Susan Herman reviews the 2014 Supreme Court decisions.
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I’m Alexander Heffner, your host on The Open Mind.
Today, we have the special honor of welcoming the President of one of the nation’s most important civic organizations: The American Civil Liberties Union…founded to be a guardian of individual liberty and to protect Americans’ rights to free speech, equal protection under the law, due process and – most importantly perhaps and relevant to our conversation today – the right to privacy.
A distinguished legal authority and Centennial Brooklyn Law Professor, ACLU President Susan Herman leads an organization with a deep history. From the Scopes Monkey trial to Brown vs. Board of Education to our contemporary marriage equality conversation, the ACLU has been on the winning and right side of history in so many of the important cultural battles of our age.
Today, I’ll ask Susan Herman to weigh in on 2014’s Supreme Court decisions, especially any that, in her estimation, threaten individual liberty … and to elaborate on her agenda to combat government, either by legislative or judicial means that endangers our democracy.
But, first, the question to Susan Herman is in a politics where ideological purity is more coveted than intellectual honesty, to what extent does she and perhaps the ACLU broadly accept that there is a balancing act between freedom and protecting our national security and some of these other dichotomies.
So I wonder, because you are both a professor and a critical thinker about the law, if there’s still this balance or if we are championing and you are championing rights, unequivocally.
HERMAN: Well, thank you for a great first question, Alexander, and thank you for having me on the show.
HEFFNER: Thank you for being here.
HERMAN: I think there is always a balance in, in rights. Even starting with the classic First Amendment cases where the ACLU started, as you were noting. We were founded in 1920. And in response to a lot of prosecutions for speech during World War I where people would dissent … they would come out against the draft or against the war and find themselves criminally prosecuted.
And those early … our early First Amendment challenges led to the idea of, you know, “clear and present danger”. You’re not yelling “Fire” in a crowded theater. There’s always some exception to free speech. And there’s always some limitation appropriate in terms of time, place and manner.
So I don’t think there’s really such a thing as an absolute right because there’s always something on the other side. But to me the question is not strike the balance in a way that really gives up rights because we think we’re gaining something on the other side.
So, you were talking … I think … partially what you’re talking about in the last 10, 14 years is what we’ve done to our country since 9/11. And in October of 2001, you know, right after 9/11 … Congress unleashed the Patriot Act and this whole idea that we have to give up a lot of our rights and a lot of our privacy in order to be safe.
And ever since then, the ACLU has been questioning, not whether you have to have absolute rights, because you can’t ever have absolute rights. But whether we’ve just gone too far. And we started a campaign that we called “Safe and Free”.
And my part, I wrote a book to talk about the ways in which some of the post 9/11 changes in law affect ordinary Americans. You know, not just terrorists, but we’re really giving up a lot of our rights and our privacy.
And it seems to me that other than the conversation that Edward Snowden has now started about some of our surveillance … Congress has really not taken a hard look at all of the things that we started doing in the Fall of 2001 to see what the benefits are. Or really to even look at what the costs have been.
And, sure, we need to do certain things to be safe from terrorism or to fight crime. But it seems to me that we have to be thoughtful about what we’re doing so that we don’t unnecessarily give up our rights and our privacy.
HEFFNER: Do you think a consequence of the Snowden revelation has been perhaps an awakening within the criminal justice system and within the larger American population that sacrificing our rights is something that, in this day and age, we shouldn’t have to do in order to prevent terrorism?
HERMAN: Well, I’m not sure. I think Edward Snowden really has caused people to take very seriously the idea that, in fact, there is an enormous amount of government surveillance, far more than I think most people were aware of.
But I still hear from people … a couple of, you know, kind of objections to, you know, the principle that you were just saying.
One of which is “Why should I care what the government knows about me if I’m not doing anything wrong?” Okay. Now, I think that there are a lot of answers to that question. Because to me the idea of privacy, is very much tied to the idea of democracy, is tied to the idea of the First Amendment. You know if you can’t form your ideas in, in private. If you can’t have private associations. If you can’t say things that are dissenting and daring … if you just don’t feel that freedom of mind and of space and, and the private space in which to form your personality and have your conversations and decide you don’t agree with the government. Then I think we’re really changing the nature of our democracy. And so, you know, I, I think that’s very important, but I think not everybody buys it.
The other thing is that there’s still many people who would tell you well that Edward Snowden has revealed to us that there is all this surveillance, but it must be that that’s what’s necessary to keep us safe.
Now that’s where I think Congress is beginning to wake up and beginning to ask some questions about whether we’ve just gone too far? And whether, in fact, the costs are too great for the benefits. And whether, in fact, some of what we’re doing is counterproductive.
HEFFNER: Do you think that there has been a change in the sense that the courts have not been as deferential to government surveillance over the last few years?
HERMAN: Well, the courts were extremely deferential to government surveillance. I have been giving a talk that I call “Abjudication” in which I talk about the courts going on and on and on in surveillance and other cases, cases about extraordinary rendition. And all sorts of things you … since 9/11 where the courts just have not wanted to hear challenges and they use all sorts of procedural excuses.
The State Secrets Privilege … so the excuse that they’ve used in the surveillance area is the “Standing” doctrine. Now if the lawyers know … you have to have “standing” to raise a case, which means you can show that you’ve been injured.
And the way that the courts have been interpreting “standing” in a covert surveillance case was that in order to challenge the Constitutionality or the legality of covert surveillance, you had to show that you, personally, had been subjected to some covert surveillance.
Now, Catch 22, right. The whole point of covert surveillance is they don’t actually tell you whether or not you’ve been under surveillance.
So we had a number of clients who we thought were being injured. The lawyers representing Guantanamo detainees who had to fly to Yemen to interview their friends and, you know, relatives and possible witnesses because people wouldn’t talk to them over the phone or by email because they believed the government was going to be getting all that information.
But we had just a month before Edward Snowden’s revelation, we had a big case in the Supreme Court that was called Clapper versus Amnesty International.
And our client, Amnesty, was very properly worried that they were going to be subject to a whole lot of government interception of their communications with their home office in London.
So the Supreme Court said, 5 to 4, in Clapper versus Amnesty International, “No”, you know “no standing, you can’t prove that you’ve been subject to covert surveillance”.
Well, after Edward Snowden’s revelation (laugh) it looks like maybe we all have “standing”.
HEFFNER: Well, let’s turn to domestic issues and your insights into this 2014 Supreme Court docket and some of their decisions.
Your National Legal Director said that the Hobby Lobby decision was profoundly disturbing and he continued, “Writing a paycheck does not give businesses the right to impose their religious beliefs on everyone in the work place.” This is an issue fraught with concern for women, in particular, whose right to health care in this case, appears to be violated and perhaps increasingly violated by other companies that will use this as a legal defense of their decision not to provide contraceptive or other care for women. How are you going to fight back against the Supreme Court decision, through legal or political channels?
HERMAN: Okay, a number of ways in which we’re fighting back against the decision, you know, which certainly is very troubling, it upsets this whole area of law.
In terms of what women can do, we have a spot on our website called “Five things women should know about Hobby Lobby”. And, for example, it tells women that one thing that they should be aware of is that that doesn’t mean that their company is necessarily going to follow the lead of Hobby Lobby. All the companies are still going to be able to decide whether or not they do want to impose their religious beliefs on their employees, for one thing.
For a second thing, there are 28 states in which women may be more protected. So, you know, individual questions about how much Hobby Lobby will actually effect individual women.
A couple of other things that we’re trying to do about the decision. One is that a lot of people are unaware of the fact that Hobby Lobby was not an interpretation of the First Amendment. Hobby Lobby did not say that there’s a First Amendment right to religious exercise or exemptions from the law in that kind of circumstance.
Hobby Lobby was based on the statute call the “Religious Freedom Restoration Act”. And because it’s based on the statute, Congress can change that statute. So we have been supporting a law that Senator Murray from Washington introduced which she calls the “Not My Bosses Business Act”. And the basic idea of the Act is to just say that this previous statute, the “Religious Freedom Restoration Act” is not intended to provide an exemption for any employer’s own religious beliefs to them being imposed on their employee. So …
HEFFNER: This was really a case freedom from religion in the sense that this corporation wanted to apply this burden on its employees irrespective of their faith, irrespective of their desire to have healthcare.
HERMAN: Well, I think that’s right. One of the things the Supreme Court found was that there was a substantial burden as the statute requires on the employer.
But I don’t see how that can really because it’s not the employer’s choice to use healthcare … it’s the employee’s choice.
Now, the ACLU … one of the 16 areas in which we work, is we very vigorously defend people’s religious freedom. But I just don’t’ think that it is the freedom of the employer to impose his or her own religious beliefs on the employee.
Now, I’d like to actually tell you about the ACLU amicus brief in this case …
HERMAN: … because we, we file a lot of amicus briefs, you know, I’m sure everyone knows that means “a friend of the court” brief, which you do when you’re not representing one of the parties, but you think you have an additional perspective to give the Supreme Court.
So, you know, this term is always … we filed more …we are involved in more cases in the Supreme Court than anyone except the Federal Government. So we had three of our own cases, but Hobby Lobby was one of eight additional cases in which we filed an amicus brief with a different perspective.
So, we weren’t talking about the main issues, about what the statute means. Here’s what our amicus brief was about: our amicus brief looked at the history of racial and sex discrimination and anti-discrimination laws … to show that the courts had gradually come to realize that you cannot exempt an employer from an anti-discrimination law once they have entered the commercial work place.
So, first example, racial discrimination. There had been trains and restaurants and universities that wanted to be segregated or that sometimes just wanted to deny admission to people who were people of color. And the justification for that was that under their religion God had ordained that the races be separate.
Now this is not something that’s believed a lot today. But at the time it was a sincerely held religious belief. And the courts came to say, including in a case called Bob Jones University … “no”, you know.
Once you are entering the public marketplace, as a university, as a restaurant, whatever, you have to follow anti-discrimination laws. You can’t just say, “Oh, well my religion prohibits me from following the law.”
Same thing with gender discrimination. So there were a lot of people who argued that according to their religion women had to be in the home and therefore shouldn’t be allowed to vote, or shouldn’t be allowed to be lawyers.
People would argue … I’m allowed to pay men more than I pay women for the same work because in my religion the man is the head of the household.
So that was our brief, and to me it’s a very typical ACLU brief, because instead of just looking at Hobby Lobby as a question of contraception and religious rights, we see a much bigger picture because we really connect the dots and we see how this example of what really is discrimination against women … you know women can’t get their preventive healthcare needs met in the same way that men can … and we see that as part of a much bigger picture of a history of discrimination across the board.
And from that we really derive a general principle that you cannot use religion as an excuse to get exemptions from non-discrimination law.
Yeah, I think it’s a principle that everybody would accept now with respect to racial segregation.
But you know one problem I have with the Hobby Lobby case is it really puts the courts in the business of evaluating the religious belief. You know there are a lot of religions that have a lot of beliefs and where does Hobby Lobby end?
HEFFNER: I was going to ask you the same question.
HEFFNER: I mean how do you wrap your head around this? I would imagine you go to the central motive, that Justice Scalia and some of the other Justices really are trying to attempt to do here. And that is a counter-culture. I mean they see a secularism, as they define it, in public education, for example … everything dating all the way back to the Scopes trial and they want to impose, through whatever legal jurisdiction possible … this counterweight, counter perspective. I mean, isn’t that really what this is about?
HERMAN: Well, I think in a way it is. But what I … I think, to me that’s a lesson we’ve already learned. That you can’t be a counter culture if you’re resisting … you know non-apartheid … and you can’t be a counter culture if you want to keep women in the kitchen.
And the other place where this is now playing out is in the LGBT area … so we’ve had … I was just in Colorado and there quite recently and our Colorado ACLU affiliate just won a case in Colorado, suing a bakery that had refused to make a wedding cake for a same sex couple. Okay. The bakery owner said, “It’s my religious belief.” He said, “I would rather bake a cake for two dogs, than for two people of the same sex who are getting married.”
Now, you know, once you have a law of general applicability, once people are allowed to have civil unions in Colorado at this point … and once people are equal under the law, I think you can’t have every person able to trump that general law because of their religion. There’s certainly …
HEFFNER: Well, that decision gives ammunition to, to that bakery.
HEFFNER: I mean doesn’t …
HERMAN: Oh yeah, Hobby Lobby does. Yeah. Hobby Lobby makes it difficult. That particular case was decided under Colorado law …
HERMAN: But it gives a lot of ammunition … I think we’re going to be seeing a lot of cases filed by employers who say, “This is my religion”. The other thing is that the opinion was supposed to be limited because it’s only about closely held corporations. In other words, family owned. But there’s some really, really big family owned corporations out there including the Mars company … makes all the candy. So … it’s a lot of people 60 million people I’ve read are going to be affected by … you know … they work for religious employers.
And it just can’t be right. I think the principle that we had had, that the Supreme Court had established is that your religious beliefs don’t get you around a law of general applicability.
HEFFNER: Do the strict constructionists, to your mind, understand the Pandora’s box they’ve opened here? I mean that …
HERMAN: I’m not sure they do. I … I think they’re going to have to think that through in later cases. I mean the court does say this is only about contraceptives. But how do you distinguish contraceptives from … what if your employer is a Christian Scientist? And, and they really have an objection to your getting a wide array of medical treatment. Yeah, I … it’s very hard to see what the limiting principle is going to be.
I think the Court will try to find a limiting principle, but I think in the meantime, as you’re saying … I think we’re going to see all sorts of people bringing challenges to all kinds of anti-discrimination laws … not just about contraceptives. But about their treatment of, you know, people who are gay and lesbian or same sex couples. So I think … it’s a very troubling decision in terms of the doors it opens up.
HEFFNER: And in your estimation, as I asked you in the opening prompt, what are some other decisions that might threaten or embolden to think a little more optimistically today … individual liberty from this 2014 docket?
HERMAN: Okay, let me tell lyou about my favorite case then, since we’re on the roller coaster, we’ve been talking about one of the depths. … this is, to me, it was the height.
So the Supreme Court decided this term, basically unanimously, a case called Riley versus California. Now I’m fond of this case partly, I think, because I wrote most of the ACLU amicus briefs in the case.
But what the case was about, was whether when you’re arrested, whether the police can search your cell phone, just automatically, even if they don’t have a reason to do that.
Now, that may not sound like that big a deal. But it is for two reasons. Number one, a cell phone, as the court recognized is not like any other object in your pocket, a cell phone being basically a mini computer, it’s as different, says Justice Roberts from an object in your pocket as a ride on horseback is from a flight to the moon.
So, the whole idea of the Fourth Amendment which is our protection against unreasonable searches and seizures was put into the Constitution because the framers of the Constitution didn’t want the government snooping in their private papers and effects.
So, where do we keep our private papers and effects now? In our cell phone. So, one of the things that I said in my amicus brief was sort of, you know, a different slant … was that if you give permission to search incident to arrest, anybody’s cell phone … it is possible for any officer to find a reason to arrest anybody, if they want to look at what photos or what contact list they have, etc., on their cell phone.
The Supreme Court has said that there’s no limit on arrests … the right to arrest for trivial offenses … there was a case involving the soccer mom, way back, who was arrested, taken into custody for her children not wearing the seat belts in the car.
The Supreme Court has also said there’s no limit on using arrests for a pretext. So that means if an officer wants to look at what’s in your cell phone, for some reason, they want to see … have you been involved with, you know, a radical organization or whatever they want to see. All they have to do is to wait for you to make a turn without signaling or commit some other violation of the traffic offense or littler or loiter … and there are just thousands of things people can be arrested for.
So I think that the Supreme Court decision is enormously important because it is the beginning of one of our current priorities … trying to bring the Fourth Amendment into the 21st century, into the digital age.
And you were talking about, you know, how else do you get there. Well, until this decision, the latest Supreme Court decision on the Fourth Amendment and the technological age … there’d been one other about GPS … but the thing that has been, you know, empowering the government was a decision the Court made in 1979 saying that the government can get any information on you that they get from a third party as long as they don’t get it from you. Which is kind of nuts.
The other thing was the Congress had not amended the electronic communications privacy act since 1986. Now, have there been any developments in electronic communication (laugh) since 1986 … in all of the Internet?
So, yeah, we’ve been lobbying in Congress for better protections of Internet privacy and digital privacy generally. But the fact that the Supreme Court has now really … issued this really resounding opinion, talking about how we are entitled to some privacy from government.
To me this is connected with the First Amendment, it’s connected with our rights to, you know, be ourselves and, and to keep something private from the government, at least.
HEFFNER: I wonder, in this digital age, do you see the Net Neutrality issue as having any connection to the First Amendment?
HERMAN: Yeah, I think it is connected. But I think there are so many issues and I think, you know, Congress …
HEFFNER: That’s a hot one …
HERMAN: … has a lot of work to do. It is a hot one now. But you know, I, I think the hottest one right now, the one that Congress is going to be working on immediately are some of the purposed fixes to the surveillance that Edward Snowden revealed.
The USA Freedom Act, for example, which you were supporting, to try to limit the government’s ability to collect information about people. You know, people way, “Well, why should I care what the government knows about me, when Amazon or Google knows all about me.”
But, you know, I think there’s a real difference because you know, the last time I looked Amazon couldn’t arrest you. And Google couldn’t check your tax returns to see … you know … to single you out.
So I think the whole idea of limiting government surveillance is really one of the biggest issues that we have about, you know, individual rights.
HEFFNER: So what’s most important to you and your colleagues as an item that’s included in this legislation that’s pending?
HERMAN: An item that’s included in the legislation? Well, there are a number of facets to it. But I think a lot of it is just the standard. So what the, what the government has been arguing since that Supreme Court 1979 case is that there is no limit on their ability to get information that is in the possession of your telecommunications provider or your Internet service provider.
Now think about what your internet service provider knows about you … that is everything on the cloud. That’s just nuts. So I think they have to have more limitations, more restrictions on when the government is actually going to have the ability to access all that information about you.
HEFFNER: Because often it’s not public when the government does receive gigabytes of information from … whether it’s Verizon or Comcast or Google or Facebook. You want that process to be open and transparent.
HERMAN: We would like that process to be more transparent and I think one thing that’s very interesting and one thing that I think is a cause for hope is that it turns out that all this surveillance is bad for business … for American business. So, at the beginning the telecommunications providers were all cooperating full force with the government. The government would say to them, “We’d like all this information, they’d say, ‘Sure, take it.'” They would just volunteer, they wouldn’t even wait to get the order or whatever.
Now, I think the Google and Microsoft and other companies have figured out that if they are so careless with their customers’ privacy, that the American Internet is not going to always maintain they, you know, exclusive position that we’ve had. Other countries are talking about, “Well, maybe we’ll start our own Internet that has stronger protections.”
HEFFNER: Well, expand on that. I mean, what, what is really the impetus to the user to care that his or her Facebook information, for example, or purchases on Amazon are going to be stored … in case a possible terrorist emerges who is buying ingredients for some kind of bomb to set off in New York City.
HEFFNER: That’s a piece of information that the government should or should not have and under what circumstances should they have it?
HERMAN: I think the government shouldn’t just have all that information to just search through at will. If they have a reason for wanting the information, if they can explain to my Internet service provider or my telecommunications provider that they do have a reason to think that I’ve been selling, you know, bombs to terrorists or I know who … I’ve been talking to a terrorist … that’s fine. But …
HEFFNER: So the condition is a warrant …
HERMAN: It’s something like a warrant … there are two ideas to the Fourth Amendment. One of which is you have some objective review and the other is that you have particularized suspicion, instead of just gathering things up in a dragnet, you have a reason to get this information.
So I’ll tell you … within a month certainly of Edward Snowden’s revelation, the ACLU brought a law suit that we call ACLU versus NSA. And this is in our own name because we are a client of Verizon Business Services.
So, when it was revealed that Verizon Business Services was giving over all the telephone numbers, all the meta-data … you know the numbers …
HERMAN: … that we had been calling and from which we’d received calls to the government, we were really worried about that. Because who calls the ACLU … it’s, you know, government employees who are trying to decide whether to become whistle blowers, it’s police who think they’ve had an unfair disciplinary hearing. It’s high school students who have been disciplined because they said something on their, on the Internet about their teacher. And these people call the ACLU.
Now, if those people know that in the government data banks there is the fact that one day one they called the ACLU number and talked for five minutes. And on day 2 the ACLU number called them back and talked for an hour and three-quarters. And the day after that the phone call … we have affidavits in that case that say that the government can find out more by tracking all these telephone number than by listening to the contents of your conversation. Incredibly revealing.
So, my concern is … is it possible that by having all the information on all of us, the government might at some point hve information on a terrorist. It’s possible. But the odds are that most of the time they’re just gathering all this information and that is not happening. There may be other ways to find that out, and in the meantime I think they’re really changing the nature of our democracy, when the government can know all about us … and we’re not supposed to know what the government is doing.
HEFFNER: We have to wrap up soon, but you’re prescription seems to be targeted. If we target through the legal means possible, there is a certain justification that we can employee that will allow the government to go after certain individuals who are suspected …
HERMAN: Yeah, I think that’s right. Now to me that’s the basic idea of the Fourth Amendment. Do we have time, maybe in a lightening round to talk of a few of our other priorities …
HEFFNER: Tell me one.
HERMAN: So we’ve had a number of victories, but the good decision from last term, the Windsor … ever since E. D. Windsor brought down the Defense of Marriage Act … the state laws prohibiting same sex marriage have just been falling like dominos.
HEFFNER: I wouldn’t be surprised if when you next visit with us forty or even all states in this union have marriage equality.
HERMAN: I’m hoping so.
HEFFNER: Thank you, Susan.
HERMAN: Thank you, Alexander.
HEFFNER: And thanks to you in the audience. I hope you join us again next time…for a thoughtful excursion into the world of ideas. Until then, keep an open mind.
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