Can the First Amendment Serve as a Source of Criminal Procedure?
Typically, when we think of the constitutional criminal procedure that regulates government information gathering, we think of the Fourth and Fifth Amendments. But many government investigations involve collecting information about speech, association, religion, and the consumption of ideas. The NSA surveillance of telephone calls, for example, involves speech. National Security Letters can be used to obtain information about association and the consumption of ideas. And so on.
Does the First Amendment apply? Should it? If the First Amendment serves as a source of criminal procedure, what procedures does it require? For example, could the First Amendment require a warrant? An exclusionary rule?
For the answers, please check out my new article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007).
I’ve posted the final published version of the article on SSRN.