A Book that Tells You how It Was Done

The Houston Chronicle reviewed Flagrant Conduct: The Story of Lawrence v. Texas by University of Minnesota Law School professor Dale Carpenter. It seems like a useful study of a changing of an interpretation of the United States Constitution by the U.S. Supreme Court.
Some observations:
1. It is common that the facts of a case like this are not very important. It is entirely possible that the defendants in the case were not engaging in sex at all.
2. A big appellate case usually doesn't develop randomly out of the slush pile. Lambda Legal Defense Fund had been looking for a case like this for years.
3. The U.S. Supremes worried little or not at all about reversing the precedent of Bowers v. Hardwick. Appellate justices wax eloquent on the importance of issue preclusion, but "five votes can do anything" at the Supreme Court.
4. State appellate justices can take their careers in their hands when they decide a case. This case almost ended the career of Texas Fourteenth Court of Appeals Justice John Anderson.
This book would bear comparison to Gideon's Trumpet by Anthony Lewis.

Won't Always Know It If They See It, But This Isn't It

A city government gets text pagers and service for some of its cops. The city asks— without a warrant—for a transcript of a cop’s texts. During work hours, few of the texts are work-related and some are sexually explicit. The city disciplines the cop. Did the provider violate the Stored Communications Act? Did the city or the provider violate the Fourth Amendment?
The Supreme Court of United States said no to both questions on June 17, 2010 in City of Ontario, California v. Quon, No. 08–1332. The court did not make any general rules as to what such violations might be.
Petitioner City of Ontario, California got pagers that could send and get texts from Arch Wireless. Arch charged Ontario a fixed price for a specified amount of use. More use would cost extra. Ontario let respondent Jeff Quon and other Ontario cops use the pagers. For several months, Arch charged extra for Quon’s use. Ontario asked for and got transcripts of some of Quon’s texts. Internal affairs investigated Quon. That officer redacted out Quon’s off-duty texts. Much of what remained was not work-related; some was sexually explicit. Ontario disciplined Quon. Quon and the people he was conversing with by text sued in federal district court for violation of the Fourth Amendment and the Stored Communications Act. Senior Federal District Judge Robert J. Timlin sent part of the case to trial. He appears to have ruled that if Ontario had audited to check if Quon had been wasting time, then that would have been improper. The jury okayed Ontario’s audit, finding that the audit was to make sure that the cops were not paying for work texts. The trial case resolved by judgment for Ontario and the other defendants. The Ninth Circuit reversed, holding that Ontario should have used less intrusive methods for the audit. It also held that Arch had violated the Stored Communications Act by giving Ontario the transcript.
In the Supreme Court Justice Kennedy wrote the opinion. All the other justices joined, except that Justice Scalia did not join part of the opinion. In a partial concurrence and concurrence in the judgment, he said that the question should not be whether the Fourth Amendment applies to messages on public employees’ employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers. Justice Stevens concurred to highlight that the court did not decide whether the plurality opinion in O’Connor v. Ortega, 480 U.S.709 (1987) showed the right way to determine an employee’s reasonable expectation of privacy.
Do the texts of a public employee obtained without a warrant come in over objection? Not if the texts were gotten just to see if the employee is wasting time. Not if the seeking of them is over broad. Redaction of non-work-texts completely or in part is well advised. Of course, a warrant based on probable cause is a prosecutor’s best friend.