One of the most surprising decisions of the Supreme Court term just concluded was Justice Antonin Scalia's ruling in favor of a criminal defendant who claimed that a thermal imaging device violated his Fourth Amendment rights. The police used the device to measure the heat leaking from Danny Kyllo's house and inferred from that information that he was growing marijuana inside with heat lamps. Indeed, he was, as the subsequent search revealed: more than 100 plants' worth.
In the most unlikely collaboration of the year, Justices Scalia and Clarence Thomas joined forces with Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter to rule that use of the thermal imaging device was an unconstitutional search. The decision is surprising in several respects--and not just because it rules for a drug defendant. It announces a bright-line rule barring the use of high-tech devices to intrude upon the privacy of the home, in an era where the Court has largely abandoned bright-line rules except where they benefit the police. It speaks in majestic tones about protecting privacy from the onslaught of technology, from a Court that has all but given up on privacy in favor of crime control. And it reaches a result that was by no means foreordained. This was a close case, as Justice John Paul Stevens's quite reasonable dissent shows.
So what's going on here? Should liberals (or drug manufacturers) start looking to Justices Scalia and Thomas for protection of criminal defendants' rights? I'm afraid not. This is a rare instance of an alliance between liberals and libertarians, united here in support of the sanctity of the home. For Scalia and Thomas, at least, it all comes down to property. Step outside, and you're fair game.
The dispute centered on whether the use of the thermal imaging device was a "search" that invaded Kyllo's "reasonable expectation of privacy." The police argued that the device merely registered information from the outside of the home. A police officer's observation that snow melted more quickly on certain parts of a roof would provide the same information, but no one would call that a "search." Since the information came from outside the house, it invaded no privacy.
Justice Scalia rejected that approach, and concluded that whenever the police use "sense-enhancing technology" not in general public use to obtain information that they otherwise could not have gathered without entering the home, they have conducted a search, for which they must have probable cause and a warrant. His opinion waxes eloquent on the home as castle and the need to protect citizens from the intrusions of modern technology. (None too soon, as police are already working on ultrasound technology for houses, although one wonders how they're going to apply petroleum jelly to aluminum siding.)
In its attempt to protect privacy from advancing technology, the decision is a landmark and will stand along with the Warren Court's 1967 decision in Katz v. United States, which extended the Fourth Amendment to include wiretapping. But in another respect, the decision marks an ironic return to the pre-Katz world. Before Katz, Fourth Amendment law was governed by property notions, leading the Court to make ridiculous distinctions between listening devices attached to an outside wall with a thumbtack, which were said to invade property and require a warrant, and similar devices merely taped to the wall, which were deemed not to invade property and therefore not to require a warrant.
Katz importantly held that the Fourth Amendment protects "people, not places" and eschewed arcane property questions for an inquiry into whether the government had invaded a person's "privacy." But Kyllo brings us back full circle, because without any reasoned explanation it expressly limits its protection to homes. Justices Scalia and Thomas's libertarian instincts stop at the doorstep. A man's home may be his castle, but in the view of these Justices, at least, the streets still belong to the police.
The NAACP is back, and it plans on being heard.
Bush's Attorney General is moving the conservative agenda predicted by critics.
Is human cloning a feminist issue? Two
cloning bans are currently winding their way through Congress: In the
Senate, the Human Cloning Prohibition Act seeks to ban all cloning of
human cells, while a House version leaves a window open for cloning
stem cells but bans attempts to create a cloned human being. Since
both bills are the brainchildren of antichoice Republican yahoos, who
have done nothing for women's health or rights in their entire lives,
I was surprised to get an e-mail inviting me to sign a petition
supporting the total ban, organized by feminist heroine Judy
Norsigian of the Boston Women's Health Book Collective (the producers
of Our Bodies, Ourselves) and signed by Ruth Hubbard, Barbara
Seaman, Naomi Klein and many others (you can find it at
www.ourbodiesourselves.org/clone3.htm). Are feminists so worried about "creating a
duplicate human" that they would ban potentially useful medical
research? Isn't that the mirror image of antichoice attempts to block
research using stem cells from embryos created during in vitro
My antennae go up when people start talking about
threats to "human individuality and dignity"--that's a harrumph, not
an argument. The petition raises one real ethical issue, however,
that hasn't gotten much attention but by itself justifies a ban on
trying to clone a person: The necessary experimentation--implanting
clonal embryos in surrogate mothers until one survives till
birth--would involve serious medical risks for the women and lots of
severely defective babies. Dolly, the cloned Scottish sheep, was the
outcome of a process that included hundreds of monstrous discards,
and Dolly herself has encountered developmental problems. That's good
reason to go slow on human research--especially when you consider
that the people pushing it most aggressively are the Raelians, the
UFO-worshiping cult of technogeeks who have enlisted the services of
Panayiotis Zanos, a self-described "cowboy" of assisted reproduction
who has been fired from two academic jobs for financial and other
Experimental ethics aside, though, I have a hard
time taking cloning seriously as a threat to women or anyone
else--the scenarios are so nutty. Jean Bethke Elshtain, who took a
break from bashing gay marriage to testify last month before Congress
against cloning, wrote a piece in The New Republic in 1997 in
which she seemed to think cloning an adult cell would produce another
adult--a carbon of yourself that could be kept for spare parts, or
maybe a small army of Mozart xeroxes, all wearing knee breeches and
playing the Marriage of Figaro. Actually, Mozart's clone would
be less like him than identical twins are like each other: He would
have different mitochondrial DNA and a different prenatal
environment, not to mention a childhood in twenty-first-century
America with the Smith family rather than in eighteenth-century
Austria under the thumb of the redoubtable Leopold Mozart. The clone
might be musical, or he might be a billiard-playing lounge lizard,
but he couldn't compose Figaro. Someone already did
People thinking about cloning tend to imagine Brave New
World dystopias in which genetic engineering reinforces
inequality. But why, for example, would a corporation go to the
trouble of cloning cheap labor? We have Mexico and Central America
right next door! As for cloning geniuses to create superbabies, good
luck. The last thing most Americans want are kids smarter than they
are, rolling their eyeballs every time Dad starts in on the gays and
slouching off to their rooms to I-M other genius kids in Sanskrit.
Over nine years, only 229 babies were born to women using the sperm
bank stocked with Nobel Prize winners' semen--a tiny fraction, I'll
bet, of those conceived in motel rooms with reproductive assistance
from Dr. Jack Daniel's.
Similarly, cloning raises fears of
do-it-yourself eugenics--designer babies "enhanced" through gene
manipulation. It's hard to see that catching on, either. Half of all
pregnancies are unintended in this country. People could be planning
for "perfect" babies today--preparing for conception by giving up
cigarettes and alcohol and unhealthy foods, reading Stendhal to their
fetuses in French. Only a handful of yuppie control freaks actually
do this, the same ones who obsess about getting their child into a
nursery school that leads straight to Harvard. Those people are
already the "genetic elite"--white, with lots of family money. What
do they need genetic enhancement for? They think they're perfect
Advocates of genetic tinkering make a lot of assumptions
that opponents tacitly accept: for instance, that intelligence,
talent and other qualities are genetic, and in a simple way. Gays,
for example, worry that discovery of a "gay gene" will permit
selective abortion of homosexual fetuses, but it's obvious that
same-sex desire is more complicated than a single gene. Think of
Ancient Greece, or Smith College. Even if genetic enhancement isn't
the pipe dream I suspect it is, feminists should be the first to
understand how socially mediated supposedly inborn qualities
are--after all, women are always being told anatomy is their
There's a strain of feminism that comes out of the
women's health movement of the seventies that is deeply suspicious of
reproductive technology. In this view, prenatal testing, in vitro
fertilization and other innovations commodify women's bodies, are
subtly coercive and increase women's anxieties, while moving us
steadily away from experiencing pregnancy and childbirth as normal,
natural processes. There's some truth to that, butwhat about the side
of feminism that wants to open up new possibilities for women?
Reproductive technology lets women have children, and healthy
children, later; have kids with lesbian partners; have kids despite
disabilities and illness. Cloning sounds a little weird, but so did
in vitro in 1978, when Louise Brown became the first "test tube
baby." Of course, these technologies have evolved in the context of
for-profit medicine; of course they represent skewed priorities,
given that 43 million Americans lack health insurance and millions
worldwide die of curable diseases like malaria. Who could argue that
the money and brain power devoted to cloning stem cells could not be
better used on something else? But the same can be said of every
aspect of American life. The enemy isn't the research, it's
In Terre Haute, the effects of one execution are only the beginning.
So if you managed to endure CBS's three-plus hours of Grammy cov erage, if you survived the sparsely attended protests from GLAAD and NOW, host Jon Stewart's lame commentary, the lip-synced perfor
As the Senate begins its hearings on the nomination of John Ashcroft as Attorney General, it is important to focus on the different roles that his office plays in the administration of justice in
Since our very beginning, Pacifica Radio has been a tumultuous and
controversial experiment, striving to mesh together divergent views and
Could the State Department's antidrug contractors in South America possibly
be dabbling in narcotics trafficking?
WILLIAM KRISTOL KIDNAPPED BY ALIENS--
REPLACED BY SILLY, DISHONEST IMPOSTER
"I admit it. The liberal media were never that powerful, and the whole thing was often used as an excuse by conservatives for conservative failures."
--The real William Kristol,
The New Yorker, May 22, 1995
"The trouble with politics and political coverage today is that there's too much liberal bias.... There's too much tilt toward the left-wing agenda. Too much apology for liberal policy failures. Too much pandering to liberal candidates and causes."
--William Kristol imposter, in a Weekly Standard subscription pitch, June 2001
NEW YORK TIMES WRITERS/EDITORS
LOVE-BOMBED INTO BRAIN DEATH
Remember when the Times's Frank Bruni thought George Bush's boots "peeked out mischievously" from beneath his trousers in Mexico? Well, Bruni's condition--enabled by apparent narcolepsy on the part of his editors--appears to be deteriorating. First, there's the prose. Bruni noted that upon meeting Tony Blair, Bush "broke into a smile, indulged a mischievous impulse and offered him a greeting less formal than the ones the British leader usually hears. 'Hello, Landslide!' Mr. Bush shouted out. It was a reference--an irreverent, towel-snapping one at that--to Mr. Blair's recent re-election, and it recalled the playful dynamic...when he cracked during a news conference that he and Mr. Blair liked the same brand of toothpaste." An "irreverent, towel-snapping" reference? Methinks Bruni spent too much time in the sauna. Recalling the "playful dynamic" of the toothpaste "crack"--how about "doltish" dynamic? And, hello, Blair did actually win in a landslide. (And so should have Gore!) Now, if the Prime Minister had greeted the Court-appointed Bush as "Landslide," that might qualify as "irreverent."
Perhaps the Times editors might also be willing to offer us a short seminar on the rules and purpose of the official "background" quotation in their newspaper. Two days before he began snapping presidential towels, Bruni quoted a "senior administration official" offering up the following explanation of the European reaction to Bush's missile defense proposal, in language identical to that frequently used by National Security Adviser Condoleezza Rice. "It was, 'We very much appreciate the President's decisions to consult fully, we understand that there is a threat, we want to work with the United States.'"
We have a few problems here. First off, the statement is false. One paragraph earlier, French President Jacques Chirac, who, after all, is one of the people reacting, is quoted condemning the idea as a "fantastic incentive to proliferate" (which Vladimir Putin proved almost immediately by promising to "reinforce our capability by mounting multiple warheads on our missiles" should Bush go ahead with missile defense). Second, Bush, who presumably outranks said "senior official," offered up virtually the same quote on the record. "Still pumped up," according to Bruni, Bush professed to detect "a willingness for countries to think differently and to listen to different points of view." The Times rolls over because someone in the Administration finds it convenient to spin reporters and readers while avoiding responsibility for her (?) misleading comments. I know why "senior officials" do this, but why does the Times allow it?
And finally, before bidding adieu to Mr. Bruni, how long are we going to keep reading stories celebrating the fact that the President did not pick his nose in public? "Rarely," Bruni wrote, "have the two nations' leaders so surpassed the limited expectations of their meeting." Oh really? How rarely? Whose expectations? How limited? Limited to what? I guess Bush surpassed the expectations of those who didn't know he could see into people's souls, but I don't think pandering to viewers of the Psychic Friends Network is going to help much when it comes to missile defense.
SAY WHAT YOU WILL ABOUT GEORGE WILL, THE MAN HAS GOOD TASTE IN PLAGIARISM...
George Will...calls Chris Matthews "half-Huck Finn, half-Machiavelli."
--New York magazine, June 18, 2001
"Imagine if you will, a guitar-wielding political synthesis of Huck Finn and Machiavelli..."
--Eric Alterman, "GOP Chairman Lee Atwater: Playing Hardball,"
The New York Times Magazine, April 30, 1989
MORE LIBERAL MEDIA MUSH: THE NUMBERS SPEAK
Number of weeks the New York Post's new editor took to fire Jack Newfield, its most distinguished and only liberal columnist: six. Weeks it took same to fire the Post's only black editor, who, by the way, has breast cancer: same.
While we're on the topic of the Post, Rupert Murdoch, who has already been granted more than his share of waivers to hold on to his extremist, Republican/Chinese Communist-pandering scandal sheet, is now back before the Senate communications subcommittee, seeking yet another special antidemocratic dispensation to allow him to become the first mogul to control, in addition to the Post and The Weekly Standard, a major broadcast network (Fox), a major cable network (FNC) and soon, a fast-growing satellite distribution system that already has 10 million subscribers (DirecTV). If this sounds like an Orwellian nightmare to you, to say nothing of the onslaught of right-wing sleaze, sensationalism and suck-ups to torturers it will likely produce, contact the committee at (202) 224-5184 (phone) and (202) 224-9334 (fax), and get on their case.