Both of your posts about new technology and the courts raise some very interesting issues. On the one hand, I say hooray for new technology, for without these new technologies, I wonder what the Supreme Court would have to decide. As we have all remarked, this last term was not exactly chock full of blockbuster opinions. Without violent video games, yesterday would have been the sleepiest last day of a term in recent memory. And although there are some fascinating issues looming on the horizon, the GPS case certainly adds some interest to the cases waiting for the justices in the fall.
At least superficially, the GPS case reminds me of the Kyllo v. United States case from a decade ago. That case involved the question of whether the government's use of new technology unknown to the framers—in this case a thermal imaging device—violated the Fourth Amendment. In Kyllo, the court in a 5-4 decision written by Justice Scalia for an unusual coalition of five justices, found the new technology violated the old Fourth Amendment. In that context, at least, Justice Scalia writing for the court felt that the Constitution had to keep up with the times.
I am not suggesting that Kyllo prefigures either Justice Scalia's or the court's approach to the GPS case, but it is an interesting counterpoint to Justice Scalia's majority opinion today in the video game case. In the context of the First Amendment, Justice Scalia contended that the important protections of the First Amendment transcended changes in technology. The threat from violent video games is no different in kind from the threat from violent comic books or violent stories in Dante written in the days before comic book technology was perfected.
At one level these decisions are in complete accord: The underlying Fourth Amendment value of freedom from unreasonable searches of the home transcends changes in technology and so does the First Amendment value of freedom from the government's effort to limit what we view. But on the other hand, the two decisions have very different reactions based on whether the new technology empowers the government or individuals. The dissents and concurrences in the video game are full of concerns over the effect of this new technology on children, and there is a broad willingness to credit the government's effort to blunt that effect. The majority does not trust the government to play that same role. In the Fourth Amendment context, some justices may be very suspicious of this new technology in the government's hands.
More broadly, the net effect of the court's disparate reaction to new technology may be to swing the constitutional balance in a slightly more libertarian direction. If the Fourth Amendment keeps pace with new technology to ensure that our reasonable expectations of privacy are not diminished, while the First Amendment allows us to use new technologies to view all sorts of materials in our homes without any corresponding enhanced government ability to regulate, then there is less of a role for government regulation. Much of this may just be the basic bargain struck by the framers in the First and Fourth Amendments. But I do think that technology's tendency to allow us to bring transactions that used to take place in the public square inside the home also affects this dynamic and gives the government less opportunity to enforce communitarian values.
One final thought on Justice Thomas' dissent in the video games case. His dissent reminded me of nothing so much as his separate opinion in the Bong Hits 4 Jesus case. In that solo opinion, he argued for a return to the days when First Amendment rights did indeed stop at the schoolhouse gate and students had no First Amendment right because the schools acted in loco parentis and parents had all the rights; students none. That same notion resurfaces in his video games dissent from yesterday, except this time, the students have no rights on either side of the schoolhouse gates. Dahlia is correct that Justice Thomas does not seem to care whether any of his colleagues share his view, but do either of you think he will convince any of his colleagues about this? It strikes me that First Amendment rights are here to stay both inside and outside schools.