Every time I hear someone saying it is okay for all of us to limit freedom of speech because it isn’t the government doing it, I have a problem. Sure, I don’t especially care if people boycott Rush Limbaugh’s advertisers. But a much more likely scenario is that some company is going to fire some woman for what she says on her personal blog. It happens all the time. And people usually don’t care because it doesn’t contradict the Constitution — as though every right that people ought to have is found that the two century old document.
I’ve made arguments along these lines many times before, but I always get the impression that people don’t really get it. It’s really simple. People have a right to life. We no longer have free land where people can just go out and make their own living by hunting and gathering — or by farming. Just try it some time. Go out to an unused field and start developing it. You’ll find very soon that even though the property is not being used for anything, you don’t have the right to farm it. You don’t own the land; someone else does. So if you can’t get a job, you don’t have a right to life. You have a right to beg and maybe a right to starve, but that’s about it.
This is a fact of the world that libertarians in particular do not understand. But it is a fact that is poorly understood by even quite liberal people. Most liberals I know just have a gut feeling about what is right and wrong. They don’t think too deeply about it. And that’s fine! One should have a gut feeling about justice. And I think that conservatives mostly have the same gut feeling. It’s just that they’ve managed to slice and dice the world up into those people who deserve this kind of justice.
But it isn’t just on an individual level that we find this. On Monday, I read a very interesting article by Glenn Greenwald, Court Ruling Against Chicago Sheriff Proves Thuggish Anti-WikiLeaks Blockade Was Unconstitutional. The ruling doesn’t have to do directly with WikiLeaks. It has to do with a classified ads site, Backpage. Cook County Sheriff Tom Dart decided that he didn’t like the barely cloaked prostitution ads in Backpage, so he decided to shut it down.
Now before going forward, I should point out that Tom Dart is not a bad guy. He suspended foreclosures in Cook County, because he said (rightly) that renters were being evicted, based upon their landlords’ being behind in their payments. His legal reasoning was sound. He’s not some yahoo. He has a JD from Loyola University. But that doesn’t stop him from being wrong about other things. He first tried to shut down Craigslist. He did it by filing a lawsuit against the company for its offering of “erotic services.” He lost; the court found that Craigslist was an ISP and therefore not responsible for any illegal things that people using the service did.
So far, so good. But then Dart went over to the dark side. He knew he couldn’t take Backpage to court. So instead, he pressured Visa and MasterCard to not allow credit card transactions through the site. Brilliant, right?! And of course the credit card companies wouldn’t admit that they were doing this because of political pressure. It is, whether done by public or private entities, the perfect way to destroy just about anyone: don’t allow them to make money. The Constitution says nothing directly about that.
Well, the court didn’t buy it. It said that it was clear that Sheriff Dart had violated Backpage’s first amendment rights. But as Greenwald pointed out, back in 2010, this is exactly what Joe Lieberman did to WikiLeaks. And there it wasn’t just some overzealous sheriff with some sexual hangups; this was a sitting US Senator trying to destroy an explicitly political group using underhanded economic tactics because he knew that the First Amendment would never allow the important and legal work of WikiLeaks to be stopped directly. It’s not the government! It’s just a private sector!
Of course, even if the extension of this case to WikiLeaks is clear to Glenn Greenwald, it isn’t mentioned in the case. And you always have to wonder where the Supreme Court would come down on this. This is one of those cases where I actually think that Scalia would come out right. But Thomas and Alito, I feel certain would see things differently on this one. The truth is that we need a new Constitution. The Supreme Court has found far too many loopholes that have empowered the powerful and weakened the weak. This kind of financial extortion should be clearly illegal, and not left up to a bunch of people who owe their jobs to the power elite.