Can One Amendment Be Used to Bolster Rights Under Another?
Unfortunately, Judge Marrero’s effort to enlist the First Amendment in the service of the Fourth Amendment may run afoul of the U.S. Supreme Court’s 1978 ruling in Zurcher v. Stanford Daily. In that case, a newspaper argued that to protect freedom of the press, the police must satisfy a heightened standard in order to obtain evidence about third parties in its files. The Court rejected the argument, concluding that the press is entitled to no greater privacy than anybody else. The First Amendment, the Court said, cannot be used to bolster the Fourth Amendment rights of the press. It is only a small extension of Zurcher to say that, conversely, the Fourth Amendment cannot be used to bolster the First Amendment rights of telephone companies, ISPs and other recipients of NSLs. If the federal appeals courts or the Supreme Court were to extend Zurcher in this fashion, then the best basis for supporting Judge Marrero’s conclusion–that Fourth Amendment values should inform First Amendment an
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