Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century
The Great Courses Series
Lectures by: Professor Jeffrey Rosen
Are Americans more or less free in the 21st Century? Professor Jeffrey Rosen in “Privacy, Property and Free Speech” leaves the question unanswered. However, he clearly frames the question for listeners to draw their own conclusion. It is difficult to give a definitive answer for three reasons. One, new technology redefines freedom. Two, September 11, 2001 redefines security. Three, globalization redefines nationalism.
Technology encroaches on privacy with internet access by the public and private sectors. The public sector continually revises laws regarding the internet. Laws passed by government attempt to regulate internet use, ownership, and censorship by redefining freedom of speech and expression, the freedom of religion, and the freedom from want and fear. Government classifies organizations and decides which can legally access the internet. Government is in the process of defining who can own the internet and how access can be regulated. Government has the power to censor information that it views detrimental to the freedoms historically held by Americans. Control of internet use, ownership, and censorship by the government encroaches on freedom.
The private sector uses the internet to define consumers. What an internet user purchases becomes a profile factoid used to pander to consumer desires. The detailed profile can affect the price advertised and the personalized pitch made by a retailer. Private sector search engines use consumer profiles to pitch private sector businesses for advertising. Web-based profiling steers the public by profiling individuals and algorithmically congregating personal information. Consumer manipulation by the private sector encroaches on freedom.
Professor Rosen addresses the issue of property by lecturing on women’s rights and the right of government to claim eminent domain on property owned privately but taken by the government for the public good.
In addressing women’s rights, Rosen reviews the history of Roe v. Wade and implies that the judicial system may have acted too quickly by not allowing the States and the general public to fully address the issue.
Rosen is equally conflicted by the government’s right to claim eminent domain. He notes how confiscation of private property at fair market value has a spotted history of success when claimed by the government for the public good. In some cases, the taking results in failed projects; in others, like Baltimore’s revitalized Inner Harbor, the taking revitalizes a neglected and deteriorated landmark.
The American judicial system encroaches on the freedom of women to choose and the fifth amendment’s clause that says private property shall not be taken for public use, without just compensation.
The Trade Center tragedy redefines security for America and the world. September 11th convinces the world that there are no unbreachable terrorist constraints. Terrorism is like lighting in a storm; i.e. it is a force of nature that can strike anyone at any time. Governments have changed the world of travel by invading the privacy of minds and bodies to reduce the chance of a terrorist act. Rosen suggests governments cross the line when citizens are detained or incarcerated for what they think rather than what they do. The fear one has is that thought becomes grounds for prosecution. To the extent that terrorism is like lightning in a storm, one can only wait for the storm to pass. Invading one’s privacy and arresting citizens for what they think is a slippery slope to totalitarianism.
Despite Brexit and nationalist sentiment of aspirants to the American Presidency, Congress, and Supreme Court–all human beings are citizens of the world. There is less and less room for nation-state nationalism.
Encroachment on privacy, property, and free speech are inevitable in the 21st century (and beyond). In reality, freedom’s encroachment is an inherent part of civilization. When the first man and woman joined together as a couple; when the first tribe became a hunting and gathering troop, and when the first hunter-gatherers became part of a farming community, freedom diminished.
The last lecture in Rosen’s series is about the right to be forgotten. Now, we are citizens of nation-states; tomorrow we will be citizens of the world. With each regrouping, there is a diminishment of freedom. The last bastion of freedom will be “the right to be forgotten”. It will be a programming code designed to volitionally erase one’s identity. This volitional reboot will offer temporal freedom but the nature of public engagement will once again encroach on that freedom.
Professor Rosen offers an excellent and informative outline of America’s history of privacy, property, and free speech. A listener will draw their own conclusions about present and future freedoms from Rosen’s lectures. My view is that freedom has always been limited; thankfully so.
Chasing the Scream: The First and Last Days of the War on Drugs
Written by: Johann Hari
Narration by: Tim Gerard Reynolds
Despite some reservation about Johann Hari, “Chasing the Scream” is a persuasive argument for regulated decriminalization of addictive drugs. Hari visits several countries of the world, either metaphorically or literally, to evaluate the war on drugs.
As is widely believed by many, the war on drugs is a failure. Mexico’s violent cartels and America’s burdened prisons are damning evidence of the drug war’s failure. The war neither abates murder rates nor reduces addictions. Like alcohol prohibition’s effect on growth of the Mafia, criminalizing addictive drugs has led to today’s drug cartels.
Hari explains how society has generally accepted many false notions about addictive drugs and their use around the world. Presumption that drug use, addiction, and death are directly correlated is challenged by Hari and others noted in his book. Many people take addictive drugs for reasons other than desire for a high. Some take drugs to escape the drudgery of their lives. Some take drugs to blunt the remembrance of past trauma. Some take drugs to lessen pain and/or aid recovery. Not all people who take drugs (either prescribed or purchased on the street) become addicted. Hari suggests many addictive drug takers are hardworking, productive members of society.
Drug overdoses are often not self-inflicted or caused by uncontrollable desire. Hari explains some overdoses are a result of illegal sellers’ improper cutting of addictive drugs with foreign substances. To make illegal drugs less expensive, drug doses are cut with cement powder and other harmful substances. Drugs are packaged by street distributors so that a manufacturer’s delivery can be split into more packages. More packages increase the volume and profitability of sales. Drug adulteration is inaccurately included in overdose statistics.
Hari explains that other overdoses can also be caused by extraordinary purification. The illegal manufacturer will highly purify drugs to make distribution in smaller packages that are easier to hide when transported. If a manufacturer’s drug is not cut, its purity is underestimated and the user accidentally overdoses. Hari notes that the same was true during alcohol prohibition when “white lightening” became popular. “White lightening” or moonshine is highly concentrated alcohol. These high-proof distilled spirits killed people during prohibition but it was easier and cheaper to transport than barrels of beer or diluted whiskey.
Hari builds an argument that implies a small number of people who take addictive drugs actually become addicted. His point is that the drug is not causing the addiction but the person’s social insecurity or desire for relief from pain or relief from traumatic experience are the compelling force for repeated drug use.
Hari argues that much of the illness in people who take street drugs is from toxic substances used to cut drugs, the dirty needles used to shoot drugs, and the horrendous conditions in which drug users live. Hari draws the conclusion that drugs themselves are less the cause of addiction than the environmental and psychological conditions of the person who takes drugs.
First of many things Hari writes about as a cure is for society to recognize all people are fellow human beings; including those taking or addicted to drugs. When that is forgotten, people lose their humanity. The confessed or observed drug user is looked at as a problem at the very least, or as subhuman at the worst. Objectifying human beings is the first step in degrading and then treating humans as slaves, property, or miscreant animals who are less important than others. It is easier to degrade, isolate, and mistreat someone who is different; e.g. someone classified as an addict. Objectification is a syndrome that allows humans to mistreat, discriminate, and murder each other. It justifies putting addicts in jail or ignoring them as they lie in the street or sleep under an overpass in their urine soaked clothing. It is the same syndrome that makes most of us ignore beggars and homeless people. The general public’s judgment is that others are in their condition because of their own choices; not because of societal neglect, childhood abuse, or economic circumstance.
Hari summarizes three ideas for treating drug users, whether addicted or not. First, recognize their humanity. Second, legalize drugs. Third, regulate drug use. All three of these ideas could be implemented with existing infrastructure in viably governed countries. The first requires listening and understanding the drug taker and being supportive rather than punitive. The second and third idea is for a political movement to legalize and control distribution of potentially addictive drugs. (As of mid-2015, 23 States have some form of Marijuana legalization.) These actions are not a cheap or easy fix, but in America it is unlikely to be any more costly than today’s law enforcement and penal incarceration.
First, Hari argues drug users should not be jailed or isolated for drug-use. They should be detained, fined, and directed to attend treatment facilities that provide help. The help may be to provide the drug a user needs, for as long as is necessary, but it is to be prescribed by a qualified medical practitioner. The drug would only be produced by a government regulated drug manufacturer. The societal objective is to provide medical and psychological support to make a patient feel socially supported, capable of looking for a job, and becoming self-sufficient.
Second, Hari implies that all potentially addictive drugs, when legalized, would have the same manufacturing requirements of current government regulated drug companies. Hari suggests all prescriptions for potentially addictive drugs would be supervised by medical practitioners. One presumes, like marijuana legalization, addictive drugs would be taxed to help balance the budget for addictive drug-user’s services.
Hari suggests that legalization and regulation of illegal drugs would more widely clarify their effects. As an example he notes studies show constant marijuana use has memory loss effects that can become permanent. With cigarette warnings, and ubiquitous information included in or on packaging, Hari infers users will temper their indiscriminate use of potentially harmful drugs.
Third, Hari gives the examples of Portugal and Switzerland where medical and psychological treatment is available to potential addicts at the same level as the general population for other diagnosed diseases. Hari argues the effect of this change in drug enforcement will drive cartels out of the drug business just as the mafia was driven out of the alcohol business in the 1930s. Further, Hari suggests attitudes will improve because of a different role for police in arresting for treatment rather than punishment.
Hari acknowledges the probable downside is that the level of addiction may increase in the short-term, but he implies generational addiction will be mitigated by time and education. He draws that conclusion from the experience of alcohol consumption after the end of prohibition. However, just as the number of people who no longer smoke, it seems reasonable to assume the same will occur with addictive drugs. Hari presumes there will always be some unrepentant addicts just as there are unrepentant smokers.
Smoking has become socially and medically less acceptable in America. It seems reasonable to believe the same would happen with a designed program that both treats and educates the public on the medical and psychological effects of drug addiction.
Years of the drug war have not accomplished any of the objectives one presumes it is designed to achieve. It is estimated that 44,000 Americans die each year from drug overdoses. This number excludes the many people murdered by drug cartels. The recently announced policy of restricted doctor’s prescriptions for addictive drug treatment of chronic disease is unlikely to reduce the number of drug overdoses or the human desire for escape, or relief. What doctors fail to supply, the underworld will serve.
As long as drug cartels can profit from illicitly manufactured and distributed drugs, people will die and addiction will proliferate. Hari’s book suggests a more humane and human alternative to the war on drugs.
Adam Benforado finds America’s justice system rife with law and disorder. It is a subject of hot debate in American politics. From the subject of the death penalty, to treatment of minorities, to the injustice of incarceration, Benforado systematically criticizes American justice. What makes Benforado’s book interesting are his corrective solutions.
Though the majority of Americans still support the death penalty, support is as low as it’s been in 40 years. Death row executions peaked in 1999 and have fallen ever since. There is growing doubt that a death penalty deters serious crime. Benforado argues that fear of death is no deterrent for reasons ranging from environmental to psychological human circumstance. Human beings do not rationally consider the consequence of committing violent crimes.
A 2010 PEW research report shows that black men are six times as likely as white men to be jailed. Benforado argues that inherent human bias is a principal cause of disproportionate arrest and conviction of minorities. Police departments are trained and organized to close criminal cases in ways that deny equal justice. From the way crime scenes are investigated to the way witnesses are interrogated, Benforado explains how bias distorts the arrest and conviction process.
Benforado recounts the story of a newspaper reporter that is lying at the side of a road bleeding, unable to speak or explain why he is disoriented. The police arrive and presume the person is drunk because of slurred speech and inability to stand. The police call dispatch to explain the circumstances of the incident.
The victim is taken to a hospital. Based on the police incident report, the victim is set aside in a room to sober up. A doctor finally examines the man and finds he has difficulty breathing and shows signs of concussion. The man dies.
Police re-investigate the scene and find a bloody pipe and realize the person was mugged. He suffered a concussion, and dies as a result of misdiagnosis that began at the crime scene. Benforado infers proper training of the police in emergency medical treatment and careful crime scene investigation could have saved this person’s life. Benforado may have a point but what level of police training can eliminate human error? We ask much of the police but it seems unreasonable to expect them to be trained as psychologists and physicians; as well as public servants and protectors.
Two things come to mind that make Benforado’s inference irritating. If you are a police officer, your primary job is to serve and protect; not provide emergency medical treatment. The second thing, policemen and women are faced everyday with people who are homeless, psychologically unbalanced, or injured from accidents. Evidence of poor police work is an unfair assessment of this tragic incident.
It may be true that more careful crime scene investigation may have saved this person’s life but, in the pressure cooker life of urban police work, mistakes will be made. This is not an excuse but it is the nature of being human. However, Benforado’s point is noteworthy because police department personnel should be trained to include EMT. They are often first at the scene. Further, America’s treatment of the homeless and psychologically impaired should be improved but Police Departments are not funded or educationally qualified to provide that training or service.
Benforado’s analysis of police interrogation techniques is an eye-opening and discouraging piece of “…Criminal Injustice”. Benforado recounts a number of instances where interrogation of witnesses and alleged criminals lead to false witness identifications and bogus criminal confessions. Human cognition is hugely influenced by connecting dots in a maze of information that has nothing to do with the truth of a criminal or homicidal event. Human brains are not movie projectors that record images of the past. Humans often remember what people lead them to think. They may like the person that is asking questions. They have deep respect, and in some cases, disrespect for officers in uniform. They receive subtle clues from interrogators about who they think is guilty. They want their perception of what happened to have continuity because minds search for coherent meaning. Witnesses are not lying but they are mis-remembering or manufacturing a cohesive story from disparate or minimally related facts. Or, their respect or hate for police distorts their perspective.
Police interrogation and plea bargaining of witnesses and the accused increase the likelihood of injustice. Once the accused is arrested and Miranda Rights are spoken, police routinely lie and mislead the accused to increase the probability of a plea bargain. Closing cases, more than justice, is the Police Department’s objective because that is what a department’s efficiency and effectiveness are measured against. Benforado recounts cases of people admitting guilt who are later found innocent by missed evidence or by evidence of others who are proven guilty for the crime. As a result of long police interrogations, an accused’s sleep deprivation, and police lies about collected evidence (like DNA alleged to have been found), the accused will falsely admit guilt. Police cajoling, and the carrot of a plea bargain to reduce sentences, seduces the accused to confess to crimes they did not commit.
There is a range of .027 percent (estimated by U.S. Supreme Court Justice Antonin Scalia) to 4.1 percent by Samuel Gross (a law professor at the University of Michigan), estimating false convictions per year. Whether .027 or 4.1 percent, innocent citizens are being sentenced for crimes they did not commit. Benforado notes that over ninety percent of criminal convictions are plea bargained rather than tried in court. Undoubtedly, plea bargaining increases the number of innocent people incarcerated. A Ohio State University study believes 10,000 innocent people are convicted every year.
Benforado addresses the high error rate of eye-witnesses. Eye-witness’s influence in identifying criminals from mug books and line-ups are routinely used in police investigations. Human remembrance of detail is highly subjective and often inadvertently misleading. The same event viewed by different people has been shown by many studies to have been understood in completely different and inaccurate ways.
Adding to the injustice of jailing or executing innocent citizens, America’s incarceration system is broken. It is not designed to rehabilitate. It is designed to punish and deprive human beings of freedom. It is a system of revenge; not rehabilitation. The result is disproportionately high population imprisonment with high recidivism. The recidivism is high because treatments in prison make dependents of people who only learn how to live in a closed totalitarian environment. The use of solitary confinement and implementation of rigid rules of behavior create asocial and antisocial personality disorders.
Another factor in the gross injustice of American jurisprudence is the bail bond system. Going back to the publication of Alex de Tocqueville’s “Democracy in American” (printed in the 19th century) there is an acknowledged unfairness of bail bonds for low-income citizens; i.e. if one is a rich criminal, he/she pays a bond and is out on the street; if one is poor, he/she sits in jail until trial. And of course, the rich criminal hires an attorney for representation in trial; the poor, at best, plea bargains.
Finally Benforado notes the advance of technology in forensic examination of evidence. Benforado believes this is the area of American criminal justice that offers the most promise for a revolution. Some of Benforado’s suggestions are already in use. Cameras that monitor police and citizen behavior offer more accurate information about behavior than eye-witness accounts.
Benforado’s revolutionary ideas involve retraining America’s police force, capitalizing on today’s technological capability, and revising America’s prison system. Police need to be re-trained. No more sleep deprived witness interrogations. More emphasis on saving lives of victims as well as perpetrators; careful self-monitoring of personal biases when investigating crime scenes; relying less on witness identification and more on forensic evidence.
Americans are already living in a “Brave New World”. Big Brother is watching. There is the reprehensible consequence of invaded privacy but the truth of criminality is less hidden and more accurately analyzed. Police brutality is less likely to occur. The evolution of lie detection is entering an EEG (electroencephalogram) phase where brain activity is measured as questions are asked. DNA sampling is becoming a more accurate way of determining presence at a crime.
Benforado suggests use of Virtual Reality for trials. Juries would be impaneled without meeting participants in the trial. VR mitigates perpetuation of bias caused by looks or behaviors of the accused or witnesses to the crime. Avatars would replace participants in the trial. Studies show that better looking men and women are more likely to be believed than those who do not meet the expectations of a jury.
Benforado also suggests Virtual Reality would allow for time delay when questions are raised by the prosecution or defense; i.e. objections raised and considered by the judge could be legally adjudicated before the jury hears unacceptably biased testimony. The effect would be to eliminate unfair injection of disallowed testimony in trial.
Benforado argues that prisons should be reconfigured to become more like hospitals or schools to treat and rehabilitate criminals rather than punish them. He notes that countries that have lower prison populations use incarceration as a way of rehabilitating rather than punishing criminals. The results have been to reduce the number of people jailed. Benforado implies that when restricted freedom is necessary, social, medical, and/or psychological treatment and re-education would reduce recidivism.
Benforado’s ideas are revolutionary in that they overturn the direction of American law and order set in the 17th century. These ideas may be more expensive than having the highest incarnation rate in the world (716 people per 100,000). Then again, maybe not, considering it cost us $74 billion in 2007. At the very least, his ideas would make America a more just society.