Free Speech

Do Laws Requiring People to Report Crimes Violate the First Amendment?

The logic of a recent Second Circuit decision suggests that they do.

|The Volokh Conspiracy |

Generally speaking, Americans don't have a legal duty to report crimes they witness or learn about. We must generally testify when subpoenaed, but we need not ourselves alert the authorities. But some states have enacted statutes requiring such reporting (at least as to certain serious crimes); still more require certain job categories (such as teachers, whether in public or private schools) to report certain crimes.

Do these laws violate the First Amendment protection against compelled speech? The Supreme Court has generally said that requiring people to say certain things is presumptively unconstitutional; and it has also held, in some contexts, that "compelled statements of 'fact'" are generally treated the same as "compelled statements of opinion." But requirements to convey facts to the government — in tax returns, census questionnaires, draft registrations, and a vast range of other contexts, federal and state—are so commonplace that it's not clear that the Supreme Court means to cast them all in doubt. (Recall that if something is treated as a presumptively unconstitutional speech compulsion, the government may rebut that presumption only by showing that the compulsion is the least burdensome means of serving a compelling government interest; even if there is a compelling interest in collecting federal and state taxes, conducting the census, and so on, courts have never required a showing that the laws are the least burdensome means.)

And indeed, when mandatory crime reporting laws have been challenged, state courts have upheld them, generally concluding that compelled reporting of facts to the government doesn't really trigger the compelled speech doctrine. See State v. Grover (Minn. 1989) ("The statute [which requires reporting of suspected child abuse] does not compel the dissemination of an 'ideological point of view,' but only mandates the reporting of information—a requirement not altogether dissimilar from that imposed by the Internal Revenue Code."); White v. State (Tex. Ct. App. 2001) (taking the same view).

But in May of this year, the Second Circuit handed down a decision, Burns v. Martuscello, that suggests the laws are unconstitutional after all. In Burns, prison guards placed Burns in involuntary protective custody because he refused to agree to report on future misbehavior by other prisoners. And this penalty, the court held, violated the First Amendment right not to be compelled to speak, even taking into account prisoners' sharply reduced First Amendment rights:

The right not to speak derives largely from the notion, central to our system of government, that the individual's right to "freedom of mind" must be jealously guarded. Preserving the "freedom to think as you will and to speak as you think" is both an inherent good, and an abiding goal of our democracy. In service of this core component of liberty, our jurisprudence recognizes a "sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

In our view, compelled speech presents a unique affront to personal dignity. The decision to withhold speech depends on views and calculations known only to the individual. And since the individual seeks to refrain from speaking, those motivations are all the more obscure, and privately held. Accordingly, the right not to speak may be abrogated only under carefully policed circumstances. As the Supreme Court has explained, between compelled silence and compelled speech, compelled speech is the more serious incursion on the First Amendment: "It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence." …

The court went on to note that "the protections of the First Amendment are hardly confined to political speech," and concluded that "the speech that we recognize today as protected by the First Amendment fits well within a broader frame of constitutional protection from the government's ability to compel participation in investigative measures."

This logic, it seems to me, would likewise forbid the government from threatening otherwise law-abiding citizens with jail time if they refuse to report crimes that they observe. After all, the First Amendment rights of nonprisoners are much more strongly protected than those of prisoners. And both scenarios involve the government "compel[ling] participation in investigative measures," by requiring people to proactively report crimes that they observe.

Now there are indeed some practical differences between the guards' actions in Burns and laws requiring people to report certain crimes. Burns was, as the court pointed out, facing a huge risk of violence if he were known to be working with the guards; citizens required to report crimes (especially crimes such as child abuse) often don't face such a risk (and some laws that require more general reporting have exceptions when reporting creates a strong risk of retaliation). That argument is relevant to the fairness and wisdom of requiring inmates to report, and perhaps even to whether the guards would be liable under a Due Process Clause "state-created danger" theory if Burns had reported and was then attacked by fellow inmates.

But I don't see how this difference can affect the First Amendment analysis. If requiring people to report crimes interferes with "freedom of mind" and "presents a unique affront to personal dignity," that's so regardless of the physical danger stemming from the reporting.

Likewise, the guards' actions as to Burns was an individually targeted decision, not a generally applicable statutory duty. As a result, Burns likely felt more pressure from the guards' threats than a typical citizen would from the duty-to-report laws, especially since those laws are enforced relatively rarely. But that too doesn't affect the First Amendment analysis, it seems to me (again, whether or not it affects our judgment about the fairness of the guards' action).

Now I'm not sure what the right First Amendment answer is here, because I'm still trying to figure out how the First Amendment should play out when it comes to our many obligations to convey facts to the government. But the Burns decision is something that any litigators (and scholars) dealing with duty-to-report laws should consider.

NEXT: The Marine Le Pen Case Shows That Supposedly Enlightened France Treats Political Speech As a Crime and a Symptom of Mental Illness

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  1. I’m sure there will be many particular implications brought up for discussion here, the first that comes to my mind are laws that require citizens to report the theft of a firearm. This particular application is just another gun-hater’s way of controlling the law-abiding citizens who choose to own guns, and I’m sure they would claim their standard “but guns” excuse for this exception to the First Amendment as they do with all their other exceptions to the Second.

  2. I don’t know about the First Amendment, but what about the self-incrimination implications of (say) a prisoner having to report whenever crimes happen in his vicinity?

    1. (given that the government is not required to accept the persons protestations of noninvolvement)

    2. A touch different from the context/crimes discussed above, but the privilege against self-incrimination can definitely protect in certain situations of required reporting. This recent Idaho Supreme Court case deals with precisely that set of circumstances: https://isc.idaho.gov/opinions/45347.pdf

    3. In Haynes v. United States, the 7-1 majority ruled that the Fifth Amendment shielded Haynes (a convicted felon) from criminal penalties for failing to register a firearm under the NFA, since registering a firearm would be an open admission to the government that he had committed a crime (felon in possession of a firearm). If the requirement to provide information to a government entity threatens to incriminate the reporter, the reporter can’t be compelled to provide that information. Of course, courts have come to the entirely different conclusion when it comes to taxes and income reporting, because a stable budget supercedes human rights concerns.

  3. It’s not a time, place, or manner restriction and it is certainly expressive conduct (so can’t be judged as conduct) and content based, so it must satisfy strict scrutiny…

    …Unless it falls a category of speech outside the First Amendment that has yet to be recognized by SCOTUS (which has recognized obscenity, fraud/perjury, speech integral to criminal conduct, and a couple more) but has a long-standing history of being considered outside the First Amendment by courts (as set forth in United States v Stevens). I would imagine some kind of obligatory disclosure category might exist, as in colonial times and 19th century the government undoubtedly required people engaged in commerce to report what they were transporting or had in their store (for taxation purposes). As for laws requiring people to report crimes, one would have to research 18-19th century US laws. A few may satisfy strict scrutiny, like requiring certain people who are routinely around individuals prone to abuse/neglect to report suspected abuse (eg. healthcare workers, social workers, teachers, nursing home staff). Preventing abuse/neglect is, IMO, a compelling state interest, the government just needs the data to support the reporting requirement.

  4. Reporting criminal behavior helps “establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” so I have no problems with laws that mandate it.

    1. Well, I imagine that the government could argue that lots of speech restrictions “insure domestic Tranquility” and “promote the general Welfare.” Yet that’s not the test that the Court has announced for evaluating restrictions on First Amendment rights (or Fourth Amendment rights or Sixth Amendment rights or what have you), no?

      1. Insuring domestic tranquility is the exact reason Egypt banned CNN some years back. It’s really noble, you see, so it drags nobility into censorship, rather than censorship by the power hungry dragging sewer effluvia into the purity of free speech.

        1. Tranquility is why Venezuelan permits only pro government news agencies. Can’t have disruption or conflict.

    2. So does allowing the government to randomly review your bank accounts, business records, mail, emails, texts, and to record every conversation by placing microphones everywhere, even in your house, and every phone call.

      I have problems with that, as I do with mandatory reporting laws. I prefer freedom, and forcing law enforcement to do their jobs, and to leave me alone without probable cause that I, myself, have committed a crime.

    3. Apedad has authoritarian impulses? Color me shocked. Compelled speech is compelled speech no matter the reasoning.

      1. Also not sure if apedad knows the constitution contains article 1 section 8.

        1. Also not sure if apedad knows the constitution. Full stop.

  5. Your headline, Prof. V, doesn’t parallel your subheadline; there’s a verb mismatch. Perhaps you meant:

    Do Laws Requiring People to Report Crimes Violate the First Amendment?
    The logic of a recent Second Circuit decision says they are do.

    I’d apologize for being pedantic, but I know you value constructive corrections. 😀

    1. Whoops, thanks, corrected it!

  6. Many states have mandatory reporting laws for certain professionals (teachers, psychologists, social workers, doctors) regarding certain crimes (child abuse mainly). Are those Constitutionally suspect?

    1. I would think that for any position that is not a government employee those mandatory reporting requirements should be very suspect. (Government employees are a bit different in that I could see that fitting into a government-as-employer exception even with the threat of criminal prosecution instead of dismissal or some other on-the-job punishment).

      1. I agree with your government-as-employer exception. (I think it’d be similar to how we already allow criminal prosecution for disseminating confidential documents that people obtain as part of their government job.)

        By extension, it might allow for licensed professions, involving care of minors (e.g. teachers, doctors) and general safety (e.g. pipeline inspectors).

        1. Reporting requirements from nurses is how reason has had quite a few unjust articles about CPS taking children from their parents. Reporting is not always beneficial and can lead to tovernment over reaction.

    2. Not so much; a citizen can opt out of those requirements by simply not taking the job. There is a choice.

      1. Justified & Ancient: Just to probe the implications of your argument, say that a state legislature passed a law saying, “Any teacher, psychologist, social worker, or doctor — whether employed by the state or by a private entity — shall be jailed if he criticizes the government.” And say that, when someone says the law is “constitutionally suspect,” the government says, “not so much, a citizen can opt out of those speech restrictions by simply not taking the job. There is a choice.”

        Would you say that this is an adequate response to the constitutional objection to the law?

        1. I would say that the government can create (constitutionally, probably not morally) certain “officially custodial” relationships in professions where it can be demonstrated that the person deemed to be custodian has a special obligation to report. These need not necessarily be government jobs (but probably should be if they are going to impose the requirement).

          I would personally not support all of such laws, but I don’t think its constitutionally (or even morally) suspect to require a teacher that observes sexual assault at the school of a student to report it.

          1. I would personally not support all of such laws, but I don’t think its constitutionally (or even morally) suspect to require a teacher that observes sexual assault at the school of a student to report it.

            Right, because there is a compelling government interest (detection of sexual abuse) and a substantial nexus between the government interest and the burden imposed.

            That’s how the Unconstitutional Conditions Doctrine works — the government doesn’t get to impose restrictions as a condition of benefits unless those two conditions are met. I think this was Nolan.

        2. I object to a government requiring citizens to report on other people; even with taxes, we are reporting on ourselves or an entity we are licensed to represent. I know many people make exceptions for child abuse and terrorism, which is understandable (though opinions on what may be considered child “abuse” vary widely).

          However, when the requirement is limited to a consensual arrangement such as employment — i.e., directly between employer (even if said employer is the government) and employee, yes I consider that more acceptable, though not favorably so.

          Your scenario stretches far beyond that scope in more levels and directions than I care to tackle, to be honest.

      2. As I always reply to that argument, “But you don’t have much choice about taking SOME job.”

        If the government can place special obligations on people who take this job, or this job, or that job, they can just expand the list until they’re placing it on anybody who doesn’t chose to be indigent.

    3. Are not most of those actions for failure to report a loss of license and not criminal?

  7. I’m okay with a few sharply defined exceptions like he had a nuclear bomb he planned to denote and she didn’t bother to tell anyone or he was planning a massacre. Otherwise mandatory reporting is way too abused and the cure is often worse than the disease.

  8. Whatever happened to “Misprision of Felony”?

    1. The federal misprision statute makes it illegal for someone who knows of a crime to “conceal[] and … not as soon as possible make [it] known to … [some person in] authority.” Courts have interpreted this law (and, to my knowledge, similar state rules) as requiring affirmative acts of concealment, and not just failure to report.

      To quote a 1934 federal appellate case, “we must assume that Congress intended something by the use of the words ‘conceal and.’ If any meaning is to be given them, an indictment must allege something more than mere failure to disclose? some affirmative act of concealment, such as suppression of the evidence, harboring of the criminal, intimidation of witnesses, or other positive act designed to conceal from the authorities the fact that a crime had been committed.

      “Furthermore, some such interpretation is necessary to rescue that act from an intolerable oppressiveness and to eliminate a serious question of constitutional power. Whatever may have been the case in 1790, when federal felonies were few, the act if otherwise construed would be but another unworkable and unenforceable law in latter days…. The guest at a club or a dinner in Eastern Oklahoma would lately have been a felon if he had not promptly reported to the nearest federal judge the fact that he observed another guest in possession of a beverage of proscribed alcoholic content. An interpretation leading to such an intolerable conclusion should not lightly be imputed.”

      1. This is a heck of a saving interpretation, requiring an affirmative act for what really reads like a crime of omission.

        Thanks for the pointer!

  9. It seems to me that a “least burdensome means” test ought to indeed apply to things like tax reporting, at least to the extent of rendering unconstitutional laws such as the one requiring reports of cash payments of $10K or more, since those really serve no purpose except to lead to criminal investigations. (Unlike, say, your tax return or a company’s annual SEC filing, which gather information the government routinely needs to have even about well behaved people and companies.)

  10. “compelled speech presents a unique affront to personal dignity” ? could a law be passed requiring the reporting of a rape, when the victim does not want it reported? Is there a difference by victim age or if the victim is in prison?

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  12. Law Professor: ‘Alright class, you should all have read and briefed the assigned cases for today, so let’s find someone to explain the Court’s holding in Marbury.

    [Professor scans seating chart, then looks up at class and points]

    Law Professor: “Tom, tell me what is at issue in this case, and make sure to start with the facts of the case.

    Tom: “No.”

    Law Professor: “Excuse me? Did you read the assigned cases? If not, I can just mark you as unprepared and find someone else.”

    Student: “it doesn’t matter if I read them or not. This is a state university, which means you are a state actor. And, you are asking me to provide facts. If I do not provide these facts, my standing in the class will suffer. Put all of this together and you have a government agent compelling me to provide him with facts. That violates my First Amendment right not to be compelled to provide the government with information. So, call on someone else. If you retaliate in any way then you risk a civil suit. Oh, and this will also be my answer to the exam question at the end of the semester. Actually, just let the faculty know this is my response to every question. Can I just get my degree then?”

    Slippery slope!!!

    1. Students aren’t entitled to academic success. The speech under question, if I understand correctly, must relate to the speaker’s personal conscience or dignity.

    2. Not really. The default grade is 0. It’s not retaliation for the professor to not give you points for not doing work.

      1. You didn’t read the case of the Florida school and the default grade of 50%?

  13. prison guards placed Burns in involuntary protective custody because he refused to agree to report on future misbehavior by other prisoners

    Can we skip the free speech aspects in this case and look at the due process? He was punished for something which had not yet occured.

  14. Speaking of compelled govt speech spaces added): https://www.washingtonpost.com/ nation/ 2018/09/26/ black- student-refused-recite-pledge- allegiance-challenging-texas-law-requiring-it/ ?utm_term=.53d3a7675c6f

    1. West Virginia State Board of Education v. Barnette is the Supreme Court case that article (rather poorly) refers to at the end. It is almost exactly the same issue. Unless that TX district takes it all the way up and somehow gets SCOTUS to overrule that case, the school should lose easily.

  15. I anticipate that today and maybe next week I will indirectly witness serial perjury at an important congressional hearing. We will know that someone is perjuring themselves under oath because the testimony of several witnesses will be in direct contradiction of each other.

    To whom should I report this? Should facts emerge that more strongly support one side or another, will certain U.S. Senators be guilty of misprision for aiding and abetting false testimony?

    On a not totally unrelated note. I noted in observing hundreds of courtroom trials that in family law and domestic violence cases juries would reach verdicts which clearly indicated that the jurors felt that a key witness was deliberately and calculatedly not telling the truth.

    Yet never once did I hear of such a witness for the prosecution being charged with perjury. It happened with witnesses for the defense several times, but complaining witnesses (usually the alleged victim) for the prosecution were never charged. They came trotted into court, cost the system a whole lot of time and expense, and never were punished at all, not even a fine and a little lecture.

    When there is no cost involved in bearing false testimony, we should expect some people will find it satisfying in some way, even alluring.

    1. will certain U.S. Senators be guilty of misprision for aiding and abetting false testimony

      Miss this part?

      They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

  16. “Do Laws Requiring People to Report Crimes Violate the First Amendment?”

    They violate common sense as they promote paranoia and false/weak accusations in the name of CYA.

  17. They aren’t reporting a crime. At best, they are reporting what is almost certainly a crime, but until adjudicated, there is only an accused (with a presumption of innocence), right? So they aren’t actually reporting a fact or crime, but a suspicion (i.e., an opinion that act is not legal).

  18. Does that make 18 USC ?4 unconstitutional?

    Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

    I guess so, although I can’t find any actual caselaw on the matter.

    1. EV answered this above, my apologies for skimming and not reading the thread carefully. Something-something-saving-interpretation.

  19. The case itself only addresses two issues (1) whether it violated the First Amendment to refuse to lie to law enforcement officials by implicating an innocent person and (2) whether it violates the First Amendment to not agree to become a snitch on an ongoing basis. The decision very clearly leaves open the possibility that a person can have a duty to report a crime based on some type of special relationship — e.g. a teacher or daycare provider having a duty to report allegations of sexual assault against a minor.

    While the opinion would likely subject such a requirement to “strict scrutiny”, I have little most courts would find at least some mandatory reporting requirements to withstand that scrutiny (it might not be the strictest of strict scrutiny, but courts seeming willing to fudge that standard for good enough causes).

  20. Timing is everything. The manner in which the Democrats decided to spring this matter in the last minute fuels talk of collusion. The Democrats have used this poor lady who had no idea her confidentiality will be betrayed.

    1. < Waves Hand >

      This is not the article you are looking for.

  21. How would this legal principle apply to a law like this: in NJ, the campaign finance laws require donors to report themselves whenever they make a contribution in excess of statutory limits. The applicable regulations make it explicit that a donor who exceeds the limits, even by unintentional accident or innocent miscalculation, actually commits two violations: the donation itself, and failing to report yourself for making an improper contribution. These two violations occur even if you did not realize that you made an improper contribution until later. The failure-to-report violation occurs when the improper contribution was made, not when you first realize that it was made.

    Thus, not only is someone being forced to speak, but he or she is being punished for not speaking when he or she were not even aware that he or she needed to speak.

  22. Another theory for such statutes is militia regulation. We are all militia, with a duty to investigate crimes and pursue criminals (“hue and cry”). That can reasonably extend to report crimes to the government or other militiamen.

    But that principle applies only to constitutional crimes, not most common law crimes, the prosecution of which, except for impeachment and removal, is not authorized by the Constitution, as was correctly found in U.S. v. Hudson, (1812). All such crimes are violations of the prohibition on ex post facto laws, because the crime is not defined except in the sentencing phase, although that argument was not made in the opinion in that case.

    Common law crimes include perjury, fraud, contumacy, failure to file returns and pay taxes, private interference in interstate commerce, murder, assault, rape, robbery, and conspiracy. The only common law crimes over which Congress was granted authority to prosecute were treason, piracy, felony on the high seas, and offenses against the law of nations (which includes regulation of immigration). It was not granted authority to pass laws to prosecute for sedition.

    So 18 U.S.C 1001 is unconstitutional.

  23. In the instance of alleged hate crimes, the duty to report will hinge substantially on the perceiver’s conception of what constitutes a hate crime. Some may say it is all in the mind, although my tax preparer tells me that some tax law is that way also, involving pretty highly subjective judgements.

    So I would guess hate crime is common law, not constitutional law per se, although it is dressed up in that language and certainly dives right into first amendment concerns.

  24. Dr. Ford is a mandatory reporter for child sexual abuse, an obligation that she accepted upon receiving her license to practice.
    She has maintained that she has been aware that a particular teen girl, at the age of 14 or 15, was alleged to have been the victim of a sexual assault, the details of which have recently been made quite public.
    Dr. Ford has not reported this sexual abuse to the appropriate authorities; the minority leader of the House not being an appropriate authority for executing such reporting.

    Ergo, Dr. Ford should be investigated for this ethical lapse, and have her clinical license revoked.

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