts: a $411.50 Student Life, Health, and Wellbeing Fee; an $18.91 Student Activity Fee; and a $12.59 Media Fee. A total of about $36,000,000 is collected each year.

Under the Supreme Court’s unanimous decision in Board of Regents v. Southworth (2000), such fees are constitutional if the money spent on student speech is distributed in a viewpoint-neutral way, because such funding for student group speech (as opposed to the speech of the university or of agents of the university) is a “limited public form.” Judge Schiltz also concluded that the money can’t be spent in a way that gives the decisionmaker “unbridled discretion,” since such discretion can end up cloaking viewpoint discrimination. (He added that the analysis should apply equally to student groups funded from tuition dollars and not just student services fees.) And here is how he applied these principles:

[1.] The preferential treatment for media groups (“media groups may apply for unlimited operational funding, whereas other RSOs [Registered Student Organizations] may apply for no more than $25,000 in annual operational funding”) is constitutional because it’s viewpoint-neutral:

Plaintiffs do not challenge the adequacy of the safeguards that apply to the allocation of funds among eligible media groups. The media-groups handbook includes a prohibition on viewpoint discrimination; numerous specific viewpoint-neutral standards for evaluating applications for funding; deadlines for the application and decision-making processes; public presentations and deliberations; and a right to appeal. These safeguards are sufficient to ensure that the allocation of funds among eligible media groups is viewpoint neutral.

Plaintiffs also do not allege that any viewpoint discrimination has in fact occurred in connection with the allocation of funds among eligible media groups. To the contrary, the complaint acknowledges that both liberal and conservative media groups have received media-group funding.

Instead, plaintiffs argue that viewpoint discrimination occurred when the University established this public forum limited to media groups. According to plaintiffs, the University thereby engaged in viewpoint discrimination against RSOs that are not media groups. In other words, plaintiffs argue that the First Amendment bars the University from creating a public forum that is limited to media groups.

The Court disagrees. The University can limit access to a limited public forum so long as that limitation is viewpoint neutral. Here, access to the forum is limited to media groups, a restriction that has nothing to do with viewpoint. Plaintiffs have not put forth a coherent theory for how discriminating in favor of media groups (no matter their viewpoint) and against non-media groups (no matter their viewpoint) could possibly be considered discrimination on the basis of viewpoint.

Nonetheless,

[T]he process used by the University for determining who may participate in that forum—i.e., who may apply for media-group funding—is unconstitutional because it vests unbridled discretion in the VPSA/DoS [Vice Provost for Student Affairs/Dean of Students] ….

Like a school administrator who decides which clubs can use classroom space, the VPSA/DoS acts as a gatekeeper to a limited public forum by deciding which groups may have access to the forum (here, to media-group funding). And although a governmental entity may restrict access to a limited public forum—after all, that’s what makes a public forum a limited public forum—those restrictions must be viewpoint neutral and reasonable and, most importantly for present purposes, cabin the discretion of the decision-maker. Here, the VPSA/DoS’s discretion is not limited in any meaningful way, as the University’s process lacks most of the basic safeguards identified in the unbridled-discretion cases:

First, the VPSA/DoS has “exclusive authority” to determine whether a group may apply for media-group funding. The decision is hers and hers alone.

Second, the handbook does not specify on what basis the VPSA/DoS must make her decision; it does not even require that her decision be viewpoint neutral….

Third, there is no deadline for the VPSA/DoS’s decision. She can sit on a request for permission to apply for funding indefinitely.

Fourth, the VPSA/DoS is not required to participate in any kind of public deliberations, explain the reasons for her decision, or publish her decision. She can simply say “no” to a group that wants to apply for funding without explaining her reasons to the group or anyone else.

Finally, the VPSA/DoS’s decision is final. A group that is denied permission to apply for media-group funding has no right to appeal….

[2.] “[T]he allocation of lounges in Coffman to the cultural centers” may also be unconstitutional, because it involves unbridled discretion:

As noted, the University admits that, consistent with its mission to promote diversity, it restricted access to the limited public forum that is Coffman by allocating space only to “identity-based” groups. According to the University, however, this did not represent viewpoint discrimination. One lounge is allocated to the Black Student Union, but Black students have different viewpoints. Another lounge is allocated to the Feminist Student Activist Collective, but feminist students have different viewpoints. And so on. Thus, says the University, it did not discriminate among viewpoints in allowing only identity-based groups to have access to the limited public forum.

Plaintiffs disagree. According to plaintiffs, limiting the public forum to only identity-based groups is itself a form of viewpoint discrimination, because the one thing that every identity-based group has in common is the viewpoint that identity-based groups are a good thing and should be privileged by the University. This is a “viewpoint,” say plaintiffs—and it is a viewpoint not shared by those who believe that it is illegal, immoral, or divisive to encourage identity-based groups or give them preferential treatment. Limiting space in Coffman only to groups that share the University’s viewpoint that identity-based student groups should be promoted—and completely excluding groups that do not share that viewpoint—is viewpoint discrimination, according to plaintiffs.

The Court finds this to be a difficult issue. The Court need not decide the issue, however, because plaintiffs have pleaded facts that—if true—establish that the University violated Southworth in a different way when it decided who would have access to the limited public forum that is Coffman.

According to plaintiffs, the process of allocating space in Coffman vested unbridled discretion in the decision-maker. In other words, plaintiffs argue that even if discriminating in favor of identity-based groups over other groups is not viewpoint discrimination, the allocation was nevertheless unconstitutional. There was no application process; the decision-maker (whomever that was) was not forbidden from discriminating on the basis of viewpoint; no standards of any kind guided the decision-maker; no deadlines applied to the decision-making process; the decision-making was not done publicly; and there was no right to appeal.

If plaintiffs are correct—and, at this stage of the litigation [the decision on the University’s motion to dismiss], the Court must assume that they are—then the discretion of the decision-maker who allocated the space in Coffman was about as “unbridled” as discretion gets. None of the criteria on which courts have insisted were in place.

{[T]he University argues that its allocation of the lounges is the University’s own speech and thus exempt from First Amendment scrutiny by virtue of the government-speech doctrine…. [But t]he designation of the lounges in this case is materially indistinguishable from the designation of the classrooms in Good News Club and Lamb’s Chapel. The schools in Lamb’s Chapel and Good News Club opened their classrooms to after-school meetings and decided which clubs could use the classrooms, just as the University opened Coffman to student groups and decided which groups could use the lounges. In this case—as in Good News Club and Lamb’s Chapel—the purpose of opening the spaces was to facilitate private expression, not to engage in governmental speech. And thus in this case—as in Good News Club and Lamb’s Chapel—the allocation of the spaces must be viewpoint neutral. Indeed, the University concedes that it has “created a limited public forum on the second floor of the Union by setting aside space for identity-based cultural centers.” …}

[3.] On the other hand, “the University’s website promotes the cultural centers but no other RSOs” is constitutional:

[B]ecause what the University says on its own website is government speech—and because the Southworth framework applies only when the government promotes private speech—the University does not have to act with viewpoint neutrality in deciding what to say on its website.

[4.] The University’s denial of funding “to all partisan political organizations” is viewpoint-neutral (though content-based) and thus permissible when it comes to a limited public forum such as this.

[5.] Plaintiffs’ argument “that the University violates the First Amendment because it does not provide a way to appeal its policy decisions, such as the decision to create the limited public forums that are the subject of this lawsuit” “is frivolous”:

Like every other unit of federal, state, and local government, the University makes thousands of policy decisions—e.g., decisions to raise or lower tuition, to expand or shrink the size of the English Department, to require or not require applicants to take standardized tests, or to create or not create a limited public forum. Nothing in the Constitution requires that the government must provide a way to “appeal” every policy decision that it makes—including a decision to establish a limited public forum.

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On Tuesday, Florida’s Republican Gov. Ron DeSantis announced in a press conference pending legislation that, if passed, would punish tech companies like Facebook and Twitter for deplatforming candidates for political office in his state. Companies would face a fine of up to $100,000 per day until restoring a candidate’s access to their platforms

There’s more to DeSantis’ plan, and the bill has not yet been drafted, so the details aren’t clear. What is clear, though, is that DeSantis is among those conservative politicians who want to use the power of the government to require that social media carry their messages.

“We’ve seen the power of their censorship over individuals and organizations, including what I believe is clear viewpoint discrimination,” DeSantis said at the press conference.

It’s very tempting to look at DeSantis’ proposal and immediately dismiss it as unconstitutional, a violation of the free speech rights of the platforms themselves. They are private companies. Isn’t requiring companies to carry political messages that they might find offensive essentially equivalent to mandating speech? Isn’t DeSantis ordering tech companies to “bake the cake“? The Supreme Court has any number of precedents that forbid the government from forcing private businesses to distribute messages they find offensive. Florida couldn’t possibly demand that Facebook, for example, host messages from somebody who was openly a violent nationalist just because that person is running for office, could it?

Actually, it’s complicated, explains Eugene Volokh, professor of law at UCLA, co-founder of the Volokh Conspiracy (hosted here at Reason), and go-to expert on First Amendment issues. While it’s true, Volokh explains, that we have a line of federal rulings prohibiting the government from mandating that private businesses carry speech, there are exceptions.

You’ve seen one of these exceptions if you’ve ever encountered a petition signature-gatherer at a California shopping mall. In a 1980 decision, Pruneyard Shopping Center v. Robins, the Supreme Court ruled that California could mandate that Pruneyard allow protesters to engage in political advocacy there, even though it was private property. The mall wasn’t being ordered to host particular messages, but rather serve as a carrier of a type of communication, which was political petitioning in this case.

“I think it’s a pretty good argument that the platforms could be treated like the law treats shopping malls,” Volokh says.

DeSantis is proposing forcing tech platforms to host candidates regardless of their positions or parties (including, presumably, DeSantis’ political opponents). He is attempting to force these platforms to serve as carriers of messages without policing the content, much like phone companies can’t control the speech of their customers.

And so, DeSantis’ proposal brings to the forefront the debate raging about social media: Are these places platforms or publishers? If they’re platforms, does that also make them “common carriers” of information? Can the government treat them like shopping malls for the purposes of fostering political participation?

There is, in fact, a barrier that will get in the way of DeSantis implementing this bill as he has described it: our old friend Section 230 of the Communications Decency Act. Section 230 clearly states, in no uncertain terms, that an internet service provider cannot be held liable for censoring content it deems “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” [Emphasis added.]

This part of Section 230 is why it’s absolutely inaccurate when politicians and critics insist that the provision’s protections require a platform to have any sort of neutrality. They do not. They never did. And this is precisely why some people want to get rid of Section 230.

But even if DeSantis’ bill runs headlong into Section 230, Volokh notes that the outcome might not be the most predictable one: federal law taking precedence and overruling Florida’s law. Volokh (and a recent Wall Street Journal op-ed) points to Supreme Court precedents that actually favor state mandates that force private entities to serve as carriers of speech when the state laws conflict with federal statutes, as opposed to conflicting with the Constitution. In these cases, the argument is that the federal statutes are actually interfering with the state’s efforts to protect the free speech rights of its citizens.

You may not agree with such an argument, because it appears to grant states the power to declare that any number of private entities must serve as a speech platform. Volokh himself says he’s not sure he’s persuaded by such an argument. But the point is that these precedents exist and must be considered when looking at Section 230’s future, particularly for those who support the law.

“I think this is a genuinely unresolved issue,” Volokh says. “This might be a sort of thing where there might be a consensus in Congress. You don’t want these quasimonopolisitic corporations influencing elections that sharply, not just through their speech, but through the blocking of speech. I could see Democratic and Republican lawmakers saying, ‘That’s something we don’t want under this private control.'”

That doesn’t make DeSantis’ proposed legislation good or something that should be supported. Social media platforms potentially being forced to carry obscene or violent messages because they come from a candidate for office is morally unsupportable, and the unintended consequences are visible from the moon. Facebook and Twitter shut you down because you keep accusing people who piss you off of being pedophiles? Just run for office!

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