There is a saying here in Washington that “no man’s life, liberty or property is safe while the legislature is in session.” It was reputedly coined by Judge Gideon Tucker, who was commenting on the New York state legislature in the 1800s, and it was quickly picked up by Mark Twain.
That saying remains true, and I was recently reminded of this through a column by my friend John Dvorak over at our former sister publication, PC Magazine. Four senators-Charles Schumer, D-N.Y.; Harry Reid, D-Nev.; Frank Lautenberg, D-N.J.; and Tom Udall, D-N.M.-have written a letter to the primary makers of smartphones demanding that they remove applications from their respective online stores that alert people to where police are conducting checkpoints. The senators claim these apps are promoting drunk driving, since, they say, only drunk drivers would have a use for them.
This is, of course, total cra … er … hogwash. The process of telling citizens about government activity is protected by the First Amendment of the U.S. Constitution. The fact that it’s being performed by an app that passes along reports from citizens to other citizens is entirely beside the point. The fact that it’s being used primarily to report police sobriety checkpoints is also beside the point. The bottom line is that this group of four senators is trying to compel limitations on protected speech.
This, of course, should be no surprise. Congress in general, and these senators in particular, have long done whatever they thought they might be able to get away with in their efforts to limit the rights of the citizens of the United States to keep tabs on what their government is doing. This is just one more example of trying to force a limit on the freedom of speech through coercion rather than legislation because they know that actually getting a law passed would only mean that it would be overturned in court.
But attempting to force these companies-Apple, Google and RIM-through nonlegislative means avoids a court challenge. It’s also possible that these companies may feel they have no choice. After all, these companies sell their products to the federal government; they’re licensed by the federal government; and the use of force by legislators to put pressure on companies that are breaking no laws is a common tactic by grandstanding senators.
If you attend enough hearings-or watch enough C-SPAN-you’ll see plenty of executives being brought to hearings and being forced to account for the way they do business, even though in the vast majority of cases they’re doing nothing wrong. When members of Congress want to bully a company, they only need to call a hearing. No legislation contemplated or in process is needed.
Tampering with Protected Activity
On a practical matter, the disclosure of police checkpoints not only isn’t illegal, it has a legitimate purpose in letting potential drunk drivers know that they won’t make it without getting arrested and that it’s best to stay put. And it’s also useful for people who aren’t drinking at all. Getting forced to submit to police questioning after being stuck in a line of traffic for a long period of time and then treated like you’re guilty until you prove through an invasive test that you aren’t is reason enough to avoid a checkpoint.
Worse, once you’re stopped, there’s nothing to keep the police from searching you, your car and the people traveling with you for real or imagined contraband. While I realize that these activities aren’t necessarily legal, they’re also very common. Should law abiding citizens be denied the right to avoid such treatment? If so, on what grounds? How can this possibly be legal?
In reality, it’s not legal. Unless police have probable cause to search you or your car, they aren’t supposed to do it. But that doesn’t mean they don’t. Sometimes this is caused by well-meaning public servants who simply aren’t clear on what’s legal and what’s not. But these four senators aren’t police walking a beat. They are supposed to know the Constitution, and they have sworn an oath to uphold it.
But for far too many legislators, upholding the Constitution has a silent gotcha in which what they really mean is that they’ll uphold the Constitution as long as they like what you’re doing. If what you’re doing, however, is politically incorrect or something else they don’t like, then damn the Constitution, and it’s full speed ahead on doing what they want regardless of your rights.
So far, only RIM has knuckled under to the demands of the senators. Perhaps it’s because they’re a Canadian company and they’re trying to be polite. But it’s a sad day nonetheless. The senators, meanwhile, should spend their energies doing something useful like helping to fix the economy or maybe helping create jobs. But thinking of new and creative ways to deny Americans their basic Constitutional rights, even if it’s their right to find out about a checkpoint, is outside of their job description.