The Communitartian Network Challenges the ACLU

One of the first things I did after law school -- eagerly; proudly -- was join the American Civil Liberties Union (ACLU), but this year I let my membership expire. Like many Americans, I’ve become fed up with the ACLU’s current passions -- opposing sobriety checkpoints, opposing community efforts to disperse street gangs, opposing HIV testing of newborns, opposing drug and alcohol testing for pilots and railroad engineers, opposing nonsectarian prayers at graduation ceremonies. . . .

Today’s ACLU can be counted upon to privilege individual rights over the common good at every turn. There’s no longer a sense of balance or limits, as there was when legal giants Oliver Wendell Holmes, Jr. and Learned Hand were the organization’s role models.

Conservatives say the ACLU has become more “radical,” but I think that’s only superficially true. What it’s really become is more like most Ameri-cans in the go-go Nineties. “The ACLU is driven by an atomistic vision of liberty,” writes social scientist William Donahue. “It envisions solitary individuals armed with rights and unencumbered by duties.”

Donahue then adds, in his understated way, “This vision does not conform to reality.”

But whose vision does “conform to reality”? What groups are developing the mature, nuanced view of rights we’ll need in the 21st century?

So far there are two candidates -- the “communitarians” and the “technorealists” -- and they’re saying basically the same things (though in different ways, as befits their very different generational interests and styles).

Communitarians tend to be Baby Boomers and older. Many belong to the Communitarian Network, whose Council includes Democrats and Republicans, radicals and conservatives. Its principal political statement is the “Responsive Communitarian Platform: Rights and Responsibilities” (www. gwu.edu/~ccps/RCPlatform.html), and its most prominent spokesperson is probably 70-year-old sociologist Amitai Etzioni, a former Jimmy Carter advisor now at George Washington University.

Technorealists tend to be Net-heads in their 20s and 30s. Nearly 2,000 of them have signed onto the “Technorealist Manifesto,” which was drawn up last year by 12 cyberworld writers and activists and is serving as the touchstone for a whole new movement (www.technorealism.org). Its most prominent spokesperson is probably 30-year-old attorney Andrew Shapiro, currently a fellow at Harvard Law’s Berkman Center for Internet and Society and NYU Law’s Brennan Center for Justice.

Both communitarians and technorealists are trying to go beyond the ACLU by giving more weight to concepts like “responsibility,” “community” and “the common good,” and correspondingly less weight to concepts like “individual rights,” “personal liberty” and “privacy.”

The idea is to reach a better balance among these life-giving concepts than the ACLU’s radical civil liberties approach provides. “[We] need to balance individual rights with the need to protect the safety and health of the public,” says the Communitarian Platform. “[W]e need to forge a new social compact . . . , a realistic compromise between personal liberty and communal obligation,” says Shapiro.

Of course, if you want to provide a genuine alternative to the ACLU’s approach to civil liberties, you can’t just talk in a vague, well-meaning way about balance and compromise. You have to provide a different vision, a different way of looking at civil liberties issues.

Etzioni and Shapiro both know this. That’s why they’ve just come out with books that -- among other things -- describe exactly how they’d analyze civil liberties issues differently from the radical civil libertarians.

In The Limits of Privacy (Basic, 1999), Etzioni says that on each civil liberties issue (e.g., HIV testing of newborns), communitarians would want to ask four basic questions. In The Control Revolution (PublicAffairs, 1999), Shapiro says that on each issue technorealists would want to weigh three distinct approaches.

To watch these thinkers analyze specific civil liberties issues is to watch the 21st century pull away from the 20th:

HIV testing of newborns

Take the issue of whether we should have mandatory HIV testing of newborns.

The ACLU of course opposes this with great passion. “Pregnant women and mothers of newborns, like everyone else in this country, have the right to decision-making about their own bodies,” it says in a recent position statement on prenatal and newborn HIV testing. “[C]ounseling and voluntary testing is a less intrusive way of promoting health. . . . [Pregnant women] have the right to the equal protection of the law, which is called into question by testing provisions [that would] disproportionately affect[] women of color” (presumably because 81% of all children reported with AIDS are children of color - ed.).

Etzioni counters this dismal and racialist boilerplate with his four practical questions.

First, do we face a substantial threat to the common good by NOT requiring HIV testing? Etzioni presents overwhelming evidence that we do -- for example, he demonstrates that not conducting mandatory tests “will directly contribute to the deaths of a significant proportion of infants born to mothers who have HIV.”

Second, would less restrictive measures be sufficient? Etzioni demonstrates convincingly that they wouldn’t be -- e.g., that voluntary testing wouldn’t reach many of those who most need to be tested.

Third, are the privacy-reducing measures as minimally intrusive as possible? Etzioni points out that the measures consist simply of sharing information with the mother.

Fourth, and finally, can the undesirable side effects of the information-sharing be minimized? Etzioni admits that the crushing blow of an HIV-positive result can’t be minimized, pointing out simply that evidence suggests that hearing the bad news “typically mean[s] that a mother [takes] a strengthened interest in managing her health and that of her child.” He also discusses various ways to prevent the unauthorized disclosure of HIV status by doctors and hospitals.

After asking (and answering) his four basic questions, Etzioni draws what he says is the proper communitarian moral: “[B]eing a parent entails a series of responsibilities, even if these exact various ‘costs’ from the parents.”

Megan’s laws

Megan’s laws require released child molesters to register with their local law enforcement authorities. Many states allow law enforcement officers to notify communities when a convicted child molester moves in, and some states publicize the address of the molester.

These laws make the ACLU apoplectic. “People who’ve been convicted of crimes, who serve their sentences, shouldn’t be the subject of continuing punishment,” the ACLU said in a news release last January. “Notification laws will not prevent sex offenders from committing crimes. . . . The only thing that will protect children from sex offenders is adequate parental supervision and educating children on how to identify inappropriate behavior. . . .”

Not surprisingly, Etzioni sees these laws very differently.

Serious threat? Etzioni points out that official recidivism rates range from 19% among treated sex offenders to 27% among untreated ones. He also rather chillingly points out that those numbers “significantly underestimate” the real rates since the vast majority of sex offenses go unreported.

Less restrictive measures sufficient? “{P]sychotherapy and other modes of treatment . . . are clearly insufficient,” Etzioni writes, “considering the tendency of offenders, even if treated, to reoffend.”

Proposal as minimally intrusive as possible? Etzioni concedes that some Megan’s laws are overly broad. But they can always be narrowed, he says, and many already have been -- for example, the public notification provision of Washington State’s Megan’s law now applies only to those who the state says have “engaged in a repeated pattern of sexually deviant behavior.”

Proposal minimizes side effects? Etzioni points out that Megan’s laws can easily be (and generally have been) designed to deter vigilantism and harassment. For example, New York imposes stiff fines and penalties on anyone who misuses information about a sex offender “to harass the registered offender or his or her family.”

After running through the four questions, Etzioni takes dead aim at the ACLU: “The key issue is not whether Megan’s laws in any way offend the privacy or other rights of sex offenders. . . . The issue is whether Megan’s laws strike a morally valid balance between . . . two fundamental claims -- those laid by individual rights and those laid by the common good.”

Cyberporn

Some of the most urgent civil liberties issues today have to do with cyberspace (which is why the technorealists have been attracting so much attention).

One of the most divisive issues is this: Should the government keep pornographic materials from kids on the Net, when parents aren’t around to supervise?

You can guess what the ACLU thinks. “[F]iltering software restricts access to valuable, constitutionally protected online speech about topics ranging from safe sex [to] gay and lesbian issues [to] women’s rights,” according to a joint statement submitted to the House Commerce Committee last year by the ACLU and its kissing cousin, the Electronic Frontier Foundation (EFF). “No criminal provision will be more effective than efforts to educate parents and minors about Internet safety. . . .”

Andrew Shapiro has a different view. And he gets there not by feeling his way, but by applying a new analytic framework.

Whenever there’s a new technology, he says, we’ve got basically three options:

We can try to impose the existing rules on the new technology. So when the Net came along, for example, a lot of politicians (including President Clinton) supported the Communications Decency Act of 1996, “which basically tried to graft to the Internet the vague indecency standards that govern radio and television (while upping the ante with a criminal penalty).” The Supreme Court struck the Act down in part because it threatened to criminalize the subjective judgments of librarians and even of parents!

We can try to devise new and supposedly “liberating” rules and apply them to the new technology. Just so, the ACLU and the EFF are calling on the U.S. government “to recognize the novelty of the Net and therefore to refrain from regulating it.” Period. The government shouldn’t even keep kids from accessing porn sites online.

Then there’s the “principles-in-context” approach -- Shapiro’s approach. It asks how we can take the valid principles underlying the existing rules, and apply them to the new technological context.

So with regard to kids and Internet porn, we’d want to ask: What are the valid principles underlying existing indecency standards? Shapiro describes the main one as follows: “Materials that a community deems inappropriate for minors may lawfully be kept from children so long as the free speech rights of adults are restricted as little as possible and parents retain the right to override the community’s judgment with regard to their own kids.”

Once we have that principle, applying it to kids and Internet porn is a virtual slam-dunk, according to Shapiro. The government should insist that “commercial intermediaries online replicate some of the role that [librarians, or clerks in adult bookstores] play offline. . . .

“The most appropriate intermediaries to deputize might be the manufacturers of browser software -- Microsoft and Netscape -- since it is their technology that allows a Net user to encounter material stored on a distant web server. [The government could require them] to give adults access to the full Internet while steering minors to the equivalent of the kids’ section in a store. . . .”

And that shouldn’t be difficult, says Shapiro the techie. Microsoft and Netscape could find out people’s ages easily by “using a technology known as a digital certificate -- a kind of virtual ID card that can be embedded into browser software to let Internet users identify themselves during online transactions. . . . Once they had this age information, Microsoft and Netscape would know who was entitled to use a regular browser . . . and who was only entitled to a new product called a ‘kid browser.’”

There could be different kinds of kid browsers, some very restrictive, some pretty loose. Parents could choose among them. Or parents could give their kids access to a regular browser, “as a parent can do [now] with any magazine in an adult bookstore.”

That’s how to handle porn. Shapiro and the technorealists are equally balanced -- they would say “realistic” -- on secrecy codes (encryption), copyright, and other key Net issues. In the end Shapiro concludes that both the political Establishment (the champion of “existing rules”) and the civil liberties Establishment (the champion of hyper-permissive “new rules”) have failed to think constructively about the kinds of rules we’ll need in the new planetary culture we’re creating.

Life after ACLU

The ACLU was a beacon of hope when it was founded, in 1920, because it stood up for the liberty of the individual and against the power of the larger community.

Today, though -- when even unforgivably bad teachers have the “liberty” to not be fired, and street gangs have the “liberty” to intimidate whole neighborhoods -- it may well be that, as Etzioni puts it, “The best way to curtail the need for governmental control and intrusion is [for individuals] to have somewhat less privacy” -- to be slightly more amenable to the wishes of the larger community.

Shapiro agrees. “In order for individuals to achieve real liberty and justice,” he says, “they must recognize limits on their autonomy -- for reasons of both self-interest and the greater good.”

In today’s “I’m entitled!” culture, these are radical thoughts -- as radical as the ACLU’s creed must have seemed in 1920. And as vital.

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