Monday, January 18, 2016
A Proposed New Constitution Article 15, The Right to Privacy
Article 15- The Right to Privacy
“1. The right to privacy, unless it can be shown to directly and obviously harm others or affect national security, shall not be abridged in any way. Private individuals shall not have their private lives divulged in any form without their consent unless they commit felonies, or failure to divulge such information can be shown to affect or harm others in a direct and obvious way.”
A mix of technology, commercial greed, and government intrusions threaten individual privacy in unprecedented ways. Information gathered online is routinely bought and sold without a person even knowing about it. Using the excuse of terrorism, the government monitors billions of emails and phone calls. The media is consumed with gossip far more than journalism, leading to a nation where most know celebrity affairs in detail but cannot name recent Supreme Court decisions that affect their lives far more.
A government cannot un-invent technology. But a government can prevent disclosure, and punish it by law, or allow lawsuits to make such revelations unprofitable. Government and big business both too often divulge private lives because there are no consequences for doing so. The standards under which private information could be revealed must be high, and failing to do so must somehow be shown to cause harm. An examples of allowing public disclosure could include sex offenders being on public registries, while a contrary example might be disclosing someone as a closeted gay might threaten their life if they live in a reactionary area, whether Saudi Arabia or South Carolina.
The Supreme Court ruled decades ago there is an implied right to privacy in the Constitution, leading to the legalizing of abortion. The courts have repeatedly upheld this, even while a minority has successfully passed hundreds of restrictions locally. This proposed article will make the right to privacy explicit, guaranteeing abortion rights. The anti-abortion lobby should learn the best way to limit abortion is to make it unneeded, by making access to and understanding of birth control universal. Even more, building privacy rights directly into the constitution can guard against the many other intrusions we increasingly see.
“2. Libel, slander, or defamation of public figures is subject to the same punishments and standards as for private individuals.”
Currently it is almost impossible to defame a public figure. Thus it is perfectly legal to seriously claim Obama is a reptilian alien space overlord, a homosexual prostitute, secretly the son of a Black Panther, or of course the vicious open bigotry of the birth certificate/secret Muslim hysteria. On the other side of the aisle, an industry of deluded people using bad science claim GW Bush ordered or allowed the murder of 3,000 people on September 11, trying to change an enormously incompetent president into a traitorous mass killer.
The effect of allowing such defamation is toxic to a democracy. Enormous energy has to be devoted to refuting such idiocies, and perhaps a third of the members of both parties adhere to such craziness. (To be fair, few Democratic leaders pander to or promote such claims, while numerous Republican ones do.)
Entire political movements are diverted, distracted, and ruined. The energy spent trying to prove the loony conspiracy claiming GW Bush carried out or allowed 9-11 could have actually done something useful, like stop two ruinous wars. The effort spent on one theory on Obama after another, each more grotesque or hate filled than the one before, could have prevented the GOP from getting locked into a self-destructive cycle based on the futile bigoted anger of a dying demographic.
Much of such defamation is driven by partisan ideology or outright bigotry. But much is also driven by the profit motive catering to ideologues, ignorance, and lurid interest. Ending the profitability of defamation can dramatically reduce it, and produce a far less poisonous atmosphere for public debate.
“3. Private information on public figures cannot be divulged without their consent unless it can be shown to serve the public interest, or if their private lives contradict their public opinions and actions.”
The Lewinsky so called scandal (pick your silly name, Zippergate, Forni-gate, etc.) was not unique. Bouts of outrage over sexual morality, much of them feigned, go very far back. In the election of 1800, supporters of both candidates invented stories of Jefferson and John Adams consorting with prostitutes. Jefferson's relationship with his slave Sally Hemmings, with her bearing him eight children, later became an issue, one devastating to the future of America for the next half century.
Most Americans do not realize that Jefferson was the strongest American anti-slavery voice of the eighteenth and early nineteenth centuries. He worked steadily to abolish the slave trade for fully half his life. As a colonial legislator, he was able to pass a law limiting the slave trade in Virginia. In the earliest years of the new United States, he was the one most responsible for barring slavery in future northern states with the Northwest Ordinance. As president, he successfully barred the entire overseas slave trade to the US. Hundreds of thousands of Africans did not perish in the Atlantic slave trade to the US because of Jefferson.
But after Jefferson's relationship to Hemmings was exposed, he completely reversed himself on slavery. Jefferson never spoke out strongly against slavery again. He even sent military and financial aid to Haiti's slave owners and led efforts to isolate Haiti after slaves successfully revolted and overthrew their masters. Such was the destructive effects of spying into a public figure's private life. One can also point to a more recent example. Congressman Kevin McCarthy was forced to withdraw from being the next House Speaker because of outright blackmail, threats to reveal an alleged affair.
One of the few good things to come out of the Lewinsky noise was that it showed conclusively the public mostly does not care about politicians' sex lives. Clinton actually came out of the affair more popular than ever, and Republicans suffered great losses in the next election for pandering to the pretended puritanical morality of a hypocritical small group. Only a quarter of the nation favored the impeachment, which to the amazement of the rest of the world succeeded.
We as a nation don't care about the private lives of politicians, in the sense that it affects most of our votes or raises or lowers our opinion of said politicians. Some of us only care about what politicians do below the waist in the same sense we do about celebrities, on the level of gossipy interest and amusement. But none of us really need to know.
The only instance in which the private life of a public figure should matter is if it is shown to contradict their public stance. If an anti-gay rights politician is a closeted homosexual, that is relevant. If a politician has a straight affair with a consenting adult, that is irrelevant. Only if there is a crime involved, or a conflict of interest such as the person being a lobbyist, should their private life matter. Their privacy should not end simply because they are in public office. No one's privacy should be abridged unless doing so directly and obviously harms the nation and society.
The standard for public revelation for public figures must be high and strictly defined. One must be able to show both direct harm to the public, such as a private relationship being with a lobbyist on issues the politician must vote on. The harm must also be obvious, with no extended or vague claims, such as that breaking the marriage vows make a politician less trustworthy.
Other public figures such as celebrities, and especially those who simply have the misfortune to be related to the famous, should not have their privacy invaded. (I hasten to point out, obviously many celebrities put themselves on display for publicity's sake, and this proposal does not apply to them since they voluntarily disclose their once private lives.) When media invade the lives of young and even underage relations of celebrities and politicians, clearly it has gone too far.
All clauses of this proposed article argue that journalism should actually be journalism rather than gossip mongering, that government intrusions should end at the front doors of private homes, and that businesses and individuals who invade another's privacy will face lawsuits or even jail time. Courts have previously argued for “the right to be left alone.” This proposal seeks to make that a reality.