Supreme Court Justices Unprepared To Enter 21st Century

Recently — like Monday — the Supreme Court settled a First Amendment case involving videos depicting animal cruelty. Animal cruelty is illegal throughout the country, but the Court essentially held that the First Amendment makes it impossible to legislate against depictions of animal cruelt. (This makes distinct from child molestation, which is not only illegal, but depictions of it are also illegal, despite the First Amendment).

But another First Amendment case is before the Court this term. And it is unique in that it is the Court's first foray into new communications technologies. The First Amendment was written in a time or speech and press (books, newspapers). The Court has done pretty good at applying those principles to the Internet. But now, we're getting into texting, too, and that's essentially what the case of City of Ontario v. Quon is all about. The case asks whether police officers had an expectation of privacy in personal (and sexually explicit) text messages sent on pagers issued to them by the city.

Unfortunately, if the oral arguments Monday were any indication, the Court is not quite up-to-speed on this whole "texting" thing (NOTE: The "facepalm" graphics are mine):

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. – who is known to write out his opinions in long hand with pen and paper instead of a computer – asked what the difference was “between email and a pager?”

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.