The Absurd Consequences of a “Right to Privacy”

English: Privacy Fence custom built by Nice Fence.
English: Privacy Fence custom built by Nice Fence. (Photo credit: Wikipedia)

British MP David Davis’s text messages poking fun at the appearance of a female colleague make him the latest whipping boy for those determined to root out sexism and misogyny in public life, the Daily Mail reports. Curiously, they also make him the latest poster boy for exponents of an expansive “right to privacy” like Brendan O’Neill of spiked magazine.

I’m not sure how Davis’s text messages — in which he denied attempting to kiss MP Diane Abbot because “I am not blind” — became public. The Daily Mail doesn’t say. Perhaps the recipients talked about them. Perhaps his phone was hacked.

If the latter, there are certainly moral and legal aspects of the matter which bear at least tangentially on privacy.  But O’Neill takes those aspects far beyond the realm of the reasonable. He asserts a general ethical constraint along the lines of the legal “fruit of the poison tree” standard under which evidence illegally obtained cannot be used in trials, but on steroids.

“That Davis’s texts were leaked,” writes O’Neill, “doesn’t make it okay to haul him over the coals for them, to insist that he retract and repent, because this still amounts to shaming someone for a private conversation.”

Under O’Neill’s standard of personal behavior, you cannot allow something that you learn about me to affect your opinion of me or your behavior toward me in any way if I did not intend for you to be aware of it.

If I’m a Christian clergyman and a parishioner catches me praying in the Islamic manner, or engaged in sexual congress with a woman not my wife, when he barges into the parsonage uninvited, well, he should just keep his mouth shut about it — and even if he doesn’t the congregation certainly shouldn’t  discharge me or ask their denomination to defrock me. After all, that would be a violation of my privacy!

That’s absurd.

A number of rights do, in effect, protect personal privacy. The rights of free speech and free press include the right to refrain from speaking or publishing if there’s something I don’t want to tell you. Property rights mean that I can bar you from my house and knowledge of what goes on there absent a warrant issued on probable cause to believe I’ve committed a crime. It’s proper that information gained in violation of those rights be excluded from criminal proceedings, if for no other reason than to discourage police from violating those rights.

But personal and public opinion aren’t court proceedings such as those referred to by Edward Coke when he said (as quoted by O’Neill) “no man, ecclesiastical or temporal, shall be examined upon the secret thoughts of his heart, or of his secret opinion.”

Nor is there a “right to privacy” — a right to forbid other people to know things — as such. Privacy is merely an effect, an imperfect intersection of penumbrae emanating from other rights.

Like the European Union’s “right to be forgotten,” O’Neill’s “requirement to forget” is illiberal and Orwellian.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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That’s Hypocrisy: DC Swamp Creatures vs. Kellyanne Conway

Members of Congress from both sides of the aisle, as well as various “watchdog” groups, are up in arms over $99 textured open-front cardigans, $125 suede slingback pumps, and $98 pebbled leather crossbody bags. Yes, really.

In an appearance on Fox and Friends, presidential adviser Kellyanne Conway made the mistake of doing the obvious: When the subject of Ivanka Trump’s  eponymous clothing line came up (because Nordstrom’s department stores are dropping Ivanka’s products), she spoke supportively of her boss’s daughter: “Go buy Ivanka’s stuff, is what I would tell you …. I’m going to give it a free commercial here, go buy it today.”

Apparently that’s a big deal.

US Representatives Jason Chaffetz (R-UT) and Elijah Cummings (D-MD) of the House Oversight and Government Reform Committee, signed a letter seeking an ethics investigation.  Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Office of Government Ethics. The White House says it has “counseled” Conway.

Talking up a presidential family member’s business when it’s in the news is an ethics violation? My hypocrisy meter is pinging in the red zone right about now.

Members of Congress continually vote to fork over billions of dollars to companies whose executives make large campaign contributions and whose lobbyists buy lots of drinks and steaks. When they’re done being in Congress, they draw lavish salaries from positions on the boards of, or as lawyers or lobbyists for, those same companies.

Ditto former presidents and former cabinet officials. Does anyone really believe that former Secretary of State Hillary racked up $5 million in speaking fees in 15 months  because she’s a great orator with wonderful, innovative ideas? She knocked that kind of money down as payment for past favors and, as a prospective president, down payment for future ones.

Sure, the Beltway establishment occasionally offers up a human sacrifice as proof of its moral rectitude. Former US House Speaker Newt Gingrich (R-GA) paid a $300,000 fine and eventually resigned when charged with 84 ethics violations.  Former US Representative Randy Cunningham was sentenced to eight years in prison for accepting millions of dollars in bribes. But they’re the exceptions, not the rule.

If I had to guess, I’d guess there will be plenty of actual White House corruption to complain about in the coming four years. Going after Kellyanne Conway for saying nice things about Ivanka Trump’s clothing line is a cheap shot from people who do far worse every day.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Sorry, Judge Napolitano: Immigration Isn’t “Foreign Policy”

Seal of the United States Court of Appeals for...
Seal of the United States Court of Appeals for the Ninth Circuit. (Photo credit: Wikipedia)

By the time you read this, the US Court of Appeals for the Ninth Circuit may have handed down a ruling for or against president Donald Trump’s executive order banning travel and immigration from seven countries. Two states (Washington and Minnesota) are suing to kill that order.

Andrew Napolitano — a prominent constitutionalist and libertarian commentator, not to mention a former New Jersey Superior Court judge — writes in Reason that the states don’t have legitimate standing to sue. Why? Because the Constitution provides for quite a bit of presidential latitude on foreign policy.

I’ll explain why Judge Napolitano is wrong on the details momentarily, but first let’s get one thing out of the way: Immigration is not a foreign policy matter. Foreign policy relates to matters outside the United States and to relations between US government and other governments around the world. Immigration relates to individuals wishing to enter and possibly reside in the United States. It is therefore a matter of domestic, not foreign, policy.

It’s also a matter constitutionally reserved to the states, which is where Judge Napolitano really steps in it. He hangs his argument for the order and against the states’ legal standing on the fact that “[a] 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security.”

But that statute is plainly unconstitutional, for the same reason that the states have standing. Why? Because per Article I, Section 9 of the Constitution, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight …”

Article V of the Constitution forbids amending that provision prior to 1808, and no amendment to it has been proposed or ratified since that time. Congress scrupulously observed that restriction for nearly a century. As with many restrictions on federal power, it eventually got ignored. But it’s still “the supreme law of the land.”

The Constitution doesn’t enumerate a federal power to regulate immigration. In fact it clearly and unambiguously reserves that power to the states. That makes the statute Judge Napolitano references unconstitutional, and the executive order hinging on it void. Obviously states have standing to sue when the federal government usurps a power the Constitution reserves to them.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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