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Boston.com / Latest News / Region

This is absolutely ridiculous!!! The more I read the more I realize that our liberties are being trampled on daily.

BOSTON -- The state's highest court on Friday upheld the conviction of a man who secretly recorded police after they pulled him over.

The Supreme Judicial Court in a split decision ruled that Michael Hyde violated the state's electronic surveillance law, which prohibits secret recordings.

But in a strongly worded dissent, two justices said the wiretapping statute was not meant to prevent citizens from recording an encounter with police.

Hyde, a rock musician, said he recorded Abington police because he thought they unfairly targeted him for a traffic stop on Oct. 26, 1998, because of his long hair, leather jacket and his sports car.

Hyde recorded officers using an obscenity, asking him if he had any cocaine in his car, and threatening to send him to jail.

Several days later, he brought the tape to police headquarters to try to prove he was harassed. Instead, police charged Hyde with unlawful wiretapping.

A jury took less than an hour to convict Hyde of breaking the electronic surveillance law. He was sentenced to six months of probation.

At Hyde's trial, police testified they pulled him over because of the loud revving of his car's engine, a noisy muffler and a broken license plate light.

The SJC rejected Hyde's argument that the law was not applicable because the police were performing their public duties and therefore had no reasonable expectation of privacy.

"We conclude that the Legislature intended (the law) strictly to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge," Justice John M. Greaney wrote in the majority opinion.

Chief Justice Margaret Marshall and Justice Robert Cordy used the famous videotape of the Rodney King police beating in Los Angeles as an example of a recording that would have been prohibited under Massachusetts law.

Marshall said the purpose of the law was not to shield public officials from exposure of their wrongdoings.

"In our Republic, the actions of public officials taken in their public capacities are not protected from exposure. Citizens have a particularly important role to play when the official conduct at issue is that of the police," Marshall wrote.

Marshall also said the ruling threatens the ability of the media to do their job.

Hyde's lawyer, Peter Onek, had argued that police officers, acting in their official capacity, are not afforded the same protections from electronic surveillance as private citizens.

"We are very disappointed," Onek said Friday. "We think the decision is wrong and that the dissenting decision is right on target."

Onek said Hyde may take the case to the U.S. Supreme Court.

Prosecutor Robert Thompson said the language of the law explicitly protects the privacy rights of all individuals, whether they are private citizens or police officers.

"How the dissent can suggest that police officers are no longer citizens is a little bit problematic to me," Thompson said.

David Yas, publisher of Massachusetts Lawyers Weekly, said the wiretapping law was established to protect citizens against government oppression.

"The preamble to the law said electronic devices are a danger to the privacy of all citizens. This case turns that notion on its head because here we had an individual trying to protect himself from a misdeed on the part of public officials and he's the one who ends up being arrested for it and prosecuted," Yas said.

Rights, Responsibilities, and Communitarianism

Kelley L. Ross, Ph.D.:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it...

Thomas Jefferson, "The Declaration of Independence," 1776

Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now [i.e. under a State religion 1]. Thus in France the emetic was once forbidden as medicine, the potato as an article of food.

Thomas Jefferson, "Notes on Virginia," 1784

A prohibition law strikes a blow at the very principles upon which our government was founded....Prohibition goes beyond the bounds of reason in that it attempts to control a man's appetite by legislation, and makes a crime out of things that are not crimes.

Abraham Lincoln

ometimes so many people seem to be screaming about their rights, while neglecting to answer to their responsibilities, that many of us may become completely disgusted with the whole discourse of "rights." A whole movement exists, billing itself as "Communitarianism," that promotes an effort to restore the notion of responsibility and to establish a balance both between rights and responsibilities and between individuality and community. There has actually been talk of building a "Statue of Responsibility" on the West Coast as the counterpart of the Statue of Liberty in New York harbor. The movement is spearheaded by sociology professors Robert Bellah, in Habits of the Heart, and Amitai Etzioni, in The Spirit of Community. Their viewpoint is shared by many others, including historian Garry Wills; and it is reflected in the title of Hillary Clinton's book on the responsibilities of government in child rearing, It Takes a Village.

Communitarians, however, promote a certain view of rights and responsibilities that is quite different from that of John Locke, Thomas Jefferson, James Madison, etc. It is more in the tradition of G.W.F. Hegel, where the community, or the state, is more real than the individual and the individual who does not fit in with the social norms or the law is objectively irrational. Hegel has been regarded, justly, as the father of modern totalitarianism. How different these attitudes are comes out in the Communitarian treatment of things like seat-belt and motorcycle helmet laws. Etzioni would deny to the automobile or motorcycle rider the right to decide for themselves whether to wear seat-belts or motorcycle helmets because, if they are injured, the public is liable to end up paying for their injuries. Thus the riders have a duty to protect themselves in such a way as to not impose a burden on the public through their injuries.

This is interesting reasoning, for the denial of the right of choice about seat-belts and motorcycle helmets is really predicated on the concession of another right: that the injured riders have the right to be treated at public expense. The claim of that right is then used to deny the other [3]. The question is not even asked: do those who don't want to use seat-belts or motorcycle helmets really want their liberty curtailed for the privilege of their injuries being treated at public expense? Evidently they are not even asked. The consequence, then, is not that Communitarians want to balance rights and responsibilities; it is that they want to deny certain rights in favor of certain other ones, without asking whether that is the particular choice other people really want to make.
....
This also comes out in the Communitarian attitude towards the War on Drugs. Etzioni says that drugs cannot be legalized because the laws "communicate and symbolize those values that the community holds dear." Repealing the drug laws would send the message that "the community approves of people being in a drug-induced stupor." This is a common response from both Conservatives and Liberals; but it is not right. The proper role of the laws is to forbid and punish judicial wrongs (of negligence, violence, and fraud) and protect judicial rights (of person, property, and contract). The law should not be used to send any "messages," especially messages that reflect moralistic views of prudential virtues as imposed by the tyranny of the majority. The absence of drug laws does not mean that drug usage is endorsed or promoted. Frederic Bastiat addressed this issue in relation to socialism in his 1850 classic The Law:

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Similarly, just because we disapprove of the government attempting to forbid imprudent or self-destructive behavior, this does not mean that we approve of that behavior.

The emphasis of the authors of American Independence and of the Constitution was clearly on the liberties of individuals, who were responsible for themselves, and not on the powers and liabilities of the community to be responsible for individuals. Their emphasis on Liberty contrasts with the typical emphasis of older societies, which was on Duty -- still the keynote even in a generally liberal thinker like Immanuel Kant. The Preamble of the Constitution thus says that it is intended to "secure the Blessings of Liberty to ourselves and our Posterity." The Communitarian emphasis on positive responsibilities to others, rather than on the mere negative responsibility not to be a burden to others, thus sounds like a return to the traditional emphasis on Duty.

The Communitarian pitch to balance rights and responsibilities thus masks an attempt to shift the basic nature of rights and responsibilities from individuals to the community, i.e. to the state. They can always refer to the clause in the Preamble that says to "promote the general Welfare" -- regardless of whether particular individuals want their welfare promoted by the state, as it sees fit, or not. Unfortunately, the people who often do seem to be screaming about their rights all the time, seem mostly to want to have it both ways: to have the liberties of individualism and to impose liabilities on the community for the errors in judgment and action that they make [6]. What needs to be made clear to people is that they cannot have it both ways. The Communitarians, in turn, don't seem to understand that there is a choice: they would just as soon strip individuals of their liberties every time there is a conflict with communal power and liability.

Behind the Communitarian shift of power to the state is a certain distorted preference about what a "community" is: Communitarians distrust and dislike voluntary communities. Robert Bellah especially believes that the only true community is one created and controlled by democratic political power, which also happens to mean that of the largest political unit possible. To him, small units, whether voluntary associations or smaller units of government, do not represent enough of "the People" to properly represent the General Will (as Rousseau would have said) of the Community. This is an amazingly credulous, dangerous, and naive view of the benevolence of democracy and of large government. What it reveals is that Communitarians are not basically advocates of real community, but they are statists and collectivists who confuse their own benevolent intentions, if they were in power, with what such a government would be like operating under the incentives for corruption that are created in the sort of unrestrained and absolutist, indeed totalitarian, government that they desire.

No "community" worth the name is founded on anything other than voluntary association. An interesting example is the mediaeval Jewish community. Most Jews in the middle ages lived in countries with Christian or Moslem majorities and governments. No Jew could be forced to remain a Jew, because all that a gentile government needed was the slightest hit that a Jew wanted to convert to Christianity or Islam and it would use, literally, all means necessary to "rescue" that potential convert. Such governments also provided various incentives for conversion, including greater freedom and security and more moderate taxation. Nevertheless, not only did the Jewish community survive (though there were many conversions), but the community also assessed contributions from its members to take care of its own. Such contributions, then, could only be enforced by persuasion. But that was a very effective means of enforcement, since the Jewish community mostly succeeded in taking care of its less fortunate members. Certainly nobody else was going to.

It is particularly sad, then, when many people in the 20th century (including Jews) look at something like the mediaeval Jewish community and think that it is precisely the same thing to use the power of government to care for society in the same way. It is not the same thing, because the power of government means the police. As George Washington himself said: government is not reason; it is not persuasion; it is force -- like fire, a dangerous servant and a terrible master. Community, in short, is not the State. The Communitarians don't seem to realize, or perhaps they do, that trying to create a "community" by the threat of the police kicking down people's doors, to enforce the laws and taxes dictated by the "habits of the heart" of people like Robert Bellah, does not create a "community" but instead a police state and a prison for anyone who isn't 100% in tune with the crowd of demagogues returned by the latest election. Thus the columnist Alexander Cockburn, although himself a strange kind of civil liberties Leninist (not realizing that is a self-contradiction), aptly parodied the title of Hillary Clinton's book, It Takes a Village, as It Takes a Police State.

No, the "heart" works by love and persuasion, not by force, by a free and voluntary community, not by government; and the Communitarian view that small and voluntary associations won't do the right thing by the community really means that they don't trust what anyone will do until they themselves have the absolute power, in the name of the "People," to control society the way they see fit. Since what they also want to do is control private property and "redistribute" income, it should be clear that they are not new, non-partisan lovers of Community but really very old, very remorseless leftists who love power and hate capitalism in the very same ways that they have all this century [7].