{"id":54021,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-supreme-courts-cell-phone-decision.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-supreme-courts-cell-phone-decision","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-supreme-courts-cell-phone-decision.html","title":{"rendered":"The Supreme Court’s Cell Phone Decision"},"content":{"rendered":"\n
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THE SUPREME COURT’S CELL PHONE DECISION: An Unusual Balancing Act By The Court <\/h1><\/td>\n <\/tr>\n

By MICHAEL C. DORF<\/h2><\/a><\/td>\n <\/tr>\n

Wednesday, May. 30, 2001<\/td>\n\n <\/tr>\n <\/table>\n \n

\tLast week, in Bartnicki \nv. Vopper<\/i><\/a>, the Supreme Court ruled by a 6-3 margin that a radio station’s \nbroadcast of an illegally intercepted cell phone conversation is protected by \nthe First Amendment \u0097 at least in those instances where the station was not \nitself involved in the illegal conduct, and the content of the conversation was \na matter of public concern. <\/p>\n

The case has been widely portrayed as a victory for the media. However, a close \nlook at the method by which the Court reached its decision suggests that the victory \nmay be short-lived.<\/p>\n

When Rights Collide<\/b><\/p>\n<\/i>

Bartnicki was a difficult case because, as Justice Stevens acknowledged \nin his majority opinion (and as FindLaw columnist Julie Hilden argued \nin this space<\/a> shortly after the oral argument), there were interests of constitutional \nmagnitude on both<\/i> sides.<\/p>\n<\/span> \n

On one side, there was the First Amendment interest of the media in disseminating, \nand the public in learning, newsworthy information. The intercepted conversation \n<\/p>\n<\/span> \n

included a statement by the President of a local teachers union that he might \n“have to go to [the] homes” of the school board members with whom the union was \nnegotiating “[t]o blow off their front porches.” Certainly, this apparent threat \nwas newsworthy.<\/p>\n

On the other side was the privacy interest of all cell phone users, and of \nall those who may ever find themselves on the other end of a call from or to a \ncell phone user \u0097 that is, of virtually everyone in our society. <\/p>\n

This privacy interest implicates two guarantees of the Bill of Rights. The \nFourth Amendment protects privacy, including privacy against electronic eavesdropping. \nAnd the First Amendment protects private conversations, because people who fear \nthat their every word may become public will be reluctant to speak with one another \nfrankly.<\/p>\n

The Supreme Court resolved the case in favor of the media, stating that “privacy \nconcerns give way when balanced against the interest in publishing matters of \npublic importance.” Reasonable people can disagree about whether the Court struck \nthe proper balance.<\/p>\n\n\n

What is perhaps more remarkable, though, than the Court’s result is the fact \nthat the Justices described their job as one of balancing<\/i> competing rights. \nIn so doing, the Court adopted a method commonly used by constitutional courts \naround the world, but rarely used in free speech cases in the United States.<\/p>\n \n<\/b>

The Scales of Justice and the Perils of Balancing<\/p>\n \n

The metaphor of judging as balancing is a familiar one. We say that a judge’s \njob is to weigh<\/i> competing arguments, and Justice itself is often depicted \nas a blindfolded classical figure holding a scale.<\/p>\n<\/span>\n\n \n \n
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Yet for roughly the last forty years, balancing has been out of favor in First \nAmendment law. The person who is arguably most responsible for the decline of \nbalancing is the late Justice Hugo Black. \n<\/p>

When considering cases in which the government asserted an interest in regulating \nspeech or the press, Justice Black would reach into his breast pocket and remove \nhis copy of the Constitution. Then he would read the relevant text of the First \nAmendment: “Congress shall make no law . . . abridging the freedom of speech, \nor of the press. . . . ” Then he would intone: “No law means no law.” No ifs, \nno ands, no buts \u0097 and no balancing.<\/p>\n

Justice Black took an absolutist position on free speech because he worried \nthat the methodology of balancing would systematically undervalue free speech. \nIn any given case, the interest in regulating speech \u0097 whether in decorum, \nreputation, safety, or privacy \u0097 would be immediate and obvious. <\/p>\n

But the benefits from free speech could appear amorphous and diffuse, especially \nif, as is often true of litigated cases, the speech in question is unpopular \u0097 \nsuch as crude song lyrics or flag burning. Thus, case-by-case balancing, Justice \nBlack feared, would, little by little, leave freedom of expression unprotected.<\/p>\n

Justice Black’s fear was realistic. During the red scare of the 1920s and again \nduring the McCarthy era, the Supreme Court \u0097 applying what was essentially \nthe kind of ad hoc balancing test that Black abhorred \u0097 had acquiesced in \nthe prosecution of Communists and other radicals. Yet in retrospect, the conduct \nof the persons prosecuted appears to have been, for the most part, peaceful expression \nand association, the very things the First Amendment is supposed to protect.<\/p>\n

Rigid First Amendment Rules Bend in Bartnicki<\/i><\/b><\/p>\n

Because of the perils of balancing, Justice Black advocated, and the Supreme \nCourt eventually accepted, a set of rigid and strict categorical rules for evaluating \nregulations of speech and the press. These rules are meant to stiffen the spines \nof judges so that they can defend even unpopular speech against censorship.<\/p>\n

Categorical rules are also thought to be preferable to balancing because they \nlead to greater certainty in application \u0097 and uncertainty is a special evil \nin the First Amendment context because of what constitutional lawyers call the \n“chilling effect.” Not knowing where a balancing court might draw the line, potential \nspeakers engage in self-censorship even when what they have to say might ultimately \nbe ruled protected. <\/p>\n

The Bartnicki<\/i> case itself illustrates the uncertainty that can result \nfrom balancing. In a concurring opinion for himself and Justice Sandra Day O’Connor, \nJustice Stephen Breyer identified a total of four factors as crucial to his willingness \nto strike the balance in favor of the media.<\/p>\n

The factors were as follows: First, the broadcasters themselves did not engage \nin unlawful conduct to obtain the tape recording. Second, they did not directly \nor indirectly encourage or induce such unlawful conduct. Third, the substance \nof the intercepted conversation proposed a wrongful act (bombing). Fourth, the \nspeakers had a diminished privacy interest because they had voluntarily engaged \nin a matter of public controversy (the conflict between the union and the school \nboard). Yet none of these factors are self-applying.<\/p>\n

Moreover, Justice Breyer made clear that his vote and Justice O’Connor’s depended \nupon all four factors. But this leads to an obvious question. Suppose we subtract \none or more of the listed factors, or add a new, fifth factor to the other side \nof the scale. Which side wins then? <\/p>\n

The answer to a question such as this is inherently uncertain because, notwithstanding \nthe metaphor of balancing, precise weights are never assigned to any of the factors. \nNor are we even sure that the quantities being measured are commensurate. As Justice \nAntonin Scalia once wrote in another context, the whole enterprise is rather “like \njudging whether a particular line is longer than a particular rock is heavy.”<\/p>\n

In Defense of Balancing<\/b><\/p>\n

In light of these shortcomings, can anything be said in favor of balancing? \nCertainly. Viewed from a different perspective, the very vices to which its critics \npoint can be understood as virtues. For instance, it is true that balancing can \nleave judges with discretion, but that can often be a good thing. <\/p>\n

Discretion enables a judge to do justice in the particular case, whereas the \nrigid rules that the critics of balancing favor can often lead to injustice. For \njust as rules limit government officials’ opportunities to make foolish decisions, \nrules also limit their opportunities to make wise ones. <\/p>\n

If the virtue of rules is their control of arbitrary discretion, their vice \nis the rigidity of bureaucracy.<\/p>\n

And even granting that it would<\/i> be a good thing to control judicial \ndiscretion where the First Amendment is concerned, rules may not control the exercise \nof discretion; they may just hide it. <\/p>\n

After all, even a free speech absolutist like Justice Black must make judgment \ncalls \u0097 deciding, for example, what counts as free speech in the first place. \n(Flag burning? Nude dancing? Software?) And, balancers say, those judgment calls \ncan be every bit as subjective as open balancing.<\/p>\n

Consider the 1971 case of Cohen \nv. California<\/i><\/a>. There, the Supreme Court ruled that it violated the First \nAmendment to apply a California disorderly conduct statute to an opponent of the \nVietnam War for wearing a jacket emblazoned with the words “Fuck the Draft.” <\/p>\n

A victory for Justice Black and his free speech absolutism? Not in Black’s \nview. He dissented, on the ground that the jacket wearing was conduct, not speech.<\/p>\n

Is it not better for a court to be honest about the fact that it is balancing \ncompeting values than to pretend, as Justice Black did in the Cohen <\/i>case, \nthat unpopular speech falls outside the category of speech entirely?<\/p>\n

It is precisely this sort of sentiment that has led the drafters of modern \nBills of Rights to provide expressly for balancing. The Canadian Charter of Rights \nand Freedoms is typical. It guarantees free speech and other rights “subject only \nto such reasonable limits prescribed by law as can be demonstrably justified in \na free and democratic society.” <\/p>\n

In the judgment of our neighbors to the north, and nearly every other democracy \nin the world, because some balancing is inevitable, it should be openly acknowledged \nin the fundamental legal documents themselves.<\/p>\n

Is Balancing Making a Comeback?<\/b><\/p>\n

Some readers may conclude that the arguments for categorical rules versus ad \nhoc balancing in free speech cases are, dare I say it, rather evenly balanced. \nNonetheless, in recent decades, the U.S. Supreme Court has only very rarely employed \nad hoc balancing in free speech cases. <\/p>\n

Yet in Bartnicki<\/i>, none of the Justices objected to balancing. They only \ndisagreed about the separate question of how to strike the balance given the particular \nfacts before them. Does this herald a new age of balancing?<\/p>\n

Probably not. Recall that in Bartnicki<\/i>, unlike in most free speech cases, \nthere were constitutional rights on both sides. Indeed, in Bartnicki <\/i>the \nvery same right \u0097 the First Amendment right \u0097 was on both sides, asserted \nby both the radio station and the cell phone user. <\/p>\n

Even if one generally dislikes balancing, there would appear to be no alternative \nwhere each side invokes the Constitution \u0097 and, indeed, the very same constitutional \nright \u0097 to trump the other. Nonetheless, Bartnicki<\/i>‘s significance \ncannot be minimized so easily. After all, <\/i>there was an alternative to balancing \nthat the Court could readily have chosen, and that would have laid down a categorical \nrule.<\/i> <\/p>\n

A Categorical Rule the Court Refused to Accept<\/b><\/p>\n

To see why a categorical rule was possible, consider whether the First Amendment \nreally appears on both sides here. And remember that the Bill of Rights is a limit \non government action, not private conduct. <\/p>\n

As such, the Bill of Rights could obviously be invoked by the defendants \u0097 \nwho were being sued pursuant to federal and Pennsylvania statutes enacted by governments. \nBut should it have been invoked by the plaintiffs, cell phone users who only claimed \nharm by private actors \u0097 the unknown person who taped the plaintiffs’ conversation, \nand the media defendants who disseminated it? <\/p>\n

If not, then only the media defendants, and not the cell phone users, properly \ninvoked the First Amendment. And the proper decision rule in the case could have \nbeen simple and categorical: The cell phone-using plaintiffs, who only asserted \nprivacy and speech interests<\/i> must lose to the media defendants, who asserted \nconstitutional rights<\/i>. <\/p>\n

But though six Justices sided with the media defendants in Bartnicki<\/i>, \nnot one of those Justices was willing to adopt this categorical rule. As a result, \nthe case can be seen as, in one sense, an important victory for privacy interests, \nand also for free speech interests asserted against private actors.<\/p>\n

While these interests were outweighed in Bartnicki<\/i> itself, in some future \ncase they may well tip the balance in the other direction. All nine Justices seem \nprepared to recognize that privacy and free speech can be imperiled by private \nactors no less than by the government.<\/p>\n

Ironically, the dissent in Bartnicki<\/i> nevertheless warned that the majority \ngave privacy short shrift. But in truth, the case may become an important precedent \nfor treating privacy as having great constitutional weight. <\/p>\n<\/span> \n\n

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\n\n\n<\/a>\nMichael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University.\n\n

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