Zadekpedia

Ask BobAsk a question of every episode, 2009–2023 — answers cite the minute

Civil Liberties

6 min read

Part of Free speech and civil liberties.

Start here

Every episode (7)

Who argued it

Alan Dershowitz · Harvey Silverglate · Jeffrey Tucker · Elizabeth Nolan Brown · Lenore Skenazy · Chris Preble · Gary Johnson

Identity Politics · Meritocracy · Federalism · COVID-19 · Free Markets · Section 230 · Sex Work · Criminal Justice Reform

Background

Personal freedom as a political platform

In a 2012 interview, Gary Johnson described civil liberties as the notion that government should be watched in how it plays a role in the bedroom, saying it should play no such role, and he placed support for gay marriage equality, a woman’s right to choose, and legalizing marijuana under that heading. Marijuana, he said, might not be the smartest choice in the world, but it is a choice, and as long as you are not putting anyone else in harm’s way, that ought to be a right you should be able to partake in. The Triumph of Principle Over Politics (2012)

Bob Zadek responded that most candidates, and the governing parties, treat personal freedom as a nuisance, as something unimportant compared to the issues of the day, and that a platform holding nothing more important than personal freedom and responsibility was refreshing. The Triumph of Principle Over Politics (2012)

The New Civil Liberties Alliance

Philip Hamburger founded the New Civil Liberties Alliance about four years before a 2021 appearance, dissatisfied with the way conservative and libertarian organizations were litigating to protect freedom. He described the organization as somewhat like the ACLU, only one that actually tries to defend your civil liberties, with about 20 people in Washington, D.C. Its founding theory is that administrative power is the greatest threat to our civil liberties in our era. The New Civil Liberties Movement (2021)

Hamburger said the Alliance defends procedural rights like jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than through administrative rules, and that it litigates strategically. He cited the Securities and Exchange Commission, which he said prosecutes people in its own non-courts run by so-called administrative law judges who are not really judges, give no jury and no due process, and are quite biased. In Spartan Securities v. SEC, he said, the judge instructed the jury that guidance is not binding as law, and the jury acquitted the client on 13 out of 14 charges. The New Civil Liberties Movement (2021)

In a separate 2021 episode, Hamburger said the court had legitimized administrative power taking away most procedural rights like juries, and that the New Civil Liberties Alliance had gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines. Philip Hamburger on Court Packing (2021)

Vaccine mandates and bodily autonomy

A 2021 episode concerned Todd Zywicki, identified as a law professor at George Mason University’s School of Law, the Antonin Scalia School of Law, who objected to his employer requiring vaccination as a condition of teaching. Bob Zadek said Zywicki objected not because he is an anti-vaxxer but because he had had the COVID virus and therefore had at least the same level of immunity as if he had been vaccinated. Zadek said the university would have none of it, that a rule is a rule, and that litigation started and stopped as quickly, with the university conceding the point but not quite, caving rather than allowing the case to establish a precedent. Vaccine Mandates, George Mason, and the Bill of Rights (2021)

Jenin Younes, described as Zywicki’s counsel in the litigation and a lawyer with the New Civil Liberties Alliance, appears in the episode; Zadek noted that Philip Hamburger was one of the founders, perhaps the founder, of the Alliance. Vaccine Mandates, George Mason, and the Bill of Rights (2021)

Civil liberties and private actors

Joe Cohn, in a 2022 episode, distinguished public from private institutions of higher education. At public institutions, he said, the universities and their employees are government actors, so expelling someone for protected speech or punishing them without due process under another charge is government action implicating the deprivation of civil liberties. He described a trend over roughly six or seven years of more campaigns for censorship led by fellow students, who historically had been leaders in fighting for free speech but have by and large embraced a new tactic of appealing to administrators to silence their adversaries. Do you know your rights? (2022)

At private institutions, which are not government actors, Cohn said courts have for years protected concepts like academic freedom and free speech not on the basis of constitutional protections but with respect to contract law: if Harvard promises applicants free speech rights and does not live up to those promises, courts have been willing to say the school breached its contract. Bob Zadek called the breach-of-contract approach brilliant, giving a tool where the adverse party is a private college rather than a state-owned university, and Cohn said the tactic predated FIRE’s existence, though FIRE has been among the more frequent advocates making those arguments since its founding. Do you know your rights? (2022)

A second 2022 episode with Cohn repeats the same exchange on public versus private institutions and the contract-law route at private schools, including the Harvard example and the observation that the tactic predated FIRE. Do you know your rights? (2022)

Across episodes: what changed

The episodes show no development in the concept itself across the episodes. The 2012 Johnson interview frames civil liberties as personal freedom against government in the bedroom and in drug policy; the 2021 Hamburger episodes and the vaccine-mandate episode locate the threat in administrative power and in a university’s vaccination rule; the 2022 Cohn episodes extend the discussion to private campuses reached through contract law. The topic is touched in The Triumph of Principle Over Politics (2012), Philip Hamburger on Court Packing (2021), Vaccine Mandates, George Mason, and the Bill of Rights (2021), The New Civil Liberties Movement (2021), Do you know your rights? (2022), and Do you know your rights? (2022).

Backlinks