Tag Archives: civil liberties

Who Decides?

Can you stand a few more observations about the Supreme Court’s birth control decision and women’s reproductive rights in this, the 21st Century?

The amount of disinformation about abortion–and the use of that disinformation by cynical Republican operatives–is fairly widely known. I’ve previously quoted religious historian Randall Ballmer for the actual genesis of the “pro life” movement.

Ballmer points out that it wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Being against abortion was “more palatable” than what was actually motivating the Religious Right, which was protection of the segregated schools they had established following the decision in Brown v. Board of Education.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

So much for the “moral outrage” that presumably prompted the movement.  A number of political scientists and sociologists attribute its continued salience to an equally unlovely motive: keeping those uppity women in their place: the kitchen and bedroom. (When women are able to plan their families and manage their reproduction, they can enter the workforce, and if necessary, leave abusive husbands.) 

Those pious concerns about women’s health have always been dishonest; abortion is far safer than childbirth. A recent study reported by the New Yorker further confirms that claims about later regrets or emotional problems following abortion are simply fabrications.

If there was any doubt about the pro-Republican, anti-woman animus motivating attacks on women’s reproductive autonomy, the Supreme Court’s birth control decision should dispel it. 

As both Justice Ginsberg and the New York Times Editorial Board pointed out, between 70,500 and 126,400 women will immediately lose access to no-cost contraceptive services.

The Trump administration has been attacking both the A.C.A. and access to birth control since the moment President Trump took office. On the latter front, its most successful effort before this week was to gut the nation’s decades-old family planning program, called Title X, in an explicit effort to cripple Planned Parenthood. All of the administration’s efforts on this front have most directly affected poor women and women of color.

As Nancy Papas noted, in a trenchant comment to my previous post on the subject, denying women access to birth control makes no sense (unless, of course, your goal is to erect barriers to female equality). Less birth control means more unwanted pregnancies and abortions, more unwanted children (and increased levels of child abuse). Employee health declines; employee absenteeism rises–and more children on a family plan means higher cost health insurance premiums.

There’s another cost that rarely is factored in: these decisions are “exceptions” to the American concept of liberty.

The Bill of Rights is often described as a list of decisions and behaviors that government must respect: individuals have the right to decide for ourselves what books we will read, what–if any–Gods we will worship, who we will marry and whether and how often we will procreate, among other things. The Courts have routinely referred to such decisions as “intimate” and ruled that government interference with them is illegitimate and unconstitutional. Those same Courts have carved out de jure exceptions for abortion, and now, what amounts to a de facto exception for birth control.

Here’s a thought: states with progressive legislatures (not Indiana, unfortunately) should partner with health insurance companies to establish a fund that would provide low-or-no cost birth control for women who work for these anti-woman “religious” companies. The women should apply directly, eliminating the need for the “religious” owners to be “complicit.” (I guess it doesn’t bother them to be “complicit” in worsening the health of women who take birth control medication for reasons other than contraception–but then, logic and honesty aren’t involved in these decisions.)

Here’s another thought: if America had a single-payer system like the 36 countries that pay less for health outcomes superior to ours, government wouldn’t allow employers to impose their religious beliefs on employees who don’t share them.

 

The Pandemic And The Constitution

Several faculty at the O’Neill School of Public and Environmental Affairs, where I teach, collaborated on a special summer school course investigating the challenges posed by the pandemic to our particular fields–criminal justice, disaster preparedness, non-profit organizations…and in my case, civil liberties.

Here’s an abbreviated (but still pretty long) version of my lecture.

The Coronavirus pandemic has raised a number of issues that are new or even unprecedented. One is a fundamental governance issue: what is the proper balance between government’s obligation to protect and the individual’s right to autonomy, or self-governance?

The rights guaranteed to individuals under the U.S. Constitution are civil liberties; they are guarantees against governmental infringement of our fundamental, human rights. Civil rights, on the other hand, are statutory rights against discriminatory behavior by private entities. The question we’re going to explore in this class is limited to civil liberties—specifically, how much additional latitude the Constitution gives government to limit individual rights in order to discharge its duty to protect our health and lives—civil liberties in the time of a pandemic.

There are a multitude of issues raised by government’s efforts to keep us safe and control the pandemic.

·      One of the most visible—and contentious—issues involves federalism. Federalism, as you know, is the structure whereby government jurisdiction, or authority, is divided between federal, state and local units of government. What is the role of the federal government in a pandemic? What powers and decisions are reserved to the states? In previous situations involving threatened pandemics, there was much more co-ordination, and most of the questions we now face didn’t arise. This time, however, there has been a great deal of public confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, but he has also disclaimed responsibility for tasks that he says are state responsibilities. Several of those statements are inconsistent with the Constitution, which vests primary responsibility with the states. As you consider America’s response to the COVID-19 pandemic, and the very uneven experiences of the states, you might also consider where America should place primary responsibility for pandemic response.

·      Another issue that has been debated is: What are the limits of civil disobedience and the First Amendment right to assembly during a pandemic? This issue arises in several ways: some citizens have protested state orders requiring masks and social distancing (and some of those protestors have been armed, which is disquieting). Those protests pale, however, before the hundreds of thousands of citizens who have participated in the widespread Black Lives Matter demonstrations following the murder of George Floyd. The states did not move to curtail those demonstrations on the basis of the threat to public health, and the data we now have suggests that those protests were not, in fact, a triggering event. The lack of spread has been attributed to the fact that protestors were outdoors, and a significant percentage of them wore masks.

·      Requirements to wear masks have generated especially nasty confrontations, with people comparing the requirements to “communism” and “attacks on the Second Amendment.” My own reaction to these assertions is based less on the Constitution—which I think pretty clearly allows such measures –and more on logic, or more properly, the lack thereof. The government can and does require you to wear a seat-belt; ordinances require that we refrain from smoking in public places. For that matter, government requires us to wear clothing—at least enough to cover our genitals—in public. It is illogical to obey these and other common mandates and yet claim that wearing a mask in order to abate a pandemic is somehow a new and offensive invasion of personal liberty. I will say that what I find offensive is the unwillingness of these people to wear a mask intended to prevent them from infecting others. They are either unbelievably selfish, or perhaps they believe, with the President, that the pandemic is a “hoax.”

·      So much for masks. What about the shutdowns, the “stay-in-place” orders? Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. Government does have to demonstrate the reasonableness of those measures, but assuming it meets that burden, requirements for quarantines and vaccinations are clearly allowed.

·      What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” I am unaware of cases testing those restrictions.

·      Using cellphones for “contact tracing” has been met with considerable alarm from privacy advocates and organizations concerned with the level of government surveillance. That’s another area of legal ambiguity.

·      The right to vote is a critically-important constitutional right, and cases have already challenged restrictions on the availability of absentee ballots. (A related issue is the evident inability of many states to handle increased voting by mail—situations that may deprive people of their constitutional rights by reason of inadequate capacity to perform, rather than by intent.)

·      Several states have used pandemic restrictions to justify denying women’s constitutionally-protected reproductive rights, spawning litigation about the degree to which those restrictions can be imposed.

·      Both the right of Assembly and the Free Exercise Clause of the First Amendment have been cited by religious organizations—primarily churches—that have objected to limitations on public gatherings. (Medical scientists tell us that singing in a confined space is particularly dangerous.)

·      Then there are incarcerated persons, and would-be immigrants who are being detained at particular risk. At what point do the conditions of confinement rise to the level of “cruel and unusual punishment”?

·      A fascinating case that has been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of disinformation be held liable? The case is Washington League for Increased Transparency and Ethics v. Fox News. The plaintiff alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

The Executive Director of the non-profit was quoted as saying that they aren’t trying to chill free speech, but that they believe the public was endangered by false and deceptive communications in the stream of commerce. She emphasized that there are a lot of people who listen to Fox News, and that Fox is not taking the recommendations of public-health officials seriously. She has asserted that “This lawsuit is about making sure the public gets the message this is not a hoax.”

I think it is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the mirror-image of “falsely shouting fire in a crowded theater.” In this case, Fox is accused of shouting “There’s no fire; stay in your seats” when, in fact, there is a fire.

For a more scholarly exposition of these and other civil liberties issues, click here.

 

 

The Pandemic And The Constitution

Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.

When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.

One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?

There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.

Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have  protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive  Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.

Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)

What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?

We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.

The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)

Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.

The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.

Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?

A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.

It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”

And you thought the only thing to fear was the Coronavirus itself…

 

 

The Next Generation

Amidst the gloom and doom that is today’s political environment, there are rays of hope.

I often tell people that I would turn the country over to my students in a heartbeat. They are inclusive, community-oriented and passionate about fairness and civic equality. (Granted, they have enrolled in a School of Public and Environmental Affairs, so they are arguably a self-selected group.)

In my graduate law and policy class, I give a take-home final. (This is an effort to make up for a difficult in-class midterm, a demanding group project and a 20-page research paper.) The final consists of three questions; students are to choose one of the three and write an essay addressing it.

Unlike that midterm, there are no right or wrong answers. I’m looking for thoughtful responses–answers that tell me that they have considered the strengths and weaknesses of American governance and have formed defensible policy positions.

Two of the questions on this year’s final elicited particularly interesting responses. Here’s one of them:

It is 2020, and you have been elected President of the United States. You are following an administration that has made significant—even monumental—changes to American public policies. Which of those changes would you accept and follow? Which would you change? (I am not looking for exhaustive lists; choose one or two areas to discuss and justify your decision to accept or reject the current administration’s approach.) For each policy you would retain or reverse, explain why it is or is not supportive of the common good and/or consistent with America’s Constitutional values.

The students who chose this question were uniformly critical of the current administration, and very specific in their critiques. They all faulted Trump on environmental policy. Several pointed out that the “Muslim ban” violated the First Amendment. Economic policy and the tax “reform” bill came in for considerable scorn, as did efforts to destroy the Affordable Care Act and failures to enact meaningful gun control or improve immigration policy.

I was particularly struck by essays from students addressing this question:

Earth has been destroyed in World War III. You and a few thousand others—representing a cross-section of Earth’s races, cultures and religions—are the only survivors. You have escaped to an earthlike planet and are preparing to establish a new society. You want to avoid the errors of the Earth governments that preceded you. What institutional choices do you make and why? Your essay should address:The type/structure of government you would create; the powers it will have; the limits on its powers, and how those limits will be enforced; how government officials will be chosen and policies enacted;the social and political values you intend to privilege, and the reasons for your choices.

When I’ve included a similar question in the past, most students have dutifully constructed a government patterned after that of the U.S. This year, there were more creative efforts, some borrowing from European and Canadian models, others proposing “from scratch” governance concepts. Three or four proposed to outlaw political parties, and all of them suggested mechanisms intended to prevent gridlock. A couple included stringent qualifications for holding public office.

All the responses included universal healthcare and other elements of a robust social safety net–including, in one case, a Universal Basic Income. All of them included mechanisms meant to eliminate or vastly reduce the role of money in politics. All of them provided for a rigorous civic education. All of them emphasized and protected the right to vote  (some made Election Day  a holiday, some allowed vote-by-mail and a couple made voting mandatory. One made vote suppression a felony.) All had laws protecting civil liberties and the environment.

All of them described legal systems protective of civic equality, and most suggested policies promoting respect for diversity.

The proposals weren’t uniformly practical, and there wasn’t a lot of space for details in any event, but virtually all of them showed that the writers had genuinely grappled with the question and considered the essential elements of a just society.

Needless to say, all of them came across as more thoughtful and informed than Donald Trump and his swamp.

If this country manages to survive the current administration, we’ll be in good hands.

 

 

Humans: Clever, But Not Wise….

The election of Donald Trump (aka “Agent Orange”) is only one of many, many signs that we humans aren’t as smart as we think we are.

Consider our ability to invent technologies we then prove unable to use wisely.

Actually, being destroyed or enslaved by the machines we’ve created is a favorite theme of science fiction. Robots who turn on their makers, unanticipated consequences of laboratory experiments, the dehumanizing substitution of human-machine interaction for human contact–all are familiar scenarios of “futuristic” fantasy.

Being overwhelmed by our own inventions, however, is neither “futuristic” nor “fantastic.” Anyone who doesn’t believe that human society is being inexorably changed by social media and the Internet hasn’t been paying attention.

The Guardian recently ran a chilling column about those changes, and about our tendency to see new threats and challenges in terms of the past, rather than as harbingers of our future.

Both sides of the political divide seem to be awakening to the possibility that letting the tech industry do whatever it wants hasn’t produced the best of all possible worlds. “I have found a flaw,” Alan Greenspan famously said in 2008 of his free-market worldview, as the global financial system imploded. A similar discovery may be dawning on our political class when it comes to its hands-off approach to Silicon Valley.

But the new taste for techno-skepticism is unlikely to lead to meaningful reform, for several reasons. One is money. The five biggest tech firms spend twice as much as Wall Street on lobbying Washington. It seems reasonable to assume that this insulates them from anything too painful in a political system as corrupt as ours.

The FCC’s decision to repeal Net Neutrality despite the fact that 83% of the public want to retain the policy would certainly seem to validate the author’s assertion that our government responds to money, not public opinion.

The columnist, Ben Tarnoff, is especially concerned that the focus on Russia’s efforts to weaponize the Internet and influence the election is diverting our attention from far more serious issues. It is unlikely that Russian game-playing had much of an effect on the Presidential election (racism aka White Nationalism clearly played a far greater role), and while Congress fixates on Russia, far more significant threats go unnoticed.

As Tarnoff sees it, the focus on Russia isn’t just misplaced because that country’s social media influence wasn’t really all that effective. It’s misplaced because the Russians used the Internet platforms in precisely the way they’re designed to be used.

As Zeynep Tufekci has pointed out, the business model of social media makes it a perfect tool for spreading propaganda. The majority of that propaganda isn’t coming from foreigners, however – it’s coming from homegrown, “legitimate” actors who pump vast sums of cash into shaping opinion on behalf of a candidate or cause.

Social media is a powerful weapon in the plutocratization of our politics. Never before has it been so easy for propagandists to purchase our attention with such precision. The core issue is an old one in American politics: money talks too much, to quote an Occupy slogan. And online, it talks even louder.

Unfortunately, the fixation on Russian “cyberwarfare” isn’t likely to bring us any closer to taking away money’s megaphone. Instead, it will probably be used as a pretext to make us less free in other ways – namely by justifying more authoritarian incursions by the state into the digital sphere….

The tragedy of 9/11 has long been weaponized to justify mass surveillance and state repression. The myth of the “cyber 9/11” will almost certainly be used for the same ends.

Tarnoff reminds readers that–as usual–America’s wounds are largely self-inflicted.  We could and should take note of Russia’s efforts to subvert our election without ignoring the “deep domestic roots” of that catastrophe. As he reminds us,

Russia didn’t singlehandedly produce the crisis of legitimacy that helped put a deranged reality television star into the White House. Nor did it create the most sophisticated machinery in human history for selling our attention to the highest bidder.

It’s odd to blame Russian trolls for the destruction of American democracy when American democracy has proven more than capable of destroying itself. And rarely is it more self-destructive than when it believes it is protecting itself from its enemies.

We Americans are really, really good at whiz-bang technology. Creating a society that is just, fair and free? Not so much.