Judgeless Administrative Subpoenas Are An Enemy Of Free Speech

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In the spring of 2016 after meeting with Al Gore and other leaders of the climate exaggeration movement, a group of left-wing state attorneys general calling themselves “AGs United for Clean Power” entered into a secrecy pact called a common interest agreement.

In lieu of pushing for any legislation or otherwise following democratic processes, members of this combination then issued administrative subpoenas to Exxon and the nonprofit Competitive Enterprise Institute, seeking decades’ worth of internal documents about their positions on climate change. The AGs’ goal was quite obvious: Silence or at least intimidate dissent to their agenda relating to the causes of climate change and policy responses to it.

Administrative subpoenas are writs that legally compel disgorgement of papers under threat of fines or contempt. They have been branded as “constructive searches,” but amazingly may be issued without probable cause. State AGs simply may write and unilaterally issue these writs to search, bypassing what most Americans know to be the fundamental safeguards of the right of security under the simple but brilliant process required by the Fourth Amendment.

Police, after all, may not issue their own warrants to search our homes or private spaces of business. Like our homes, private papers are expressly protected by the Fourth Amendment, but administrative subpoenas somehow have escaped being bound by probable cause decided by judges.

Fortunately for Exxon, it has the financial and legal resources that enabled it to file suit on First Amendment grounds to challenge these ambitious, ideological prosecutors. Last week eleven Republican state attorneys general even filed an amicus brief in support of Exxon’s First Amendment rights, claiming that the liberal AGs are targeting their own critics.

It was disclosed last week as well that Minnesota AG Lori Swanson, one of the liberal “Green 20” attorneys general, refused to answer Freedom of Information Act requests about how many of these judgeless search writs she issues against businesses and nonprofit organizations. Although the FOIA request asked for quantities of these judgeless warrants, not details about the parties or issues involved, Swanson claimed “attorney-client privilege” and that the information is “classified as not public data” in her obstruction to the requests.

Ms. Swanson, who received a grade of A from the now-defunct left-wing group ACORN and is considering a gubernatorial run, also refused to answer whether she sought names of donors to nonprofit organizations in violation of the landmark 1958 decision in NAACP v. Alabama. The FOIA requests that uber-liberal Swanson failed to answer also sought information about any nepotism within her office.

Ms. Swanson is not alone in her lack of transparency about these dangerous activities. The secrecy pact among the AGs United for Clean Power was disclosed only because of litigation following obstruction to FOIA requests.

While the efforts of Exxon and the GOP attorneys general to protect First Amendment rights infringed by these judgeless warrants are admirable, not all targets of these institutionalized violations of the Fourth Amendment have the resources needed to litigate to protect their First Amendment rights.

The use of searches to target freedoms of speech, the press, and religion is about as old as the power of government to conduct searches. In the last millennium, Protestant English kings used searches to target Catholics, and Catholic kings targeted Protestants.

The 1760s was a decade especially important for articulating principles that would shape the Fourth Amendment. The English cases Entick v. Carrington, Wilkes v. Wood, and Money v. Leach involved searches for papers of critics of the Crown. Searches in Boston’s Paxton’s Case under what are known as the Writs of Assistance played a central role in the decision of the Founders to break from England.

These cases articulated the principles that searches must be directed by the control of neutral judicial officers after finding probable cause, and not by the discretion of the searching bureaucrats or non-judicial officials. The Fourth Amendment’s language that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation” was based in original public meaning that warrants were considered judicial acts.

It isn’t just that ideological attorneys general use these administrative writs to infringe on First Amendment rights. Issuance of search writs by attorneys general violates the separation of powers inherent in the Fourth Amendment. In 1971 the U.S. Supreme Court ruled in Coolidge v. New Hampshire that the state attorney general, who also happened to be a justice of the peace, could not issue a writ to search in a criminal investigation. The Court wrote that “[t]he point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.”  “Those inferences [must] be drawn,” continued the opinion, “by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

The amicus brief filed by the GOP attorneys general in the Exxon case notes that “[t]he Fourth Amendment limits the scope of administrative subpoenas,” citing Oklahoma Press Publishing v. Walling. But that 1946 New Deal Supreme Court opinion overrode the Fourth Amendment’s requirement of probable cause. It was an ideological decision designed to aid and expand the power of the burgeoning administrative state. That decision institutionalized these unilateral administrative violations by rewriting the Fourth Amendment.

As long as attorneys general or even federal bureaucrats have the power to issue their own warrants, they will abuse that power to target the rights of their ideological opponents. It is time to protect the First Amendment by restoring the Fourth Amendment, and eliminate administrative subpoenas.