Internet Is Ultimate Free Speech Forum

The Internet is the “modern day town square” in which each of us can “become a town crier with a voice that resonates further than it could from any soapbox.”

“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. The most important forum is cyberspace, the “vast democratic forums of the Internet” in general and social media.

With these words the United States Supreme Court declared the primacy of the Internet as the ultimate free speech forum in Packingham v. North Carolina, (U. S.  15– 1194, 6/19/17).

The issue in this case was framed by a North Carolina law that prohibited a registered sex offender from accessing “…a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  This Statute had been applied to about 20,000 people in North Carolina and the state had prosecuted over 1000 sex offenders for violations.

Packingham (Petitioner), a 21-year-old college student, was convicted of having sex with a 13-year-old girl in 2002 requiring him to register as a sex offender under the statute.  In 2010 Petitioner was prosecuted for a minor traffic offense, which was dismissed, however Petitioner posted a statement of gratitude on the Internet, thanking the Lord for his good fortune in not having to pay a fine.  This post attracted the attention of law enforcement officials resulting in a check of the sex offender records leading to an indictment of Petitioner by a grand jury for violating the Statute.

Petitioner filed a motion to dismiss the indictment on the grounds that the Statute violated his First Amendment Right of free speech.  Petitioner was ultimately convicted.  Petitioner appealed to the North Carolina Supreme Court, which held that the statute was constitutional.  The United States Supreme Court granted certiorari, unanimously holding that the Statute was unconstitutional because it violated the First Amendment Free Speech Clause.

This is no small deal considering there is a very strong public policy to prevent sex offenders from accessing the Internet to find children who might be susceptible to improper advances from adults. Sex offenders are known  to continue their predatory practices of preying on minors.

The Court concluded that the statute burdened “…substantially more speech than is necessary to further the government’s legitimate interests.”  The statute was not “narrowly tailored because it burdened “substantially more speech than is necessary to further the government’s legitimate interests.”  For example, the Statute could bar access to commonplace “Websites as varied as,, and”

“By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”

These statements establish Packingham  as the leading case on First Amendment Free Speech rights on the Internet.  It certainly leaves open more questions than it answers.  For example, local government has tried to rein in the freewheeling effect of employees commenting about on frivolous details of the  work environment (water cooler talk) by attempting to prohibit discussion of frivolous details about the work environment on social media.  HR director’s, employee’s and public official’s  involved in employment decisions need to look at any policy dealing with employee use of the Internet concerning employment activities (think social policy)  to be sure that they have not restricted Free Speech.

Free speech is a topic that has occupied this writer for years leading to a large number of Post on this topic starting in 2011 with the Supreme Court’s decision in Brown v Entertainment Merchants Association, where the United States Supreme Court invalidated a law prohibiting violent video games for minors. The Free Speech cases have created a conundrum for local government attorneys and public officials. Our job is not gotten any easier because of the sweeping impact of these decisions, reaching the point where it takes special expertise to write ordinances, like a sign code, that might impact free speech.

To view other Posts on this blog pertaining to right of free speech click on links below. paign-contributions/

Howard  Wright © 2017



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Missouri Constitution Does Not Prohibit A Religious Institution From Participating In Program that Provided Playground Safety Materials From Recycled Tires

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

bill of rights.png

These, simple, concise and powerful words – fifteen in number – cemented in the Bill of Rights of the United States Constitution the separation of church and state and the right to practice religious beliefs without interference from the government (Free Exercise Clause). These are two of the most important freedoms we enjoy, all in fifteen beautiful words, side-by-side.

Not often, but sometimes the Separation of Church and State Clause and the Free Exercise Clause clash requiring the United States Supreme Court to resolve the conflict. Trinity Lutheran Church decided by the United States Supreme Court in June 2017, was such a case.

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U. S. Supreme Court

In Trinity Lutheran, the United States Supreme Court held that Missouri could not deny an applicant the opportunity to compete for a grant that provided playground surfaces made from recycled tires because the applicant was a church.

Trinity Lutheran Church asserted a right to participate in a government benefit program (Missouri’s Scrap Tire Program) without having to disavow its religious character. On its surface if looked like small potatoes. It was not.playground.png

Missouri argued that the Missouri Constitution, adopted in 1875, prohibited furnishing taxpayer money directly or indirectly to churches based upon the separation of church and state clause in the Missouri Constitution that provides:

“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

The Supreme Court held that denying a generally available benefit solely on account of religious identity imposed a penalty, which violates the Free Exercise Clause of the First Amendment to the United States Constitution.  “The express discrimination against religious exercise here is not the denial of a grant but rather the refusal to allow the Church, solely because it is a church, to compete with secular organizations for a grant.”

This case draws a  bright line with respect to how local and state government can use public funds when offering grants or other aid to churches or religious institutions.  Prior to this case, Missouri cases interpreted the Missouri Constitution to prohibit granting or giving public funds to a church or religious group.

Obviously local government will now have to adjust many of its programs involving the granting of financial aid for improvements to sewers, storm water or water lines, streets and other programs so that they do not exclude churches and religious institutions.  Although the opinion seems to establish a bright line where the free exercise clause trumps the establishment clause the line of demarcation is not as clear, as it would seem.  While the decision was by a 7 to 2 margin there was a significant controversy over Footnote #3, in the majority opinion, which states that:

“This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.” (Emphasis added)

What does Footnote #3 mean? Truth is no one really knows except a significant number of the judges clearly wanted to leave open the door by avoiding an all-expansive interpretation.  Of particular interest was the dissent by Justice Sotomayor joined by Justice Ginsburg, which explored in detail reasons for Missouri’s 1875 constitutional provision that prohibited any financial aid to a religious institution.  Inexplicably, the majority opinion mostly ignored the long history in Missouri, going back to the 1875 Constitution, concerning restrictions on financial aid to churches and religious institutions.

The Court also made it clear that it was not overruling a case, which involved the direct funding of scholarship program to assist divinity students in Washington State, which involve a similar challenge. The Washington State case was a violation of the separation of church and state clause because the scholarship program used state funds to help students obtain a devotional degree in the ministry. This was vastly different from the facts in Trinity Lutheran, which involved a state grant to supply materials for safety at a church school.

In recent years, the United States Supreme Court has shown a great interest in cases involving religious freedom. I would expect that there will be a continuing debate between the Separation Clause and the Establishment Clause. The Trinity Lutheran opinion, including the dissent will inform much of this debate.

You may find that the following Posts dealing with tax credits for private schools and prayer at city Council meeting may be of interest.

Howard Wright© 2017Now will

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No Search Warrant Required To Search Cell Phone If There Are Exigent Circumstances

Law tracks technology. A recent case, involving the Vermont State Police allowed the police to track a person suspected of murdering someone, without obtaining a search warrant, based upon exigent circumstances by pinging the suspect’s cell phone.cell-phone

In the Vermont case, officers of the Vermont State Police responded to a report of a woman’s body near the town limits of Brattleboro, Vermont.  This area was “off the beaten path,” in a wooded area approximately 30 yards from the road.  When the officers arrived, they found a woman’s body.  She had a gunshot wound to the back of the head and she was on the ground in a kneeling position with her hands clasped in front of her.  Not suicide, it had the making of a gangland murder.

The officers identified the woman as Melissa Barratt who had recently come to the attention of Vermont State Police when she was arrested in Brattleboro for selling drugs.  At the time, Barratt told her arresting officers that she was “extremely nervous and afraid of Frank Caraballo,” with whom she worked dealing drugs.  In particular, she stated, “if he knew that she was talking to the officer, he would hurt her, kill her.” This, she indicated, was not an idle threat, as she knew Caraballo to have access to multiple firearms, and to have committed assault or even homicide on previous occasions.  Though the arresting officers sought to have Barratt cooperate with them in an investigation of Caraballo, she refused, largely out of fear that she would “basically be killed” if she cooperated.  The officers at the scene subsequently learned that Barratt had continued to work for Caraballo after her release.

Moreover, the investigating officers knew that, after Barratt’s arrest, Brattleboro police had conducted an investigation of Caraballo’s drug operation.  Through June and July, police completed “at least three recent controlled buys of narcotics” with Caraballo, and that these sales required the participation of multiple undercover agents and confidential informants.   Considering the need to protect the safety of undercover officers and informants the officers concluded that it was essential to locate Caraballo as soon as possible; therefore, the officers did not apply for a search warrant but instead contacted Sprint to request that Sprint locate Caraballo by using its GPS system to ping the GPS software in his phone to locate him remotely—a process called “pinging.”  After Caraballo was located, arrested (all within 90 minutes) and charged with a number of crimes Caraballo filed a motion to suppress all evidence  because there was no search warrant, which he alleged violated his Fourth Amendment right to be free from unreasonable searches and seizures. The federal district court overruled the motion to suppress and Caraballo appealed to the Second Circuit Court of Appeals, which upheld the district court’s decision.

The Second Circuit in its opinion, noted that there is a well-established body of case law “that individuals have no reasonable expectation of privacy in the real-time GPS location of their cell phones.”  Despite the fact that there is no reasonable expectation of privacy the Second Circuit resolved the matter on the grounds that the request to Sprint fell within the exception to the Fourth Amendment based upon exigent circumstances.  The “core question” in applying the exigent-circumstances doctrine is “whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action.”

In this case the officers had specific reasons to think that Caraballo would commit acts of violence against undercover agents and confidential informants.  Barratt’s statement that Caraballo would “kill her” if she were speaking to police took on an immediate importance because it suggested that the investigation had been discovered.  The threat that Caraballo might take action against others involved in the investigation satisfied the requirements for exigent circumstances.  United States of America v. Caraballo, (Second Circuit, 12–3839 and 14–203, 08/01/16)

You may want to consider sharing this case with local law enforcement officials since it  illustrates a way to respond quickly to an emergency situation.

Howard Wright© 2017


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Drug Testing For All Students Violates Constitution

It now seems that the efforts of Linn State, to establish a mandatory, suspicionless drug-testing program for all students has come to an end (assuming that the United States Supreme Court will not take this case).  A recent en banc decision by the Eighth Circuit Court of Appeals set aside an earlier decision by a panel for the Eighth Circuit.  The en banc decision by the Eighth Circuit upheld the federal district court’s decision, which struck part of the drug testing program because it did not meet the “special needs” test established by the United States Supreme Court while upholding other parts where Linn State showed there was a special need.

If you are working on a matter involving drug testing of employees, students or other persons you do not have to travel much farther then the Linn State case for answers.  The strength of this case is the well reasoned district court’s 62-page opinion, affirmed by the Eighth Circuit, which provides an analysis of many different programs where special needs are considered.

Background: Before discussing the recent en banc decision by the Eighth Circuit some background concerning the extensive litigation involving the Linn State drug testing program is useful.  Around 2011, the Board of the Regents of Linn State Technical Community College, a state agency adopted a drug-testing policy for the fall of 2011 that required all students enrolled at the Linn State campus or any related campus to submit to periodic drug testing. (Even though the institution’s name has changed I will continue to refer to the institution as “Linn State”).  This policy required as a condition of admission to Linn State that students acknowledge the drug policy and that refusing to be screened for drugs would result in administrative or student-initiated withdrawal.  This policy was a mandatory, suspicionless drug-testing program constituting a search within the meaning of the Fourth Amendment, requiring Linn State to demonstrate a legitimate “special need for drug testing that was sufficient to outweigh the students’ individual privacy expectations against the state.

This program was immediately challenged in federal district court as a violation of the Fourth Amendment, which protects the right to be free from “unreasonable searches and seizures.”  The federal district court enjoined the drug testing policy, which was immediately appealed to the Eighth Circuit Court of Appeals.  The Eighth Circuit reversed directing the district court to review each Linn State program based upon the specifics of the program and the application of the drug policy to determine if any of the programs met the “special need” exception as defined by the United States Supreme Court.  The district court was directed to review each program to determine if Linn State could show that there was:  “(1) a safety risk where the activities performed posed a threat that “even a monetary   lapse of attention could have disastrous consequences”; (2) the risk at issue were already unique or unusual degree; and (3) a safety risk to others as distinguished from those performing the task.”

Applying the above standards, the District Court concluded that programs, which involved hands-on training in close proximity to active propeller blades; programs where students are required to taxi airplanes; students seeking accreditation in heavy equipment operations, which involved hands-on training with bulldozers and heavy equipment weighing up to 25 tons; power sports; and hands-on training with electricity and live electrical services qualified as a “special need.” The rest of the programs, which did not involve dangerous equipment or activities, like sitting at a computer or a drafting table with a sharpened pencil did not qualify as a “special need.”  See my 2014 Post discussing in more detail the district court’s opinion.Linn State CollegeAbout a year ago, a panel for the Eighth Circuit unexpectedly reversed the district court’s decision holding that due to the uniqueness of the Linn State’s programs, (where hands-on training for all programs was emphasized based upon the expectation that the students would immediately enter the workforce) a suspicionless a drug testing program could be applied to all students enrolled at Linn State.  This opinion was unprecedented, because no other court had ever approved a government authorized drug-testing program for all students based upon general statements by recognized health authorities and agencies that drugs are a serious threat to the health and safety of the population.  (Everyone recognized that drug abuse was a serious problem although it was not sufficient to overcome the burden placed on individuals to be free from unreasonable searches when a special need had not been demonstrated.) See 2016 Post  discussing the opinion issued by the panel.

 En Banc Opinion – Special-Needs: The United States Constitution prohibits searches without individualized suspicion except in well-defined circumstances where there has been a demonstration of a “special need” beyond the normal needs of law enforcement.  In those cases where special needs have been shown, “it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.”

Balancing Test: Linn State argued that the need to enhance safety and the need to foster a drug-free environment constituted the “special need” that justified a drug testing all students without any individualized suspicion of drug use.  In determining whether or not the special–needs requirement has been satisfied, the courts must engage in “a context–specific inquiry” by examining competing private and public interests.  The special need for drug testing must be substantial and important “enough to override the individual’s privacy interest” to be free from unreasonable searches under the Fourth Amendment interest in safety can support a special need based upon a factual showing that the activity is unsafe as to others.  This is particularly true for persons who work for the government in areas where there is a recognized potential for alcohol or drug abuse on the job and that such use can result in accidents or danger to others.In the Linn State case there was no showing that there was a drug or alcohol abuse problem by the students.  In addition, many of the programs presented no safety risk.Linn State Collegeairplane

Based upon the examination of the programs offered by Linn State by the District Court, the Eighth Circuit affirmed the District Court’s decision based upon individualized examination of each program.  This examination by the district court showed that the reasons offered for the drug testing demonstrated that only a few programs met the special needs test, others did not.  Kittle-Aikeley v. Strong, (8th Cir,. 13–3264 and 14–1145, 12/22/16)

The Linn State effort to establish a drug testing program, for all students, was a misguided attempt to limit the right of students to be free from unreasonable searches. The drug testing for all  was doomed to fail from the outset because it was against all of the court precedents.

Howard Wright© 2017

Other Posts That May Be Of Interest  To Search  And Seizure Questions

Search of a credit card without a warrant

 Does a dog get a free air sniff?

 Police cannot search cell phone without a warrant 

 Searches and seizures in a world without walls

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Sanctuary Cities/Counties and Trump’s Executive Order


On March 31, 2017 Lisa Sorbonne,  Executive Director of the State & Local Legal Center updated local governments on lawsuits involving  Sanctuary Jurisdictions Executive Order.

“There are two possible outcomes of the lawsuits, which challenge the Executive Order: The court does or doesn’t issue a nationwide injunction. If the court does issue an injunction it would only be temporary until the court could hear the case on the merits. A temporary injunction is like the court say “at a glance it looks like this violates the law.” It is likely the Trump administration will appeal the granting of a temporary injunction to the Ninth Circuit.

The Trump administration’s basic argument for why no injunction should be granted is that the government hasn’t taken anyone’s money away or threatened to take any specific jurisdictions money way (yet). The administration does not defend the constitutionality/legality of the executive order.”

Below is her  article, which will be out of date as soon as the court rules, which is anticipated to be 2 weeks at the longest.


“Five days after assuming office President Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the President over this executive order including San Francisco, Santa Clara County, and Richmond, California, and Lawrence and Chelsea, Massachusetts.

By mid-April a court will likely grant or deny a preliminary injunction in the Santa Clara County case. At this point we know the legal allegations the cities and counties have made against the President, and the President has responded to the Santa Clara County and San Francisco lawsuits.

What arguments do the local governments make?

All of the complaints make different arguments and frame the legal issues slightly differently but below are the three main arguments.

Spending Clause

The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides in Congress not in the President. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause the President lacks the same authority as a matter of separate of powers.

The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, the conditions must be stated unambiguously, and they must relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.

In NFIB v. Sibelius (2012), Chief Justice Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case states stood to lose over 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.

The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.

Likewise, the Supreme Court has held that conditions Congress place on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.

Fourth and Tenth Amendments

The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy, or practice that prevents or hinders the enforcement of Federal law.” This language, the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers, has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.

In their lawsuits the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.

When someone is arrested ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.

Following the sanctuary jurisdictions executive order Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.

8 U.S.C. 1373

The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.

The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373 they argue.

San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement where local governments cannot be required “to enact or administer a federal regulatory program.”

How has the government responded?

President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the President intends to take any money away from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describe five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):

(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373”; (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes”; (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”

A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.

First, both responses avoid defending the constitutional claims; instead the administration argues that because no federal funding has been taken away from either local government the cases aren’t yet ready to be reviewed by a court.

Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the Administration neither identifies a single grant that imposes that condition, nor addresses the numerous bills to do so that Congress considered and rejected.”

Finally, both Administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.”


Executive Order Relating To Sanctuary Counties and Cities

On January 25, 2017 President Trump, issued an Executive Order (Order) intended to block cities and counties from engaging in certain practices that impede the federal government’s execution of the immigration laws of the United States. This Executive Order requires the Secretary of Homeland Security (Secretary) and all agencies   “…to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” States, counties and cities that do not comply with 8 U.S.C. 1373 or have a statue, policy, or practice that prevents or hinders the enforcement of Federal law (so-called sanctuary states, cities or counties) are threatened with the loss of federal funding.      The Order is intended to prohibit sanctuary states, counties and cities from engaging in practices that interfere with the federal governments execution of the immigration laws of the United States with respect to undocumented aliens.  For an  annotated copy of Trump’s  Order showing possible legal issues see Professor David A. Martin’s analysis.statue-of-liberty-1758290_960_720

The big stick approach in the Order (loss of federal money) will encourage local government to work with immigration officials and discourage others from providing sanctuary to undocumented aliens. While the federal government has the big stick it is not walking quietly. Consider, that the Order authorizes the employment of an additional 10,000 immigration officers for the enforcement of immigration laws and establishes a framework for involvement voluntarily or by coercion of local jurisdictions in the enforcement of immigration laws. While the Order establishes a framework for agreements with local jurisdictions, it also has coercive provisions that could be used to force local government to house prisoners and execute detention policies that exceed the normal period of detention for the crime that led to the arrest.

Questions abound to whether or not local government will be fully reimbursed for costs associated with the detention of prisoners.  Considering that many jails are  already crowded and that law enforcement is inadequately funded any additional burdens with or without compensation in enforcing the Order could be a major issue. In addition, if local jurisdictions are not willing to engage in voluntary actions there could be a serious states rights question if the federal government tries to  commandeer local and state law enforcement to act as an arm of the federal government in enforcing immigration laws.

How does the Order work?

The basic concept is pretty simple. When local law enforcement arrests someone, 8 U. S. C. 1373 mandates that the arresting agency determine the citizenship or immigrant status of the person who has been arrested by providing certain information to the FBI. The FBI than sends the inmates information to Immigration Customs Enforcement (ICE) for processing. If ICE determines that the inmate is undocumented, it submits a detainer request to the local jurisdiction that has detained the person. (For an excellent discussion of this process: See the Washington Post, updated January 25, 2017)

Since there are no sanctuary counties or cities in Missouri, it may be that the controversy over the Order will play out in other parts of the country. Because the Order authorizes the Secretary to enter into agreements with local jurisdictions to provide immigration services it may be that the impact of the Order in Missouri will primarily be working out the administrative details by agreement, although additional burdens may be placed on local government without the assurance of full reimbursement.


The rollout of this Order has  generated a lot controversy, with some jurisdictions stating that they will defy the Order, leading to litigation over its validity. In addition, citizens who are opposed to mass deportation of their neighbors may engage in passive or nonviolent resistance, which could potentially lead to explosive conflicts. It is not hard to imagine a pregnant mother with three small children being arrested and led away from her children for deportation in front of a large sympatric crowd of neighbors and friends.What does this portend?

The closest parallel in American history   to Trump’s  Executive Order is the pre-Civil War Fugitive Slave Act. Abolitionist and others created the Underground Railroad to fight the injustice created by the Fugitive Slave Act; they engaged in outright resistance to returning slaves by running off bounty hunters as well as other forms of open hostility to the efforts of slave owners to enforce the Fugitive Slave Act.

Helping another

Local government officials need to be aware of their duties under the  Order.  Pursuant 8 U. S. C. 1373, reporting of  persons arrested and detained is required.  If an order is issued to detain the prisoner  you  should be prepared to respond to the order.  This could put a substantial burden on local government agencies  particularly those  that run jails.  If you do not have an agreement in place some thought should be given to working out details in advance,  in order to avoid a misunderstanding.

Howard Wright© 2017


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Can the Police Search a Magnetic Tape on the Back of a Credit, Gift or Debit Card Without Obtaining a Search Warrant?

Recently, we have seen  an uptick in the number of cases involving  technology, particularly with respect to whether or not a search warrant is required in order for the police to gather evidence from an electronic storage  device. Frankly, I was quite surprised by  a  recent opinion in United States of America v. DEL’Isle, which  held   that a search warrant was not required to read the magnetic tape on the back of a credit, debit or gift card. credit-card

At first blush, due in large part to my lack of knowledge  about how the technology worked, it seemed  to me that a search warrant  would be required; Nevertheless,  in the  DEL’Isle case, the  nature of the technology drove the opinion in the opposite direction.  The law reacts to change, while technology drives change.To my surprise, the technology of a  credit,debit or gift  card is incredibly simple making the opinion of the  Eighth Circuit  very reasonable and  understandable. Okay, let’s look at the  facts in the DEL’Isle case  to see  how the Eighth Circuit  reacted to the driving force of technology.


The driver of a vehicle (DEL’Isle) was stopped for following too close to another vehicle. The driver was given a warning for following too close; thereafter, the police officer employed his canine, which alerted to the presence of a controlled substance inside the vehicle. A search of the vehicle did not disclose any drugs; However,  the police  found a large stack of credit, debit and gift cards that were located in a duffel bag in the trunk of the car.  The police then seized and accessed  the information on the magnetic tapes  without obtaining a search warrant.

The police used a magnetic tape reader to read the magnetic strips on the back of the cards. The cards either contained no account information on the magnetic strips or stolen card information with the driver’s name. As a result, the driver was charged with possession of 15 or more counterfeit and unauthorized access devices in violation of federal law. The driver  filed a motion  to suppress the evidence based upon a violation of  his  fourth amendment right to be free from unreasonable searches, which motion was denied by the district court. This decision   was then appealed to the Eighth Circuit Court of Appeals.


No Physical Invasion

The Eighth Circuit concluded in United States of America v. DEL’Isle,  that reading the magnetic strip on the back of the card “…was not a physical intrusion into a protected area prohibited by the Fourth Amendment.” The magnetic strip is a type of “external electronic storage device” that “…is designed simply to record the same information that is embossed on the front of the card.” ( I have a hard time getting my brain around the concept of an external storage device). The Eighth Circuit noted that using a credit card reader “is analogous to using an ultraviolet light to detect whether a treasury bill is authentic.”

No Reasonable Expectation of Privacy

In addition, the Eighth Circuit held that there was no “reasonable expectation of privacy that society recognizes as reasonable” because the information on the magnetic tape is simply a way to transfer information electronically (stored on the magnetic tape), which is identical the information embossed on the front of the card to the seller.  After all,  in order to make a purchase, the user of the  card must disclose the information on the card; therefore,   it is difficult to imagine how society would consider there was a “reasonable expectation of privacy.” The no “reasonable expectation of privacy”  naturally follows the very limited nature of the purpose of the magnetic tape on credit cards.

Credit card fraud is rampant, in large part due to the fact that the credit card companies have opted for the cheaper solution, passing onto their customers  the cost of the fraud. Even with the new chipped cards, which are more secure  (but hardly a solution) the fraud will continue until  more secure systems are adopted by either the credit card companies or  required by the government.   Companies  that adopt highly secure systems may benefit by additional customers who demand security.

Local government officials may want to consult with the county prosecutor to determine if and how the prosecutor would handle cases based upon evidence gathered by the use of a credit card reader.

Howard Wright© 2016

You may find that the following Posts on my blog dealing with cases involving technology are of interest.


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Free Speech and City Ordinances

There is no subject in the law that confounds local government more than the issue of free speech. Naturally local government officials respond to citizen complaints like why aggressive panhandlers can seemingly threaten citizens with aggressive  solicitation tactics (particular tourists). They also demand solutions to   why citizens have to run a gauntlet of opposition in order to access an abortion clinic so they can exercise their constitutional right to an abortion. Drafting laws that survive a free speech challenge is a legal nightmare for even the most skilled municipal attorney and things are not getting any better.

Recently, the Federal Child Protection and Obscenity Enforcement Act of 1988 (think child pornography) was found to be unconstitutional because it violated the right of free speech based upon the application of a 2015 United States Supreme Court decision in Reed v. Town of Gilbert(Gilbert). In addition, an ordinance regulating aggressive solicitation practices and removal of citizen comments on a Police Department Facebook page were found to be a violation of the citizens right of free speech based upon the free speech analysis established by the Supreme Court in Gilbert.

bill of rights

Bill of Rights

What is going on?  By  now it is pretty clear that the 2015 decision by the United States Supreme Court in Gilbert upended pre-2015 thinking about free speech as related to city sign ordinances, aggressive panhandling, child pornography and a host of other laws. A New York Times article in August 2015, called Reed v. Town of Gilbert, the sleeper case of the 2014–2015 Supreme Court term. The Dean of Yale Law School is quoted in the Times article that the:

“…decision was so bold and so sweeping that the  Supreme Court  could not have thought through its consequences.” “The decision’s logic, he said, endangered all sorts of laws, including ones that regulate misleading advertising and professional malpractice.”

“Effectively,” he said, “this would roll consumer protection back to the 19th century.”

Town of Gilbert

The ordinance in Gilbert treated temporary directional signs differently from political signs or ideological signs. In order to  apply the sign  ordinance it was necessary to look at the message on the sign to determine whether or not the sign was a Temporary Directional Sign, a Political Sign, or an Ideological Sign. The Supreme Court explained: “… speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed.” Clearly it was necessary to look at the message on the sign to determine how it was regulated, making it content based. To add insult to injury,  Justice Kagan, commented that the ordinance in Gilbert did not even pass the “laugh test.” Ouch! This is very hard to explain to your  City Council.

If restrictions on speech are content based they can only survive if they pass strict scrutiny, which requires a compelling interest to justify the law and that it be narrowly tailored to achieve that interest. Very few laws can survive “strict scrutiny” and are almost always found to be unconstitutional. The corollary is that if speech is not regulated based upon its content, it just has to pass the “intermediate scrutiny” test, which requires only a rational basis for the law. Speech subject to intermediate scrutiny is almost always found to be constitutional. Obviously the focus of any free speech inquiry is whether or not the ordinance is content based because once that is determined everything else falls into place.[1]

FN 1 This point is succinctly made in footnote number 12 in a Note in 129 Harvard Law Review 1981, May 10, 2016. The recent Harvard Law Review Note contains an excellent discussion of how to legally analyze free speech cases after Reed v. Town of Gilbert.

This deluge of recent opinions highlight the need to conduct an inventory of city ordinances to determine if they violate the free speech clause of the First Amendment. It is better to do this now rather than waiting until you are sued based upon a clear violation of free speech under the new standards established by the United States Supreme Court in Gilbert.   A  similar warning was  discussed in my review of the Gilbert case in the Missouri Municipal Attorneys Newsletter in June of 2015.    As predicted the Gilbert case has ramifications well beyond sign ordinances making it necessary to rethink how to draft all  sorts of ordinances,  which  impact speech.

Howard Wright ©2016

The following  related posts  may be of interest:

Cannot ban distribution of bibles at Twin Cities Pride Festival

Thirty-five Foot Buffer Zone For Abortion Clinics Unconstitutional.

Right of Judges to personally solicit campaign contributions.

Shaming – A New Way To Ferret Out Liars About Military Honors


Truthful testimony under oath about fraud is protected by free speech about

Right of free speech and association trump do not overrule “fair share” obligation to pay union dues

Update of: Right of free speech and association trump “fair share” obligation to pay union dues

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