Two Bits: Religious Liberty Law / Privacy & Press Book

Prior to specifying an alcohol or substance use program, the court shall inquire, on the record, whether the defendant has an objection to any religious element of that program. If the defendant objects to a religious element of the program, the court shall identify an alternative equivalent program to which the defendant has no religious objection, and the defendant shall confirm on the record.

As we prepare for primary elections, the New York state legislative term is winding down. I have not over the years kept up with local and state law, even though it affects me and people around me in various ways more than federal law that is more likely to be covered in the material I read regularly. 

So be it. I have already noted that there are concerns there. I work a bit more (including follows on Twitter) to keep abreast of local news.  The Freedom From Religion Foundation flagged the cited legislation.  Like a bill supported by my senator (until the end of the year; I see my current assembly rep is running for her seat ... a seat that no longer will represent me with the new redistricting lines)  involving girl sanitary products at certain schools, this is the sort of limited law that advances basic principles.  

True religious liberty is a valid concern.  And, that giving people of a diverse moral and religious viewpoint an evenhanded treatment.  Often, some religious viewpoints (or the lack thereof) are overlooked. For instance, Alcoholic Anonymous sort programs often are part of sentences involving drug crimes. AA has an appeal to a "higher power," which some people do not support.  It is important to respect this.  

‘Seek and Hide’ Grapples With the Complexity of the Right to Privacy

Amy Gajda, a former journalist and current law professor, would be a useful person to discuss the balance between privacy and some "right to know."  The title is a bit misleading because if focuses on the conflict between privacy and release of information, particularly by journalists.  

It is not a general examination of privacy law.  The book is often written in a somewhat wry way and seems a bit repetitive -- okay, I get it, for much of our history, the courts have broadly recognized some limits to the right to speak and the press in interest of privacy.  This was even done to limit what many now would deem public facts, such as if President Jefferson was involved in pressuring some printer to do something.  

Some speech absolutists selectively cite the evidence here.  A glaring case is Near v. Minnesota, an important Hughes Court (1930s) case involving the limits of prior restraint.  The usual citation of the limits to this basic principle of First Amendment law, the bare minimum of what is involved, is a reference to such things like leaking of troop movements during a war.  

But, the opinion provides more examples than that, including protection of private facts.  And, the sort of facts deemed "private" back then is not just something like a private person's medical condition.  Justice Brandeis, e.g., was upset about the leaks of President Wilson's medical condition after his stroke.  One black journalist was even convicted for libel in the days of President Cleveland for exposing public wrongdoing. 

These accounts should always be read by noting that it is hard to tell the full story in each case with so much covered in summary fashion. For instance, an older book by Rodney A. Smolla from 1992 discusses the issue of the outing of a person who stopped an attempted shooting of President Ford.  His additional information shows that we were not just dealing with some average person who happened to be gay.  He was something of a public figure, even if (not sure) he would not be treated legally as one.  In other words, him being gay was far from secret, if not as well known as before the accounts after the assassination attempt. 

I'm wary about restraint of truthful facts in general, recognizing that is not really the law.*  But, the sorts of things Brandeis co-written famous law review article on privacy was concerned with includes standard gossip and public information (photos included) regularly seen in celebrity coverage.  And, even stuff reported in the courts themselves once might be liable.  

The book notes that even latter day Supreme Court opinions have a lot of dicta about the limits of release of private information. Sometimes, the issue is a matter of where to draw the lines for FOIA requests.  Or, something like the limits of disclosures for campaign finance laws or something.  Lower courts continue to provide some limits, such as obtrusive use of media (a miked up nurse involving an accident victim) or the release of a sex tape.  

There are many lines to draw, especially voluntary guidelines for newspapers and broadcast media.  The Supreme Court not that long ago allowed a "God Hates Fags" protest at a military funeral while suggesting they were deciding matters somewhat narrowly.  Some sort of buffer zone around a public funeral would be allowable.  At some point, harassment can be targeted.  We also have buffer zones at hospitals.

As I get older, I am more sympathetic in certain cases about less than absolute lines.  They seem likely exaggerated.  This book shows that privacy was among the various things used to balance First Amendment interests (you can imagine each right somehow involved here though speech and the press are the main concerns) over our history.  Simplistic answers there are not based merely on text and history.

The book is a helpful examination, including to remind people that some accounts that promote absolutism tell only part of the story.  Brandeis and Holmes, regularly cited as free speech heroes (at least in the 1920s), surely were not absolutists.  A reaffirmation of "it's complicated" yet again, mixed with plenty of interesting story lines.   No pictures though.  Blah to that. 

==

* One later example is the sort of case that bothers me some.  A blogger talked about his sexual exploits with a Miss Vermont, in part to express his opinion her message of purity basically was phony.  He lost in trial court but she dropped the case later on.  

The author then provides various examples to suggest he would have lost on appeal too.  Eh to that on principle.  The examples included pictures, video, information like health records and driver's license information, and a "gotcha" show that worked with police to expose someone at his house who shot himself before they got their chance.  

Much of this to me is more "private" than merely talking about sexual relationships.  Also, Miss Vermont is not a merely private figure.  The sex details were not merely salacious.  It directly went to her "job" and position.  It is akin to outing a priest as gay.  

The blogger also talked about other sexual exploits that very well were more private. This? Again, eh. Maybe, too much detail? The bare bones of the sexual exploit, however, seems to me appropriate, if not deeply important stuff.  I don't know if the line is that fine tuned though.

I disagreed, however, with the firm assurance of Rodney Smolla (though this book notes things have changed in the last thirty years) that public figures have no right to privacy regarding private facts.  Some salacious facts (penis size or something) simply has no real "public interest" when judging a politician's public role, except in very limited cases (see Bill Clinton/1990s).  

But, various accounts will simply have quite personal details and it would be on principle in my view a valid public interest to so.  One tricky thing is use of booking photos, especially since the person is innocent until proven guilty.  I think it generally is wrong at least as an ethical principle for newspapers to print them.  

I would be wary about making that a legal principle.  One other thing cited is some "right to be forgotten," including getting rid of old facts.  This would include removal of old criminal material after a certain date.  Consider some of the things that come out now regarding wrongs from back in the day, including a recent governor's use of blackface in the early 1980s.  OTOH, this need not be totally removing the material as compared to making it harder to get in by normal search methods.