Contemporary mainstream discussions of the Supreme Court are often qualified with the warning that the nine justices are out of touch with everyday American life, especially when it comes to the newest and most popular technologies. For instance, during oral argument for City of Ontario v. Quon, a 2010 case that dealt with sexting on government-issued devices, Chief Justice John Roberts famously asked what the difference was “between email and a pager,” and Justice Antonin Scalia wondered if the “spicy little conversations” held via text message could be printed and distributed. While these comments have garnered a great deal of attention on the internet, the Court has just as often addressed difficult constitutional questions regarding technology in a nuanced and informed manner. For this paper, I have selected six recent cases that deal with technology. Three of these cases concern technology and free speech, while the other three involve technology and the right to privacy. By reading oral argument and seeing how the justices discuss technology, I have attempted to define in each case how familiar the Court was with the specific innovation that was in question. Then, through this lens, I have analyzed the rulings to show where the Court’s technological nuance resulted in well-reasoned rulings and where better understanding of the technology would have been helpful.
Thomas, Brian, "Keeping Pace: The U.S. Supreme Court and Evolving Technology" (2015). Politics Summer Fellows. 2.
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Presented during the 17th Annual Summer Fellows Symposium, July 24, 2015 at Ursinus College.