Written by Eric Prezioso ‘20
The First Amendment grants a speaker many rights, like the right to speak and the right not to speak. What most people don’t realize is that the First Amendment also grants a listener similar rights; it grants listeners both the right to listen, and the right not to listen. In October of 2018, the IPAWS emergency alert system ran its first nationwide test utilizing presidential alerts. What went largely overlooked about the new presidential alerts was the unchecked expansion of power and reach that the alert system grants the sitting president. The new nationwide emergency alert system violates a person’s right not to listen, and more specifically, their right against government compelled listening.
On its first test run, the IPAWS system sent out a presidential alert to every person’s cell phone in the country, regardless of whether they wanted to receive this message or not. The mandatory and invasive nature of these messages by the government on people’s cell phones caused a momentary stir over the legality of these presidential alerts. There was even a federal lawsuit against President Trump specifically concerning the First Amendment violations of the IPAWS system. However, this temporary concern over the power and reach of the presidential alert system quickly passed and was largely forgotten because the test message for most recipients was substantively innocuous. It was not abusive, not YET.
The concern regarding presidential alerts has faded from the headlines for now, but the fact remains that he same potential violations of listeners’ First Amendment rights are possible. Simply because they haven’t yet occurred does not mean that they won’t occur in the near future. The potential abuse of the presidential alert system hasn’t received the attention it should rightfully receive, but here I give the system’s potential abuses the attention it deserves.
Emergency alert systems have long been a tool used by local and state governments but there has been a recent resurgence on the importance of a nationwide emergency alert system. The federal government understandably wants to be able to communicate quickly and effectively with as many members of the public as possible in case of a national emergency. Under the Wireless Emergency Alert (WEA) component of IPAWS, there are three types of emergency alerts: AMBER alerts, extreme weather and other emergency alerts, and presidential alerts. Both AMBER alerts and extreme weather alerts can be opted out of by individual cell phone users by simply going to their phone settings and turning them off. Presidential alerts, however, are mandatory and have no opt-out option.
By law, presidential alerts are to be used when there is a grave crisis or national emergency. If these parameters sound vague and broad, that’s because they are. Under the National Emergencies Act, the President has broad discretion for what constitutes a grave crisis or a national emergency. This broad discretion effectively permits the President to declare whatever he wants a national emergency, and then use IPAWS presidential alerts to send a message to everyone’s phone in the country about the “national emergency.” What if this national emergency is something people disagree with? What if a national emergency is declared over something politically divisive? Think of the migrant caravan across the southern border of the United States for instance. The migrant caravan is an issue that’s particularly divisive subject and generates strong opinions on how we, as a country, should view the migrant caravan. Essentially, if an official national emergency is declared, the President has unchecked legal authority to force you to receive a presidential alert message on your phone.
This unchecked power is simply unconstitutional. There is a legal right that insists you have the ability to say NO, and not be forced to receive information that you don’t want to receive. That “something” is the right against government compelled listening. This right is strongly rooted in American constitutional law and draws support from a particular legal doctrine known as the Captive Audience Doctrine.
The Captive Audience Doctrine is the idea that speakers can’t just force their speech onto unwilling listeners. There are two requirements to satisfy the Captive Audience Doctrine: 1) The audience must not be able to avoid the message; and 2) The audience should not have to quit the space to avoid the message.
With presidential alerts, the audience is unable to avoid the message on their phones. These alerts trigger a loud noise on people’s phones. Alerts also pop up on the home screen of your phone, forcing you to read them and then only disappear when dismissed. Most Americans rely completely on their cell phones; Chief Justice Roberts, of the Supreme Court, has even gone so far to say that cell phones “are now such a pervasive and insistent part of daily life, that the proverbial visitor from Mars might conclude that they were an important feature of human anatomy.”
What’s also true is that the audience of presidential alerts should not have to quit the space, in this case their cell phones, in order to avoid such messages. Again, cell phones are essential to modern life. People should not be forced to stop living their lives through cell phones simply to avoid the government’s forced messages. Much like how a person should not have to leave their home in order to avoid hearing or seeing certain information, people should not have to stop using their cell phones.
There are simple fixes to remedy the unchecked expansion of presidential power and the invasive nature of presidential alerts. Simply provide an opt-out measure, just like with AMBER and weather alerts. Give people a choice to receive these alerts. Alternatively, the statutory construction of the legislation granting the President broad power and discretion over the presidential alert system could be rewritten to be tighter. There needs to be more definite circumstances under which the President can use the system. Something as simple as requiring the additional approval of another high-level political figure in order to use the alert system would go a long way in protecting against the potential invasive abuses of the presidential emergency alert system.