In philosophy, Occam’s razor suggests that when faced with multiple competing ideas to answer a question, the simplest one is preferable. And in dealing with the now-infamous GPS tracker case, the Nevada Supreme Court has reminded us that a simple, unpublished disposition can be just as satisfying and effective at upholding common sense as any detailed published opinion.

For the uninitiated, according to pleadings, in an attempt to “investigate” Reno Mayor Hilary Schieve and then-Washoe County Commissioner Vaughn Hartung, “John Doe” hired a private investigator, who then surreptitiously attached a GPS tracker to Schieve’s and Hartung’s vehicles, without Schieve’s or Hartung’s permission. Schieve and Hartung sued the private investigator and “John Doe,” and when they served a subpoena on the investigator for information revealing John Doe’s identity, the private investigator argued that Nevada law afforded an investigator-client privilege. 

When that argument failed, John Doe arrived as a modern-day Don Quixote (John Quixote?) fighting windmills, cloaking his actions in the rhetoric of constitutional righteousness.

For the last two years, John Doe has strained to sell a narrative that he merely engaged in “anonymous political activity,” and that the First Amendment protects his right to remain anonymous. He, a concerned citizen, heard that Schieve and Hartung were engaged in some sort of vague nefariousness, so he decided to take it upon himself to hire a private investigator to confirm whether these ambiguous allegations had merit. 

This conduct, according to John Doe, somehow constitutes expression that implicates the First Amendment’s right to freedom of speech. John Doe conveniently ignores the fact that his private investigator, in essence, altered Schieve’s and Hartung’s vehicles without consent or other lawful authority for John Doe’s benefit, and that doing so arguably constitutes a violation of property rights amounting to a common law trespass. (John Doe’s apologists assert that the private investigator’s actions were legal because they were not subject to a statutory criminal penalty prior to the passage of AB356 in 2023; yet, they frequently ignore the fact that Nevada case law has recognized trespassing as a civil cause of action since the earliest days of its statehood.)

If you’re trying to figure out how John Doe’s act of hiring a private investigator would plausibly implicate the First Amendment, you’re not the only one.

Fortunately, the Nevada Supreme Court, in a succinct, one-paragraph order, summarily held that John Doe’s conduct in question does not implicate the protections of the First Amendment, and thus the trial court did not err in ordering the private investigator to reveal John Doe’s identity.

We can rest well knowing that even in these divisive times, the Nevada Supreme Court, a body of seven jurists with varying backgrounds and perspectives, could find common ground and unanimously rule on this matter. But think for a minute what the ramifications would be had the Supreme Court ruled in John Doe’s favor and held that John Doe’s alleged conduct was protected under the First Amendment. 

John Doe’s arguments do not distinguish between “investigating” elected public officials and public employees. So, John Doe’s theory would be applicable not just to an elected mayor or county commissioner, but would also be applicable to rank-and-file public employees, such as, for example, a Department of Motor Vehicles employee who has left an abusive relationship. Under John Doe’s theory, how would the First Amendment not entitle the DMV employee’s abuser to stalk them through a trespassing private investigator under the guise of “anonymous political activity” to “investigate corruption” at the DMV?

John Doe’s apologists have repeatedly raised the argument that AB356 now makes attaching GPS trackers to vehicles without consent a crime, so any worry from public employees about this happening to them is unfounded. But, if doing so were held to be protected conduct under the First Amendment, so long as it is under the guise of “investigating public corruption,” then how would AB356 survive a constitutional challenge considering the U.S. Constitution’s Supremacy Clause and the doctrine of preemption?

It is not an overreaction to say that a ruling in John Doe’s favor very well could have opened a Pandora’s box that would have resulted in the most egregious erosion of the privacy rights of public workers in our nation’s history.

Fortunately, the Nevada Supreme Court, in a paragraph, stated the obvious and kept that box locked. 

Rost Olsen is a fifth-generation Northern Nevadan and an attorney in the Reno area.

The Nevada Independent welcomes informed, cogent rebuttals to opinion pieces such as this. Send them to [email protected].