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High Court Considers Free Speech on College Campuses, Workplace Privacy Limits

April 19, 2010 at 12:00 AM EST
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Judy Woodruff talks to Marcia Coyle of the National Law Journal about two major cases before the Supreme Court. The first is a clash over free-speech rights of religious groups on college campuses and the second deals with text messages and workplace privacy.
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JUDY WOODRUFF: U.S. Supreme Court justices heard arguments today in two significant cases.

First up was a clash over free speech rights of religious groups on college campuses and school anti-discrimination policies. The second case dealt with text messaging and workplace privacy.

Marcia Coyle of “The National Law Journal” was at the court today, and she joins us now.

Thanks for being back with us.

MARCIA COYLE, “The National Law Journal”: My pleasure, Judy.

JUDY WOODRUFF: So, Marcia, let’s start with the second case.

These are complaints by California police officers that their employers violated their privacy by looking at the text messages they sent using government-provided pagers.

MARCIA COYLE: That’s right, Judy.

And this is a Fourth Amendment case. The Fourth Amendment, as you know, protects us against government action. So, we’re talking here about public employers, not private employers.

JUDY WOODRUFF: And — and the — is the issue here what the government — what they were using the pagers for, or was it the content or the fact that they were using them at all for personal use?

MARCIA COYLE: The issue here has to do with whether these public employees, these SWAT team members, had what’s known as a reasonable expectation of privacy in their text messages.

The lower courts found that they did have a reasonable expectation and that the city’s audit of their text messages was unreasonable because it was excessively intrusive.

JUDY WOODRUFF: And what kinds questions were the justices asking?

MARCIA COYLE: It’s the city that has brought the case to the Supreme Court. And, so, the city’s attorney, Kent Richland, he said that the city had in place a computer policy that said there was no privacy in the use of the computers or associated equipment. It was a policy that was written and was signed by these officers, so they had no reasonable expectation of privacy.

He also said that, later, when they received the pagers, there was a meeting in which they were told that the same no-privacy policy that was applied to e-mails applied to the pagers. Later on, one of the lower-level supervisors modified that policy to say, well, if you go over the character allotment on your text messages and you pay for them, I’m not going to audit them.

The city argued that that modification didn’t override the city’s written no-privacy policy.

JUDY WOODRUFF: And you were telling us that the justices were very interested in this case, asking a lot of questions.

MARCIA COYLE: Yes. It’s a difficult case.

Chief Justice Roberts was probably the — the most skeptical person, justice, today during the argument. He said, well, look, we’re looking at this from the officer’s perspective. What is his reasonable expectation of privacy?

He was told, you — these pagers can be used for light personal use, which he did, that, if he paid for the overages — he did pay for the overages — and if he paid for the overages, he wouldn’t be audited. Didn’t he have a reasonable expectation? Doesn’t that all add up to that?

And the city’s attorney, Mr. Richland, said, no, not if he was told at the same time that e-mails and text messages were the same as far as privacy goes.

JUDY WOODRUFF: So, without getting too complicated, there were two other questions involved in the case, two other issues that were part of this, right?

MARCIA COYLE: Yes, they were. It had to do with whether the city’s search was reasonable and also whether the people who sent the officers text messages had a reasonable expectation of privacy.

I should say that the city — the police officers’ attorney, Dieter Dammeier, he argued that, really, the privacy guarantee here came from the lieutenant, the lower-level supervisor, and that the computer policy never addressed pagers, and it’s the responsibility of the city to set out clearly the rules.

JUDY WOODRUFF: Now — now, Marcia, this obviously involves a government-run workplace, police department.

But is there interest, is there additional concern here because whatever the court decides could be expanded, interpreted to affect private workplaces as well?

MARCIA COYLE: Yes.

The city had help today in the arguments from Deputy Solicitor General Neal Katyal for the Obama administration. He cautioned the court to move carefully here in constitutionalizing Fourth Amendment rules in this area, because the technology is so much in flux.

And, also, he pointed out that there are millions of employees today using this technology. And there are just as many employers with no privacy policies. And, so, he urged the court — and so did a number of amicus groups who filed briefs in this case — to go very slowly and cautiously.

We don’t really know what society’s expectation of privacy is in yet text messages, so it’s going to be a difficult dilemma for the court.

JUDY WOODRUFF: Any sense of whether the justices were hearing that when Mr. Katyal was making that point?

MARCIA COYLE: I — I think so. But I think that they were struggling with, well, how do you find out? What is a reasonable expectation of privacy? What do you — what do you look for when you’re dealing with these kinds of messages?

And, also, some of them weren’t quite clear on how the technology operated, although I think they — they were educated a little more today than they had been in the past.

JUDY WOODRUFF: Now, the other case, Marcia, this is Christian Legal Society vs. Martinez. This is a dispute over whether a public law school can — can deny recognition to a club, in this case a Christian student group, because they wouldn’t let gays join the club.

MARCIA COYLE: The Christian Legal Society is a national association of lawyers and law students who share a common faith. And they try to honor Jesus Christ in the practice of law.

The student group here had in its bylaws that anybody could come in and be a member, but, if you wanted to be a voting member or an officer, you had to sign a statement of faith.

And that included a promise that you wouldn’t engage in sins of nature, such as homosexual conduct, fornication, and adultery. And they claim that the law school’s nondiscrimination policy violated their First Amendment rights of association, free speech, and exercise of religion.

JUDY WOODRUFF: And what was the counterargument from the law school?

MARCIA COYLE: The law school says that its — its nondiscrimination policy is basically an all-comers policy. You can’t discriminate on the basis of someone’s status or on the basis of their beliefs.

And it said that, if it allowed student exceptions — student groups to make exceptions, it would be forced into drawing lines, you know, who — who — whose beliefs should be excluded, whose should be included, and it had every right to say it doesn’t want to draw lines. This forum should — these student organizations, if they want official recognition, should be open to everybody.

JUDY WOODRUFF: And what were the justices saying? What — what were you hearing in their questions?

MARCIA COYLE: This, again, is — is something of a tough situation for the justices.

Michael McConnell was representing the student group here. And he argued that, if you’re going to put limits on a public forum, like the law school has created, they have to be reasonable and have to be related to the purpose of the forum. And he said, they’re — they’re not related here.

The purpose is to create diversity among student groups. But look how destructive the policy is, he said. Student chapters of the NAACP, for example, would have to allow racists to be members. Some of the justices accepted that. Justice Alito said he thought this policy was just weird. He said, you’re requiring a Christian group to allow atheists to conduct Bible studies.

But other justices thought, well, now, wait a minute. You know, you’re saying you should be allowed — you should be allowed to discriminate on the basis of belief. This — this doesn’t sound quite right. And why isn’t it reasonable for the school to say, we don’t want to draw lines here; let’s have everybody come in?

And they also — the law school’s attorney, Greg Garre, pointed out there has never been any evidence that a group has been sabotaged by members who don’t believe in the group’s purpose or objectives in the 20 years, he said, that this policy has been in effect.

JUDY WOODRUFF: All right, two — two interesting cases, two important cases that — and we will be watching for the — the court’s ruling.

Marcia…

MARCIA COYLE: Very interesting.

JUDY WOODRUFF: Marcia Coyle, thanks very much.

MARCIA COYLE: My pleasure.