Even When The First Amendment Sucks

Let’s face it, there are times when the First Amendment just plain sucks.  There is the sort of revenge porn perpetrated by scum like Hunter Moore.  There is the poster boy for protected speech, the Skokie Nazis.  And Tim Cushing at Techdirt raised a new one, the companies that manufacture license plate readers.

Private companies engaging in large-scale surveillance are pushing back against the push back against large-scale surveillance… by filing lawsuits alleging their First Amendment right to photograph license plates is being infringed on by state laws forbidding the use of automatic license plate readers by private companies.

An intrusion on personal privacy on a mass scale never before seen, capturing license plates at a fantastic rate of nearly 1,000 per hour, the companies have amassed a database of about 1.8 billion images. And, aside from some company knowing all about movements, they’re happy to share them with law enforcement.

Cyrus Farivar at Ars Technica reports that Vigilant has filed another lawsuit, this time against the state of Arkansas, arguing that a state law curbing the use of LPRs by private companies tampers with its free speech rights.

In this case, the two firms in question—Digital Recognition Network (DRN) and Vigilant Systems—generate, maintain, and share access to the license plate reader database with law enforcement.

The new Arkansas state law took effect in 2014, and it bans the private collection of license plate reader data while still allowing the cops to use the devices, usually mounted on patrol cars. The two companies say that their First Amendment rights are being violated, as they are allowed to photograph—even under an automated, high-speed process that is then shared with law enforcement—any and all license plates, anywhere.

Scary on any level. But, as much as the mass intrusiveness may outrage us, consider this:

The troublesome part is that courts have held that privacy violations that don’t exist in the singular can’t magically be summoned by en masse collections. There are definitely privacy concerns, however, especially when this information is used (and misused) by law enforcement. But the companies argue that there’s nothing personally identifiable about a license plate, at least without access to other databases like those held by states’ departments of motor vehicles. (Oddly, law enforcement officials have made the same argument, despite having this access.) This is true, but it’s of little comfort when the privately-held database contains 1.8 billion records and is growing at the rate of 70 million per month.

If you can take one pic of something in public, you can take five. Or ten. Or ten billion.  By amassing a database of their license plate pics, these companies capture nothing that any person with eyes can’t see, just on a far greater magnitude.

One of the problems with concepts like constitutional rights is that we like them when they’re good for us, but not so much when they’re not. We start trying to fudge the edges, come up with rationalizations for why ours is good and theirs isn’t, we’re right and they’re just evil.

And they may well be evil, but even people or companies we feel are evil get the protection of the Constitution.  I know, it sucks, right?  But the problem with which we’re perpetually confronted is where a conceptual ledge exists to prevent the slide down the slippery slope. Often times, no matter how strongly we feel about an issue or problem, there simply is no such ledge that meets the requirements of basic reason.

We can pretend otherwise, and courts sometimes do, but to accept irrational distinctions when they suit our sensibilities is to invite the rights we hold dear to evisceration when the guys and gals in robes decide they don’t share our world view.

In a “work in progress” paper, lawprof Brian Leiter attempts to address this issue by arguing that it’s time we grew up, came to the realization that most speech is just worthless drivel and undeserving of First Amendment protection. Titled “The Case Against Free Speech,” he contends:

Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth.

Certainly this applies in the courtroom, where rules of evidence are employed to keep out unreliable testimony.  In the courtroom, of course, we have what Leiter calls the “epistemic arbiter,” the judge, to decide what speech is worthy, and we’re largely okay with the program.

I also argue for viewing “freedom of speech” like “freedom of action”: speech, like everything else human beings do, can be for good or ill, benign or harmful, constructive or pernicious, and thus the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimize its very real harms, without undue cost to its positive values — rather than rationalizing (often fancifully) the supposed special value of speech. In particular, I argue against autonomy-based defenses of a robust free speech principle.

This reflects one of those curious propositions, as most of us will agree with it wholeheartedly, knowing that we hear “speech” all the time that is stupid and harmful.  Indeed, one of my basic tenets here is that no one is allowed to make people stupider, which is a variation on this theme.  And there is likely to be no argument by anyone that there is some damn foolish speech going around.

Of course, the problem with this universally shared assessment is that while we can agree that there is harmful speech, we can also agree that the harmful speech is performed by the other guy. My speech is wonderful. Theirs? Maybe not.  Who is the “my” and “their,” unfortunately, is where our universal agreement comes to a crashing halt.  Which brings us to the crux of Leiter’s article:

I conclude that the central issue in free speech jurisprudence is not about speech but about institutional competence; I offer some reasons — from the Marxist “left” and the public choice “right”— for being skeptical that capitalist democracies have the requisite competence; and make some suggestive but inconclusive remarks about how these defects might be remedied.

You have to read the article for the punchline, but I’ll give you a thought to ponder. If we trust the government enough to let them give guns to guys, why not let it be our epistemic arbiter of worthy speech?  We could have a Speech Czar, say George XIX.  How does that work for you?

There are exercises of First Amendment rights with which we disagree, even find repugnant.  There are certainly ideas expressed, say, that the world is flat or that AIDS was God’s punishment for homosexuality, that just aren’t worthy of the breath it take to utter them.  But no one, Leiter included if not particularly, has a good answer as to who would decide which are constructive and which are so pernicious they demand to be silenced.

So the companies that make license plate readers argue that they have as much right to take pics on the street as anyone else. And they do.  It really sucks that they do, but they do.  No, this is not to argue that it’s a good thing, or even benign.  It’s just that constitutional rights aren’t limited to entities and purposes that we embrace, and denied to those we despise.  They can’t work that way.

15 thoughts on “Even When The First Amendment Sucks

  1. John Burgess

    While we can all agree that speech that makes people stupider is deplorable, it is not — nor should it ever be — criminal. If I annoy Scott Greenfield with stupid comments, he can delete the comment or ban me. He cannot jail me, fine me, deprive me of my right to vote or bear arms. That, to my mind, is a BIG difference. A stinging rebuke or access to his comment section may smart, but I’m not left broke as a result.

    Leitner strikes me here — as with other great ideas he’s proffered — as a real enemy of freedom. In the nanoseconds I spend pondering the issue, I wonder if he got just too many wedgies in grade school.

    1. SHG Post author

      I wonder if he got just too many wedgies in grade school.

      It would require an epistemic arbiter to conclude how many are too many.

  2. James

    Isn’t the point of contention with your First Amendment and photography that the area from which pictures are taken be ‘publicly accessible’? Hanging from a street sign or sitting on the hood of a cruiser while videotaping would most likely get me locked up. I gather I’m wrong, but you’d figure that would make the companies involved agents of the state as opposed to private citizens.

    I know at one point your constitution allowed for a ‘citizen lesser’, and while I don’t disagree with your assessment as I lack the familiarity you have with the issue, I’m still somewhat shocked it allows for a ‘citizen plus’.

    1. SHG Post author

      Not sure that your right about this not being publicly accessible. Citizen plus, perhaps, but how would that line be drawn so as not to offend the First Amendment? I don’t see it.

      1. James

        I’ll defer on the public access point, as I really don’t know enough about your laws to comment intelligently. I started too, but once I realized it was full of words like ‘Crown’, ‘Mischief’ and ‘Constable’ it was probably best to drop the issue.

        As for where to draw the line… I don’t see a place where the supposed cure doesn’t wind up being worse than the disease, either. There’s probably a pithy way to say ‘from good laws: things we don’t want’ in Latin.

        1. Michael Malone

          But they may not be using a public access point, they may have the readers on private property that happens to have a good view of a public access, like a roadway. An example I’ve had experience with, utility poles. I once leased line space on a series of utility poles to run a dedicated data line between two office locations. Nothing would prevent utility companies from renting pole space to these readers. That’s not citizen plus, that’s commerce.

  3. Valhawk

    Couldn’t Arkansas or other states get around this by not banning the collection itself, but rather banning the buying or selling of this information? You may have a 1st Amendment right to take a picture, but that doesn’t necessarily mean that you can sell it.

    At the very least they could ban Law Enforcement agencies from using the information, that seems well within their authority with no constitutional conflict at all.

    1. SHG Post author

      The companies don’t have to share with the cops, and could require the cops to obtain warrants. They just don’t want to. As for otherwise regulating it for sale, that’s presents an interesting question. But could you prohibit a photographer from selling a pic of Kanye’s kid to the National Inquirer?

      1. Valhawk

        As to preventing the sharing with law enforcement, I meant it seems like the state could pass a statute preventing its law enforcement agencies from purchasing or obtaining this information without a warrant without running into 1st amendment concerns.

        If there’s the political will to ban it outright, it seems a bit off that there isn’t the political will to pursue a lesser alternative option if the statute doesn’t survive constitutional scrutiny.

  4. Jim Majkowski

    “The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches: for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all.” H. L. Mencken.

    1. SHG Post author

      I’m told that Mencken was a dear friend of the former owner of my house, and a frequent guest. Maybe it’s something in the air here?

  5. Rick

    FYI: it’s Leiter, not Leitner. Check out his philosophy gossip blog if your eyes need a good rolling. Glad to see him taking a drubbing here, as I can’t stand the guy’s Typical Good Liberal stances on every single issue.

    1. SHG Post author

      Damn. Now corrected. Thanks.

      I don’t mind his toeing the party line, but does he have to be so ridiculously pompous about it?

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