Marcia Coyle: Supreme Court Weighs Privacy Limits of Texting at Work

Marcia Coyle, NewsHour regular and Washington correspondent for the National Law Journal, spoke with us Monday afternoon about oral arguments heard before the Supreme Court earlier in the day. Here is an excerpt of our conversation.

On Monday’s NewsHour, Judy Woodruff will speak with Coyle for more on the arguments before the court.

One of the cases the court heard Monday was the City of Ontario v. Quon. Can you tell us what that case is about?

MARCIA COYLE: The city of Ontario, Calif., is asking the justices to overturn a ruling by a lower court holding that it violated the Fourth Amendment privacy rights of Jeffrey Quon, a member of the police department’s SWAT team, when it reviewed transcripts of his text messages from his department pager. Those messages included communications that were work-related, as well as salacious communications between Quon and his wife and Quon and a lover.

What did the city argue?

MARCIA COYLE: The city contends it reviewed the messages of Quon and another officer to determine whether it needed to increase the character allotment for all pagers. The city’s lawyer, Kent Richland, argued that Quon had no reasonable expectation of privacy, which is the test under the Fourth Amendment, because he had signed a written city policy that explicitly stated there were no privacy rights in the use of the city computers and related equipment. He also said Quon and other SWAT team members were told when they received their pagers that the city’s e-mail and Internet use policies covered the pagers as well. Although a supervising officer later said that he would not audit text messages if the officers paid for any overages related to personal use, Richland argued that didn’t undermine the city’s no-privacy policy.

How did the justices respond?

MARCIA COYLE: Chief Justice Roberts said that we’re dealing with Quon’s reasonable expectations. Quon was told, Roberts said, that he could use the pager for personal use, he wouldn’t be audited if he paid for the overages — he paid for those private messages. Putting all that together, wasn’t it reasonable for him to expect his messages were private? Richland said no, not when Quon had signed the written no-privacy statement and had received a memo from the police chief that later made clear that the policy covered their pagers.

Richland received support during the arguments from Deputy Solicitor General Neal Katyal of the Obama administration, who argued that a low-level supervisor’s statement to Quon that he wouldn’t review the messages if Quon paid for overages could not supplant the city’s written policy. He urged the Court to move very cautiously because the whole area of electronic communications and society’s privacy expectations are evolving daily. Chief Justice Roberts said, I don’t know how you tell what is reasonable when there are these factors as in this case. I think if I pay for it, it’s mine. Katyal said, what is unreasonable is to expect privacy when you’ve been told you have no right to privacy. Thousands of employers rely on these policies, and the Ninth Circuit put that in jeopardy.

What did Quon’s attorney argue?

MARCIA COYLE: Quon’s attorney, Dieter Dammeier, stressed the sequence of events. The computer policy, he said, that Quon signed, did not apply to pagers as written. It only came into play, he said, after it was modified by the supervisor who told Quon and others their messages would not be audited if they paid for the overages. But Justice Ginsburg was skeptical. She said that supervisor was only concerned about collecting money for the billing. He didn’t detract, she said, from what the officers were told about the privacy policy.

Justice Kennedy pointed out that criminal defense attorneys would want to look at those conversations if they were relevant to a criminal case. Dieter Dammeier pointed out that SWAT team officers in effect work 24/7, and there is a melding of their private and work lives, and there has to be some expectation of privacy in their private messages.

Could the outcome of this case affect employee rights at private companies?

MARCIA COYLE: Although it involves a public employer and the Fourth Amendment only applies in this situation to public, not private employers, this case is being watched closely by private employers as well. Whatever the Court says here about reasonable expectations for privacy will be noted by lower courts who are increasingly struggling to define the privacy rights in the workplaces monitoring of electronic communications. And the case is obviously important to the rights of government employees.

Can you tell us briefly about the other case the court heard, Christian Legal Society v. Martinez?

MARCIA COYLE: The Christian Legal Society is a national association of lawyers and law students who share a common faith and seek to honor Jesus Christ in the legal profession. The law student chapters sponsor a variety of activities such as lectures, Bible study and socials. It welcomes all law students, but requires its voting members and officers to sign and adhere to a statement of faith, which includes abstaining from acts of sinful nature, such as adultery and homosexual conduct.

The student chapter at the University of California Hastings College of Law contends that the school violated its First Amendment rights of association, free speech and free exercise of religion when it refused to give student group formal recognition as a registered student organization. That recognition entitles student groups to some school funding and use of the school’s facilities and e-mail notification system. The law school refused to give official recognition because Christian Legal Society’s bylaws did not comply with the religion and sexual orientation provisions of the school’s non-discrimination policy.

What arguments did the Christian Legal Society present?

MARCIA COYLE: Christian Legal Society attorney Michael McConnell told the justices today that the law school’s policy as it concerns a group’s beliefs is manifestly overly broad, and a fundamental assault on freedom of association. He said what Christian Legal Society objects to is being run by non-Christians. Participants like Christian Legal Society in the law school’s open forum are entitled to their own voice, he said.

McConnell said that if a student organization can’t have coherent, cohesive beliefs, there is no reasonable purpose to the public forum that the law school has created. He told the justices to consider how destructive the law school’s all-comers policy is. For example, a student chapter of the NAACP would have to let racists sit in as members. An environmental group would have to allow climate change skeptics to vote or be officers.

Justice Ginsburg countered that it may be an ill-advised policy by the school, but the school says it’s working fine. There is no evidence of sabotage of any group. Justice Sotomayor noted that Christian Legal Society is not being ostracized from the school. She said it can still meet as a group on campus. But McConnell countered that they can apply to meet on campus but they have continued to get the run-around from the law school.

What did the law school argue?

MARCIA COYLE: The law school counsel, Greg Garre, was peppered with questions about how the school implements it non-discrimination policy. Chief Justice Roberts pointed out the student chapter of the National Lawyers Guild had bylaws that members must agree with the objectives of the organization, and yet that chapter has been recognized by the law school. But Garre countered that agreeing with the organization’s objective doesn’t mean the bylaws are excluding anyone.

Justice Scalia said that requiring this Christian society to allow atheists to conduct bible studies is “just weird.” Justice Alito hypothesized a campus with a lot of anti-Muslim sentiment and a small Muslim student group. Suppose, he said, 15 anti-Muslims showed up and want to take over the group?

Although this case focuses on a public law school and student groups, it could have implications for whether religious groups and other similar groups with expressive beliefs can discriminate in the selection of their voting members. It might have an impact on faith-based groups, providing social services with government funding, or even entities that receive tax exemptions and discriminate in the actions of their leaders or employees.