Submitted by Gene Howington, Guest Blogger
How many of you know the difference between a right and a privilege? As most of the audience for Res Ipsa Loquitur have an interest in law and/or politics, I’m going to hazard the guess that most of you have at least a rudimentary understanding of the difference in terms although it is a deceptively complicated subject on a philosophical level. However, just so there is no mistake in fundamental terms, we’ll start with basic relevant definitions.
rights, n.,
1) plural of right, which is the collection of entitlements which a person may have and which are protected by the government and the courts or under an agreement (contract).
privileges and immunities, n.,
the fundamental rights that people enjoy in free governments, protected by the U.S. Constitution in Article IV: “The citizens of each state shall be entitled to all privileges and immunities in the several States,” and specifically to be protected against state action by the Constitution’s 14th Amendment (1868): “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The definition of “privileges and immunities” was first spelled out by Supreme Court Justice Bushrod Washington in 1823: “protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.” However, the exact nature of privileges and immunities which the state governments could limit has long been in dispute, with the U.S. Supreme Court gradually tipping toward protecting the individual rights of citizens against state statutes that might impinge on constitutional rights. [emphasis added]
rights given or reserved to the people by the U.S. Constitution, and in particular, the Bill of Rights (first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties or taxes on transporting goods from one state to another (Article I, Section 9); jury trials (Article III, Section 1); freedom of religion, speech, press (which includes all media), assembly and petition (First Amendment); state militia to bear arms (Second Amendment); no quartering of troops in homes (Third Amendment); no unreasonable search and seizure (Fourth Amendment); major (“capital and infamous”) crimes require indictment, no double jeopardy (more than one prosecution) for the same crime, no self-incrimination, right to due process, right to just compensation for property taken by eminent domain (Fifth Amendment); in criminal law, right to a speedy trial, to confront witnesses against one, and to counsel (Sixth Amendment); trial by jury (Seventh Amendment); right to bail, no excessive fines, and no cruel and unusual punishments (Eighth Amendment); unenumerated rights are reserved to the people (Ninth Amendment); equal protection of the laws (14th Amendment); no racial bars to voting (15th Amendment); no sex bar to voting (19th Amendment); and no poll tax (24th Amendment). Constitutional interpretation has expanded and added nuances to these rights. [emphasis added]
Now what would you say if you knew that state senators were proposing legislation that would convert Freedom of Speech from a right to a privilege? This is not a theoretical question. Four state senators from New York are currently considering proposing such legislation. Fortunately, the 1st Amendment gives us the right to discuss what a bad and scary idea it is that they propose.
Like a lot of bad legislation, this one is rooted in fear. Namely, fear for the safety and well-being of children or the “My God! THINK OF THE CHILDREN!” school of spin. This time the bad idea is rooted the boogeyman de jour of “cyberbullying”. New York State Senators Jeff Klein (D-Bronx/ Westchester), Diane Savino (D-Staten Island/ Brooklyn), David Carlucci (D-Rockland/Orange) and David Valesky (D-Oneida) have unveiled their proposals in an innocuously titled document, Cyberbullying: A Report on Bullying in a Digital Age.
The proposed legislation seems innocuous enough on the surface and the two key elements are:
1) Updating the crime of Third-Degree Stalking (a Class A Misdemeanor) to include cyberbullying. This behavior is identified as a course of conduct using electronic communications that is likely to cause a fear of harm, or emotional distress to a person under the age of 21.
2) Expanding the charge of Second-Degree Manslaughter (a Class C Felony) to include bullycide. This is defined as when a person engages in cyberbullying and intentionally causes the victim of such offense to commit suicide.
The paper attempts to define cyberbullying and this is where the Constitutional (and other) problems become manifest. I apologize for the all caps, but that is the document’s original formatting. Apparently no one told the drafters of this paper that all caps is the cyber-equivalent of shouting . . . or maybe they did. One must be shouting to be shouting “Fire!” in a crowed theater. All author commentary below is properly capitalized and in bold face type for ease of identification.
“BOTH CYBERBULLYING AND CYBERSTALKING CAN TAKE PLACE IN INTERNET CHAT ROOMS, ON SOCIAL NETWORKING WEBSITES, AND VIA EMAIL, BBM (BLACKBERRY MESSAGES) OR TEXT MESSAGE, AMONG OTHERS. WITH RAPIDLY EVOLVING TECHNOLOGY, IT IS ONLY A MATTER OF TIME UNTIL THE NUMBER OF VENUES AND OPPORTUNITIES FOR CYBERBULLYING INCREASE EVEN FURTHER.
CYBERBULLYING AND CYBERSTALKING CAN CONSIST OF THE DIRECT SENDING OF THREATENING OR HARASSING EMAILS TO THE VICTIM, THE PROLIFERATION TO OTHERS OF A SINGLE MESSAGE, IMAGE OR VIDEO ABOUT THE PERSON, OR THE MORE COMPLEX ACT OF INFECTING THE VICTIM’S COMPUTER WITH ELECTRONIC VIRUSES AND HACKING PROGRAMS IN ORDER TO GAIN CONTROL OF AND ACCESS INTO THE VICTIM’S LIFE.”
All of which are covered by existing state and Federal laws.
“TYPICAL METHODS OF CYBERSTALKING INCLUDE:
- SENDING INTIMIDATING, THREATENING, OBSCENE AND/OR UNSOLICITED EMAILS, TEXT MESSAGES, OR OTHER ELECTRONIC COMMUNICATION;
- “SPAMMING” (SENDING COUNTLESS EMAILS OR TEXT MESSAGES CONTAINING PORNOGRAPHIC OR MARKETING MATERIAL);
- “HATE MAIL” (HATE-INSPIRED AND OPPRESSIVE HARASSMENT, BASED ON RACE, ETHNICITY, RELIGION, SEX, GENDER, SEXUALITY, SOCIOECONOMIC CLASS, AND OTHERS);
- LEAVING IMPROPER MESSAGES ON ONLINE MESSAGE BOARDS OR SENDING HURTFUL AND DAMAGING MESSAGES TO OTHERS;
- INFECTING THE VICTIM’S COMPUTER WITH VIRUSES OR SPYWARE; AND TRACING THE VICTIM’S ACTIVITY ON THE INTERNET, THEN STEALING HIS OR HER IDENTITY.”
Again, all of these items are covered by existing law.
“CYBERBULLYING EXHIBITS SIMILAR CHARACTERISTICS AS CYBERSTALKING, YET ALSO ENCOMPASSES BEHAVIOR THAT IS MORE REFLECTIVE OF A YOUNGER AGE GROUP:
- “FLAMING” (HURTFUL, CRUEL, AND OFTENTIMES INTIMIDATING MESSAGES INTENDED TO INFLAME, INSIGHT, OR ENRAGE);”
There is no right be free of offense and intimidation is subjective unless it involves physical or a known and quantifiable psychological threat. What is hurtful to one may simply be the truth to another. What is cruel to one can be a kindness to another. Being intimidated by someone else’s intelligence or the prospect of climbing a mountain or meeting someone that a person considers a hero is not the same thing as being intimidated by someone threatening to beat you to a bloody pulp, rape your dog, or cook and eat your relatives. This is a vague definition ripe for abuse.
- “‘HAPPY SLAPPING’ (RECORDING PHYSICAL ASSAULTS ON MOBILE PHONES OR DIGITAL CAMERAS, THEN DISTRIBUTING THEM TO OTHERS);”
Once again, already covered by existing laws prohibiting assault. One would think law enforcement would be glad of the copious evidence such recordings provide rather than criminalizing it.
- “’TROLLING’ (DELIBERATELY AND DECEITFULLY POSTING INFORMATION TO ENTICE GENUINELY HELPFUL PEOPLE TO RESPOND (OFTEN EMOTIONALLY), OFTEN DONE TO PROVOKE OTHERS);”
Do I really need to point out the best way to deal with deceit is to expose it with facts, logic and sometimes even ridicule?
- “POSTING MALICIOUS STATEMENTS OR COMPROMISING PICTURES OF THE VICTIM ON A WEBSITE (“BASH BOARD”);
- “OUTING” (SHARING ANOTHER PERSON’S SECRETS OR EMBARRASSING INFORMATION/IMAGES ONLINE);
- “DISSING” (SENDING OR POSTING GOSSIP OR RUMORS ABOUT A PERSON TO DAMAGE HIS/HER REPUTATION OR FRIENDSHIPS);
- IMPERSONATION (PRETENDING TO BE SOMEONE ELSE AND SENDING OR POSTING MATERIAL TO GET THAT PERSON INTO TROUBLE); AND”
Yet again, covered by existing laws. The odor of redundancy is starting to make me dizzy.
- “EXCLUSION (INTENTNALLY AND CRUELLY EXCLUDING SOMEONE FROM AN ONLINE GROUP).”
As the author of the Techdirt article humorously notes, “Seriously? If we don’t let you into the club, it’s now a form of cyberbullying? It makes you wonder what happened to these particular Senators when they were kids.”
(“Cyberbullying: A Report on Bullying in a Digital Age”, pp. 9-12., commentary added.)
The net effect of this proposed legislation is to turn free speech on its head. Still don't think so? Consider this line from the report:
“Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.”
(“Cyberbullying: A Report on Bullying in a Digital Age”, pp. 34., emphasis added, capitalization corrected.)
They follow this gem up with a weak application of strong rule utilitarianism (which as I have stated before is an improper and extremist model for analysis of legislation), misapplication of the words of Justice Oliver Wendell Holmes and a fallacious appeal to Virginia v. Black, 538 U.S. 343 (2003) to rationalize a vague law that leaves speakers of all sorts (public and private) open to the discretion and abuse of discretion by prosecutors and judges. While free speech is not an absolute right (we do have laws about defamation, direct threats and incitement), it is a right that should be limited on a very narrow and very specific basis. Trying to stop kids from bullying one another is also as impractical a goal for a law as to write a law legislating the tides. The solution to bullying to the extent there is one lay in good parenting, not bad law. Remove the technological aspect of this issue? And bullying will continue as it has continued for the ages of humanity: in schools, in school yards, in social venues and in private.
We must fight to ensure that when free speech is limited, it is done so in a refined and concise way to limit potential abuses of said laws while addressing a direct and imminent threat, not in some vague manner to address a problem that is not best addressed by the law in the first place. To do otherwise will surely lead to abuses to oppress dissent and differing opinions not by defeating them in the marketplace of ideas freely exchanged but by the whim of executive fiat misusing the rule of law to enforce their personal and/or political agendas and/or vendettas. Personally, I question whether this proposal as presented if it should be passed into law would withstand judicial scrutiny based on Constitutional standards, but in this day and age and the questionable composition of the current Supreme Court, I will not take that as a given.
Is this proposed law a good idea, a bad idea, an idea that needs refinement, or an idea that needs to meet the Barney Fife solution by “Nipping it in the bud, Andy”?
What do you think?
~ Submitted by Gene Howington, Guest Blogger
Source(s): Techdirt, nysenate.gov, nysenate.gov/files, Law.com
Just for clarification and not to insult anyone’s intelligence … the Bill of Rights referred to in the quote above is England’s Bill of Rights (1680’s)
OS and Tony C,
I was intrigued by Tony’s post as Gene’s article really caught my imagination and interest. I admit to taking one portion of Tony’s post … agreeing with it as an argument I could support … and then stepping back to see if a gun lover would seriously present Well-Ordered Militia as Well-Ordered gun because that is an interpretation they all love. Sure enough, one did.
I once did a paper on the phrase well-ordered for an advanced history class I was taking. What was its meaning at the time and what is its meaning now? This was all related to the ratification of the Constitution and the following debates over the Bill of Rights as understood by the populace at the time. Well-ordered was a phrase in common usage and used not just as a description for mechanical devices but also institutions, minds, businesses etc. example: “He had a well ordered mind.” was a compliment referring to the logic and stability of a man’s thought process. A well-ordered militia refers to all things within a militia, including training, not just the guns.
Now, I could go into the “right” to own and keep a firearm as it was established down through England’s history starting back in the 1100’s but it will suffice to say that after the Glorious Revolution” the right to keep and bear arms would henceforth belong to all English subjects, rich and poor alike. At the time of ratification of our Constitution the question of the right to keep and bear arms was mute. There was no question. For example:
“When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. One colonial newspaper argued that it was impossible to complain that this act was illegal since they were “British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights” while another argued that this “is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense”. The newspaper cited Blackstone’s commentaries on the laws of England, which had listed the “having and using arms for self preservation and defense” among the “absolute rights of individuals.” The colonists felt they had an absolute right at common law to own firearms.” (http://www.constitution.org/mil/rkba1982.htm)
A Well-Ordered Militia meant something quite different for the right to own a bear a firearm was not even questioned at the time but was viewed as absolute rights of individuals granted through common law.
“Well, not in this case. If the founders wanted to give an absolute right to keep and bear arms, they could have saved some ink and written, “The right of the people to keep and bear Arms shall not be infringed.””
They didnt think that would be necessary in light of the fact that it is the 2nd amendment in a list of rights guaranteed to the people.
This arguement has been going on since Pisistratus took the Athenian’s arms when he became a tyrant. An armed populus is an impediment to tyranny and the founders knew this. It doesnt take much to figure out the language of the 2nd Amendment if you know the history.
Just like you cannot yell “fire” in a crowded room you cannot shoot your neighbor or use your weapon for a crime.
Blouise, the “well regulated” part meant “in good working order.”
Think of the archaic meaning of ‘regulated.’ Regulator clocks, for example. The militias of the day were just ordinary citizens who were expected to keep their weapons in good working order for their own safety as well as ready to be on call if they were mobilized in case of attack. The closest analogy I can think of now is the volunteer fire department, whose members have some of their emergency equipment in their homes or vehicles. They have to make sure that equipment is working and ready to use at a moment’s notice. That is ‘well regulated’ in the same sense it was in the late 1700s when the Bill of Rights was enacted.
@Blouise: Yes. My point was two-fold. First, that the “right” is being justified by the “necessity” claims in the first half of the sentence. They give a reason for the right, whereas other rights are not given a reason. We have the right to due process, period, it is not a right granted to effect some other necessity.
My second point is that interpretation of that justifying “necessity” is necessary. It doesn’t say it is to protect us from the federal government, it doesn’t say it is to protect us from foreign invaders, it doesn’t say it is to let us protect our homes or property. What it does say is intimately tied to a “militia” which the founders claim is a necessity for “security of a free state” and those words and phrases are not specific and concrete, they require interpretation.
It is impossible, in my mind, to point at that statement and say, “just read what it says.” Look at the sub-title Turley puts under his name: “The Thing Itself Speaks.”
Well, not in this case. If the founders wanted to give an absolute right to keep and bear arms, they could have saved some ink and written, “The right of the people to keep and bear Arms shall not be infringed.”
Alas, they did not: This right, unlike some other rights, exists to effect an outcome, namely because: “A well regulated Militia [is] necessary to the security of a free State.” “Security” and “well-regulated” and even “militia” are all fuzzy enough that interpretation becomes a necessity; preferably by experts in law and history.
Gene,
And, if I’d read carefully, I’d hopefully have picked up on it. Sorry. I should have known… You’re much too precise and careful. (I owe you some info… Soon.)
anon nurse,
That is a typo, like the “INSIGHT” typo, in the original proposal as drafted. I thought that it should be presented in all its
gloryfaultiness. Had the original proposal been written in crayon, I’d have reported that as well. 😉Bron,
It is a Well Regulated Militia, not Well Regulated Weapons … guns and other tools to fight with are only one aspect of a Well Regulated Militia.
i.e. how well the militia functions and how well trained are the militia members.
(Well-Regulated Militia does not refer at all to the degree to which the government controls the militia or the members of the militia … so we can drop that false boogeyman too.)
I believe Tony C’s point was that he could raise silly arguments too and that those arguments would carry false weight. I supported him in that endeavor and it worked.
Tony C:
that is not what well regulated meant back then. It just meant that each man had the proper lead shot and powder and the other tools to be able to fight when/if necessary.
Gene H–thinking about this still…
Bullycide–how could this possibly be proven in court?
Even if you have an email thread and on-line postings which reveal a trail mean and hurtful things said of the victim, and a suicide note saying the person X was mean and is the cause of the suicide, there is really nothing that will stand up to any adversarial scrutiny as the deceased will most certainly not be called as a witness. Of course, a counselor who was caring for the victim could be produced to testify that yes, person X was the cause of their client’s demise, but wouldn’t that counselor be subject to some sort of action because they knew the victim was suicidal and failed to act in order to prevent it?
“EXCLUSION (INTENTNALLY AND CRUELLY EXCLUDING SOMEONE FROM AN ONLINE GROUP).” from the article
Gene, Typo… SB “intentionally”… Much food for thought… Another great posting…
“Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege —
————————————————————————————————-
well WHO are these ‘proponents’????
tha good diversionary tactic is one that must be immediately addressed due to the very threatening and potentially damaging effect that it would have if not addressed. So, if “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” then…….is there a real threat?
“Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.”
YIKES!!! It is being suggested that one’s right to free speech could be revoked? Would the revocation last a lifetime? 3 to 5 years? Would this apply to the press/media as well as individuals?
“I could equally argue that, in order to create a well-regulated Militia, all arms must be registered, tracked, protected from theft, and the owners must regularly prove they know how to use them and fire them, otherwise the militia is unregulated.” (Tony C)
I could easily support that argument.
Sorry I am late to this party, I’ve been traveling. Not much to say, Gene, except “Yikes!” It seems our government is constantly looking for new excuses to keep us rabble further in line, and make it harder to criticize what they do.
@angryman: I fail to understand how a liberal can say he’s a liberal and yet be in opposition to the right to bear arms.
Let me begin with the fact that I am a liberal and I own guns and know how to use them; I learned to shoot both rifle and pistol in the military.
However, that said, it is possible to believe in individual rights, and also believe in restrictions for public safety. I do not believe people should be allowed to do anything they want. As an example, I do not believe people should be allowed to drive at 100 mph on public streets, it creates too much of a hazard to others.
By the same token, a person can believe that guns create more of a hazard to freedom than any freedom they secure for the owner.
@angryman: I don’t even mind that you insist on “interpreting” the Constitution rather than accepting it as written.
All readings, including yours, are interpretations. As it was written, by the rules of the English language at the time it was written, the purpose of the right was to ensure the existence of a “well regulated Militia.”
It is only your interpretation that “The people were assured this right in order to be able to defend themselves from invasion by a foreign country or by the federal government.“
That is not written anywhere, you are committing the very act you claimed offended you, and in the same post! You have completely divorced yourself from the leading justifications of “a well regulated Militia,” to protect the “security of a free state,” and re-interpreted half a sentence.
I could equally argue that, in order to create a well-regulated Militia, all arms must be registered, tracked, protected from theft, and the owners must regularly prove they know how to use them and fire them, otherwise the militia is unregulated. A well-regulated militia was one that was commanded, by an officer of the state. I can argue that the only legal use of a firearm was in the service of protecting the security of a free state when it was threatened, or in drills for such a response, as stated by officers of the State. That is also consistent with how the text reads.
mespo,
Thanks. As a friend of yours was fond of saying, “One lives to be of service.”
**************
Blouise,
Thank you as well. I am honored to have been the Invisible Dinner Guest. 😀
OS,
I know that sound!
Gene,
This is a very important post and I found myself thinking about it all day. I referred a couple of my friends to it and we had a great discussion over dinner. Thanks for facilitating.
AY,
Off with your head!
Oops … wrong century …
Good stuff, Gene.