Vitriolic Dissent

Before it adjourned for the summer (to meet again on Oct. 2), the Supreme Court of the U. S. handed down one of its terrific five-to-four decisions.

A group of bootleggers in the State of Washington had been earning some $2,000,000 a year. Federal Prohibition agents obtained their conviction on evidence gained by tapping their telephone wires. The Circuit Court of Appeals upheld the conviction and the bootleggers appealed to the Supreme Court. The only question to be decided by the Supreme Court was: Is the Fourth Amendment of the U. S. Constitution violated by using evidence obtained through wiretapping in a criminal case?*The Court answered No.

Chief Justice William Howard Taft read the decision and was supported by Associate Justices McReynolds, Sanford, Sutherland, Van Devanter. He upheld the use of wiretapping evidence, said: "The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The amendment does not forbid what was done here. There was no searching. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched. . . .

"Congress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in Federal criminal trials, by direct legislation, and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment."

Associate Justices Brandeis, Holmes, Butler, Stone dissented from the majority decision. The dissenting opinions of that distinguished pair of liberal scholars, a Jew and a Yankee, Louis Dembitz Brandeis and Oliver Wendell Holmes, were as vitriolic as any ever read into the records of the Supreme Court.

Said Mr. Justice Brandeis: "The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. . . . Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the Government by means more effective than stretching upon the rack to obtain disclosure in court of what is whispered in the closet.

"The progress of science, in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. . . ."

Said Mr. Justice Holmes: "My brother Brandeis has given this case so exhaustive an examination that I desire to add but a few words. . . . For those who agree with me, no distinction can be taken between the government as prosecutor and the government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to proceed. ... I hardly think that the United States would appear to greater advantage when paying for an odious crime against state law than when inciting to the disregard of its own. . . . It is a lesser evil that some criminals should escape than that the Government should play an ignoble part."

President Walter Sherman Gifford of the American Telephone & Telegraph Co. summed up the results of the decision: "We are disappointed . . . but it will not make any change in our policy. . . . Tap ping or otherwise tampering with telephone lines is an unlawful trespass upon the property of the companies which they will continue to resist. ... An act of Congress, such as the Chief Justice refers to, would exclude evidence obtained by government agents in this way."

*The Fourth Amendment says: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. . . ."