The XX Factor

No More Sexting With Sotomayor on the Court

While the question of whether kids today are sexting up a storm or reaching new heights of prudery may never be satisfactorily answered , the window for such wireless waggery might be closing. On Monday, the Supreme Court announced that it would hear the case of a police sergeant who sued his department for reading the lewd text messages he sent on a company pager. As Emily Bazelon reported in Slate on Wednesday, the Ninth Circuit Court of Appeals ruled in favor of the sexting cop and held that users have “a reasonable expectation of privacy in their text messages” regardless of whether an employer supplies the equipment or pays for the service.

Unfortunately, the lower court’s attempts to forge progressive digital policy may turn out to be the ambitious opening sallies in a battle that cannot be won. If there is one common thread among the current justices of the Supreme Court, it is a strong bias in favor of government plaintiffs. Given the Court’s equally powerful penchant for minimalism , electronic privacy advocates are hoping for a narrow ruling that applies exclusively to public employers. Even so, with the arrival of America’s favorite wise Latina to the bench, right-leaning privacy foes will likely enjoy a wider margin of victory than the usual Roberts Court 5-4 split . While Sotomayor’s views on most issues fall squarely within the traditional bounds of liberal jurisprudence, one of her past decisions reveals a bias toward snooping bosses in workplace search-and-seizure disputes.

In a 2001 opinion , then-Second Circuit Judge Sotomayor rejected a Fourth Amendment challenge brought against an employer for ransacking a worker’s computer. She concluded that the search was reasonable due to the employer’s “need to investigate allegations of misconduct as balanced against the modest intrusion caused by the searches.” By framing the issue as a balancing of interests and privileging the employer’s ability to discipline its workers above the employee’s constitutional protection against warrantless searches, Sotomayor dealt a crushing blow to digital privacy rights. The parallels with the cop case are obvious, and the news this week does not bode well for the longevity of the Ninth Circuit’s ruling.

So, kids, to those 94 percent or 80 percent of you not bombarding your petite paramours with salty puns and hook-up requests, I exhort you to start exercising your civil liberties and sext like there’s no tomorrow-because there might not be one. If your algebra teacher catches you tapping away during class, tell him it’s a civics project.