by Matthew L. Schafer
On January 23, 2012, the Supreme Court addressed for the first time whether the attaching of a GPS device to a citizen’s car and its subsequent use constituted a search. The Court held that it did.
“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,'” Justice Antonin Scalia stated for the Court.
Unfortunately, the media wrongly interpreted the Court’s opinion as requiring the government to seek a warrant before using a GPS device. Indeed, as explained previously, the Fourth Amendment only protects citizen’s from unreasonable searches and seizures. The Court never decided whether the search in this case was, in law, unreasonable. If similar uses of GPS searches are found to be reasonable, however, then even if the search occurred, police would not need a warrant for that search.
Nonetheless, in the hours and days after the Court’s decision in Jones, many newspapers inaccurately claimed variously — exuberantly in some cases — that the “Supreme Court says police need warrant for GPS tracking.” The Washington Post titled one of its early articles, “Supreme Court: Warrants needed in GPS tracking.”
Numerous similar examples exist:
International Business Times: GPS Tracking: Supreme Court Rules Warrant Needed, Fourth Amendment Upheld
CBS News: High court: Warrant needed for GPS tracking
Kansas City Star: Warrant needed to track suspects with GPS, justices rule
Christian Science Monitor: Unanimous Supreme Court: Get a warrant before installing GPS tracking device
Associated Press: Warrant needed for GPS tracking, high court says
NPR: Supreme Court: Warrant Needed For GPS Tracking
ABC News: GPS Tracking Requires Warrant, Supreme Court Rules
AFP: Warrant needed for GPS tracking: US Supreme Court
These headlines are just a few exemplars of how even the large, national news organizations were unable to “get the story right.” Not only were the headlines misleading, but what is worse is the faulty explanations that accompanied the titles.
“Associate Justice Antonin Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required,” Jesse Holland and Pete Yost for the AP wrote. “All nine justices agreed that the GPS monitoring on the Jeep violated the U.S. Constitution’s Fourth Amendment’s protection against unreasonable search and seizure.”
Of course, this is exactly what the Court did not hold. It never held that the search at issue in Jones was an “unreasonable” one. Justice Scalia specifically passed on this issue, writing, “The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment . . . . The Government did not raise it below, and the D.C. Circuit therefore did not address it. . . . We consider the argument forfeited.”
Faulty explanations of Supreme Court holdings or misleading headlines written by news organizations like the AP are especially dangerous, because the vast majority of the public come to understand the law through the media — not the Supreme Court’s opinions. It is the media’s responsibility to tell the people what the government is and is not allowed to do after influential Supreme Court opinions are handed down.
As one scholar stated, “Public opinion of judicial behavior and law are of vital consequence in the American legal system as a critical aspect of a polity based upon principles of popular sovereignty and limited government.”
When the press fails to accurately inform the public, public opinion about not only the Court but the law itself will naturally be misinformed. Of course, the press in today’s media climate is, more than ever, under pressure to push out news copy at an increasingly rapid clip. This increasing pressure is especially debilitating when it comes to covering the courts, where journalists, as lay persons, are ill-equipped to dissect a legal opinion in a few hours and then attempt to explain that opinion to yet other lay people.
Inaccurate press coverage in Jones should be a learning experience. First, if news organizations fail to accurately explain legal opinions, those organizations should issue corrections. In this case, few if any did. Second, before publishing an article, journalists should consult with legal experts. This check would help to prevent a complete misreading of judicial opinions. If nothing else, it would give the journalist plausible deniability.
In short, journalists should be more responsible when dealing with judicial opinions. Now, unfortunately, the vast majority of the American public likely believes that police cannot — without a warrant — install a GPS device on their vehicles. Because it is unclear if that is actually the case, the American public is the loser as a result of this journalistic imbroglio.