Hoffman.es@XEROX.COM (07/28/86)
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Date: 14 Jul 86 09:52:11 PDT (Monday)
From: Hoffman.es@Xerox.COM
Subject: Privacy Rights amendment
To: "Keith F. Lynch" <KFL@AI.AI.MIT.EDU>
Enumeration of minorities is a never-ending, impossible, and
unnecessary task. Instead of prohibiting discrimination of the basis
of every conceivable irrelevant personal attribute, I'd like to see
employers adopt a policy stating something like, "Only job-related
characteristics shall be considered in hiring, firing, and promotion
decisions." A small handful of universities have such statements in
place of the usual laundry-list of prohibited discriminations.
I don't think we need a "gay rights amendment" to the Constitution.
We need a PRIVACY RIGHTS amendment! The right to privacy which the
Supreme Court has been struggling to define (and to which they've now
stated an abhorrent limit) is nowhere explicit in the Constitution.
I'd like to hear peoples' suggestions for the wording of a good
privacy rights amendment. For comparison, here's Article IV:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
-- Rodney Hoffman
-------kfl%mx.lcs.mit.edu@MC.LCS.MIT.EDU (07/29/86)
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Date: Tue, 15 Jul 86 00:36:08 EDT
From: "Keith F. Lynch" <KFL%MX.LCS.MIT.EDU@MC.LCS.MIT.EDU>
Subject: Re: Privacy Rights amendment
To: Hoffman.es@XEROX.COM
cc: Reges@SU-SCORE.ARPA
From: Hoffman.es@Xerox.COM
Enumeration of minorities is a never-ending, impossible, and
unnecessary task. Instead of prohibiting discrimination of the
basis of every conceivable irrelevant personal attribute, I'd like
to see employers adopt a policy stating something like, "Only
job-related characteristics shall be considered in hiring, firing,
and promotion decisions."
Do you mean that employers should voluntarily do this? Or that they
should be compelled by law to do this?
We need a PRIVACY RIGHTS amendment! The right to privacy which
the Supreme Court has been struggling to define (and to which
they've now stated an abhorrent limit) is nowhere explicit in the
Constitution.
Who is this amendment to protect us against? Just the government?
Or other individuals and private organizations as well? If just the
government, note that it will not prevent discriminatory hiring or
firing.
The amendments in the Bill of Rights protect individuals from the
government, not from eachother. This seems to be frequently
misunderstood. People speak of freedom of speech as if the first
amendment prevented individuals and voluntary organizations from
restricting one's freedom of speech in all circumstances. For
instance as if a university is breaking the law if they forbid
students from demonstrating on campus. Or even as if a radio or TV
station is breaking the law if they do not provide everyone free air
time to expouse their point of view.
As I see it, people are free to contract together to do anything
except violate other people's rights. Either party is free to attach
any conditions to the contract. Each individual is also free to
refuse to contract with another for any reason.
This has several implications. For one thing, the equal opportunity
employment laws are not fair to employers. Not only should employers
not be compelled to to hire various minority groups in proportion to
their representation in the population regardless of qualifications,
they are not compelled to hire people they choose not to hire at all.
The employer's right to choose who to hire is absolute. And what's
wrong with this? It simply restores symmetry. Nobody questions the
employee's absolute right to choose where to work. Can you imagine an
employee being prosecuted for not applying for a job at a minority
owned firm? Or for doing too little work for the wages he gets, even
if the employer thinks the deal is equitable (analog of the minimum
wage laws). And what if all the companies engaged in a given line of
business were to simultaneously refuse to do business unless they get
more profits? This would be prosecuted under the anti-trust laws, of
course. What if instead of doing so, the government were to penalize
any individual who does business with a company that does NOT join in
the work stoppage? Sound bizarre? Well, it's the symmetrical analog
of the current pro-labor union laws.
I see nothing wrong with an employer refusing to hire a person
because he is gay. Surely there is nothing wrong with a potential
employee chosing not to work in a company because his potential boss
is gay, right?
The gay rights issue as I see it, is simply the right to be let
alone. The sodomy laws should be overturned (though this is for
states to do, not the supreme court, unless we do get a new
constitutional amendment) but nobody has a right to associate with
others against their will, i.e. I see nothing wrong with employers and
tenants discriminating against people because they are gay or for any
other reason.
The issue is entirely a victimless crime issue. It has nothing to
do with whether taxpayers should be compelled to pay money for AIDS
research (they shouldn't) or whether anyone should be compelled to
associate with gays (they shouldn't), but merely with whether
consentual private sex acts should be illegal (they shouldn't).
I am not clear on your proposed privacy ammendment. Are you saying
it would be ok for employers to discriminate based on whether someone
is gay, but not ok to ask? If so, wouldn't it be prejudicial to those
who are 'out of the closet' and wish to live an open life, in favor of
those choose to be secretive?
Or are you saying that anything done in private would automatically
become legal? I assume you exclude such things as burglary. What
about private drug use? Is the idea that urine tests for drugs would
be forbidden as an invasion of privacy but the drug use itself would
remain illegal albeit harder to detect?
This bothers me. Granted that most people like to keep sections of
their life private, it doesn't seem right to me that someone who
chooses not to can be prosecuted while someone who chooses to keep it
all secret is safe. This is all too remeniscent of the curious notion
that no crime is truly criminal, only getting caught is.
...Keith
-------hoffman.es@XEROX.COM (07/29/86)
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Date: 16 Jul 86 17:46:12 PDT (Wednesday)
From: Hoffman.es@Xerox.COM
Subject: Re: Privacy Rights amendment
In-reply-to: <[MX.LCS.MIT.EDU].933333.860715.KFL>
To: "Keith F. Lynch" <KFL%MX.LCS.MIT.EDU@MC.LCS.MIT.EDU>
cc: Reges@SU-SCORE.ARPA
From: Keith F. Lynch
Do you mean that employers should voluntarily [adopt a policy
stating something like, "Only job-related characteristics
shall be considered in hiring, firing, and promotion decisions]?
Or that they should be compelled by law to do this?
I meant exactly what I said, that "I'd like to see employers adopt"
such policies. I'll further say that IF the government is going to
mandate some sort of non-discrimination laws (which I'm not calling
for here), I'd prefer one of that sort to what I called before the
"never-ending, impossible, and unnecessary" enumeration of minorities.
Who is this [privacy rights] amendment to protect us against?
Just the government? Or other individuals and private
organizations as well?
As with the Fourth Amendment I quoted as a model, just the government.
The context was the discussion of the recent Supreme Court ruling
about Georgia's sodomy law. Such an amendment, as you note, would not
prevent discriminatory hiring or firing. These are separate issues.
(They were only combined in my message because they were both
discussed in your earlier one.)
The privacy amendment is not (solely) a gay rights issue, obviously.
The "gay rights issue", as I see it (and as I've stated it here before
[August 1983]) is about equality. If the state must sanction
marriages, they should sanction gay marriages as well. The state as
an employer should be compelled to abide by a sweeping
non-discrimination law of the sort I outlined earlier. And so on.
-- Rodney Hoffman
-------hoffman.es@XEROX.COM.UUCP (07/31/86)
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Date: 24 Jul 86 10:30:37 PDT (Thursday)
From: Hoffman.es@Xerox.COM
Subject: Privacy Rights amendment
To: "Keith F. Lynch" <KFL@AI.AI.MIT.EDU>
Keith Lynch correctly points out some problems with drafting a Privacy
Rights amendment:
Or are you saying that anything done in private would
automatically become legal? I assume you exclude such
things as burglary. What about private drug use? ....
[I]t doesn't seem right to me that someone who chooses
not to [keep sections of their life private] can be
prosecuted while someone who chooses to keep it all secret
is safe. This is all too remeniscent of the curious
notion that no crime is truly criminal, only getting caught is.
There's a difficult line to be drawn here. That's exactly why I asked
readers of Poli-Sci Digest to help me in drafting a Privacy Rights
amendment. I do indeed mean to do away with vice laws (at least so
far as they pertain to what I do in private, not on the streets) and
other such attempts at legislating "morality". If you don't like my
morals, try to convert me yourself. You shouldn't be able to enlist
the state's help!
At first I thought I could come up with one quickly, modeled on some
existing amendments, but as I wrote it, it kept getting more
complicated. I still think the closest model is the Fourth Amendment:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Now, how can we adapt that to say that it's no business of the
government what I do sexually (alone or with consenting adult
partners), what I do (to myself) with drugs, and so on?
-- Rodney Hoffman
-------kfl%mx.lcs.mit.edu@MC.LCS.MIT.EDU (08/10/86)
From: Hoffman.es@Xerox.COM
I had proposed a trial wording for a privacy amendment:
The United States and no state shall make any law pertaining
to private activities of informed, consenting persons.
Activities are deemed private unless involving a clear and
present danger to uninformed or non-consenting others.
... if both parties ... are informed ... about AIDS and consent
anyway, no law could touch them.
My point was that someone could argue that if you catch AIDS there
is a danger of spreading it to non-consenting persons. This danger
might be remote, but the government clearly doesn't think so, witness
the recent ruling that employers can fire AIDS victims on the grounds
that they are contagious.
Is increased taxation a clear and present danger to the taxpayers?
I would claim that it is. So you agree that no taxpayer money should
be used to treat AIDS victims or to find a cure or a vaccine?
... I think any anti-porn laws should be outlawed by the First
Amendment. (Yes, I know the courts think otherwise.)
I think any anti-porn laws are already illegal under the First
Amendment. I don't know why the government doesn't see this. I
don't know why they think it is even up to them to evaluate the
effects of the material. It is protected by the First Amendment
even if everyone who ever glances at it turns into a mass murderer.
In any case, I definitely had such things in mind when I
used the "clear and present danger" phrase. I don't think the
Meese commission showed any such danger. They SAID there is a
danger, but they couldn't and can't back it up.
Well, all they have to do is say it. What they say goes. What you
and I say doesn't go. That is how it works. That is what I want to
change.
... Now if they think I'm insane, that's a separate issue to be
tried.
Is it? Is insanity illegal? I think a person should be found
incompetent only if they committed a crime. And then only for at most
the duration of the maximum sentence for that crime.
I am horrified at the recent ruling that declared someone
incompetent because he loaned money to the LaRouche people. Let me
emphasize that I am no fan of that crackpot LaRouche, but freedom of
expression and of political belief is inalienable. If people can have
their freedom taken away for supporting an unpopular cause, in what
sense were they ever free? Is this what this country has come to?
Also, do you think people should be allowed to play
very loud music outdoors at 2 am? ... What about
shining spotlights into people's windows at night?
... I think overly loud music forced upon me (at any time) IS a
clear danger to me. ... Same about a spotlight.
The annoyance is obvious to me. The danger is not. How does one
distinguish between the two? It can't be left up to the annoyed
person to decide. What if someone claims they are endangered by the
sight of your (painted purple with pink polka-dots) house? This may
be a legitimate annoyance, but is it literally a danger? No. But
neither is a spotlight.
Don't get me wrong, I like your amendment. But I think it needs
work. Different people see different things in it. Personally, for
instance, I am greatly bothered by tobacco smoke and I think that
smoking around non-consenting persons should be illegal. Does your
amendment support me in this? It seems to. But I would bet that a
smoker would interpret it quite differently.
Any amendment however well intentioned and no matter how well
written can be misinterpreted. Look at the ruins of the Second
Amendment. Look at the anti-porn laws, which exist despite porn
clearly being just as protected by the First Amendment as it would be
by your amendment. An amendment can only be a guideline. What is
needed is common sense on the part of the government. Unfortunately,
that seems to be in extremely short supply.
As for a peeping tom, you're right, there could be no laws against
one; what's the problem?
Or against wiretapping, reading other people's mail, etc. A strange
consequence of a 'privacy rights amendment'!
...Keith
-------hoffman.es@XEROX.COM (08/10/86)
From: Keith Lynch
My point was that someone could argue that if you catch
AIDS there is a danger of spreading it to non-consenting
persons.... witness the recent ruling that employers can
fire AIDS victims on the grounds that they are contagious.
Exactly what type of law pertaining to this do you foresee, and how
does any proposed privacy amendment pertain to it? You've already
vehemently defended an employer's right to fire anyone for any reason
whatsoever, and, while not completely agreeing with that, I've already
conceded that hiring and firing do not fall under any privacy rights
amendment.
[About porn being a danger:] What [Meese Commission] says goes.
What you and I say doesn't go. That is how it works.
Wrong. That commission's report has utterly no effect. Legislation
is required to put it to work, and THAT is what my amendment would, I
think, prohibit.
The annoyance [of overly loud music and spotlights] is obvious
to me. The danger is not. How does one distinguish between the
two?
To be determined in the courts. Personally, I see no great problem
convincing judges and juries that ear-splitting music and
sleep-shattering spotlights are a "clear and present danger" to my
health, and I don't think I could convincingly say the same about
viewing a house painted purple with pink polka-dots.
Don't get me wrong, I like your amendment. But I think it
needs work.
I agree.
I am greatly bothered by tobacco smoke and I
think that smoking around non-consenting persons should be
illegal. Does your amendment support me in this?
Good questions. I need to think about that one.
Or wiretapping, reading other people's mail, etc.
I tend to think wiretapping and reading other people's mail would
remain generally illegal under the Fourth Amendment (forbidding
unreasonable search and seizure).
-- Rodney Hoffman
-------