The Right To Be Left Alone

Louis Brandeis was one of the legendary Supreme Court justices, with a knack for turning a phrase. Early in his career, he co-authored one of the most famous law review articles of all time — admittedly, not a hotly contested area — called The Right to Privacy and published in the Harvard Law Review in 1890. Years later, in a 1928 case where the majority of the Supreme Court authorized the warrantless wiretapping of a telephone line, Justice Brandeis dissented and returned again to the concept of personal privacy. In his dissent, he wrote of “the right to be left alone—the most comprehensive of rights, and the right most valued by a free people.”

I think of Justice Brandeis these days, whenever I receive an unwanted cell phone call from a stranger, or am bomboarded with unwanted emails because someone has sold my email address to someone else who wants to sell me something, or when I go anywhere to purchase a product or receive a service and am hectored to fill out a survey and provide more personal information that can be bundled and sold. Because Justice Brandeis was correct, of course: the right to be left alone is a crucial right in our society.

I’m confident Justice Brandeis would be appalled at the many and increasing intrusions into the zone of personal privacy in modern society, be they by overzealous governmental entities, annoying and persistent telemarketers, uninvited emailers, or nosy service providers. And even if you delete the email without reading it, decline to answer the spam calls, and refuse to complete the surveys, the need to do so nevertheless disrupts your solitude and makes inroads on your valuable free time.

Unless you want to totally disengage from cell phones, email, and social media, your right to be left alone is going to be eroded. Bugging people and soliciting them to buy something or contribute something is big business — the FCC, for example, recently assessed a record $225 million fine against two Texas companies that made an estimated one billion robocalls to falsely sell health insurance plans. If $225 million is the fine, how much money did those two firms make through their robocall ploy in the first place?

The right to be left alone that Justice Brandeis expressed so eloquently is being frittered away, dying the death of a thousand tiny cuts. Unfortunately, giving up some of our right to be left alone is the price we all pay for modern technology and communications devices. Paying that price might be necessary in our modern world, but we should never forget that it is a high price, indeed.

A Respectful Reminder Of Rights

Tomorrow Donald Trump will be sworn in as our 45th President, and what seemed unimaginable and impossible only a year ago will become a reality.  It’s been an extremely weird journey, and many of us are still grappling with what it all means.

il_fullxfull-43546133But whether we figure it out or not, tomorrow everything changes.  We’ll have a brash new President who will routinely use Twitter to communicate his views to the American people.  We’ll probably have a former President who will be much more engaged in national affairs than ex-Presidents typically have been.  From what we’ve seen and heard in the lead-up to tomorrow’s inauguration, we’ll undoubtedly have immediate reversals of Obama Administration policies, a news media that is feeling its way forward in a new paradigm, and bitterly opposing sides on every issue that the country confronts, each ready to paint everyone on the other side as liars, or uncaring, or unpatriotic, or unprincipled, or whatever negative word they can think of and put into an aggressive, over-the-top Facebook meme.

Speaking as someone who’s got friends at many points on the political spectrum inside the far outer fringes, and who would really like to keep as many of those friends as I can, I’d just like to respectfully remind everyone, regardless of where your views lie, of what I hope we can all agree on:

There’s a right to boycott, and a right to attend.

There’s a right to oppose, and a right to support.

There’s a right to protest, and a right to counter-protest.

There’s a right to be outraged, and a right to let things slide.

There’s a right to be active, and a right to be passive.

There’s a right to speak, and a right to decide whether to listen.

There’s a right to care with every fiber of your being, and a right to think that other things are more important to you and your life.

These are just some of the rights we enjoy in this wonderful country, and that we will continue to enjoy in the Trump Administration, whether we’re ardent supporters of the new President, diehard opponents, or one of the mass of people between those poles who just hope we can get through this next chapter without experiencing the fate of the Gingham Dog and the Calico Cat.

I’m going to respect all of those rights.  I think if we all just keep those rights in mind, we’ll be okay.

Off Kilter On Campus

College campuses have always been curious enclaves, removed from the hurly-burly of normal life.  The concentration of young students, fresh from the restraints of their childhood homes, exposed to new ideas and groups and exercising their personal freedoms for the first time, makes for a kind of hot-house atmosphere where superheated emotions and actions can come to seem almost normal.

That’s a big part of the reason why colleges are such a fertile ground for protests.  It’s been that way since at least the ’60s.  The reasons for the protests can change — when I was in college in the late ’70s, after the Vietnam War had ended and the economy was in the dumper, some students worried about their job prospects were actually agitating to let the CIA back on campus to recruit students — but the fact of protests is almost an assumed part of the college experience.  If you’re not going to protest in college, you probably won’t protest anything, ever.

So I’m not worried about the existence of protests at colleges.  Nor does it concern me if college presidents decide to resign in the face of protests, as happened at the University of Missouri.  I obviously don’t know the full back story of what’s been happening at Mizzou, but I doubt that a little unrest, standing alone, would be sufficient to topple a university president.  If it was, the president probably wasn’t that suited to serve as the ultimate decision-maker in such a stilted environment.

f8ede305-f224-42bc-82a1-7df2166210f7_cx0_cy5_cw0_mw1024_s_n_r1What bothers me, though, is that the recent incidents at campuses like Missouri and Dartmouth indicate that students don’t really seem to understand the full range of freedoms that we are entitled to exercise in America.  In a well-publicized incident at the University of Missouri, students congregating in a public space prevented a journalist from taking photos and exercising his indisputable First Amendment rights to do so.  (Even worse, the student actions were apparently supported by an assistant professor of mass media studies, who obviously should know better.)  More recently, at Dartmouth, a Black Lives Matter demonstration saw protesters entering private study spaces, disrupting, physically harassing, and shouting obscenities at students who were studying for exams rather than joining in the protest.

These incidents, and others, make you wonder what students are being taught on college campuses these days.  If an assistant professor of mass media studies doesn’t understand how the First Amendment works, then perhaps it’s not the students’ fault, and college administrators need to do a better job of hiring instructors.  It also makes you wonder about how media-savvy the current crop of student protestors are, too.  The old-line protestors of the ’60s craved every bit of media attention because they understood it would help their cause; they would no more have tried to block a photographer than they would have listened to Guy Lombardo and his Royal Canadians in their dorm rooms.  Were the Mizzou students afraid that Mom and Dad might see that they were out on the quad, camping in tents?

The key point of it all is understanding of, and tolerance for, the rights of others.  We tolerate student protests for various causes because they have the right to assemble and advocate for whatever changes they wish.  But journalists have the right to cover those protests and take photographs without being blocked, pushed, or harassed, and students who exercise their rights not to join the protests of others have the right to make that decision without being pressured or verbally or physically intimidated.

Some people are calling today’s college students pampered crybabies.  That may be true, but it’s only true in the sense that it has always been true for the last 50 years, where college campuses have increasingly become a kind of zone of alternate reality.  (Visit a college campus and look at the recreational and social facilities that colleges are building to attract students, and you’ll see lots of tangible evidence that inevitably will lead students to think they’re special.)  The real problem isn’t pampering, it’s education — and the protestors ultimately will learn a very hard lesson when they leave the rarified land of ivory towers and encounter the hard realities of a world in which others aren’t going to hesitate to enforce their rights.  The first college agitator who thinks he can stage a sit-down strike to force his unpleasant boss into quitting, or bully his co-workers into supporting his approach to workplace politics, is going to find himself with a pink slip and an abrupt career change.

It would be better for the students and their future lives and careers if they learned that lesson while still on campus.

It’s Their Loss

A recent study reported that fewer nations are modeling their constitutions on the U.S. Constitution.  In the ’60s and ’70s, new constitutions were patterned on the American version, but that apparently is no longer the case.

The explanation for this trend is that our Constitution is miserly when it comes to guaranteeing “rights.”  Popular “rights” found in other constitutions, but not ours, include women’s rights, the right to work, the right to education, and the right to strike or unionize.  On the other hand, our Constitution provides for the right to keep and bear arms, whereas most modern constitutions do not.

The implication of the study is that our Constitution is somehow passe.  In the “rights race,” we’re falling behind!  We’re not keeping up with modern trends followed by enlightened nations everywhere!

Is anyone really troubled by this?  Ours was the first true written constitution, and it has served us well.  Other nations have them because our form of government has served as a model.  But there is a big difference between writing words on paper and actually living up to the concepts they express.  History shows that lofty ideals often are written in the otherwise ignored “constitutions” of repressive regimes.

Let’s not forget, either, that our Constitution was designed to sketch our government, its officers, and its functioning in broad strokes, allowing for flexibility and development over time.  In contrast, the “constitutions” described in the study sound more like statute books that leave little room for creativity and the need to respond to unexpected circumstances — like a crappy economy that interferes with the “right to work.”  The Greek Constitution, for example, includes “right to work” provisions.  How’s that working out for Greeks these days?

So, I don’t care if our Constitution has fallen out of favor with the camp followers who are drafting constitutions these days.  I’ll listen when their so-called “constitutions” have endured for 225 years, survived a civil war, and allowed their countries to become the most prosperous, democratic countries on Earth.

Wrong On Rights

This article reports that France’s highest court has declared access to the internet to be a “basic human right.” That decision seems absurd — humans have been around for millenia, so how can access to something that was only invented two decades ago be considered a “basic human right”? — but it is symptomatic of a troubling trend in the law. Increasingly, politicians speak of, and courts often declare, newfound “rights” without consideration of what the ramifications of such declarations might be or even, seemingly, giving much thought to what a “right” really is. What does it mean to say that access to the internet is a “basic human right”? Does it mean that access to the internet cannot be regulated in any way? Does it mean that citizens are entitled to access to the internet ? I ask the same questions when politicians or interest groups talk about “rights” to clean air, or to affordable housing, or to “a decent job,” any other condition that they believe to be important or worthwhile.

“Rights” should not be used to refer to economic conditions or commercial activities, like use of the internet. Instead, “rights” should be reserved for fundamental (if often abstract) concepts — like the right to free speech, or to equal treatment under the law, or to the free exercise of religious beliefs. Under the First Amendment, the government cannot prosecute me for peacefully expressing my political views, but if I don’t pay my cell phone bill I don’t have the “right” to express those views in calls made on my cell phone. So it should be with the internet: the government should not be able to prevent or punish my speech, but it should be able to regulate commerce on the internet, prosecute individuals who illegally hack into websites to steal confidential data, prevent the use of internet sites in criminal enterprises of illegal activities, and so forth.

Saying that access to the internet is a “basic human right” only cheapens the notion of a “right.” Should France change its motto to: “Liberte, Egalite, Fraternite . . . et Internet”?