Justices Get Personal Over Privacy of Messages/Justices Reject Ban on Videos of Animal Cruelty

Justices Get Personal Over Privacy of Messages
By ADAM LIPTAK
Copyright by The New York Times
Published: April 19, 2010
http://www.nytimes.com/2010/04/20/us/politics/20scotus.html?th&emc=th


WASHINGTON — The question in a case argued Monday in the Supreme Court sounded both irresistible and important: Did a California police department violate the Constitution by reading sexually explicit text messages sent by an officer on a department-issued pager?

But the tangled factual record, uncertainty about where technology is heading and occasionally muddled advocacy pointed toward a limited ruling that might provide little guidance to government employers and perhaps none to private ones.

“I just don’t know how you tell what is reasonable,” Chief Justice John G. Roberts Jr. said. “I suspect it might change with how old people are and how comfortable they are with the technology.”

The Supreme Court has said the Fourth Amendment, which forbids unreasonable government searches, figures in the analysis when public employers search their employees’ offices and files.

The chief justice appeared sympathetic to the police officer in the case, Sgt. Jeff Quon of the Ontario Police Department’s SWAT team, who had received mixed guidance from his superiors about the status of messages sent on his pager. The messages included communications to and from his wife and his mistress.

The department’s written policy allowed “light personal communications” but cautioned employees that they “should have no expectation of privacy.” Under an informal policy adopted by a police lieutenant, however, those who paid for messages over a monthly maximum would not have their records inspected.

Chief Justice Roberts said the combination of the two policies might be enough to give Sergeant Quon a reasonable expectation of privacy under the Fourth Amendment. “I think if I pay for it,” the chief justice said, “it’s mine and not the employer’s.”

Neal K. Katyal, a deputy solicitor general, disagreed, saying that a low-level employee had no power to change a general policy. “The computer help desk cannot supplant the chief’s desk,” Mr. Katyal said.

Justice Stephen G. Breyer said that a certain amount of personal texting was to be expected. “You want to let them have a few,” Justice Breyer said. “You need pizza when you are on duty.”

Chief Justice Roberts warned against devising a legal rule that “would require people basically to have two of these things with them, two of whatever they are — the text messager or the BlackBerrys or whatever.”

Justices John Paul Stevens and Anthony M. Kennedy indicated that SWAT team members might be treated differently from other government employees because their records are often subject to disclosure in lawsuits or under California’s open-records law.

The harder question, several justices suggested, was that of the privacy of the people with whom Sergeant Quon communicated.

There was some confusion, too, about the technology at issue in the case, City of Ontario v. Quon, No. 08-1332.

“What happens, just out of curiosity,” Chief Justice Roberts asked, “if he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does the one kind of trump the other, or do they get a busy signal?”

Dieter Dammeier, a lawyer for Sergeant Quon, said he was not sure.

Justice Kennedy suggested that the caller might get a recorded message.

“He’s talking to the girlfriend,” Justice Kennedy said, and the caller “gets a voice message that says: ‘Your call is very important to us. We will get back to you.’ ”

Separately, in an unsigned order issued Monday, the court declined to hear an appeal from Charles D. Hood, a death row inmate in Texas who had sought a new trial given evidence that the judge in his case had had an affair with the prosecutor. As is customary, the court gave no reasons for its decision.



Justices Reject Ban on Videos of Animal Cruelty
By ADAM LIPTAK
Copyright by the New York Times
Published: April 20, 2010
http://www.nytimes.com/2010/04/21/us/21scotus.html?th&emc=th


WASHINGTON — In a major First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the law had created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech protected by the First Amendment.

It has been more than a quarter-century since the Supreme Court placed a category of speech outside the protection of the First Amendment. Tuesday’s resounding and lopsided rejection of a request that it do so, along with its decision in Citizens United in January — concluding that corporations may spend freely in candidate elections — suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.

And in the next couple of months, the court is set to decide several other important First Amendment cases about anonymous speech, the right of free association and a federal law that limits speech supporting terrorist organizations.

Tuesday’s decision arose from the prosecution of Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls. He did not participate in dogfights, but he did compile and sell videotapes showing the fights, and he received a 37-month sentence under a 1999 federal law that banned trafficking in “depictions of animal cruelty.”

Dogfighting and other forms of animal cruelty have long been illegal in all 50 states. The 1999 law addressed not the underlying activity but rather trafficking in recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.”

It did not matter whether the conduct was legal when and where it occurred so long as it would have been illegal where the recording was sold. Some of Mr. Stevens’s videos, for instance, showed dogfighting in Japan, where the practice is legal.

The government argued that depictions showing harm to animals were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion. “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” he wrote.

The chief justice acknowledged that some kinds of speech — including obscenity, defamation, fraud, incitement and speech integral to criminal conduct — have historically been granted no constitutional protection. But he said the Supreme Court had no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Chief Justice Roberts rejected the government’s analogy to a more recent category of unprotected speech, child pornography, which the court in 1982 said deserved no First Amendment protection. Child pornography, the chief justice said, is “a special case” because the market for it is “intrinsically related to the underlying abuse.”

Having concluded that the First Amendment had a role to play in the analysis, Chief Justice Roberts next considered whether the 1999 law swept too broadly.

The law was enacted mainly to address what a House report called “a very specific sexual fetish” — so-called crush videos.

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

The law, said Wayne Pacelle, the president of the Humane Society of the United States, “almost immediately dried up the crush video industry.”

But prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos.

The federal appeals court in Philadelphia struck down the law in 2008 in Mr. Stevens’s case, overturning his conviction. Tuesday’s decision in United States v. Stevens, No. 08-769, affirmed the appeals court’s ruling.

In it, Chief Justice Roberts said the law was written too broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.

“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude,” he wrote.

The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.

“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”

Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals” and would serve to protect “depraved entertainment.” He said it was implausible to suggest that Congress meant to ban depictions of hunting or that the practice amounted to animal cruelty.

Chief Justice Roberts replied that Justice Alito “contends that hunting depictions must have serious value because hunting has serious value, in a way that dogfights presumably do not. “But, he went on, the 1999 law “addresses the value of the depictions, not of the underlying activity.”

The exchange was unusual, as Chief Justice Roberts and Justice Alito are almost always on the same side. In the last term, the two justices, both appointed by President George W. Bush, agreed 92 percent of the time, more than any other pair of justices.

Justice Alito said the analogy to child pornography was a strong one. The activity underlying both kinds of depictions are crimes, he wrote. Those crimes are difficult to combat without drying up the marketplace for depictions of them and both kinds of depictions contribute at most minimally to public discourse, he added.

A number of news organizations, including The New York Times Company, filed a brief urging the court to rule in favor of Mr. Stevens.

Chief Justice Roberts concluded his majority opinion by suggesting that a more focused law “limited to crush videos and other depictions of extreme animal cruelty” might survive First Amendment scrutiny.

Mr. Pacelle, of the Humane Society, called for a legislative response to Tuesday’s ruling. “Congress should within a week introduce narrowly crafted legislation,” he said, “to deal with animal crush videos and illegal animal fighting activities.”