6: A Right to Privacy Amendment

Book text: http://www.doaskdotell.com/content/xchap6.htm

email me at Jboushka@aol.com




            My concept for both this book and “gay libertarian” political activism had started with the concept that the Bill of Rights and other provisions in the U.S. Constitution still are not strong enough to protect citizens—especially gays and lesbians—from arbitrary intrusions into their “private lives”—most notably but not exclusively those serving in the military. So, it was logical to develop a plan to amend the Constitution. Far out, improbable proposals can surface and become credible suddenly, as did (in 1996) not only the flat tax but the possibility of eliminating the income tax altogether.

            This final chapter presents that plan.  Numerous issues, where the government still has dangerous warrants to intrude into personal lives, are discussed.  The most important of these is the presence of sodomy laws in a number of states—some of them homosexual-only statutes, some of them felonies and some misdemeanors.  These laws, while at most sporadically prosecuted, tend particularly to stigmatize gays and are used as an excuse for other discrimination (and make many gays “unapprehended felons”). I recall the Dallas desert-like day, June 30, 1986, as I heard the report of the Supreme Court’s 5-4 upholding of the Georgia sodomy law in Bowers v. Hardwick.  The majority opinion brought up the whole concept of “fundamental rights,” and emphasized that this concept, derived from the “due process” clauses of the 5th and 14th amendments, does not include  the right to private choice in sexual conduct outside of the context of family and marriage. Other issues are numerous:  laws criminalizing not just “hard drugs” but also marijuana when it apparently has legitimate medical use for cancer and AIDS patients, laws allowing civil asset forfeiture without what seem to common sense like ordinary due process (the “drug exception”), gun control, past attempts to forbid abortion (and Roe v. Wade),  as well as more recent examples like Internet censorship (the Communications Decency Act—I would witness the Supreme Court oral arguments on a snowy March day, and the Child Online Protection Act—discussed below), and old fashioned problems like the government’s warrant to conscript, and the government’s attempt to create reparative preferences for some at the expense to others.

            I present my own proposal for amending the Constitution in the chapter, including text.  I had started out with the concept of “A Right to Privacy Amendment” but then amended it to become a “The Right to Privacy, Intimate Association, Life, and the Pursuit of Happiness.”  I would add a second amendment regarding marriage, saying that neither the federal government nor the states would be forced to honor same-sex marriages defined as such by a particular state, because I thought that states would feel freer to experiment on their own with same-sex unions if they explicit were not held to the Full Faith and Credit Clause.  But over time, my original concept of “right to privacy” would become mediated to become something like a “right to self-expression.”

            I would then follow up this proposal with a second booklet, Our Fundamental Rights,[1][1] and then a specific discussion about how a “Bill of Rights 2” convention could come about, which I recently published in monograph[2][2] form.  Recently we have seen a start of a movement like this with the “shadow conventions.”

            Privacy, in fact, has come to be perceived as a concern more in the employment and commerce world rather than just government. Others have written much about the collection of data about consumers using web sites, about employee monitoring of the workplace (including computer usage), or the reliability of credit reports, as well as the exposure of average people to hackers. All of these are legitimate problems, with the workplace problems particularly interesting.


            But in summarizing my own role in Do Ask Do Tell, I want to present now the directions I have taken since that day in July, 1997 that I loaded a shipment of my black-and-white DADT books, fresh from the book manufacturer in Maryland, into my Escort and started sendting them out.

            Two trends are particularly important.  The first one was my gradual increase in “partisan” participation in the Libertarian Party.  In fact, I had enjoyed lunch with Harry Browne at a convention in Manassas, Va. in 1996, when I listen to him explain his own view of history back into the two World Wars. I would also attend the national LP convention in Washington, D.C. in 1996 and enjoy some lively discussions, as with Doug Ohmen, about the constitutional amendment idea.  I would come to appreciate the positions that attention to social issues was not enough: the income tax gives the government enormous leverage for social control.  And the Second Amendment can be as controversial to interpret as any other:  I now appreciate that people feel that their personal integrity is compromised by gun control, just as I feel that mine is by sodomy laws and by military issues.  (Perhaps I would not go so far as to believe that people need to warehouse guns to defend themselves against government itself, and I feel that to some extent legitimate checks and safety rules would not interfere with legitimate self-defense at home or on city streets.)    

            I would take a corporate transfer to Minneapolis in September, 1997, and begin a new phase of activism. But a covert word about the transfer. This had been done to get me away from duties that involved military customers, a situation that I perceived as a conflict of interest due to my activism in the military ban issue.  But there would be consequences, as I would remain largely separated from my mother after major heart surgery in 1999. I would also have first-hand experience with the issue of HMO’s, managed care, referrals, and litigation after I had an accident in a convenience store in early 1998. But I would recover from that, an have the opportunity to promote my book to a Hamline University and local cable access in the Twin Cities as I was still on crutches. “Public speaking is easy.”

            The Libertarian Party of Minnesota would work valiantly to promote its candidates, particularly Bob Odden who got a third of the popular vote in a general Minneapolis city council election in November 1997. I would help on door-to-door house calls, and learn that getting votes and “salesmanship” are exactly the opposite of authoring philosophical books: win converts, rather than arguments, reach as many people as possible with as simple a message as possible.  This idea would resurface even more in the ballot access petitioning (tailgating people at public events like the Hennepin Ave. block party) in the summer of 1998. During all of this, I would have some interpersonal experiences that would make me ponder what it might have been like to have been a father after all.


            But as the Year 2000 approached my attention would become redirected into the subtle issues proposed by my own activity: inexpensive self-publishing first in book form and supplementing it on the World Wide Web.  I would build my web site, http://www.doaskdotell.com/, to support my books with other writing and to gain a public audience.  I would even be hosted by a person running a one-man ISP company.  Suddenly, individuals, in terms of generating intellectual property and in facilitating the ability of others to offer it, could compete with whole companies and industries.  My idea was that it didn’t matter how many copies I could sell; what mattered was an audience, and quickly the stats from my ISP showed that I was getting that.

            Now, we hear all the time reports of how government goes after small business—sometimes over legitimate public safety or consumer protection issues, but sometimes (as with zoning issues) because of political pressure from established interests with turf to protect.  Maybe one of the most notorious examples is the “threat” to the music industry posed by teenage programmer Shawn Fanning and his Naptser software. Now, book and Internet publishing is not a zero-sum game and I probably do not represent the same threat, but the underlying issue was the same.  I had to become vigilant over all kinds of issues: copyright, right of publicity (possibly because my story leverages upon those of others),  trademark and domain names, and new attempts at Internet censorship.  I joined a number of Internet publishers in challenging the Child Online Protection Act of 1998 (COPA), under the sponsorship of Electonic Frontier Foundation (http://www.eff.org)/. The vagueness of the “harmful to minors” standard threatened speakers like me because I could have been charged with trying to “promote myself” by “exposing” my somewhat adult material (non-pornographic) to children. And Internet censorship laws (as does recent litigation against ISP’s hosting violence-advocating sites and publishers of violent books like Hit Man) have a potentially “chilling effect” that could one day shut out smaller writers, publishers and ISP’s out of the market and leave the field to established corporate interests, with the loss of valuable speech for the public. My own participation is described at http://www.doaskdotell.com/content/colpa.htm. As of now, COPA there is a Preliminary Injunction against it which has been upheld by the Third Circuit.  If the courts are reluctant to overturn some laws (like the military ban) they (using some of the same rather narrow reasoning) seem willing to protect the individual’s ability to protest it by low-cost publishing that is as effective as possible.

            At this point, I want to wind things up by commenting on my own motives.  Some people may feel that I am eschewing “real life” by promoting myself (with some material that some old-fashioned people might see as embarrassing or tawdry) somewhat “amateurishly” in public.  A couple of people have actually complained about my “pretending” to be a professional movie critics, both on my own site and on AOL boards.

            Let me reiterate. I’m proposing an approach to public policy and to cultural expectation based on expanded individual rights along with expanded personal accountability, with much less attention to the minority status or political affiliation than has been paid in the past.   I would apply this especially to gay and lesbian issues.  It is a moderate kind of libertarianism, or perhaps just classical liberalism.

            I could expand this into perhaps three points. (1) The firewall between the individual and the state should be strengthened, even by constitutional amendments if necessary (2) there really are important “moral” questions about how people set their own personal priorities, and these are beyond the reach of the state but well within the proper operation of markets, contract law, and cultural pressure (3) people should learn how others different from them “think” and the Internet and other technologies provide an opportunity to raise the public’s understanding and appreciation of cultural and psychological diversity.

On point (2) I would add that there has been some vacillation about a certain paradox: to take care of others (as in a family, traditional or not), you have to learn to take care or yourself first—or do you?  For many people this is an issue of faith. Point (3) is essentially a statement of “do ask, do tell.”

            So what I am doing is not so much expressing my own opinions as researching, organizing and presenting the various points of view people have about interrelated social problems (gay rights, the military ban, gender roles, free speech, guns, family  values, affirmative action, discrimination)—but in many cases (particularly the Do Ask, Do Tell book) I do use my own autobiographical experiences, especially less recent ones, as a source of authority.

            I would like to make this commercially viable and paying, either with a database service on political opinion and argumentation available to all, or to support media and motion picture ventures. While trying to build this, I continue to work.  As long as I work in a salaried capacity (which in theory though maybe not practice implies loyalty to one employer and industry), I believe there can be questions about my objectivity in presenting my material.  


ÓCopyright 2000 by Bill Boushka and High Productivity Publishing, subject to fair use.            





[1][1] Boushka, Bill. Our Fundamental Rights and How We Can Reclaim Them: A Psychological Approach. Minneapolis, High Productivity Publishing, 1998.

[2][2] Boushka, Bill. Bill of Rights 2 and Related Subjects. Minneapolis: High Productivity Publishing, 2000.