Editor’s Note. Please note that this article was published on the first day of the fourth month of the year. Treat accordingly.
In a decision that was widely expected, the United States Supreme Court ruled in favor of the government in the case, John Ashcroft v. Just About Everyone Else.
At issue was the plaintiff’s challenge that under the Fourth Amendment’s unreasonable search and seizure requirements, the government and those acting as agents of the government, as well as those that feel that the government might one day ask them about it, cannot capture and search communications by Unites States citizens without first getting a warrant of some kind from, as one ACLU intern put it, “really just about any court, anywhere. Really, some kind of judge. Really.”
Writing for the majority, Justice Samuel Alito wrote, “The First Amendment protects speech, which clearly means not just giving people the right to say stuff but the right for others to hear it. And since the First Amendment is, by definition, before the Fourth, it must be given precedent. You want to say it, we get to hear it.”
In a sharp dissenting opinion signed by every member of the Court who had ever used a woman’s locker room except Clarence Thomas, Justice Ruth Bader Ginsburg took issue with that interpretation: “As the Hon. Leonard Schneider, Chief Justice when I was a girl, said ‘the first amendment means everyone has the right to say it once and everyone else has the right to hear it once’.
So Sam is clearly wrong about this. Once it is heard the first time, it is no longer speech but BLOBS, that is Binary Large Objects, which are, after all, objects and therefore fair game for the Fourth.” (It should be noted that Justice Ginsburg has been studying to be a Hadoop Database Administrator so that she has something to do when she retires.)
Oral arguments for the case, which were heard during bathroom breaks for oral arguments for a case that Chief Justice Roberts really cared about, were marked by some moments that surprised veteran Court observers.
Justice Thomas, known for his silence during oral arguments, broke with his tradition. When plaintiff’s attorney, Aaron Burr, made a particularly insightful comment, Justice Thomas was heard to ask “whose side are you on, anyway?” This is the most that Justice Thomas has said from the bench since 2009 when he said “Gesundheit” after an attractively dressed spectator in the third row sneezed.
Donald Verrilli, Solicitor General, arguing for the government, stressed that terrorist threats and the government’s interest in protecting the people made judicial oversight of searches no longer necessary.
Citing “good intentions” and the “golden rule,” Verrilli stressed that since government is “of the people, by the people and for the people,” then the people had no choice but to trust themselves. In place of any amicus briefs to support their case, the government distributed “Freedom Isn’t Free” bumper stickers to the Justices, with Justice Thomas returning his. “My wife has a box of these at home and she hates it when I bring clutter home from the office,” Justice Thomas said.
In a concurring opinion, Justice Antonin Scalia, making obvious references to previous cases such as Buckley v. Valeo and Citizens United v. FEC, wrote, “If we equate speech to money, then it is clearly only a matter of time before we equate privacy to money as well. Although we will look to the lower Courts to define this first and, in keeping with tradition, ignore the EU Court of Justice on these matters.”
When asked about next steps, Mr. Burr was upbeat, “this is a setback, certainly, but we will review the Court’s opinion and consider our appeal options. We may appeal to the World Court or just go straight to the Supreme Court of Alabama.”