Stephen Kershnar
Obama versus the Constitution: Interstate Commerce and ObamaCare
Dunkirk-Fredonia Observer
January 10, 2011
ObamaCare (2010 Patient Protection and Affordable Care Act) requires individuals to buy health insurance or pay a penalty. Specifically, in 2014 Americans will either buy federally approved health insurance or pay a fine of up to $695 per year.
The law has already been challenged in court. Before the federal law was passed, Virginia passed a law (Virginia Health Care Freedom Act) that prohibited any individual from being required to buy health insurance. In a case relating to Virginia’s law, U.S. District Judge Henry Hudson on December 13, 2010 ruled against the mandate. Also, the attorney generals of thirteen states have gone to court in opposition to it.
In court, the Obama Administration argued that the federal government may impose this mandate because it is authorized under three different parts of the Constitution: the Necessary and Proper Clause, the Tax and Spending Clause, and the Commerce Clause.
The first argument should be quickly dismissed. The Necessary and Proper Clause says that “Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution…” Both the language and precedent make it clear that the clause authorizes the implementation of other specifically listed powers. This clause, then, permits a law only if it comes under another specifically listed power.
The Tax and Spending Clause states that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” This clause clearly does not authorize the mandate.
First, as the state of Virginia argued, the part of ObamaCare that sets out the mandate explicitly claims that it is authorized by the Commerce Clause. Second, as Judge Hudson points out, the mandate is a penalty rather than a tax. The statute itself labels the mandate as a penalty. In addition, it has the penalty-like structure in that if you don’t do what you’re told, you have to pay a fine.
Third, as George Mason law professor Ilya Somin points out, if this were a tax, then Congress could control pretty much everything people do through the use of penalty-like taxes. It could mandate that people run every day, avoid alcohol, or stay thin. Fourth, Somin further points out, the mandate allows that the insurance payment go to private insurance companies. This is not part of the common defense or general welfare as the clause requires. If it were, then the government could require people give their money to private parties, thereby gutting the part of the Constitution (The Taking Clause) that limits when property can be taken. For example, the Constitution would conflict with a law that required all citizens to give $500 directly to Goldman Sachs, J. P. Morgan, or AIG. Fifth, for roughly 75 years, the courts have repeatedly held that the taxing power must aid another specifically listed power, for example, interstate commerce.
The Obama administration argued that the federal government has imposed sanctions for failure to pay taxes, show up for military duty, or register for the draft and that this mandate is similar to those sanctions. However, these sanctions rest on specifically listed Constitutional powers and hence shed no light on the ObamaCare mandate.
The Commerce Clause asserts that “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The purpose of this clause was to prevent states from passing tariffs and other protectionist measures against products sold made or sold by people in other states. Evidence for this comes in part from comments from the principal author of the Constitution, James Madison, in The Federalist Papers. Further evidence of this comes from the way that the Commerce Clause was designed to fit into the Constitution. Madison intended that the Constitution grant the federal government only a few and well-defined powers, in contrast the many other powers left to the states. On his account, the federal government was to be focused largely on international affairs, such as war, foreign affairs, and international commerce. Madison is clear that the objects on which people’s daily lives focus were to be left to the states.
Up until the 1930’s, the Supreme Court followed the language and structure of this clause and the Constitution and shot down President Roosevelt’s early attempts to extend federal control over every corner of the American economy. Starting in 1937, two Supreme Court Justices switched their interpretation of the Commerce Clause to allow the federal government to control vast portions of the economy. The changed Court rejected the view that interstate commerce meant the sales of goods between individuals in different states. On this earlier interpretation, which characterized most of American history, the clause didn’t cover production, manufacturing, mining, and so on.
The rewriting of the Commerce Clause was completed in Wickard v. Filburn, 317 U.S. 111 (1942). There the Supreme Court held that it applied to any activity that is part of a larger group of activities that substantially affect interstate commerce. In Wickard, the Supreme Court looked at whether the federal government could set a quota on wheat that a farmer grew and consumed on his own property. The farmer claimed that these activities were not interstate commerce. The Court held that the federal government could enforce the quota because wheat growing and consumption in general affected interstate commerce, regardless of whether the individual farmer’s wheat did so. This line of reasoning has been repeatedly upheld.
The ObamaCare mandate pushes this line to its absurd conclusion. As Somin points out, most purchases of health insurance are not interstate because a combination of state and federal laws makes it illegal to buy health insurance across state lines. Hence, buying health insurance is not interstate commerce.
In addition, the mandate focuses on people refraining from buying something. This is a refusal to engage in interstate commerce. Even if the government can regulate economic activity, it cannot force someone to engage in it. The government is in essence arguing that it may force people to buy various products by labeling their refusal to do so, “economic activity.” To use an analogy from University of Chicago law professor Richard Epstein, under this reasoning, your refusal to buy a bicycle or healthy food is economic activity and you can be forced to buy them.
The Obama administration responded by claiming that consuming health care without paying for it is an activity. The administration seems to think that refusing to buy insurance is similar to stealing food from Walmart. This is mistaken. People who pay for healthcare out of pocket don’t act like this, but would be made to buy insurance. Also, just because some people are forced to pay for others’ healthcare doesn’t transform a refusal to purchase insurance into stealing.
The fight over the mandate shows that Congress and President Obama have contempt for the Constitution. Let’s hope the Supreme Court doesn’t.
12 January 2011
01 December 2010
Academia: Budget Cuts
Stephen Kershnar
The Humanities and the Budget Axe: No Immunity
Dunkirk-Fredonia Observer
November 29, 2010
The morning after the state spent like a drunken sailor is beginning to dawn. In the State University of New York (SUNY) system, academic departments are being cut. Some of these cuts raise the issue of whether the state should go after humanities programs. While the boundaries are not always clear, the following are sometimes grouped as humanities: classics, English, history, languages, philosophy, and the arts (for example, theater, music, and painting). As with many spending issues, the issue here is priorities, so the arguments are really about how much the state should spend on humanities rather than on other things. Full disclosure: I’m a humanities professor at a state college.
With the exception of the public parts of Cornell University, SUNY-Geneseo has the smartest students in the SUNY system. Geneseo is cutting three academic programs: computer science, communicative disorders and sciences, and studio art as part of its effort to close a $7.2 million deficit. SUNY-New Paltz (2nd smartest students among SUNY-Colleges) is cutting its nursing program as part of a $6 million deficit-reduction plan. For similar reasons, SUNY-Albany is cutting its French, Italian, Russian, classics, and theater departments. SUNY-Fredonia, which has roughly the 6th smartest students among SUNY colleges, is also considering cuts.
There are three main arguments against states cutting or eliminating humanities programs. First, humanities programs make society better off. Second, they pay for themselves and, in fact, subsidize other fields. Third, they are part of a university’s core mission. Let us consider them in turn.
The first argument is that the humanities teach the best of what has been thought and said and in so doing, make society better off. The idea is that having students learn about Plato, Aristotle, Michelangelo, Shakespeare, Locke, and Mozart makes the students’ lives go better and benefits society as a whole. Public intellectual and former Duke University professor Stanley Fish points out that the general education requirements at most universities, including Albany, are satisfied by many courses in a diverse array of disciplines. As a result, students are not required to study these intellectual giants and many never do. This is true even at elite universities, such as Yale, Brown, Cornell, Amherst, and Berkeley. The American Council of Trustees and Alumni recently faulted them for not requiring courses in specific fields (for example, math and history), let alone particular courses.
As far as I can tell, there is not much empirical evidence that reading and discussing these intellectual giants makes individuals’ lives go better or improves society. Perhaps there is a study showing this, but I haven’t found it. In one literature summary by Oxford University psychologist Michael Argyle, greater education is correlated with greater happiness, but he notes that is mainly because it affects income and occupational status. On some accounts, happiness is not the only factor related to how well someone’s life goes.
Even if thinking about the giants were to make people’s lives go better or improve society, we’d still need an argument that spending state money on it via college programs contributes more than other uses of the money. For example, it is unclear whether the money would be better spent on medical care for the poor, K-12 programs for the gifted, or more firefighters. Even if the state money were confined to higher education, it is unclear whether the money would be better spent reducing tuition increases, offering more and better classes in engineering, physics, and medicine, and so on. Perhaps it might even be spent on promoting some of these giants (for example, Shakespeare and Mozart) by subsidizing performances that are open to the public.
The second argument is that that humanities departments pay for themselves. University of California at Los Angeles (UCLA) English professor Robert Watson cites various studies at UCLA, University of Washington, and University of Illinois that the humanities departments generate profits by taking in more in tuition money than they cost. University of California at Santa Barbara English professor Christopher Newfield not only claims they make a profit, but that their profits subsidize more expensive fields, such as science, engineering, and medicine. Fish counters that this misunderstands the economics of higher education. He argues that no matter how popular humanities courses are, they still don’t cover their full costs, which is why they still need state subsidies, albeit less than some other fields. The success of this argument depends on which side is right. I don’t know the answer.
The third argument, which comes from Fish, argues that the essential purpose of a university includes teaching and researching in the humanities. Hence, if we value universities, we must value the humanities. This argument fails. One can imagine universities that do not offer courses or do research in the humanities. For example, were the Massachusetts Institute of Technology to dump all of its humanities programs, it would still seem to be a university. Even if Fish were right about the essence of a university, it still doesn’t follow that the university should be located at each school rather than the system of schools. For example, were SUNY-Geneseo to lack studio art, SUNY-Brockport to lack philosophy, and SUNY-New Paltz to lack theater, the system as a whole might still be a university. In addition, students could choose colleges in part based on what they wanted to study, although not every college would offer every field or, perhaps, merely not a major in every field.
The positive argument for the state reducing or cutting humanities programs in tough financial times is that they contribute less to a state’s economic success than other majors. Graduates in many engineering fields, physics, and computer science average roughly $100,000 in mid-career pay. In contrast, various humanities field average considerably less: history and philosophy (roughly $73,000), drama and English (roughly, $68,000), and French and theater (roughly, $60,000). One problem with this argument is that other factors might explain the salary differences. At least one analysis indicates that science and engineering majors have a higher IQ than humanities majors.
Columbia University professor John McWhorter suggests that some of the money spent on humanities could be better spent on vocational tracks. One way to understand this is that the citizens of a state would get more economic benefit from young people with skills in plumbing and electrical equipment than in French and playing the bassoon.
None of this shows that the humanities programs should be cut or eliminated. What it does show is that in times of crushing taxes and crippling deficits, the arguments for privileging humanities programs over other parts of academia or the state budget are at best incomplete. The humanities are fun, rewarding, and important, but this is no reason to hide them from the budget axe.
The Humanities and the Budget Axe: No Immunity
Dunkirk-Fredonia Observer
November 29, 2010
The morning after the state spent like a drunken sailor is beginning to dawn. In the State University of New York (SUNY) system, academic departments are being cut. Some of these cuts raise the issue of whether the state should go after humanities programs. While the boundaries are not always clear, the following are sometimes grouped as humanities: classics, English, history, languages, philosophy, and the arts (for example, theater, music, and painting). As with many spending issues, the issue here is priorities, so the arguments are really about how much the state should spend on humanities rather than on other things. Full disclosure: I’m a humanities professor at a state college.
With the exception of the public parts of Cornell University, SUNY-Geneseo has the smartest students in the SUNY system. Geneseo is cutting three academic programs: computer science, communicative disorders and sciences, and studio art as part of its effort to close a $7.2 million deficit. SUNY-New Paltz (2nd smartest students among SUNY-Colleges) is cutting its nursing program as part of a $6 million deficit-reduction plan. For similar reasons, SUNY-Albany is cutting its French, Italian, Russian, classics, and theater departments. SUNY-Fredonia, which has roughly the 6th smartest students among SUNY colleges, is also considering cuts.
There are three main arguments against states cutting or eliminating humanities programs. First, humanities programs make society better off. Second, they pay for themselves and, in fact, subsidize other fields. Third, they are part of a university’s core mission. Let us consider them in turn.
The first argument is that the humanities teach the best of what has been thought and said and in so doing, make society better off. The idea is that having students learn about Plato, Aristotle, Michelangelo, Shakespeare, Locke, and Mozart makes the students’ lives go better and benefits society as a whole. Public intellectual and former Duke University professor Stanley Fish points out that the general education requirements at most universities, including Albany, are satisfied by many courses in a diverse array of disciplines. As a result, students are not required to study these intellectual giants and many never do. This is true even at elite universities, such as Yale, Brown, Cornell, Amherst, and Berkeley. The American Council of Trustees and Alumni recently faulted them for not requiring courses in specific fields (for example, math and history), let alone particular courses.
As far as I can tell, there is not much empirical evidence that reading and discussing these intellectual giants makes individuals’ lives go better or improves society. Perhaps there is a study showing this, but I haven’t found it. In one literature summary by Oxford University psychologist Michael Argyle, greater education is correlated with greater happiness, but he notes that is mainly because it affects income and occupational status. On some accounts, happiness is not the only factor related to how well someone’s life goes.
Even if thinking about the giants were to make people’s lives go better or improve society, we’d still need an argument that spending state money on it via college programs contributes more than other uses of the money. For example, it is unclear whether the money would be better spent on medical care for the poor, K-12 programs for the gifted, or more firefighters. Even if the state money were confined to higher education, it is unclear whether the money would be better spent reducing tuition increases, offering more and better classes in engineering, physics, and medicine, and so on. Perhaps it might even be spent on promoting some of these giants (for example, Shakespeare and Mozart) by subsidizing performances that are open to the public.
The second argument is that that humanities departments pay for themselves. University of California at Los Angeles (UCLA) English professor Robert Watson cites various studies at UCLA, University of Washington, and University of Illinois that the humanities departments generate profits by taking in more in tuition money than they cost. University of California at Santa Barbara English professor Christopher Newfield not only claims they make a profit, but that their profits subsidize more expensive fields, such as science, engineering, and medicine. Fish counters that this misunderstands the economics of higher education. He argues that no matter how popular humanities courses are, they still don’t cover their full costs, which is why they still need state subsidies, albeit less than some other fields. The success of this argument depends on which side is right. I don’t know the answer.
The third argument, which comes from Fish, argues that the essential purpose of a university includes teaching and researching in the humanities. Hence, if we value universities, we must value the humanities. This argument fails. One can imagine universities that do not offer courses or do research in the humanities. For example, were the Massachusetts Institute of Technology to dump all of its humanities programs, it would still seem to be a university. Even if Fish were right about the essence of a university, it still doesn’t follow that the university should be located at each school rather than the system of schools. For example, were SUNY-Geneseo to lack studio art, SUNY-Brockport to lack philosophy, and SUNY-New Paltz to lack theater, the system as a whole might still be a university. In addition, students could choose colleges in part based on what they wanted to study, although not every college would offer every field or, perhaps, merely not a major in every field.
The positive argument for the state reducing or cutting humanities programs in tough financial times is that they contribute less to a state’s economic success than other majors. Graduates in many engineering fields, physics, and computer science average roughly $100,000 in mid-career pay. In contrast, various humanities field average considerably less: history and philosophy (roughly $73,000), drama and English (roughly, $68,000), and French and theater (roughly, $60,000). One problem with this argument is that other factors might explain the salary differences. At least one analysis indicates that science and engineering majors have a higher IQ than humanities majors.
Columbia University professor John McWhorter suggests that some of the money spent on humanities could be better spent on vocational tracks. One way to understand this is that the citizens of a state would get more economic benefit from young people with skills in plumbing and electrical equipment than in French and playing the bassoon.
None of this shows that the humanities programs should be cut or eliminated. What it does show is that in times of crushing taxes and crippling deficits, the arguments for privileging humanities programs over other parts of academia or the state budget are at best incomplete. The humanities are fun, rewarding, and important, but this is no reason to hide them from the budget axe.
17 November 2010
Free Speech versus Privacy: Online Sex Journals
Stephen Kershnar
Online Sex Autobiographies: Privacy versus Free Speech
Dunkirk-Fredonia Observer
November 15, 2010
An issue that has arisen and will become increasingly more important is whether Americans have the right to keep some information private. This issue arises when two freedoms, free speech and privacy, smash into each other.
The issue is nicely illustrated by a Duke University graduate, Karen Owen, who wrote a fake Senior Honors Thesis in May 2010, shortly after graduating. She sent it to three friends. In September 2010, a friend forwarded it to others and the thesis went viral. The thesis is entitled, “An education beyond the classroom: excelling in the realm of horizontal academics.” Written in the form of a series of case studies, she sets out a rating system to evaluate men’s sexual performance and then assesses the performance of thirteen Duke athletes. The specific rating is based on a number of factors (for example, physical appearance, sexual talent and creativity, and enjoyable personality) that are nicely laid out. About half the men got bad ratings and a few got terrible ratings.
Owen is likely extremely bright. In addition to getting into Duke, which has roughly the same admission standards as the Ivy League, her thesis is clearly written, organized, and, at times, laugh-out-loud funny.
The issue arises whether the men could sue her, especially those who got low grades. One person can sue another for the public disclosure of embarrassing private facts. According to Oklahoma State University professor Joey Senat, for the person suing to prevail, he must prove that the defendant publicized a non-newsworthy, private fact about him that would be highly offensive to a reasonable person. The fact must be so intimate that publication outrages the public’s sense of decency.
Courts have held that public figures have less of a right to privacy because information about them is a more legitimate public concern. The courts have held that a person need not intend to put himself into the public eye to be a public figure. Senat’s example comes from Sipple v. Chronicle Publishing Co. (Calif. App. Ct. 1984). In that case, a former Marine sergeant deflected a gun during an attempt to assassinate former President Gerald Ford. The sergeant became a public figure despite not intending to do so. When a publication stated that he was gay, which was true although his Midwest family didn’t know it, the court held that he was a public figure.
Owen could arguably defend herself by claiming that she did not publicly release the information, her friends did. She could also argue that the information would not be highly offensive to a reasonable person. After all, it’s hardly news that star athletes at big-time colleges hook up with groupies. Nor is it news that some get the job done well and some don’t. Owen might defend herself by claiming that the public release did not cause the men legally recognizable harm. She could even argue that the men were public figures. For example, the one who got the worst grade was a Canadian tennis star.
This case is not unique. There are a number of websites that allow people to anonymously reveal sexual details and make various harsh and raunchy observations. On college students, there was JuicyCampus and is now College ACB and Burnbook. Locally, Topix.net allows Fredonia and Dunkirk people to anonymously comment on which locals are promiscuous, business cheats, adulterers, wife-beaters, gay, animal-abusers, and so on. Because the people who write on the site are anonymous, they can be neither sued nor subject to social disapproval.
The notion of a right to privacy in this context is odd. A person doesn’t normally own information. For example, it is hard to imagine that the athletes could sue Owen were she to have given the same information to her priest, therapist, or gynecologist. They couldn’t sue her for defamation if she truthfully described the sex. In addition, were there a right to own information, or at least a right to prevent it from being publicized, it is hard to see why public figures wouldn’t also have it.
If the law is justified by its having good results, then there should be some empirical support for the claim that discouraging the release of this information is more important than preventing bad behavior by publicizing it. I am unaware of any such support. Even the boundary separating public and private concerns is murky. For example, consider the media’s widely publicizing the sex lives of an evangelical preacher (for example, Ted Haggard used meth and hired a male prostitute), a teacher (Mary Kay Letourneau had sex with a 13-year-old student), a car mechanic (Joey Buttafuoco had an affair with 16-year old Amy Fisher, who then shot his wife in the face), and a former pro athlete (for example, Tiki Barber carried on with the babysitter). It is hard to determine why these facts are a matter of public concern, especially given that similar facts about our neighbors are not. Many public figures never consented to expose their sex lives. Arguably, the public learns more about themselves by finding out what their neighbors are up to than what freakish celebrities have done lately.
A critic might respond that we restrict our liberties in other ways to protect privacy reasons and this is no different. For example, criminal voyeurism statutes protect people against being watched or filmed when they undress in places where there is a reasonable expectation of privacy. Laws against appropriation protect people from having their name or likenesses used in advertisements without their permission.
In addition, there is a sense that the schools and employers are prying into people’s personal lives in invasive ways. Both increasingly search people’s online sites (for example, Facebook), drug test employees and students, and have vague moral-turpitude clauses that can be and sometimes are applied with Church-Lady priggishness.
Still, protecting privacy by shutting down people’s autobiographical observations sacrifices one freedom for another and does not obviously favor the more important one. Hard-to-follow laws requiring people to guess at what is a public concern or what constitutes publicizing information worsen the situation. Also, it is hard not to laugh in the face of those who fret about the loss of privacy and then enthusiastically support the government hunt for those engaged in private behaviors like prostitution, pornography, drugs, online gambling, and so on.
Online Sex Autobiographies: Privacy versus Free Speech
Dunkirk-Fredonia Observer
November 15, 2010
An issue that has arisen and will become increasingly more important is whether Americans have the right to keep some information private. This issue arises when two freedoms, free speech and privacy, smash into each other.
The issue is nicely illustrated by a Duke University graduate, Karen Owen, who wrote a fake Senior Honors Thesis in May 2010, shortly after graduating. She sent it to three friends. In September 2010, a friend forwarded it to others and the thesis went viral. The thesis is entitled, “An education beyond the classroom: excelling in the realm of horizontal academics.” Written in the form of a series of case studies, she sets out a rating system to evaluate men’s sexual performance and then assesses the performance of thirteen Duke athletes. The specific rating is based on a number of factors (for example, physical appearance, sexual talent and creativity, and enjoyable personality) that are nicely laid out. About half the men got bad ratings and a few got terrible ratings.
Owen is likely extremely bright. In addition to getting into Duke, which has roughly the same admission standards as the Ivy League, her thesis is clearly written, organized, and, at times, laugh-out-loud funny.
The issue arises whether the men could sue her, especially those who got low grades. One person can sue another for the public disclosure of embarrassing private facts. According to Oklahoma State University professor Joey Senat, for the person suing to prevail, he must prove that the defendant publicized a non-newsworthy, private fact about him that would be highly offensive to a reasonable person. The fact must be so intimate that publication outrages the public’s sense of decency.
Courts have held that public figures have less of a right to privacy because information about them is a more legitimate public concern. The courts have held that a person need not intend to put himself into the public eye to be a public figure. Senat’s example comes from Sipple v. Chronicle Publishing Co. (Calif. App. Ct. 1984). In that case, a former Marine sergeant deflected a gun during an attempt to assassinate former President Gerald Ford. The sergeant became a public figure despite not intending to do so. When a publication stated that he was gay, which was true although his Midwest family didn’t know it, the court held that he was a public figure.
Owen could arguably defend herself by claiming that she did not publicly release the information, her friends did. She could also argue that the information would not be highly offensive to a reasonable person. After all, it’s hardly news that star athletes at big-time colleges hook up with groupies. Nor is it news that some get the job done well and some don’t. Owen might defend herself by claiming that the public release did not cause the men legally recognizable harm. She could even argue that the men were public figures. For example, the one who got the worst grade was a Canadian tennis star.
This case is not unique. There are a number of websites that allow people to anonymously reveal sexual details and make various harsh and raunchy observations. On college students, there was JuicyCampus and is now College ACB and Burnbook. Locally, Topix.net allows Fredonia and Dunkirk people to anonymously comment on which locals are promiscuous, business cheats, adulterers, wife-beaters, gay, animal-abusers, and so on. Because the people who write on the site are anonymous, they can be neither sued nor subject to social disapproval.
The notion of a right to privacy in this context is odd. A person doesn’t normally own information. For example, it is hard to imagine that the athletes could sue Owen were she to have given the same information to her priest, therapist, or gynecologist. They couldn’t sue her for defamation if she truthfully described the sex. In addition, were there a right to own information, or at least a right to prevent it from being publicized, it is hard to see why public figures wouldn’t also have it.
If the law is justified by its having good results, then there should be some empirical support for the claim that discouraging the release of this information is more important than preventing bad behavior by publicizing it. I am unaware of any such support. Even the boundary separating public and private concerns is murky. For example, consider the media’s widely publicizing the sex lives of an evangelical preacher (for example, Ted Haggard used meth and hired a male prostitute), a teacher (Mary Kay Letourneau had sex with a 13-year-old student), a car mechanic (Joey Buttafuoco had an affair with 16-year old Amy Fisher, who then shot his wife in the face), and a former pro athlete (for example, Tiki Barber carried on with the babysitter). It is hard to determine why these facts are a matter of public concern, especially given that similar facts about our neighbors are not. Many public figures never consented to expose their sex lives. Arguably, the public learns more about themselves by finding out what their neighbors are up to than what freakish celebrities have done lately.
A critic might respond that we restrict our liberties in other ways to protect privacy reasons and this is no different. For example, criminal voyeurism statutes protect people against being watched or filmed when they undress in places where there is a reasonable expectation of privacy. Laws against appropriation protect people from having their name or likenesses used in advertisements without their permission.
In addition, there is a sense that the schools and employers are prying into people’s personal lives in invasive ways. Both increasingly search people’s online sites (for example, Facebook), drug test employees and students, and have vague moral-turpitude clauses that can be and sometimes are applied with Church-Lady priggishness.
Still, protecting privacy by shutting down people’s autobiographical observations sacrifices one freedom for another and does not obviously favor the more important one. Hard-to-follow laws requiring people to guess at what is a public concern or what constitutes publicizing information worsen the situation. Also, it is hard not to laugh in the face of those who fret about the loss of privacy and then enthusiastically support the government hunt for those engaged in private behaviors like prostitution, pornography, drugs, online gambling, and so on.
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