Some justices unmoved by objections to feds’ job screening

Wednesday, October 6, 2010

WASHINGTON — The First Amendment played only a cameo role in arguments yesterday in a case testing how nosy the government can get in screening its employees and contractors.

In NASA v. Nelson, a group of employees of NASA’s Jet Propulsion Laboratory objected to questions about past drug use and more general questions that could be asked of neighbors about emotional stability or unusual behavior. During yesterday's oral arguments, several justices appeared unsympathetic to the employees as the Court struggled to determine the limits, if any, to what the government can ask as an employer.

The Court has recognized a general right to informational privacy in cases like Whalen v. Roe and Nixon v. Administrator of General Services, two 1977 decisions. And even though the word “privacy” does not appear in the Constitution, it has been viewed as a right that flows from the First Amendment’s freedom of association and expression and Fifth Amendment due-process rights, among other sources.

But when lawyer Dan Stormer rose to argue on behalf of the employees, Justice Antonin Scalia noted almost immediately that “there is not a single citation anywhere in your brief to a provision of the Constitution.” According to the transcript, Scalia pressed Stormer to reveal “what do you rely on in the Constitution that enables me to decide how much intrusiveness is too much, rather than leaving that to Congress?”

Stormer replied, “It would flow from the ordered concept of the liberty component of the Fifth Amendment, as well as the First.” Scalia seized on the Fifth Amendment point, and little more was said about the First Amendment.

The First Amendment did come up again when Justice Samuel Alito Jr. used a hypothetical to press Stormer on how he would limit government questioning. Suppose an employee of the NASA lab’s gift shop “has a big sign on his front lawn that says, ‘I hope the space shuttle blows up.’ Is that information that the government has a legitimate reason to get?” Alito asked.

Stormer answered that the question “would certainly implicate some First Amendment issues,” but he conceded that “the government should know that information.”

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