- Sep 2022
In short, the questions about Google’s behavior are not about free speech; they do, though, touch on other Amendments in the Bill of Rights. For example: The Fourth Amendment bars “unreasonable searches and seizures”; while you can make the case that search warrants were justified once the photos in question were discovered, said photos were only discovered because Mark’s photo library was indiscriminately searched in the first place. The Fifth Amendment says no person shall be deprived of life, liberty, or property, without due process of law; Mark lost all of his data, email account, phone number, and everything else Google touched forever with no due process at all. The Sixth Amendment is about the rights to a trial; Mark was not accused of any crime in the real world, but when it came to his digital life Google was, as I noted, “judge, jury, and executioner” (the Seventh Amendment is, relatedly, about the right to a jury trial for all controversies exceeding $20).
Ben Thompson argues that questions about Google's behavior towards a false positive case of CSAM does not pertain to free speech or to the First Amendment. But it does pertain to other Amendments in the Bill of Rights.
- Nov 2021
Stephen Elliott wrestled for a long time with whether or not to describe what it feels like to be wrongly accused of rape—he wrote something and abandoned it because “I decided that I wouldn’t be able to handle the blowback”—before finally describing his experiences in a published essay.
I have no context with this particular case, but if innocent of the charges, the viciousness of such a public charge without confrontation or proof is tantamount to an emotional rape without the physical violence.
There's something interesting to be learned in this experience.
See: How An Anonymous Accusation Derailed My Life by Stephen Elliott on 2018-09-25. For additional context see this opinion piece follow up a few months later: https://www.nytimes.com/2018/10/13/opinion/stephen-elliott-moira-donegan-media-men.html
(My opinion of this essay is already biased by the fact that it's published in Quillette...)
But the real, and nonpartisan, lesson is this: No one—of any age, in any profession—is safe. In the age of Zoom, cellphone cameras, miniature recorders, and other forms of cheap surveillance technology, anyone’s comments can be taken out of context; anyone’s story can become a rallying cry for Twitter mobs on the left or the right. Anyone can then fall victim to a bureaucracy terrified by the sudden eruption of anger. And once one set of people loses the right to due process, so does everybody else. Not just professors but students; not just editors of elite publications but random members of the public.
But what gives anyone the conviction that such a measure is necessary? Or that “keeping students safe” means you must violate due process? It is not the law. Nor, strictly speaking, is it politics. Although some have tried to link this social transformation to President Joe Biden or House Speaker Nancy Pelosi, anyone who tries to shoehorn these stories into a right-left political framework has to explain why so few of the victims of this shift can be described as “right wing” or conservative. According to one recent poll, 62 percent of Americans, including a majority of self-described moderates and liberals, are afraid to speak their mind about politics. All of those I spoke with are centrist or center-left liberals. Some have unconventional political views, but some have no strong views at all.
Is cancel culture a right/left political issue? Some have indicated that it is though Anne Applebaum shows that the victims don't show such bias.
This is worth exploring in more depth to untangle the justice needed from the political debate cesspool and political polarization which seems to be occurring in America.
Many of these investigations involve anonymous reports or complaints, some of which can come as a total surprise to those being reported upon. By definition, social-media mobs involve anonymous accounts that amplify unverified stories with “likes” and shares. The “Shitty Media Men” list was an anonymous collection of unverified accusations that became public. Procedures at many universities actually mandate anonymity in the early stages of an investigation. Sometimes even the accused isn’t given any of the details. Chua’s husband, the Yale Law professor Jed Rubenfeld, who was suspended from teaching due to sexual-harassment allegations (which he denies), says he did not know the names of his accusers or the nature of the accusations against him for a year and a half.
How are these cases being played out differently in the social (and social media) sphere without the ability to confront your accusers with an idea of due process?
A confounding factor also seems to be the punishment of dragging the case out for extended period of time.
Last year Joshua Katz, a popular Princeton classics professor, wrote an article critical of a letter published by a group of Princeton faculty on race. In response The Daily Princetonian, a student newspaper, spent seven months investigating his past relationships with students, eventually convincing university officials to relitigate incidents from years earlier that had already been adjudicated—a classic breach of James Madison’s belief that no one should be punished for the same thing twice. The Daily Princetonian investigation looks more like an attempt to ostracize a professor guilty of wrong-think than an attempt to bring resolution to a case of alleged misbehavior.
The example of Joshua Katz brings up the idea of double jeopardy within the social sphere. Is this form of punishment ethical or fair? Also, while those transgressions were held to account by the norms of their day, were there other larger harms (entailing unwritten rules) to humanity that weren't adjudicated at the time which are now coming to the surface as part of a bigger aggregate harm?
It could be seen as related to the idea of reparations. In some sense, aside from the general harms of war—in which they participated—the South and slave holders in particular were never held to account or punished for their crimes against humanity. Though they may have felt as if they were. Where are those harms adjudicated? Because of a quirk of fate and poor politics following the Civil War and not being held to account, have those in the South continued perpetuating many of the same harms they were doing, simply in different guises? When will they be held to account? How would reparations look in the form of a national level of restorative justice?
All of them, sinners or saints, have been handed drastic, life-altering, indefinite punishments, often without the ability to make a case in their own favor. This—the convicting and sentencing without due process, or mercy—should profoundly bother Americans.
There is a growing number of cases in which people are having their lives being completely upended because they are being deprived of due process.
In some cases, it may actually be beneficial as people may have been abusing their positions of privilege and the traditional system wouldn't have prosecuted or penalized them at all. In these cases the dismantling of institutional power is good. However, how many of them aren't related to this? How many are being decimated without serving this function?
- public shaming
- beyond the pale
- right to confront your accusers
- restorative justice
- due process
- Civil War
- cancel culture
- speedy trials
- context collapse
- double jeopardy
- institutional power
- liberal democracy
- political polarization
“keeping students safe” means you must violate due process?
<small><cite class='h-cite via'>ᔥ <span class='p-author h-card'>Anne Applebaum</span> in Mob Justice Is Trampling Democratic Discourse - The Atlantic (<time class='dt-published'>11/07/2021 13:41:11</time>)</cite></small>
- Sep 2017
One could conceivably argue that just as these personal decisions about medical procedures are insulated from the state power, so, too, should be the decisions someone makes about whether to receive a particular kind of psychiatric or psychological treatment.
Except states regularly infringe upon these rights and/or limit/remove the means of exercising such rights
Thus, the Court has drawn on the Constitution—and specifically its “due process” requirements and the safeguards they raise against arbitrary restrictions on bodily freedom—to assure that government does not impose such treatment on prisoners or mental patients without powerful reasons.
This is false. For instance, there are countless documented cases in which the state has forcibly sterilized prisoners or used unwilling sterilization as a means of obtaining early parole for segments of the population deemed lesser (i.e., women of color, poor people, etc.)
procedure established by law’ in Article 21 does not connote a formalistic requirement of a mere presence of procedure in enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable. The mere fact that the law provides for the deprivation of life or personal liberty is not sufficient to conclude its validity and the procedure to be constitutionally valid must be fair, just and reasonable. The quality of reasonableness does not attach only to the content of the procedure which the law prescribes with reference to Article 21 but to the content of the law itself. In other words, the requirement of Article 21 is not fulfilled only by the enactment of fair and reasonable procedure under the law and a law which does so may yet be susceptible to challenge on the ground that its content does notaccord with the requirements of a valid law. The law is open to substantive challenge on the ground that it violates the fundamental right
Fair, just and reasonable
The word ‘procedure’ in Article 21 is wide enough to cover the entire process by which deprivation is effected and that would include not only the adjectival but also the substantive part of law
- Dec 2015
Missouri’s legislature, noting excessive reliance on traffic tickets, put a low cap on the portion a community could raise of its budget from this source. So now 40 percent of Pagedale’s tickets are for non-traffic offenses. Since 2010, such tickets have increased 495 percent. In 2013, the city collected $356,601 in fines and fees.