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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.