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The ride-sharing company Uber and the food-delivery outfit Postmates, joined by two individual plaintiffs, filed a federal lawsuit last month challenging AB 5, California’s strict new law regulating the so-called gig economy. Unfortunately, the suit neglected to include an important and necessary constitutional argument.

AB 5, as Reason‘s Elizabeth Nolan Brown has reported, was designed to force “companies like Uber and Postmates—along with any employer that relies heavily on independent contractors, freelancers, or consultants—to hire most workers as full-time employees and provide a range of benefits to their contingent workforces.” The two companies, which launched the suit at the U.S. District Court for the Central District of California, Western Division, argue that this regulation deprives “workers of the flexibility and freedom of their current independent status, and instead [places] them under the authority, control, and direction of an employer.” This, the suit maintains, violates both workers’ and employers’ “fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy.”

Uber and Postmates are correct that the U.S. Constitution, properly understood, protects economic liberty against state infringement. But their suit fails to invoke the principal constitutional provision that does the protecting. Consider the language of the suit:

AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.

Missing from this rather long list is the Privileges or Immunities Clause of the 14th Amendment, a provision which was both designed and originally understood to protect a broad range of fundamental rights from state abuse, including economic liberty. As then–Texas Supreme Court Justice Don Willett observed in a 2015 opinion, the 14th Amendment’s record “is replete with indications that ‘privileges or immunities’ encompassed the right to earn a living free from unreasonable government intrusion.”

Don’t just take Willett’s word for it. Take the word of Rep. John Bingham (R–Ohio), the principal author of the Privileges or Immunities Clause itself. “The provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States,” Bingham told the House of Representatives in 1871, include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

It’s nice to see Uber and Postmates championing the right to economic liberty in federal court. It would be even nicer if they included the most important constitutional support for that right.

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When can the law stop you from saying things about me in order to protect my privacy? Pretty rarely, it turns out.

Let’s just make clear what kind of “privacy” we’re talking about. The Supreme Court has sometimes discussed a “right to privacy,” but that’s generally a right to personal autonomy—for instance, the right to buy and use contraceptives. We’re not talking about that right here.

We also often have a right to physical privacy in the sense of freedom from trespass or surveillance. The Fourth Amendment, for example, protects us against “unreasonable searches and seizures” by the government. The law of trespass protects us against physical intrusions by our neighbors.

The tort of “intrusion upon seclusion” protects us from other kinds of surveillance, such as people photographing into our bedrooms using high-powered magnifying lenses or people telephoning us repeatedly in the middle of the night. We’re not talking about that here, either.

Rather, we’re talking about “informational privacy”—restrictions on communicating information about me when I think that information is highly private.

Here are the five rules of free speech and privacy:

Rule 1: We usually have a right to speak about other people, not just about ideas. We can express opinions about them, even if those opinions are insulting. We can say true things about them, even when they’d rather keep that information private.

Newspapers and TV programs are chock full of such speech about people, many of whom would rather not be spoken about. The same is true of biographies. Even autobiographies usually reveal information not just about the writer, but about his family, friends, lovers, business associates, and more.

Rule 2: We have a nearly absolute right to reproduce information drawn from government records. Newspapers can quote arrest reports, or documents from court cases, even when they describe the private details of the defendant’s life—or of a victim’s life. For instance, in 1989 the Supreme Court struck down a statute that forbade the media from publishing the names of sex offense victims. Such a statute, the Court held, wrongly limited the right to publish information drawn from government records, such as arrest reports.

And this right doesn’t vanish with time. There can be no European-style “right to be forgotten” under American law, at least when it comes to material taken from government records.

Rule 3: Our free speech rights extend to speech about private figures, and not just about government officials or famous people. Indeed, newspaper stories often disclose information about ordinary people who have never sought publicity.

Rule 4: Lower courts have allowed some civil lawsuits for so-called “public disclosure of private facts.” The Supreme Court has never decided whether this tort is constitutionally valid. But even if the tort can be constitutional, courts agree that it’s sharply limited.

First, it applies only to revelations of highly embarrassing or personal information, such as sexual history or medical conditions.

Second, it’s limited to statements that aren’t “newsworthy.” That’s a vague line, but courts have read the newsworthiness defense quite broadly: So long as the facts are linked to newsworthy events, such as a crime, people are free to repeat them.

Third, as Rule 2 notes, material borrowed from government records—again, such as trial transcripts or arrest reports—can pretty much always be published.

Rule 5: The strongest protection for privacy is generally contract. If a business, for instance, promises not to disclose information about its customers, that promise can be enforced in court. Same if, for instance, someone who is working for a celebrity signs a nondisclosure agreement as a condition of employment.

Such contracts aren’t always enforceable; for instance, if a court orders you to disclose information about a customer, you can’t just insist that you had promised the customer to keep it secret. Likewise, a federal statute bars businesses from requiring consumers to sign “non-disparagement” clauses, in which the consumer promises not to publish critical reviews of the business.

But if a contract not to speak is otherwise enforceable, the First Amendment doesn’t prevent its enforcement. And that extends to promises of privacy as well as to other nondisclosure agreements.

—
Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.
Additional graphics by Joshua Swain

This is the ninth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

Music: “Lobby Time,” by Kevin MacLeod (Incompetech.com) Licensed under Creative Commons: By Attribution 3.0 creativecommons.org/licenses/by/3.0/

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When Willie Nash was booked into a Mississippi corrections facility, officers failed to confiscate his phone. For that, he was sentenced to 12 years behind bars. The state’s Supreme Court acknowledges that proper booking procedure was probably not followed and that Nash did not seem to know his phone was illegal, but they nonetheless ruled Thursday that the sentence is fair.

After Nash was booked into the Newton County Jail on a misdemeanor charge, he asked a jailer to charge his phone, seemingly unaware that he was not supposed to have the item. Mississippi Code Section 47-5-193 considers the possession behind bars of “any weapon, deadly weapon, unauthorized electronic device, contraband item, or cell phone” a felony; the offense carries a prison sentence of three to 15 years.

The jailer took the phone to a sheriff’s deputy. Nash initially denied ownership, but officials confirmed that it was his using the passcode he had previously provided the jailer. In one of the text exchanges discovered, a contact inquired about Nash’s location, to which he responded, “in jail.”

A jury then found Nash guilty of possessing of a cell phone in a correctional facility. At sentencing, the judge told Nash to “consider yourself fortunate.” Had the court used Nash’s previous burglary convictions to classify him as a habitual offender, he would have received the full 15 years in prison, not 12.

Nash appealed not the conviction but the lengthy sentence, which he said was both “grossly disproportionate” and a violation of his Eighth Amendment right against cruel and unusual punishment. He also argued that the statute’s list of prohibited items put them in descending order of seriousness, implicitly indicating “differing degrees of transgression” that deserved different penalties. But the state Supreme Court decided that it could not find “under the law that the trial court abused its discretion in sentencing.”

The Court shot down the “differing degrees of transgression” argument on the grounds that the statute warns against violating “any provision.” And since the sentence fell within the “statutory range”—that is, because it does not exceed 15 years—the Court said it could not be appealed.

“While obviously harsh, Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate,” the Court concluded. The judge, the decision noted, had expressed his reasoning for the sentence, citing Nash’s prior convictions and acknowledging that he could have given Nash the full 15 years.

In a concurring opinion, Associate Justice Leslie D. King wrote that while the Court upheld case law in its ruling, the case “seems to demonstrate a failure of our criminal justice system on multiple levels.”

It was “highly probable,” King said, the proper booking procedure was not followed and that Nash’s behavior indicated he was unaware that his phone was illegal. He added that it seemed “problematic” to “allow someone into the jail with a cell phone, and then to prosecute that person for such action.” And despite Nash’s previous convictions, King felt his history showed a change in behavior. Nash had served time for burglary, but for nearly 10 years afterward, Nash had stayed out of trouble and has provided for his wife and three children.

The judge could have used more discretion, King concluded, since Nash’s crime was victimless, he was not doing anything “nefarious” with the phone, and he provided it willingly.

Mississippi has the third-highest incarceration rate in America.

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Sen. Cory Booker (D–N.J.) announced Monday that he is withdrawing from the 2020 presidential race.

“Today I’m suspending my campaign for president with the same spirit with which it began,” Booker said in a video posted to his Twitter account. “It is my faith in us, my faith in us together as a nation that we share common pain and common problems that can only be solved with common purpose and a sense of common cause.” 

It’s with a full heart that I share this news—I’m suspending my campaign for president.

To my team, supporters, and everyone who gave me a shot—thank you. I am so proud of what we built, and I feel nothing but faith in what we can accomplish together. pic.twitter.com/Fxvc549vlJ

— Cory Booker (@CoryBooker) January 13, 2020

He will now pivot to campaigning for reelection to the Senate.

The tone of Booker’s video reflected the tenor of his campaign, which was defined by calls for Democratic unity. “It’s not going to be a referendum on who [President Trump] is,” Booker said in a speech excerpted in his farewell video. “It’s going to be a referendum on who we are, and who we are to each other and for each other.”

Though the senator warned against Democratic infighting, he was willing to rock the boat on a few notable occasions. He is one of few high-profile Democrats who is still sometimes willing to vouch for school choice, rightly pointing out that such options help the vulnerable minorities that progressives claim to stand for. In the July Democratic debate, he criticized former Vice President Joe Biden’s record on criminal justice issues, particularly as it pertains to his hardline record on harsh punishments for drug offenses. And in the November debate, he pushed back on the wealth tax proposed by Sen. Elizabeth Warren (D–Mass.), reminding viewers that several other European countries have attempted to implement the levy with failed results.

But Booker never could quite catch on in the polls, lingering around 2 percent for most of the race. He may have been hamstrung by his history of grandstanding in congressional hearings. While politicians on both sides of the aisle are no stranger to that type of thing, Booker never could quite execute such moments with the same verve: His “I am Spartacus“ moment during Associate Justice Brett Kavanaugh’s confirmation hearings was widely mocked as theatrical and disingenuous. 

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The question of whether we will hear testimony from any of the people in Trump’s inner circle appears to have become the hinge on which the entire impeachment process is poised.

If you think about it, it is astonishing—bizarre, really—that we may well reach the end of this entire process without having heard from any of the people in a position to know the answer to the question: what was Trump doing, and why was he doing it?

There are two competing narratives regarding this question: the “Fighting Corruption” narrative and the “Digging Up Dirt” narrative.  In the former, he was doing what presidents often do: dangling a carrot or two (military assistance, a White House meeting) in front of a foreign leader in order to push that leader to take some steps that the president believes to be in the interest of the U.S. (fighting corruption, spending the money we give them judiciously). In the “Digging Up Dirt” narrative, he was dangling the carrots not to advance the interests of the U.S.—indeed, quite possibly in opposition to the national interest—but to inflict damage on his political opponents and thereby advance his own electoral prospects in 2020.

Most reasonable people, I think, would agree that Fighting Corruption is not an abuse of presidential power, but that Digging Up Dirt is. It follows that it is of exceeding importance that we find out which of the narratives is closer to the truth.

Now, let’s pretend that we really and truly want to know which narrative is closer to the truth. If we really and truly want to know what the President was up to and why, we would surely want to hear from those in a position to provide evidence about that, evidence gleaned from their first-hand knowledge of the President’s words and deeds. E.g., Messrs. Bolton, Pompeo, Mulvaney, and Giuliani. And, of course, from the President himself, under oath.

Yet here we are. If Mitch McConnell can hold the Senate Republicans together, we—and by “we” I mean the American people—will have heard from none of them, under oath, about any of this.

How we reached this ridiculous and sorry state of affairs goes something like this. The President publicly ordered his subordinates [here] “not to participate in [the House’s] partisan and unconstitutional inquiry.” Several senior Executive Branch officials publicly announced that they would obey that White House command, and that they would therefore not comply with any House requests (by subpoena or otherwise) for documents or live testimony, unless and until they were directed to do so by a final order of a federal court. House Democrats then made the decision not to take that question to the courts, on the stated ground that the process of obtaining a final judicial determination would take too long, and would push the hearings back into the midst of the 2020 election season.

I wasn’t at all sure, at the time, that this was the right decision—at least, if “the right decision” means “the decision most likely to help resolve the question of what Trump did and why he did it”—and I’m still not sure. I’m not convinced that the process of obtaining a prompt judicial determination on the question of the validity of a House subpoena would necessarily have been so prolonged.  The President’s legal position—that members of the Executive Branch are categorically immune from any compulsion to testify in an impeachment inquiry, at least whenever the President declares that proceeding “partisan and unconstitutional”—is very weak. It has virtually no support in the legal precedents (if you don’t believe me, go back and read White House Counsel Cippolone’s letter and find, if you can, the legal arguments contained therein); it is contrary to a number of Supreme Court precedents that, while not squarely on point, run in very much in spirit in the opposite direction; and it would, if accepted by the courts, effectively excise the impeachment remedy for presidential misconduct from the Constitution going forward, for without the ability to obtain testimony from those individuals carrying out a president’s orders, how will we ever be able to obtain evidence of presidential misdeeds? I don’t see why, in a case of great national importance where time is of the essence, the federal courts could not have disposed of the matter relatively quickly on an expedited basis without having to spend an inordinate amount of time resolving the question.

But that didn’t happen, and it is, at this point, water under the bridge. The House Democrats made the decision to base their case on the evidence provided by more subordinate officials, individuals who were not in a particularly strong position to say what the President’s involvement or motives might have been. That weakened, I think, the case against the President on Article I (though not Article II—see here). Without testimony from people interacting directly with the President on a daily basis, how can we possibly know what the President did and why he did it?  How can we choose between the two narratives? It’s true that no “smoking gun” has been produced—but is that because Trump was Fighting Corruption and there is no smoking gun, or is it because he was Digging Up Dirt but the only people who were in a position to know that have not told us yet what they know?

The ball now is apparently about to move into the Senate’s court. The Senate’s Rules, assuming they use the Rules adopted for the Clinton trial, will permit, though they will not require, calling witnesses to testify.

If you were a Senator, and you actually wanted to get to the bottom of what happened, what’s the argument for not seeking the testimony from Trump and those in his inner circle? Even if you currently believe the Fighting Corruption story—what reason would you have for not wanting to settle the matter and get the evidence that could well confirm that story and exculpate the President?

There is, I suppose, the “Nyah Nyah, you made your bed, now sleep in it” argument: “You, Democrats, had your chance, in the House hearings, to call all the witnesses you wanted to call, and you chose to build your impeachment case on the evidence you obtained thereby, and we’re going to stick entirely to what you have come up with.”

That’s not the kind of argument, though, that you would expect from someone who really and truly wanted to know—and who thought it was important that we all know—what actually happened. And it does make one suspicious that Senators who take that position during the upcoming trial don’t really and truly want to know what happened, does it not?

Moreover, circumstances have materially changed since the House hearings were held, so the “Nyah, Nyah” argument loses much of whatever force it may have had: John Bolton has announced that he has changed his position; whereas he had told the House that he would not comply with a House subpoena unless ordered by a court to do so, he is now “prepared to testify” if called before the Senate.

I want to hear what he has to say. Under oath, not just in his book.  I can’t imagine anyone who genuinely wants to know whether Trump abused his power not wanting to hear what he has to say, under oath.

Co-blogger Keith Whittington posted a thoughtful essay here on the meaning of the special oath that Senators will take before the trial convenes, swearing to “do impartial justice” in impeachment proceedings. The duty to do “impartial justice,” he writes,

… does not mean that Senators have to wait until the formal start of a trial to start assessing whether an officer has committed impeachable offenses or limit their deliberations to the specific evidence and arguments that the House managers and the counsel for the president might present on the Senate floor. It does not mean that they have to sit for the impeachment trial with an open mind and no prejudgments on the merits of the case. It does not mean that they have to refrain from making public statements about an officer’s conduct.

But, he goes on, doing impartial justice surely does mean that senators “have a duty to conduct a trial that provides both sides an adequate opportunity to present their case, [and] a duty to consider the evidence and the legal arguments that are relevant to determining whether the president has committed an impeachable offense.”  I know that justice is supposed to be blind, but it’s not supposed to be willfully blind as to what actually happened.

It will only take four Republican Senators to do the right thing here; we’ll see if they emerge from the Republican caucus. I hope they do.  Otherwise, a truly awful impeachment precedent will have been set, and it will come back to bite us in the ass in the future.  The President’s strategy of total stonewalling will have prevailed, and any future president engaging in misconduct will surely forbid his associates from testifying as to his actions, thereby crippling our ability to uncover and punish it. Presidential impeachment—which, while flawed in many ways, has helped to keep most of the people we have elected as Chief Executive from doing truly awful things with the power we have placed in their hands—will no longer function as a deterrent to presidential misconduct.  Whatever you may think of the current charges against our current president, I don’t think you should rejoice at that outcome.

 

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Neil Peart, the longtime drummer for the Canadian band Rush, died last week of brain cancer, leaving behind a legacy as one of rock’s most technically accomplished percussionists and perhaps its most articulate libertarian lyricist. The 67-year-old songwriter regularly championed individualism, choice, and freedom over soul-crushing conformity.

Early Rush songs are saturated with such messages. The song “Freewill,” released on 1980’s Permanent Waves album, puts self-determination at the root of the human experience: “If you choose not to decide, you still have made a choice.”

In “The Trees,” released two years earlier, Peart tells a fable about a forest where the maple trees demand to be made equal with the taller oaks. It doesn’t go well:

So the maples formed a union
and demanded equal rights.
“The oaks are just too greedy.
We will make them give us light.”
Now there’s no more oak oppression
for they passed a noble law.
And the trees are all kept equal
by hatchet, axe, and saw.

Sometimes Peart’s individualism could be compressed into a single line, as in Rush’s 1981 hit “Tom Sawyer”: “No, his mind is not for rent/to any god or government.”

Rush’s 1976 album 2112, which Peart dedicated to the “genius of Ayn Rand,” tells the story of a futuristic theocracy that outlaws individualism and creativity, including the electric guitar. Rand’s novel The Fountainhead had a particularly heavy influence on Peart, who described the affinity he felt for the book’s protagonist in a 1997 interview with Scott Bullock for Liberty magazine:

Howard Roark stood as a role model for me—as exactly the way I already was living. Even at that tender age [18] I already felt that. And it was intuitive or instinctive or inbred stubbornness or whatever; but I had already made those choices and suffered for them.

As Bullock notes, the driving force here wasn’t Rand’s full-throated endorsement of commerce; it was her defense of individual will and artistic integrity against corrupting conformity, whether the pressure to conform comes from the government or from soulless corporate executives.

As time went on Peart, distanced himself from Rand and some of her more radical policy notions. The Liberty profile mentions that Peart supports a government safety net. By 2015, he was telling Rolling Stone: “For a person of my sensibility, you’re only left with the Democratic Party….The whole health-care thing—denying mercy to suffering people? What? This is Christian?” Rush even sent libertarian-leaning Sen. Rand Paul (R–Ky.) a cease-and-desist letter in 2010 to get the then-candidate to stop using its songs at rallies and in videos, although the band’s lawyers insisted that this was a solely a copyright issue.

So went Peart’s ideological journey. Meanwhile, the music he made will continue to have a life of its own, inspiring people with its defense of individual freedom for decades to come.

Bonus link: Matt Kibbe on Peart and Rand.

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