The Internet and Censorship of Sobriety Checkpoint Locations
Posted by Andrew Moore
In 2010, drunk driving accounted for nearly a third of all traffic related deaths. In an effort to deter drunk driving, police departments around the country started implementing sobriety checkpoints. In 1990, the Supreme Court ruled that these checkpoints were constitutional, contrary to arguments that they violated the Fourth Amendment, which bans unreasonable search and seizure. Recently, people have been posting the location of these sobriety checkpoints with increasing frequency. While this poses a clear threat to public safety, it also forces lawmakers to address the issue of crime-facilitating speech.
Crime-facilitating speech differs from incitement in that facilitating speech assists criminals in either committing a crime or getting away with the as opposed to convincing or encouraging someone to commit a crime. It is important to separate the crime-facilitating speech from crime-advocating speech (incitement) for two reasons. First, incitement has already been ruled on many times by the Supreme Court, most recently in Brandenburg v. Ohio (1969), whereas crime-facilitating speech has not been. Second, and perhaps more importantly, is that crime-facilitating speech may pose more of a threat to public safety than incitement. If a person knows how to commit a crime but does not want to, they must be persuaded to do so by crime-advocating speech and would therefore also be susceptible to counter advocacy encouraging them to not commit the crime. This process can be seen in the case of drunk driving. While it can be assumed most people know how to drive drunk, counter advocacy groups have persuaded most of us that it is against out best interest to do so. However, crime-facilitating speech does the opposite. It gives people who already want to commit a crime but are either afraid of being caught or don’t know how the knowledge on how to commit the crime or avoid being caught. In the case of drunk driving, this would give a person who would drive drunk if not for the risk of being caught the ability to avoid sobriety checkpoints and could convince them to drive drunk.
Crime-facilitating speech, however, is much too broad a topic to be debated in its entirety here, as it can range from posting DUI checkpoints, to writing a book about how to kill people, to publishing details of explosive compounds in a chemistry textbook. Some speech facilitates crime while also being used primarily for completely legal reasons (e.g. the aforementioned chemistry book that contains information on explosive chemical reactions which could be used to build a bomb) and because of that, it would be irresponsible to simply ban all crime-facilitating speech. While in theory there may be a law that could differentiate between acceptable crime-facilitating speech and speech that is deemed too dangerous while simultaneously restricting unwanted speech legally, I will not attempt to analyze that here. Instead, I will focus on the legality of and how to craft a law that outlaws the publication of sobriety checkpoint locations.
Current Censorship of Sobriety Checkpoints
There is already censorship of these sobriety checkpoints going on in the private sector. Members of Congress have asked companies like Apple, Google, and Research in Motion to ban any app that lists sobriety checkpoint locations from their smartphones and tablets. While Apple and Research in Motion have agreed to do so, up to this point Google has refused. As of now, there is no legislation addressing the publication of sobriety checkpoints, nor has any the Supreme Court ruled on the constitutionality of crime-facilitating speech. Twitter recently announced that it would respect any nation’s wishes in regards to censorship of tweets. Brazil has filed a suit against Twitter and several of its users under this new policy asking that the tweets be removed, that information about the users who tweet checkpoint locations be revealed, and that the users be subjected to fines.
Should Checkpoint Publication Be Censored?
Everyone knows the U.S. has a right to free speech. What is less obvious to most is where the limit of that right falls. When it comes to the publication of sobriety checkpoints, people typically have two reactions. Either they believe it should be censored because their publication leads to more drunk drivers and therefore more alcohol related accidents and deaths, or they the value of free speech trumps the safety interest of keeping drunk drivers off the streets.
A. Reasons Against Censorship
Advocates opposed to government censorship worry that allowing this type of suppression could lead us down a path with dangerous repercussions. In addition to legitimate concerns about suppression of free speech government interference with expression, anti-censorship advocates cite the non-criminal uses for sobriety checkpoint publication. Such uses include police publication of checkpoint locations in order to deter potential drunk drivers by the sheer scale and the knowledge of increased police patrols on a given night. Censorship opponents also argue that knowing where checkpoints are allow them to avoid the lines they cause on their way home from work, a night out with friends (and a designated driver), or any thing else. There are three major issues when it comes to censorship of sobriety checkpoint publication and crime-facilitating speech as a whole: the chilling effect, authorized use, and non-criminal use.
1. Chilling Effect
The chilling effect is results when people, afraid of reprisal, refrain from engaging in constitutionally protected speech. It can be found in all type of speech issues including copyright infringement, surveillance, and many more. For example, it may be a government employee who won’t read or share any Wikileaks material for fear of getting fired, or a student who chooses not to post certain pictures on Facebook because they are afraid it will cost them a job. If the government were to censor people who post the locations of sobriety checkpoints, be it by iPhone app, twitter, or billboard, they would be creating a chilling effect that would make people refrain from engaging in their constitutional right to free expression.
2. Authorized Use
It may seem obvious that the police can decide to publish their own sobriety checkpoint locations, but these publications have ramifications. If the police can publish the locations, does that mean that news sources can report on them and publish them? What about independent websites that report all police activities? If those websites can, shouldn’t an iPhone app be able to list them as well? The ripple effect caused by the authorized publication of checkpoint locations makes many argue that if the police can decide to publish the locations then anyone should be able to as well.
3. Non-Criminal Use
The posting of sobriety checkpoints has non-criminal use and therefore has value in the marketplace of ideas. However, there are no laws in place to help us determine how much value is substantial and at what point the value of the non-criminal use outweighs the damage done by the criminal use. We can attempt to apply laws from outside fields to this case to get a better idea of what may be held. In copyright law, there is a concept known as contributory infringement, which parallels the idea of crime-facilitating speech in First Amendment law. It is defined as “the act of either (1) actively inducing, causing, or materially contributing to the infringement conduct of another person, or (2) providing the goods or means necessary to help another person infringe (as by making facilities available for an infringing performance).” In contributory infringement doctrine, there is a concept known as substantial non-infringing use – equivalent to our substantial non-criminal use. The Court ruled, “[t]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses” and as such any crime-facilitating speech, the publishing of sobriety checkpoint locations included, can not be deemed worthy of censorship if it is widely used for non-criminal behavior.
B. Reasons For Censorship
The primary concern of those in favor of censorship is that if potential drunk drivers know the location of sobriety checkpoints they will be able to avoid them, feel confident they won’t get caught, and decide to drink and drive. It is undeniable that the number of DUI arrests has risen while the rate of alcohol related accidents has dropped since the start of sobriety checkpoints in the early 1980s. Between 1970 and 1986, the number of arrests for DUI increased by 223 percent while the number of drivers increased by only 42 percent. In 1982, 49 percent of all traffic fatalities were the result of a drunk driver. Ten years later, that number had dropped to 37 percent. While this number can be attributed to other factors such as increased education and anti-drunk driving advocacy, increased enforcement through sobriety checkpoints reduced the number of drunk drivers on the road and certainly contributed to the decrease in alcohol related deaths. Pro-censorship supporters argue that if these locations are readily accessible to drunk drivers, then people will be more likely to get behind the wheel while drunk, avoid being caught, and get in more accidents resulting in more deaths.
Legality of Censorship
If the government decides it wants to censor the publication of sobriety checkpoint locations, it will need to pass the test of strict scrutiny. In Sable Communications v. FCC (1990), the court ruled that “[t]he government may… regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest” and that “[t]he government may serve this legitimate interest, but to withstand constitutional scrutiny, it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. It is not enough to show that the government’s ends are compelling; the means must be carefully tailored to achieve those ends.” This presents us with two key elements of any law wishing to regulate free speech: a compelling government interest and narrowly tailored regulations.
A. Compelling Government Interest
The first thing needed to pass strict scrutiny is a compelling government interest. Aside from the desire to reduce the number of accidents and fatalities that occur every year due to drunk driving, the government has already proven that they have a compelling interest. In 1990, the Supreme Court ruled that “the State has ‘a grave and legitimate’ interest in curbing drunken driving,” quoting the decision of a lower court in their opinion. They also stress the importance of sobriety checkpoints as an effective means of curbing drunk driving. Since the posting of sobriety checkpoints allows drunk drivers to evade this method of curbing a problem that “no one can seriously dispute the magnitude” of, logic follows that the government would also have a compelling interest in restricting that behavior.
B. Narrowly Tailored Regulations
While it is impossible to know if the Government’s regulations would be narrowly tailored before they are written, they certainly have the ability to be. In order to be narrowly tailored, a law must be specific enough to enforce its will in the least restrictive way possible. For example, a law stating, “it is illegal to publish the location of a sobriety checkpoint” would not be constitutional, as it would prevent news organizations from reporting on incidents that happened at a sobriety checkpoint. If there were a fight, or a police officer was shot during a stop, no news outlet would legally be allowed to say where it happened, and that type of restriction would undoubtedly be found unconstitutional. If the law stated, “it is illegal to publish the location of a sobriety checkpoint for the purpose of aiding in the evasion of the checkpoint” then it would likely be narrowly tailored enough, but would require proof of intent, which is hard in circumstances like these. To further understand this point we can examine New York v. Ferber (1982) in which a law stating, “A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age,” was found to be narrowly tailored because, despite concerns that the law could unnecessarily ban images of children in sexual contexts contained in medical textbooks, the court “seriously doubt[ed]…that these impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach” and that its “legitimate reach dwarfs its arguably impermissible applications.”
In the end, the negative effects of censoring those who post sobriety checkpoint locations far outweigh the benefits. While the publication of these locations may lead to a few more drunk drivers evading arrest, it is likely not a large enough segment of that population to warrant this level of intrusion on the right to free speech. Additionally, the fact that people can see the checkpoints may convince them not to drink and drive if they see the checkpoints are located on their way home. Additionally, the door this would open into censoring crime-facilitating speech would be enormous and lead to a chilling effect that would impact many more facets of our life than just drunken transportation. For example, if the government started to censor crime-facilitating speech, the resulting chilling effect could cause the authors of future textbooks, like the chemistry one mentioned above, to reconsider what they put in their books. TV producers would face similar issues when deciding how much detail to show when Dexter kills his next victim.
The legality of a law censoring this speech is debatable and depends wholly on how the language of the law is crafted. According to Sitz,there is undoubtedly a legitimate government interest, making the only stumbling block whether the language of the statute is narrowly tailored and as least restrictive as possible, as demonstrated in New York v. Ferber (1982). If the government is able to do this, then the law could hold up as constitutional upon judicial review and would be allowed to stand. It is very indicative though, that congressmen have chosen to beg private companies to do the censorship rather than either trying and pass legislation themselves or encouraging their state-level counterparts to do so. To me, this says they do not believe a law would be able to stand.
Revised Nov. 2012
 Nat’l Highway Traffic Safety Admin., Traffic Safety Facts (2010), http://www-nrd.nhtsa.dot.gov/Pubs/811552.pdf. (In 2009, there were 10,228 alcohol-related driving deaths and 32,885 driving deaths overall making alcohol impairment the cause of roughly 31% of all traffic deaths).
 Michigan Dept. of State Police, v. Sitz, 496 U.S. 444, (1990). (The Court held since there was an indisputable state interest in “eradicating” drunk driving and “the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight,” the “objective intrusion” of sobriety checkpoints is minimal and they are not a violation of the Fourth Amendment).
 Randall Stross, Helping Drunk Drivers Avoid Tickets, but Not Wrecks, N.Y. Times, Apr. 16, 2011, at BU13.
 Eugene Volokh, Crime Facilitating Speech, 57 Stan. L. Rev. 1096, 1102, (2005).
 Brandenburg v. Ohio, 395 U.S. 444, (1969); Id at 1128, citing Stewart v. McCoy, 537 U.S. 993, 995 (2002). (In which the Court states, “Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech”)
 Supra note 4 at 1107. (“But the danger of crime-facilitating speech may be greater than the danger of crime-advocating speech (at least setting aside the speech that advocates imminent crime, which may sometimes be punished under the incitement exception).”).
 Id at 1102 (“The speech isn’t persuading or inspiring some readers to commit bad acts. Rather, the speech is giving people information that helps them commit bad acts–acts that they likely already want to commit”).
 Rex Feral, Hit Man: A Technical Manual for Independent Contractors (1983). (The book claimed to instruct potential contract-killers); Supra note 5 at 201.
 It is important to differentiate authorized publications from unauthorized publications as will be discussed in Section III B 1.
 Supra note 3; Gabriele Perna, Google Says It Won’t Pull DUI Checkpoint Evasion App, Int’l Bus. Times (Mar. 24, 2011, 11:24 AM), http://www.ibtimes.com/google-says-it-won’t-pull-dui-checkpoint-evasion-app-277009. (contrary to Apple, Google has refused to remove apps that post the locations of sobriety checkpoints); Andry Golub,
 Supra note 3. (On March 23, 2011, Harry Reid, Charles Schumer, Frank Lautenberg and Tom Udall sent a letter to these three companies asking them to pull apps publishing DUI checkpoints from their stores).
 Stewert v. McCoy, 537 U.S. 993, 995 (2002) (Justice Stevens writes “Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech.”)
 Brazil sues Twitter over roadblock warning posts, CNN (Feb. 7, 2012, 10:40) http://www.cnn.com/2012/02/07/tech/brazil-twitter-suit/index.html. (Brazil has sued Twitter in an attempt to keep people from posting the location of police roadblocks).
 DUI Checkpoints to Increase During New Year’s Weekend, Fox 59 News (Dec. 30th 2011), http://www.fox59.com/news/wxin-dui-checkpoints-indiana-dui-checkpoints-to-increase-during-new-years-weekend-20111230,0,3967410.column.
 Chilling Effect,Black’s Law Dictionary 274 (9th ed. 2009).
 Eric Lipton, Don’t Look, Don’t Read: Government Warns Its Workers Away From WikiLeaks Documents, N.Y. Times, Dec. 4, 2010, at A16. http://www.nytimes.com/2010/12/05/world/05restrict.html; Leslie Kwoh, Beware: Potential Employers Are Watching You, Wall St. J., Oct. 12, 2012.
 Infringement, Black’s Law Dictionary 851 (9th ed. 2009).
 Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 442, (1984).
 Id at 2.
 Fatality Facts 2010, Ins. Inst. for Highway Safety, http://www.iihs.org/research/fatality.aspx?topicName=Alcohol-impaireddriving.
 Sabel Communications v. FCC, 492 U.S. 115, 126, (1990).
Supra notes 24-27; Supra note 2.
 Supra note 2 at 449.
 Id at 453-454 (Discussing the effectiveness test from Brown v. Texas, 443 U.S. 47 (1979)).
 Id at 451.
 Supra note 28.
 New York v. Ferber. 458 U.S. 747, 751 and 773, (1982).
 Supra note 28.
 Supra note 2; Id.