Dear Paul and Walter,
I wanted to follow up briefly on Paul’s posting about McComish, the Arizona public financing case, and Walter’s post on GPS surveillance. Because I can’t help but notice that once again this term ends with a big ideology-defying rupture on the court over questions of technology and the Constitution. I am fascinated by the ways in which new technology is always being used, evaluated, and also shunned by the court as needed.
Start with a footnote: In Chief Justice John Roberts’ discussion over whether the Arizona “clean elections” law at issue in McComish was an effort to “level the playing field” or “combat corruption,” he deploys technology in a way that’s worth contemplating. Noting that the court has “repeatedly rejected the argument that the government has a compelling state interest in “leveling the playing field” that permit undue burdens on political speech,” the chief justice then busts the state of Arizona for tweaking its website after oral argument. As Richard Hasen was quick to notice, Roberts points out in a footnote: “Prior to oral argument in this case, the Citizens Clean Elections Commission’s Web site stated that ‘The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to level the playing field when it comes to running for office.’ The Web site now says that ‘The Citizens Clean Elections Act was passed by the people of Arizona in 1998 to restore citizen participation and confidence in our political system.’” I’m not sure if that’s the first time a Supreme Court justice has called out a party for altering their website after oral argument, but it sure goes to show how much fun a jurist can have with a sharp-eyed clerk and a reliable Internet connection.
Then there’s Justice Samuel Alito, concurring in the violent video games case this morning, who reveals himself to be incredibly savvy about the rapidly evolving technology of violent games. He writes: “Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage. Many of the games already on the market can produce high definition images, and it is predicted that it will not be long before video-game images will be seen in three dimensions. It is also forecast that video games will soon provide sensory feedback.” Alito notes that the day is coming in which “virtual reality shoot-’em-ups” will allow children to “‘actually feel the splatting blood from the blown-off head’” of a victim.” And he concludes that because new technologies present new possibilities for different kinds of harm to minors, he believes that “The Court acts prematurely in dismissing this possibility out of hand.” Here is Alito fully immersing himself in new technologies and also warning the court that it’s too early to understand where those technologies are headed.
Justice Antonin Scalia pokes fun at Alito’s extra-credit dabbling, writing that he “has done considerable independent research to identify video games in which “the violence is astounding,” but he sees no point to any of it. In Scalia’s view, the technology is irrelevant, and the same arguments being leveled at video games were once leveled at comic books. Just because technology is morphing doesn’t mean the First Amendment ought to. Which brings us to Justice Stephen Breyer’s dissent in the same case, citing many, many studies showing that “virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.” But—again proving that new technology is also his friend—Breyer also offers the first citation in Supreme Court history, according to the keen eyes of Josh Blackman, to a YouTube video.
Between Doe v. Reed, the Phelps case, and today’s opinions, it’s clear to me that Breyer, Alito, and Thomas have become the court’s strongest proponents of the idea that new technology is so radically different (mostly in bad ways) that First Amendment rules need to be revisited. It’s completely fascinating to watch them deploy new technologies to prove that very point. Breyer is often the first to admit that courts don’t always understand new things (although Roberts said the same this past weekend), but it’s hard not to look at the ways these justices both talk about and use evolving technologies as proof that—as Homer Simpson once said of alcohol—it is both the cause of, and solution to, all of our problems.