« Catching up | Main | Cotillion Ball XI -- Disco Divas »

August 07, 2005

'Public' privacy

The "A"CLU's New York satrapy filed a lawsuit (natch) against New York City instituting random bag/package searches for people boarding the subway, a public conveyance. Of course, this should surprise no one. The "A"CLU's dedication to particular trees even at the expense of the health of the forest approaches legendary ranking. I sighed and went on to read other things.

However, this rant (and however, scholarly, it remains a rant) from Eugene Volokh aimed at the non-lawyers who are railing at the "A"CLU just begs for another look. He takes exception to Stop the ACLU blog post, specifically that blog's reprint and support of (excerpts):

The never ceasing flow of litigation against cities, states, and the federal government is nothing more than fund-raising stunts. ...

In New York, apparently the ACLU believes these searches are unconstitutional because they are random. Although the ACLU has also called metal detectors in airports an invasion of privacy. ...

The ACLU’s abuse of the legal system is criminal. For that reason Christians Reviving America’s Values is drafting a letter asking the US Congress to investigate the ACLU for widespread use of frivolous lawsuits.

Eugene's basic response is:
By filing lawsuits, the ACLU is exercising its (and its clients') legal rights and its (and its clients') constitutional rights ...
Please, Eugene, for a moment can we please consider that sometimes doing what is legal can also be doing something immoral or unethical?
Filing an outright frivolous complaint -- which is to say one that is not "warranted by existing law or by a nonfrivolous [i.e., legally plausible] argument for the extension, modification, or reversal of existing law or the establishment of new law" -- is punishable. One can already get sanctions for the filing of such frivolous complaints. But I know of no systematic pattern of the ACLU's filing such frivolous complaints.
Again, this is a legally technical response to the understandable, if sometimes intemperate, anger many people feel when they see the "A"CLU yet again, fighting tooth and nail against common sense. It has been ruled that metal detectors are legal in airports and many other places considered public. It has been ruled that, by and large, people do not have "an expectation of privacy in a public place." Indeed, the NY satrapy argues in their papers they object on the grounds the (1)it won't work (2) it has the potential for abuse via "racial profiling." [am I the only one that sees the irony of that last coming from an organization that opposes any law/policy aimed at ameliorating conditions that give rise to crime?]

Yes, I can agree that describing the "A"CLU as "criminal" is intemperate, especially if looking at the adjective as a legal rather than rhetorical term.

However, corporations have a right to file any lawsuit they want to, also, but do we really find SLAPP tactics either eithical or moral??

No where is a better example that the "A"CLU engages in SLAPP-style intimidation than their suits or threats of suits across the country aimed at cities and counties that dare have even a hint of a Christian symbol on their city/county seal. See city of Redlands, CA or even Los Angeles County.

Just because something is LEGAL doesn't make it moral or ethical. Something that lawyers too often forget.

I no more am bothered by random bag searches if I choose to go on the public conveyance of a subway than I am by security at the airport or sobriety checkpoints or the metal detectors at my own courthouse. I don't labor under some delusion that the right of privacy that exists within my house is an inviolable bubble when I walk down public streets. I find certain security measures reasonable in balancing individual rights with societal responsibility to protect individuals. People with a lower threshold than mine are free to move to some hinterland cabin and fend for themselves free from any "intrusive" interference from their societal peers.

I am not a lawyer, but I work with them and have had the privilege to work with a lot of ethical, dedicated people. But I've also witnessed the kind of hubris that evolves from some who believe their JD has confered a "higher" status -- one of the chosen whose legal interpretations and pronoucements are evermore legitimate than any opinion of the lesser beings.

I know it's pretty amazing, but us non-lawyer types can be trusted to use the silverware and not our hands at the dinner table, and successfully wipe our own asses.

And we can occassionally spot the bovine excrement, even when it comes beautifully wrapped in legalese, law-cites and all.

Posted by Darleen at August 7, 2005 09:00 AM

Comments

Thank you so much for the defense. I really appreciate it. I hadn't discovered your blog yet. I am now adding it to my blogroll. Thank you, Jay

Posted by: Jay at August 7, 2005 01:23 PM

i love it. You are absolutely right. Lawyers have real trouble thinking outside the box because their whole life is dedicated to learning where the box is. Litigation is a game of "gotcha." One lawyer steps outside the box and the other lawyer says "gotcha" and files a motion because the other guy didn't stay inside the box. Everything they do is prescribed by legal rules that they spend all day researching or reciting. So naturally when someone says "these lawsuits are frivolous," a perfectly reasonable comment to make, the first thing Bolokh says is "gotcha... the legal definition of frivolous is such and such, gee aren't I smart." Bolokh totally missed the point in his rush to show off. Instead he merely showed how stupid he can be.

Bolokh says: "It's far from clear to me that random searches are going to do much good at stopping suicide bombers, or that bans on random searches will help terrorists." WTF? What an idiotic statement. It was a random search at the border that stopped the Millenium bomber from blowing up a bomb at LAX back in 2000. Annnnd it was an idiotic lawyer who sentenced that same convicted bomber to less time in jail than some white collar defendants get.

Posted by: annika at August 7, 2005 08:34 PM

However, corporations have a right to file any lawsuit they want to, also, but do we really find SLAPP tactics either eithical or moral??

This is correct, but Volokh's point is directly relevant: the ACLU doesn't have a history of bringing frivolous suits, and the NYCLU suit has prima facie merit. Let's look at 'em:

WTF? What an idiotic statement. It was a random search at the border that stopped the Millenium bomber from blowing up a bomb at LAX back in 2000.

But he probably wouldn't have been caught if the border patrol told the bomber that, if he wanted, he could take the next road over into the country without being searched. That's basically how the NYPD searches work - since they're pretty useless, the search policy doesn't even bear a rational relationship to a legit government purpose.

It has been ruled that metal detectors are legal in airports and many other places considered public. It has been ruled that, by and large, people do not have "an expectation of privacy in a public place."

The police don't have the right to search my bag when I'm walking around Washington Square Park, which is clearly a public space. In a public space, the authorities need a really good reason to search my stuff (good enough to overcome 4th amendment concerns). Since this question hasn't been answered re: subways (or anything similarly situated), it's ipso facto not a frivolous suit.

Posted by: jpe at August 8, 2005 08:31 AM

"rationally related to a legitimate government purpose"

Jesus Mary and Joseph. I'll try to remember that one the next time I'm sitting at the fricking window watching smoke rise from my husband's place of employment because some whackjob just flew a plane full of innocent people into it, jpe.

Perhaps you can explain to this non-lawyer type how it is OK for the police to conduct random car stops for drunk drivers, which are hardly a clear and present danger to society at large, but when we have terrorists loose, we don't want them conducting random bag searches.

And before you start in on the cops are pigs stuff, my son is a cop, so I'd watch that one. He's a nice kid. And he's honest.

They do exist.

Posted by: Cassandra at August 10, 2005 03:52 PM

Damn the ACLU. Standing up for civil liberties is so... unAmerican.

Posted by: Lo Ping Wong at August 13, 2005 09:52 AM

LoPingWong...
Feeble attempt at humor.
Decades ago when there was a USSR the teenage son of a Russian diplomat applied for asylum to stay in the US when his family was going home to Russian. He wanted to live in a free society. The ACLU said (paraphrasing) “We normally support children’s civil rights but in this case, since defending him will make the US look good, we will attack the State Department and the USA”. They went to court to make sure this kid went back to the communist block. Just because they call themselves the American Civil Liberties Union doesn’t mean they have the best interests of Americans in mind. In the past they have done some good but I don’t call them the American Criminal Liberation Union for nothing.

Posted by: tyree at August 16, 2005 04:51 PM