He's Right, But He Still Got It Wrong

Someone was watching Fox News, so you don't have to do it yourself. Which is good, because they caught this op-ed, which has some rather surprising content for the Murdoch Network:



Judge Napolitano is right that these provisions of the USA PATRIOT Act are absolutely obnoxious from a Constitutional and civil liberties perspective. But I don't understand why he's linking them to the First Amendment. That's just plain bad scholarship.

A law that permits an investigative agency to effectively write its own search warrants (which isn't technically how the law is written, but is what it amounts to) violates the Fourth Amendment, not the First.

A law that prohibits your disclosure of the fact of service of a search warrant to your attorney violates the due process and self-incrimination clauses of the Fifth Amendment. I see where Napolitano is going with the claim that talking to your priest about the warrant violates the Free Exercise Clause of the First Amendment, but that doesn't apply. In nearly every kind of case I can imagine, one could confess your sins and seek spiritual guidance from a clergyman without discussing the involvement of the authorities in searching for evidence of a crime.

Yes, the First Amendment's free speech guarantee, and the reasons why it's there, are much easier to understand than the more complex protections given to criminal suspects and defendants by the Fourth and Fifth Amendments. But Napolitano isn't doing anyone any favors by suggesting that free speech is implicated this way, because the anti-disclosure provision of the USA PATRIOT Act forbids you from talking about the service of the warrant. (In fact, this provision of the law does implicate freedom of speech, in that it constitutes a legislative prior restraint. But Judge Napolitano didn't talk about that.)

I was also annoyed at his claim that freedom of speech is a "God-given right," which he mentioned twice. Freedom of speech is a very important right, but even if you're a believer, you've got to admit that claiming that this "right" comes from God is a fairly tortuous interpretation of its origin. God-focused societies have historically not been places where free speech is valued as an inherent good. The Bible itself contains prohibitions on blasphemy and witchcraft, which are both obviously protected by the First Amendment. Worshipping as you pleased, or criticizing the church of the prevailing authorities, was a good way to get yourself burned at the stake (if you were in the Christian nations of Europe), beheaded with a scimitar (if you were in one of the Muslim empires in Africa or Asia) or stoned to death (if you were in one of the several Jewish kingdoms in and around present-day Israel). Tolerance of different modes of worship, and the very concept of free speech (at least as we know them today), are the products of Enlightenment-era liberalism, not the products of theology.

That's not to say that religious people devalue these fundamental freedoms. Quite the opposite; many look to history to see the bad things that happened to various sects, and they realize that a certain degree of toleration is good for their own faith as well as preventing violence. Still, Napolitano's linkage of religion and liberty is intellectually ill-conceived; the two are simply different things. With liberty, religion thrives (or not, but it usually does) on its own merit. Without liberty, religion is suppressed and punished (excepting, of course, the orthodoxy promoted by the powerful). With religion, liberty is enriched as citizens are given a range of avenues in which to explore different visions of the world and learn about themselves and others. Without religion, though, liberty still survives quite nicely -- a bit more blandly, perhaps, but nevertheless there is still debate about politics, art, economics, and a variety of other subjects.

We should be outraged at the USA PATRIOT Act. We should be upset that this sort of law is on the books. We should be angry at the government for doing to us today exactly the sort of thing that King George did to our forefathers in the 1760's. But I think being upset for the reasons that Napolitano suggests is to not just oversimplify but to actually misunderstand what our freedoms really are.

(I was also really annoyed by the part in the end where the camera focused on a fraction of the judge's mouth and his voice was made to sound like a robot. One wonders what the producers were thinking. But on the other hand, I kind of like the title of Judge Napolitano's book.)