Paul Jacob

Privacy. You won’t find the word in the Constitution. But the idea is some how associated with liberty. So Americans have come to expect some degree of freedom from government prying — and government protection from private snoops as well.

But such hopes get dashed. At least, in Oklahoma they do. (Boy, can I say that again!)

One Riccardo Gino Ferrante was arrested in 2006 for aiming a camera up a 16-year-old girl’s skirt, while in a Target store, and was convicted of a felony for his trouble. Unfortunately, four-fifths of Oklahoma’s Court of Criminal Appeals voted that no felony occurred.

Why?

Because “the person photographed was not in a place where she had a reasonable expectation of privacy.”

Now, it is quite true that being in a public place removes or at least significantly decreases one’s expectation of privacy. But ought that extend even to the private space within one’s clothing?

Well, the court answered the question in the affirmative. As Judge Gary Lumpkin wrote in his dissent, “In other words, it is open season for peeping Toms in public places who want to look under a woman’s dress.” Except for the private knuckle-sandwich penalty should the woman in question be related to me.

Government won’t protect civilized society, but we as individuals still can. And must. Otherwise skirt-wearing will become the sole province of women like Britney Spears and Lindsay Lohan.

The dissenting judge concluded that the majority’s ruling was“interesting and disturbing.” Nice blurb for an art house flick, but not for a judicial ruling.

The judiciary must be independent. But it should be independent ofthe other branches of government, not detached from common sense, or all semblance of sanity.

Meanwhile, in Washington State, non-skirt-wearing youngsters have just maintained a far higher degree of privacy.

In a tiny rural county in the Evergreen State, a public school had required random drug tests of its sports participants. Since not everyone wanted to pee for the privilege, the case quickly found its way to court. And on Thursday, the issue was decided by the state’s Supreme Court. The state’s privacy guarantees nixed the program.Students have an expectation of privacy and to have their bodily fluids remain under their control.

There has to be reasonable suspicion to require drug tests, at least in Washington State.

Judge Richard Sanders wrote the majority opinion. It is certainly interesting:

The school district asks us to adopt a “special needs” exception to the warrant requirement to allow random and suspicionless drug testing. But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution.
1 Article I, section 7 of the Washington Constitution provides:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

It will disturb many people, caught up in America’s war on drugs. But it does not disturb me.

Just as I would not want some Peeping Tom taking pictures up the skirts of my daughters, I would not want some local school forcing them to urinate into a cup simply to make it easier for school personnel to kick out a few drug abusers.

But then, perhaps that’s why my children don’t go to public school. I have worries about not only the level of incivility in the student population,but the levels of lockstep regimentation enforced by administrators and teachers. (I also prefer my children receive a good education, but that is only tangentially related to the issue at hand. Or is it?)

Many people think random drug testing of children is a great idea, liberties and constitutions be damned. But then, many of those same people seem to think that random sobriety checks on roadways are peachy keen.

Call me crazy, but I prefer freedom. It is demonstrated criminal behavior that should warrant the intrusions of police power. Not mere generalized suspicion.

And let’s be quite frank here: random drug tests are there for only one reason, to inspire a general level of fear, with fear (it is publicly hoped)leading to abstinence from the use of prohibited drugs.

You may fear drugs so much that you want your kids to live like that. I don’t.

I have no problem with bad behavior on a student’s part being punished with expulsion. Indeed, I would insist on such a policy in any school my children were to attend. I would want my children protected. This is the proper way to handle such problems.

But such rationality is not found in most public schools, today. Thugs, sots and the merely stoned remain in classes, day after day, no matter how unproductive they may be, no matter how disruptive.

For some reason, though, the lovers of power keep lurching to policies that diminish the liberties of all rather than attack invasive behavior of the few.

It’s nice to know that, in Washington state, at least, “students do not ‘shed their constitutional rights’ at the schoolhouse door.”

It would be nice were a similar privacy right embedded in every state constitution. . . if for no other reason than common sense:it really does seem like a good idea to prevent Peeping Toms fromsurreptitiously snapping photos, upskirt, of women of any age.


Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.