I’d like to comment on three unrelated decisions, two from the last couple of days and one from May. I’ll start with the old-timer, Town of Greece v. Galloway, where the court by its usual conservative 5–4 majority upheld the practice of a town board in upstate New York to begin every meeting with an invocation. The invocation is given by a clergyman, invariably a Christian, and often the invocation mentions Jesus Christ or otherwise reveals its sectarian character. The town doesn’t limit clergymen to Christians, but neither had it tried to recruit Jews or Buddhists, though there are some in the town. The dissenters reasoned that the Constitution requires the town board to recruit some non-Christians, as otherwise the invocation practice is sectarian.
I find it hard to take the dissents seriously. After the plaintiffs complained to the board about the one-sidedness of its invocations, the board invited Jewish and Buddhist clergy to give invocations; in addition, a Wiccan priestess (a witch, to put it bluntly) volunteered to give the invocation, and was permitted to do so. I suppose the High Priestess of Satan (there is such a person, though she’s a Hoosier rather than a New Yorker) could give the invocation as well. I imagine that would end religious invocations at town meetings in Greece, New York.
I can’t see, given the response of the town board to the plaintiffs’ complaints, why there should be a lawsuit against the town, let alone a judgment against it (as sought by the dissenters). And it seems to me very odd to think that government entities down to the level of towns should be required in the name of the Constitution to recruit clergy of minority sects to give invocations. Should the town be required to calculate the percentage of townspeople in each religion and allocate invocation slots accordingly? That might have been required had the dissenters prevailed.
The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case. The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.
I noticed a citation in the court’s opinion to a case from my court, United States v. Lopez-Flores, the name of which rang a bell. It was an opinion of mine issued in 2012, and when I reread it I realized it is almost identical to the Supreme Court’s opinion. It dealt with a cellphone search, discussed the same technologies mentioned in the court’s opinion (such as Faraday bags and remote wiping), explained why a warrant should normally be required for such a search, but also, like the Supreme Court, discussed emergency situations in which a search without a warrant should be permitted, just as in conventional search cases. I mentioned in my opinion “an iPhone application called iCam [that] allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. At the touch of a button a cell phone search becomes a house search, and that is not a search of a ‘container’ in any normal sense of that word, though a house contains data.” Whether police search the contents of the home while in the home, or search those contents on a cellphone’s screen, the invasion of privacy (though not of property) is the same. The Supreme Court’s decision accelerated a trend toward assimilating virtual to physical property for Fourth Amendment purposes that would eventually have brought the lower courts to the same point.
The abiding puzzle of “search and seizure” is the insistence of the courts, including the Supreme Court, that the Constitution requires search warrants in all but emergency circumstances, in order to protect what we now call “privacy.” That is ahistorical. The Fourth Amendment protects people against unreasonable searches and seizures, but it does not require search warrants; on the contrary, it limits them, by requiring that they be based on probable cause, on oath or affirmation by the seeker of the warrant, and on a particularized description of the premises to be searched and the items (usually contraband) to be seized. The reason for limiting warrants was that, in the 18th century at any rate, a warrant provided a defense for an officer sued for trespass.
Eventually the Supreme Court turned the Fourth Amendment on its head and required warrants, in nonemergency circumstances (broadly defined, however, to include most searches of vehicles). Warrants are issued in ex parte proceedings—the intended subject of the warrant is not present, for obvious reasons, only the law enforcement officer seeking the warrant is—and so are usually granted even when the officer’s showing of probable cause is quite thin. But the proceeding creates a record that enables a later challenge to the search, though rarely a successful one.
I have no objection to the warrant requirement in its present form, but I am surprised that “originalists” and “textualists” on the Supreme Court accept it. That they do is an illustration that what we call “constitutional law” is not, for the most part, the result of interpretation of the Constitution. The Constitution is the pretext for what amounts to a body of judge-made law, much like the common law of England and America.
Now, the last case: this morning’s decision in McCullen v. Coakley, which invalidated a Massachusetts law requiring abortion protesters to keep 35 feet away from the entrance to abortion clinics.* Like Town of Greece, the opinion fetishizes First Amendment rights. The core of the opinion can be found in two brief quotations from it, which I’ve strung together: “With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. … Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities.”
The concern with privacy that animated the Riley case was forgotten after one day. Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.
The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.
*Correction, June 26, 2014: This article originally misidentified McCullen v. Coakley as McCullen v. Oakley. (Return.)