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Editorial

Supreme Court tests of our rights

Some of the most important cases on the court's docket this term involve individual rights. They offer the court the opportunity to play a role it often has embraced: reining in the power of the state.

October 02, 2011

In the term that begins Monday, the Supreme Court will address issues as diverse as the limits of copyright law, the appeals process for owners of wetlands regulated by the Environmental Protection Agency and whether the government of California can order reductions in Medi-Cal reimbursements. It is also likely that the court will rule on challenges to the constitutionality of the Patient Protection and Affordable Care Act, derided by its critics as "Obamacare."

As is often the case, however, some of the most important cases on the court's docket involve individual rights. They offer the court the opportunity to play a role it often has embraced in its history: reining in the overweening power of the state.

Perhaps the most closely watched case tests what privacy rights Americans have against the intrusiveness of modern technology. Police in Washington, D.C., without a valid warrant, attached a GPS device to the car of a suspected drug dealer and followed his movements for a month. In the past the court has said that a person driving on public streets has no reasonable expectation of privacy. But the U.S. Court of Appeals for the District of Columbia Circuit concluded that the reach of GPS monitoring made this case different. As Judge Douglas Ginsburg put it, prolonged GPS surveillance "reveals an intimate picture of the subject's life that he expects no one to have — short perhaps of his spouse." (The same might be said of continuous tailing by a police car, but the court said that "practical considerations prevent visual surveillance from lasting very long.") The court also will consider the separate question of whether affixing a GPS device violates the 4th Amendment right to be free from a seizure of personal property.

This isn't the first time the court has been asked to apply the 4th Amendment to modern technology. In 2001, it ruled that police violated the rights of a drug suspect when they aimed a thermal imaging device at his house to determine whether the heat inside was consistent with marijuana cultivation. Justice Antonin Scalia wrote: "Where, as here, the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."

GPS devices are in wider use than thermal imaging machines, and the ones in this case didn't peer into the interiors of homes. But the logic of Scalia's argument may apply to their use to track a suspect's every movement. Just as the framers couldn't foresee devices that allowed for the electronic surveillance of a home from outside, so they couldn't contemplate a device that invades privacy by monitoring "public" movements that, as the court said, reveal a host of private relationships.

Advances in technology also figure in a 1st Amendment case originating in popular culture. The Federal Communications Commission has a policy of sanctioning broadcasters for "fleeting expletives" — spontaneous outbursts of vulgarity on live radio and television broadcasts. In one of those cases, the commission ruled that a televised music awards show had violated the indecency rule because Cher, in an unscripted acceptance speech, used the "F-word."

In a 1978 case involving a George Carlin monologue about "filthy words," the court said that the ease with which children may obtain access to broadcast material "amply justi[fies] special treatment of indecent broadcasting." But in the case the court will hear, the U.S. 2nd Circuit Court of Appeals noted that time and technology have changed the relationship between children and television. For example, every new TV set contains a V-chip that allows parents to screen out programming they consider inappropriate for their children. Quoting an earlier decision, the appeals court noted that "targeted blocking enables the government to support parental authority without affecting the 1st Amendment interests of speakers and willing listeners."

The appeals court also faulted the FCC rules for vagueness. "If the FCC cannot anticipate what will be considered indecent under its policy," wrote Judge Rosemary Pooler, "then it can hardly expect broadcasters to do so." Pooler also said there was "little rhyme or reason" in the way the FCC interpreted exceptions to the indecency rule for newscasts and programs in which expletives are allowed because of "artistic necessity." All the more reason for the Supreme Court to invalidate the FCC's regulation.

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