Wedding Cakes And Cell Phone Towers Await Justices In December Sitting

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court’s December sitting will begin Monday, a two week stretch of the 2017 term that features momentous cases concerning the First Amendment and religious liberty and a challenge to the constitutionality of the warrantless seizure of cell tower data that could recast Fourth Amendment law.

The December sitting, which begins Nov. 27 and concludes Dec. 6, is the high water mark of a term burgeoning with important cases.

The marquee case of the sitting, Masterpiece Cakeshop v. Colorado Civil Rights Commission, concerns a Christian baker in Colorado who declined to create a wedding cake with a pro-LGBT message for a gay couple planning their nuptials. The baker, Jack Phillips, is an Evangelical Christian who believes participation in a same-sex wedding violates his deeply-held religious beliefs. Phillips argues his custom cakes are a form of creative expression, and that the state is coercing him into creating expression with which he disagrees, in violation of the First Amendment. The Colorado Civil Rights Commission assessed a number of penalties against Phillips after he refused to produce the cake.

Colorado counters that anti-discrimination laws have never been understood to compel commercial speech because non-discriminatory equal-service requirements regulate commercial conduct, not protected expression. In supplemental filings, Colorado’s allies further argue that a custom cake should not be though of as classic speech or expression.

The Trump administration sided with Phillips in the dispute, endorsing the portions of his argument concerning free speech in an amicus (or “friend-of-the-court”) brief. Phillips also argues Colorado’s anti-discrimination law violates the First Amendment’s guarantee of free exercise of religion, though the administration did not render a view with respect to that issue.

Oral arguments in the Masterpiece case will be heard on Dec. 5.

Another December sitting case involves a challenge to the warrantless collection of historical cell-site data, or data from cell phones which is retained by cell towers. A criminal defendant, Timothy Carpenter, was arrested for a series of robberies of electronic stores in the Detroit area. Police obtained so-called cell-site data from Carpenter’s cellphone service provider, which indicated he was in the immediate vicinity of four of the robberies while the crimes occurred.

Cell site data is data generated when a cell phone interacts with a local cell tower. If compiled, it creates a comprehensive log of ones movement over time. Carpenter moved to suppress the cell site data at trial, arguing the government must obtain a warrant before seizing such records. The motion was denied and the 6th U.S. Circuit Court of Appeals affirmed his conviction. The Supreme Court agreed to review the case in June.

In 2016, Verizon and AT&T alone received 125,000 requests for cell-site data. They are a common investigatory tool on which state and local law enforcement rely. Cell-site data is not granular. It does not provide investigators with a precise location as GPS coordinates might, but it does reveal the general vicinity of one’s location — and location precision is increasing as time passes. 

The government argues the case involves a fairly-straightforward application of a legal rule called the third-party doctrine, which holds that individuals have no privacy interest in a record held by a third party. Classic examples of such records might include banks transactions or call logs, which are held by banks and telephone companies.

Carpenter disagrees, arguing that no such voluntary disclosures are being made. Cell phones, he says, seek and send information to cell towers on a regular basis without a user’s knowledge, forethought, or express approval. He also argues that the third-party doctrine, which was formulated in the 1970s, is no longer appropriate to our circumstances, given the pace of technological development.

The case, Carpenter v. U.S., will be argued Nov. 29.

There are also cases of lesser renown but equal significance. The sitting will open with a constitutional challenge to the Patent Trial and Review Board, an administrative panel that adjudicates challenges to the validity of patents. The case has elicited almost 60 amicus briefs, second only to Masterpiece Cakeshop in amicus filings this term. The case has commanded the interest of industry groups, trade associations, and judicial jurisdiction scholars, as it implicates the interests of the innovation economy, the power of Congress to set the boundaries of judicial power, and growing discomfort with the reach of the administrative state.

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