The First Amendment and Freedom of Speech along with the Right to Privacy
founded in several of the Amendments to the United States Constitution, were very
much the topic of several recent Supreme Court of the United States decisions. In one
case, Freedom of Speech was pitted against the Right to Privacy, with Speech
winning and Privacy taking a back seat. In another case, the Right to Privacy was
held to trump a police officer’s desire to investigate.
The first case that we speak about involved a 35 foot buffer zone around the
doors of abortion clinics in Massachusetts. An 8 foot buffer zone had previously
been declared to be Constitutional by an older Supreme Court decision. In this case,
the Supreme Court determined that the 35 foot buffer zone around the abortion clinic
prevented those who wanted to protest abortions and give counsel to those who had
been seeking abortions, from exercising their First Amendment Rights of Speech.
The Supreme Court concluded that the minimal privacy rights of the women walking
into the abortion clinics could not overcome the right of Free Speech of those who
wanted to disseminate their views.
Interestingly, the Liberal wing of the Supreme Court also went along with this
decision. It is thought by many Supreme Court scholars that the reason why they did
so was that the way the decision was written, it could be argued that the previously-
decided 8 foot buffer zone still remains Constitutional. These scholars have opined
that should the Supreme Court have gotten into an internal battle over the decision,
that a more conservative opinion would have been enunciated and thereby striking
down the 8 foot buffer.
In another case the Supreme Court held that police officers do not have the
right to search and take data off of smart phones when they make an arrest. The
Court concluded that a warrant would be needed, issued by a Judge or Magistrate,
before the police could look into the contents of the smart phone. The reason that the
Supreme Court gave for this ruling acknowledged not only common sense and the
Right to Privacy, but also how we have become such a technological society and that
rights of privacy need to keep up with the times.
The essence of the opinion was an acknowledgment by the Court that the
material that we keep on our smart phones contain our most personal of information,
pictures, bank records, credit card information, and basically the essence of a person’s
private and most intimate records. The ruling gives credence to the belief that our
Rights to Privacy are not forfeited just because we have taken these important
documents along with us, as opposed to keeping them at home or letting them be in
This was an incredible step for the Supreme Court. Not only does the decision
make logical sense, but it was an affirmative statement that our laws and our
protections need to evolve, along with our technology. It is hard to believe that even
a decade ago that the Court would have had the foresight to make this type of ruling.
Although not a Supreme Court case, but rather an 11 Circuit Court of Appeals
case, also was a major victory for the Right to Privacy. In Davis v. United States, the
11 Circuit Court of Appeals ruled that law enforcement must get a warrant from a th
judge before cell site tracking devices can be used. For those of you who are not
familiar with the technology, let us explain.
When your cell phone is turned on and as you travel, your cell phone is
transferred from one cell site tower to another. This means that when you place a call
or receive a call, the closest cell site tower to your cell phone is the one that is
transmitting the voices back and forth. Law enforcement has the ability, in
conjunction with the various cell phone companies, to determine on a real time basis
what cell site you are closest to. By doing this, the police can locate within a certain
geographical area, where someone is located.
Most people do not know that this is occurring. Yet, other Court decisions
have concluded that whether people do know or do not know that this is occurring,
that as long as the cell phone company gives the information to law enforcement,
there is no violation of the Right to Privacy. The 11 Circuit decision, however, th
along with a few others that are coming to light, are starting to break new ground. In
this decision the Court brushed aside the argument that the Right of Privacy is given
up since the information of where you are located through your cell phone is being
given to a third party, namely the phone company, and since that has been voluntarily
given, there is no right to privacy.
The Davis Court found that most people do not realize that this is occurring.
The Davis Court concluded that most people have no idea that they can be tracked
and that the cell phone companies have this technology. The Davis Court went on to
say that being able to determine that a woman is in the area of her gynecologist might
mean nothing, however that same woman being found 2 weeks later in the area of a
baby furniture store would paint a picture of her obviously being pregnant.
The fact that by cell site information and location, too much information can
be given to law enforcement that intrude upon a person’s Right to Privacy was
enough for the Eleventh Circuit to determine that there was need for a neutral Judge
to make the determination as to whether there should be cell site tracking and
information provided. This decision, along with the decisions of the Supreme Court,
show that the Court’s becoming much more sensitive to the Rights of Privacy from
Government intrusion. The Right to Privacy is not stated in the Constitution of the
United States nor its Amendments. However, with these decisions there can be no
doubt that the Right to Privacy not only has been affirmed, but is getting stronger and
stronger in the eyes of the judiciary.