Prior to its passage, I criticized GINA’s ban on employment discrimination in the National Law Journal for lacking a “direct threat” exception for public safety.  The Economist’s blog suggested its ban on insurance discrimination could fundamentally undermine insurance markets and the availability of private health insurance in the long run. 

But they ignore foreign law and world opinion when it calls into question liberal policies in the United States.  One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided civil juries award punitive damages.  In most of the world, it is forbidden for a civil court to award punitive damages. 

Another example is abortion; while most European countries recognize the right to an abortion, they recognize that that right, like all rights, has limits, and typically require that abortions be performed prior to the end of the first trimester (unlike in the United States, where third-trimester partial-birth abortion was long de facto legal, and remains difficult to regulate as a result of court rulings).

Another example is the puzzlement many immigrants have over the multibillion dollar lawsuits against phone companies for cooperating with the government after 9-11.  The belief by many liberal commentators that the government should have to obtain a warrant before monitoring communications with foreign terrorists strikes immigrants like my wife, a French citizen, as completely bonkers.  So, too, does the claim that the phone companies should be subject to punitive damages, even if the government itself doesn’t have to pay a dime.  (Moreover, the text of the Fourth Amendment does not purport to require warrants for every conceivable form of monitoring.  It merely requires that searches not be “unreasonable,” and that when warrants actually are required — such as for searches of our homes — that the warrant be supported by a finding of “probable cause”).

The research information is submitted to the government under the premise of confidentiality. The government has access to the information so it can review the safety and efficacy of new products, but it has made a promise to keep the information confidential for a time period.

The sunshine laws was never meant to give competitors access to proprietary business research, it was meant to give insight into the day to day workings of politicians and bureaucrats. Using it to break down corporate trust in the regulatory system will stymie innovation, which will cost all of us in the end.

While considering the various angles of the DC gun ban debate, I happened to see the film (after many years of hearing what a great it is) Shenandoah; boy was I glad when those credits rolled. This touching story of a quiet Virginia farmer during the civil war and his quest to hold onto his land, his family, and the right to live his life as he saw fit was a perfect concretization of the concept of a right to bear arms. It gets to the heart of why that particular right is so important.

In the DC debate, there has been a lot of talk about the”public good” and whether or not a ban on gun ownership is better or worse for public safety, whether it lowers crime rates or simply makes it difficult for honest people to own guns. These arguments, though they are interesting points of discussion, miss I think the fundamental reason for our right to bear arms. That is, we have the right to self defense; the right to protect and defend our other rights (life, liberty, pursuit of happiness) against any unlawful aggressor–even if that aggressor happens to be the United States government.

Living, as we do, in a time when there is no living survivor of a war on our own soil, it is difficult for most of us to imagine ever having the need to physically defend ourselves against a foreign army (let alone our government). That is one reason to watch Shenandoah, beside the fact that it is a brilliantly entertaining movie.

Below are two of my favorite quotes from the movie. Nobody puts it quite like Jimmy Stewart when his character, Charlie Anderson is confronted by a Lieutenant of the confederate army (this particular scene reminds of a somewhat similar occurrence in D.C. lately) :

Charlie Anderson: Can you give me one good reason why I should let my sons march down that road like a bunch of damn fools?
Lt. Johnson: Virginia needs all her sons, Mr. Anderson.
Charlie Anderson: They don’t belong to the state they belong to ME! When they were babies I never saw the state comin’ around here with a spare tit!

…Lt. Johnson: When are you going to take this war seriously, Anderson?
Charlie Anderson: Now let me tell you something, Johnson, before you get on my wrong side. My corn I take seriously, because it’s mine. And my potatoes and tomatoes and my fence I take note of because they’re mine. But this war is not mine and I don’t take note of it.

We earlier discussed the legal anomaly and double standards that allow the phone companies to be sued for permitting government surveillance even when the government itself is immune from suit, and why the phone companies should be given retroactive immunity from suit.

While I disagree with the ACLU’s lawsuits over the antiterrorist surveillance program, as I have explained in prior posts, at least they involved claims of alleged government overreaching.

All too often, the ACLU sues private parties for supposed privacy violations even when they are merely exercising their own freedom of association and private contractual prerogatives.

(In Massachusetts, by the way, state privacy law curbs the civil liberties of private parties to protect wrongdoers’ “privacy,” subjecting citizens to prosecution when they tape police abusing motorists and kidnappers phoning in ransom demands.)

The Massachusetts ACLU has sought to apply to private institutions restrictions that historically only apply to the government, arguing that private institutions should be barred by the Massachusetts Civil Rights Act (MCRA)’s ban on “coercion” from contractually limiting handbilling on their premises (which it claims is a free speech violation) and requiring drug tests for athletes (which it claimed was a privacy violation).

In its trial court brief in Bowman v. Heller, the ACLU argued that an offensive parody of a candidate during a union election that offended a female candidate constituted coercion of that candidate in violation of the MCRA by allegedly causing that candidate emotional distress. The Massachusetts Supreme Court later rejected the MCRA claim, but awarded the candidate tort damages for supposed “intentional infliction of emotional distress,” over a dissent arguing that the award of damages violated the First Amendment.

Anything but consistent, the ACLU also uses lawsuits to silence offensive speech in private workplaces, even as it sues private restaurants that voluntarily seek to exercise their own property rights by restricting offensive speech on their premises, such as swastikas sported by unwelcome patrons. And while it argues that parodies in union elections are not protected speech, and that anti-Hispanic speech in the workplace is just unprotected “verbal conduct,” it also has argued that conduct devoid of intellectual conduct, such as one Massachusetts man performing oral sex on another man on stage, is “speech” protected by the First Amendment.

California’s privacy laws restrict not just the government, but the freedom of private parties.  Even the California state constitution’s privacy guarantees have been held by state courts to restrict private entities like employers, requiring them to turn a blind eye to undesirable employee characteristics that are relevant to hiring decisions.  So private employers risk lawsuits by the ACLU and its allies for attempting to exercise their freedom of contract.

That’s a very different philosophy than the federal Constitution, whose privacy guarantees only restrict government entities. (Federal statutes like HIPAA and FERPA are another story: They do bind private institutions, resulting in billions of dollars’ worth of red tape and harm to patients’ family members and next-of-kin).

Massachusetts’s insane privacy laws protect the “privacy” of kidnappers calling in a ransom demand and police abusing motorists, criminalizing citizens’ taping of such crimes. That infringes on civil liberties and First Amendment rights.

“It’s the beginning of the surveillance society where you can be tracked anywhere, any time and all your movements, and eventually all your activities will be tracked and noted and correlated,” said Barry Steinhardt, director of the American Civil Liberties Union’s Technology and Liberty Project.

The FBI already has 55 million sets of fingerprints on file. In coming years, the bureau wants to compare palm prints, scars and tattoos, iris eye patterns, and facial shapes. The idea is to combine various pieces of biometric information to positively identify a potential suspect.

A lot will depend on how quickly technology is perfected, according to Thomas Bush, the FBI official in charge of the Clarksburg, West Virginia, facility where the FBI houses its current fingerprint database.

“Fingerprints will still be the big player,” Bush, assistant director of the FBI’s Criminal Justice Information Services Division, told CNN.

But he added, “Whatever the biometric that comes down the road, we need to be able to plug that in and play.”

The real worry here is not that this information could be collected — it exists and is bound to be compiled somewhere — but that it is being collected on such a massive scale by government, which hopes to centralize its own access to it.

Companies today collect a wide amount of consumer information, much of it surrendered willingly, in exchange for greater convenience — an example of this are supermarket discount cards, which track consumer purchases in exchange for discounts and coupons for items the customer is more likely to buy. Companies that collect such information have a very good incentive to protect such data, because mishandling it leads to angry customers who then take their business elsewhere.

But what incentive do government agencies have? Not only do they not face the competitive discipline of the market, they are also subject to the perverse incentives of most funding by government, which amounts to “use it or lose it,” based on the reasoning that if you don’t use it, you probably don’t need it. So there may be an incentive for agencies that have access to such a database to “do something” with it, and that’s what worrying. (Thanks to Tom Walls for the CNN link.)

Ironically, the ACLU has long argued that neither free speech nor privacy protect what employers and employees say in private workplaces, in private conversations, if others subsequently learn second-hand what was said and are offended by it. For example, in Aguilar v. Avis Rent-A-Car System (1999), a sharply divided California Supreme Court, egged on by the ACLU, voted 4-to-3 to uphold a trial court order banning a private-sector employee (who was himself married to a Hispanic) from using any epithet regarding Hispanics, even if there were no Hispanic people around.

The ACLU’s justification for this was that any such use might, hypothetically, contribute to a hostile work environment for Hispanics if they learned about such uses second-hand. (Even though it is black-letter law that an isolated instance of racist speech does not create, or revive, a hostile work environment, or constitute illegal racial harassment).

In its amicus brief, the ACLU argued that any speech that contributes to a “hostile work environment” automatically ceases to be speech and becomes simply an unprotected “verbal act.” (Three of the seven justices essentially accepted this argument; one justice rejected it but voted to uphold the speech-restricting order on other grounds. One of the three justices who accepted it later seems to have recanted it, since he wrote the concurring opinion in a later case, Lyle v. Warner Brothers (2006), which noted that some speech that creates a hostile work environment — speech used to produce adult-oriented TV sitcoms — is nevertheless speech protected by the First Amendment).

Ironically, the ACLU, which claims that racist speech is unprotected when it creates a hostile work environment, has itself done much to promote a racially hostile atmosphere through its own lawsuits. For example, it sued the Alpine Village Inn, a private restaurant in Torrance, California, after it refused to allow Neo-Nazis to dine while wearing swastikas, thereby tramping on the restaurant owners’ freedom of association and property rights. It also promotes sexually offensive environments. In Massachusetts, the ACLU argued in court that the First Amendment protected one man’s right to perform oral sex on another man on stage.

Yet when my brother, who wished to promote campus debate on issues such as feminism and “sexual correctness,” sought the ACLU’s help in fighting campus speech codes, the ACLU turned him away, believing that campus debate could be limited to prevent what it perceived as a “hostile or offensive learning environment.” A similar speech code at the University of Wisconsin banning campus speech that creates a “hostile or demeaning learning environment” had been struck down in 1991.

The ACLU raises money from donors based on the false pretense that it evenhandedly promotes freedom of speech. Yet it relishes using “hostile environment” harassment laws as tool of censorship to suppress workplace speech. Nancy Gertner, a prominent ACLU lawyer later appointed by Bill Clinton to the federal bench, boasted to a Commerce and Labor committee of the Massachusetts legislature that by broadening the definition of sexual harassment to cover more speech, “we will dictate the workplace mores of the 1990s,” which she proudly asserted “will be incredibly traumatic” for the employees subjected to them. (Both I and my brother viewed these remarks on TV, since the legislative hearing was carried on public broadcasting).

Sally Jacobs’s August 30, 1992 article in the Boston Globe, “Sexual Chill Hits the Office,” quoted Gertner boasting that “people feel at risk in dealing with the opposite sex, and that is not bad.” “We’re changing the rules and so men are afraid. People are walking on eggshells.” That attitude is a direct assault on individual freedom and civil liberties.

Gertner has also argued that consensual sex should be illegal absent proof of express permission, akin to the elaborate consent forms that precede a medical operation (as a like-minded feminist writer in the Harvard Crimson recounted). So much for privacy rights.

She also got the Massachusetts Supreme Court to hold that a vulgar parody directed at a female candidate in a union election constituted sexual harassment, over a dissent pointing out that it was protected political speech, in Bowman v. Heller (1995). Even pro-plaintiff federal appeals courts, such as the Second Circuit, have held that such parodies do not constitute sexual harassment, in cases such as Brown v. Henderson (2001), which dismissed a lawsuit based on a vulgar parody that insulted the female plaintiff. (Most vulgar parodies are of male, rather than female, candidates, belying arguments that such parodies constitute sex discrimination).

Ironically, the ACLU’s Massachusetts affiliate rewarded Gertner’s extremism and contempt for free speech and privacy rights by making her the keynote speaker at a purported “celebration” of the Bill of Rights (which actually focused on racism, not any right contained in the Bill of Rights).