Thursday, August 27, 2009



This is the 6th in the series dealing with the 15 Sections of this landmark 1995 case. As always, the text of the case is here.

Section VI of the Opinion is entitled “Privacy”.

The Court admits straightaway: “Grounded in the Fourteenth Amendment’s concept of personal liberty, the right of privacy safeguards at least two different kinds of interests: ‘the individual interest in avoiding disclosure of personal matters’ and ‘the interests in independence in making certain kinds of decisions’”, which are categorized respectively as “confidentiality” interests and “autonomy” interests. You have a right not to have your private life blared out all over the place and you have the right to make certain decisions about the shape of your life.

Now in my immediately previous Post, in the Notes, I discussed Legal Idealism and Legal Positivism. The Framers were Idealists: they believed that human law – made by a government – still had to conform to a higher Law, an Ideal law.

So in this matter of the Constitution and Privacy, the Framers developed guarantees precisely conformed to the needs of the human being: given that all human beings were imperfect, yet possessed of an utter and inviolable dignity, then you were entitled to and needed a certain Confidentiality. After all, nobody’s perfect and if everybody was constantly prompted to harp on everybody else’s weaknesses and failures, then nobody would want to trust or build relationships with anybody and true civic community would wither away quickly.

Worse, given the way humans predictably function in groups when they aren’t operating at their highest levels, a majority of folks might band together and if they got the chance they would go after the weaknesses of some individual or some smaller group of people – and call it a good day’s work. And the Framers saw clearly that if you let that sort of dynamic get started and run unchecked, then your civil society would fracture itself into scads of pieces and, again, true civic community would collapse like a great wooden house with a really bad termite infestation.

And, the Framers’ Idealism would demand, as a human being each citizen was entitled to a certain Autonomy in order to achieve the fullness of that natural dignity which resides in each and all human beings. This wasn’t a ‘gift’ on the Framers’ part, nor did they see the American government – or any government – as being able to make such a ‘gift’. Rather, the law they framed was a recognition of the human dignity that was already there in the human beings who would be the new America’s citizens.

The Legal Positivists – and this is the thinking that since the very early 1990s has taken over ‘elites’, especially in law schools and in jurisprudential and legislative circles – would say that it is the government that makes rights real by giving them as a gift to the citizens. And thus the government can say when it wishes to take the gift back or when the citizen can be said to have lost the gift through his/her actions. (To the Framers, Idealists, a citizen cannot ever be deprived of or even get rid of his/her human dignity – it is a natural characteristic of human beings.)

You can quickly see here how Legal Positivism is on a lethal collision course with the Framers, and in that sense can even be described as anti-American or anti-Constitutional.

You can also see where what might seem to be a certain ‘softness’ on punishment has a sound basis in the founding vision of the Framers, of the Constitution, and of the country: no government has the right to interfere with essential human dignity and the rights that flow from it. Yes, a government has to make laws to punish those of its citizens who in their weakness do not respect the dignity of other citizens, but at no time does a government have the right to withdraw from any human being and citizen his/her human dignity or the rights that flow from it.

So the Constitution makes it somewhat difficult for the government to go into the prosecution and punishment business: the Framers’ fear was that a) every citizen sooner or later , in one way or another, is liable to prosecution and punishment for something they have done, and b) the government itself is made up of human beings who are notoriously prone to human weaknesses and could easily get carried away. And the Framers didn’t want civic society and the country to collapse in a fractured frenzy of prosecution and punishment.*

Of course, the majority of the Poritz court subscribes precisely to the implication that ‘the country’ and the ‘citizenry’ really means the ‘good’ people (the Nazi would have called them the ‘pure’ people) with the implication that the designated sex-offenders are some sort of weird, monstrous alien infestation – like a 1950s science-fiction movie about space invaders. Exactly what the Framers were trying to prevent, since in the matter of human goodness and evil the Framers knew that nobody is ‘pure’ and - with the Gospels, nicely enough – they would “call no man good”: everybody had it in him/her to screw things up, and in the course of a lifetime no doubt would.

And in the Poritz view of things, the ‘good’ and ‘pure’ are thus victims who may yet be empowered to ‘fight back’ if the court simply gives them the tools – and helpfully breaks down some of those obstructive and ‘quaint’ walls that the Framers constructed precisely to prevent such mass frenzies of ‘self-defense’ against what I would call the ‘convenient monster’ or what the poet Cavafy called the ‘necessary barbarian’.

So what I see here is not the Poritz court unleashing the righteous guard dogs of the citizenry, but rather I see the Poritz court breaking down the watertight doors that hold back the flood of irrational and delusionally ‘righteous’ violence that all populations inherently harbor; deep in the heart of every majority – as the Framers saw – there dwells a mob and a mob-scene; the mature and constructive government takes care not to pander to those potentials.

Rather, the mature government functions like the baffles in a big oil tanker truck: within the tank there are secondary walls every few feet. Their purpose is to prevent any dynamic of a ‘wave’ building up and running freely back and forth along the entire length of the tank as the truck moves along, agitating all those thousands of gallons of liquid until such a ‘wave’ inside the tank is strong enough to tip the whole truck over. Those little walls are the ‘baffles’ that prevent a flood and actually a mini-tsunami inside the tank.

But what we are seeing in the early and mid 1990s is precisely a government removing the baffles in the huge tank of American society. Don’t forget – and this surely should have been an indicator of ‘mania’ – this type of law was passed by every State and by the Congress, within the space of just a year or two. Indeed, this Megan’s Law in New Jersey – subject of the Poritz case – was passed almost overnight; there was no committee work, no hearings, no deliberation; it went straight to the floor, was passed almost unanimously, and that was that.**

There are only two instances when any scheme of legislation might pass so universally and quickly. First, when a marvelous discovery is indisputably made. For example, somebody discovers that water can be turned into gasoline by mixing it with certain vegetables and spices under a full moon, and all citizens have to be immediately restrained from turning the country into a massive and unregulated fuel dump with fresh-brewed gasoline lying around in plastic jugs in the living room.

Second, when there is a monstrous public mania that’s gotten started, a tsunami of emotion that threatens to flood the country.

But in this second situation, the government’s role is to be a ‘baffle’ to prevent the amplification of dangerous public tendencies. And – in the long run – to prevent the weakening of the government’s authority and legitimacy which will happen when it becomes clear that the government has caved in to the flood of mania and has even helped it by giving it legal status and stature.

So where I’m going with this is that the government’s behavior in these sex-offender laws reminds me of a passenger ship captain deciding to solve a suspected rat infestation by opening up the sea-cocks and literally flooding the ship. If you just stop to think about it for a minute, the baaaadness of that idea should become apparent. If you realize that you are on a ship at sea. Which – you imagine – a captain would remember.

And it should go without saying that no American government or Court should go along with the idea of officially declaring any citizen or bunch of citizens to be nothing more than the equivalent of “rats”. A human being is never reducible to a "rat" except in bar-room blabber. Certainly not in matters of profound civic and indeed Constitutional import.

So too with Autonomy: an individual human being is possessed of inherent dignity which the government must recognize and respect as coming from an Ideal Law beyond the power of any this-worldly government to take away (Lincoln is thinking like this when in the Gettysburg Address he says “beyond our poor power to add or detract”). Without that Autonomy, the dignity is functionally useless. You need the freedom to shape your life as best you can, according to your individual and unique genius, interacting – of course – with the realities of ‘the world’ and the equally unique rights and potentials of other human beings.

The principle of Autonomy prevents the government from merely paying lip-service to your right to Privacy. If you cannot freely go forth into your day and your world, with – as the saying goes – a ‘fresh start’, then you cannot build that web of Love and Work, that web of social relations, that most people would call a life.

If the government is going to actively interfere with those efforts – those rights – then it’s going to be overstepping its bounds. And the Framers had seen enough governments (they studied a lot of History in those days, don’t forget) to know that, just like a too-frisky and large horse, you never gave a government too much free rein; it would most likely go galloping along the street or running off into the fields.

The Court bases its privacy thoughts on the simple fact that “New Jersey specifically guarantees public access to all court records, including criminal records” (which it started doing, curiously, in the mid-1980s). The Court goes on: “In most New Jersey counties it is possible to go to the courthouse and request an individual’s criminal record within that vicinage, providing only the individual’s name and address.” And that now (1995) in New Jersey “any person may obtain a complete criminal history from the State Police by providing a name and either date of birth or social security number and paying a fifteen-dollar fee” – this law, MOST interestingly, was passed in 1994.***

But of course, it’s one thing to have public records about an individual’s criminal history available down at the courthouse. But given the psychology of mobs and the weaknesses of human nature, it’s verrrry much another thing to have it a click away on the internet. This is barely a short step removed from the type of mouth-to-mouth chatter that – in the manner of tuning-forks stimulating each other in a closed room – sets off a mania, and perhaps a mob, reaction. In this matter, technology indeed changes the substance of the matter, and is not simply an harmless ‘convenience’.

And the Court then leads into another box canyon: “Likewise, requiring the disclosure of other information, such as [the sex offender’s] age and legal residence or a description of his vehicle, does not infringe on any expectation of privacy.” To which I say: it most certainly does when that admittedly public information is directly connected to the public declaration by government authority that the individual is a monstrous and ongoing threat to the public and to children.

This is the hugely relevant fact: it’s not that the State is making ‘information’ public that is available anyway and that is given by lots of folks to get drivers licenses and certifications to practice medicine or barbering. It’s that the State has connected this information to such a terribly negative (and quite probably untrue) assertion, an assertion of monstrousness that cannot but have the effect of ruining not only ‘privacy’ but ‘reputation’ and any possibility of conducting a decent life in the community – even if, granting that a person is legitimately guilty of a sex-offense, any possibility of rehabilitation and getting on with his life.

This, I say again, is the gravamen here. And it is lethally significant.

So in this matter I say that the Court is hugely wrong when it then asserts that “Lastly, an individual cannot expect to have a constitutionally protected privacy interest in matters that are exposed to public view”. The internet has made “public view” something else altogether different from what it was. In the pre-internet days a person would have to have the motivation and deliberation to go to a courthouse, or at least pay money and write to a Police agency and wait for the mail. But in the internet age – which was clear even in 1995, and is certainly clear by 2000 and all subsequent years of intensifying sex-offender legislation – anybody, on a whim, in any state of mind, can simply troll and scroll.

Nor is it enough that the Court tries then to put a ‘limit’ on things by piously asserting that “We believe that disclosure of the [sex offender’s] home address does implicate privacy interests.” Nope. The privacy interests were implicated, and Constitutional protections triggered, when the State chose to connect the information – however ‘public’ it already may be – with the State-authorized Declaration of Threatening Monstrousness, which is precisely what the State has done.

And again, it is almost disingenuous, and worse, when the Court admits that the sex-offender “may be exposed to uninvited harassment”. His entire capacity and potential for conducting a civic and personal life may be ruined. And if the Court hides behind a narrow definition of ‘harassment’ – if the Court defines it merely as other folks going up and getting in the sex-offender’s face, as it were – then the Court is truly minimizing what is in effect the government pushing the sex-offender off a cliff.

Because it is not so much those possible acts of overt harassment. It is the utterly forseeable and most certainly probable actions of folks whereby pressure is exerted, not on the sex-offender, but on his family, his employer or potential employers, his church, and all the panoply of civic venues and groupings, to effectively kill him as a functioning member of civil society. If this isn’t unconstitutional, then nothing is unconstitutional.

And this is true even in 1995. If we then look at how these mania-laws have intensified since then, year by year, into the byzantine web of almost-gratuitous oppressions that they have now become, then the Court’s flawed reasoning becomes clear. And it is this case, so early on, that helped to provide the legal justification for the whole thing all those years ago.

But of course, the Court goes on to ‘reason’, since this is such an ‘emergency’ because sex-offenders are both so compulsively prone to such monstrousness and so incorrigible and so clever in masking themselves in the appearances of decency, then “the state interest in public disclosure substantially outweighs [the sex offender’s] interest in privacy”. So baaad ‘science’ leads to baaad legislation, and the Court will both accept that ‘science’ and do whatever it takes to justify the legislation. Oy.

Nor is it in any way sufficient for the Court to say that “the degree and scope of the disclosure is carefully calibrated to the need for public disclosure: the risk of reoffense”. Because that very ‘risk’ is non-existent, based as we can now see that it is, on verrrrry baaaad ‘research’ and ‘science’.

But the fact that its fifteen years later doesn’t get the Poritz court off the hook. Because the calibration can hardly be called “careful”. In the first place, it is based on a grossly not-careful acceptance of the flawed research – against which numerous competent professionals filed Amicus Briefs pointing out that very thing (which would have been discovered earlier if the Legislature had held any Hearings, which it (slyly?) did not).

And in the second place, given the huge variation in genuine sex-offenders, a simplistic Low-Medium-High scale is almost juvenile in its inadequacy.

And in the third place, it is, given the state of ‘sex offense science’ back in 1995 (which professionals at the time pointed out) a highly subjective process – this assigning of a Low-Medium-High or Tier 1, II, or III classification. Classification will depend almost completely and totally on what the (prosecutor friendly) classifier decides it will be or ‘feels’ it should be.

And in the fourth place, the classification will be made by the prosecutors – with perhaps such help from ‘reliable’ experts as the prosecutors might be able to drum up. Although it is also allowed that either the prosecutors can dispense with any individual classification Hearing or that the prosecutors themselves may designate anybody they choose whom any court in the State will have to accept as an ‘expert’.

To which – in the accents of Linus confronted with yet another of Lucy’s whacky but pretentious schemes – one can only intone “Good Grief”.


*In that regard, it is hugely and ominously significant that since the advent of ‘preventive, mother-hen’ law – based in Legal Positivism – this country now imprisons more of its citizens than any other nation in the world (including Communist China!). And that about 1 in every 160 males is now on a sex-offender registry. This doesn’t count men on the domestic-violence registries (some of which keep you on even if a judge dismisses the allegations against you and vacates the Restraining Order). Nor does this count the number of men who would be enmeshed in the new, pending AWASORNA net – which might double or triple the number of ‘sex offenders’ overnight if a State accepts it.

**We would see this same dynamic at work in the Patriot Act of 2001, 5 years after Poritz. And in far too many other significant legislation subsequent to that; it appears to have become somewhat ‘normalized’ on Capitol Hill – and this cannot be a good thing at all for the country.

***We can see why some volunteer sex-offender organizations now (2009) want direct access to the NCIC Federal criminal database. New Jersey apparently opened the door to this sort of thing in the mid- 1990s and now some of the organizations might simply feel like they want to eliminate the middleman as it were, by not having to go through an actual Police agency and pay for each individual look-up. Instead, they’d just like to troll and scroll and see what they might find. See my Post “S. 1146: The Camel’s Nose Under the Tent” of June 23, 2009, on this site.


I’d like to mention something that I’ll discuss at length in one of the upcoming Posts. It requires a little history, but it’s worth it, I think.

At the end of World War 2, Harry Truman had to think about how to prosecute the captured Nazis. The legal problems were significant: If you were going to have to take each individual Nazi and treat him as a defendant in the ordinary way, then you were going to have to prove the guilt or innocence of each of them, with all the possibilities for acquittal or not-guilty findings that stem from any normal trial.

The solution was devised by a War Department lawyer named Murray Bernays: if, he said, you consider the Nazi Party and its agenda as one giant criminal conspiracy, then by that very fact everybody who was a member of the Nazi Party was automatically guilty of at least that crime – and ‘membership’ would be easy to prove, since all the prosecution had to do was to produce the actual Party membership records. Simple ‘membership’ was thus the criminal act, and that same simple membership would constitute irrefutable proof of guilt, and all of that with a minimum of prosecutorial effort and government expense.

In that way, large numbers of Nazis might be successfully prosecuted and ‘processed’ with minimum effort and at minimum expense, in a short period of time, and it would be done ‘efficiently’ – which is to say that you could pretty much guarantee a conviction.
Such are the legal maneuverings that occur in great affairs.

But I can’t help but noticing that very much the same strategy seems to underlie the sex-offense laws: how to ‘reliably’ ‘process’ large numbers or persons at minimum expense in a short amount of time? By criminalizing simple ‘membership’ in a group.

What group? The group of ‘sex offenders’.

Of course, the problem here is that in the American prosecution of the Nazis, it was the Nazis themselves who invented their Party, came together and willingly joined it and carried out its agenda. In the sex-offense matters, however, we have a disparate group of individuals – not at all an organized group of deliberate and voluntary members – and so the government has had to pretty much ‘invent’ the equivalent of the Party.

It has done this not by creating a political entity, but a psychological entity: the entire group of persons psychologically and legally described as ‘sex offenders’.

The focus, being psychological, is not on the voluntary and deliberate participation in a political agenda, but rather in the compulsive and uncontrollable characteristic of their ‘diagnosis’. Their membership is not in a political group but in a psychological group.

But again, it is not voluntary and conscious and deliberate, and the ‘group’ was actually constructed by the government, on the basis of ‘science’ and ‘research’ which we now know to be grossly inaccurate.

But the idea of simple ‘membership’ in a target group being enough to constitute a crime has a substantial history – and not a pleasant one. Usually it has been a group defined by its politics, but now it is a group defined by its psychology. And that difference is disturbing enough: because where you willingly and deliberately and consciously enter a political group and take action to support its agenda, this is not at all the case with a psychological characteristic.

Especially when the psychology underlying the characteristic is so weak and inaccurate.

And especially when it is the government police power and not the individual which determines an individual’s membership in the group.

You wind up pretty much with the equivalent of the government itself constructing the concept of the Nazi Party, then assigning you membership in it, and then prosecuting you because membership in that Party automatically constitutes a crime.

There is a legal – but not actually officially psychiatric – group called ‘sex offenders’ that the government has chosen to consider as real. It will assign you as a member of this group if you are convicted of certain crimes of a sexual nature – although those certain types of crimes exist along a broad spectrum of severity and causation and operational dynamics and rehabilitative potential. Simple membership in the group constitutes the ‘crime’ of being monstrous and incorrigible, and on that basis you are condemned to the lethal civic consequences of being officially declared a ‘sex offender’, that State-sponsored label that is almost guaranteed to destroy any possibility for a normal or even a minimal life in society.

I’m still working on this, but the similarity seems striking.

And if this is the game-plan that was adopted against sex-offenders … then once again it is an indication that those publicly and officially caught up in the SO laws are considered by the government authority to be legitimate candidates for a legal strategy that was last used against captured Nazis. And for all practical purposes the government authority considers increasingly large numbers of its (male) citizens to be no better than captured Nazis.

This is not a wise civic policy. Nor a wise Constitutional policy. Nor is it at all American in any traditional sense of the word.

And we are rapidly becoming a "house divided".

And we all know what happens then.

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