One of the most hotly contested areas of legal and moral life has been personal liberty: control over one’s life, body, mind, and relationships. Just as I began to study and practice law, the Supreme Court invalidated laws against birth control, abortion, premarital sex, pornography (and the right to read even legally obscene materials in the privacy of one’s home), and “unnatural” heterosexual and homosexual sex. (I remember one of my earliest cases — defending a Western Massachusetts farmer against a charge of committing “the abominable and detestable crime against nature,” with the judge and prosecutor insisting that “everyone knows what that is” and thus refusing to clarify.) Decades of legal and political infighting ensued. Here in Massachusetts, we’re doing better than just about anywhere else in the country in living our private lives as we wish, capped by our Supreme Judicial Court’s historic gay-marriage decision.
Pervading nearly all areas of modern life, technological advancements have had an incalculable effect — both good and bad — on liberty. It is harder for would-be tyrants to hide in the shadows, given the huge amount of searchable material now residing in cyberspace. But it is easier for potential tyrants to invade citizens’ privacy, as demonstrated by President Bush’s abusive use of the National Security Agency’s vast eavesdropping capabilities.
The war on terror is not the only arena where new technology poses new challenges. Just five years ago, a majority on the Supreme Court invalidated a warrantless search of a private dwelling with heat-sensor equipment that detected marijuana growing inside the building. This invasive use of technology, ruled the court, was no different than busting into the building without a search warrant. But one worries that the courts will not keep up with the increasingly varied ways in which technology continues to challenge traditional values of privacy.
Perhaps technology’s most extraordinary benefit to liberty has been its impact on exposing and reversing wrongful convictions with the help of DNA testing and other advancements in forensic criminology. Insights into the limitations of eye-witness identification and the refinement of ballistic science, as well as the art of fingerprint analysis, have limited the extent to which verities of the past are uncritically accepted by judges and juries.
We’ve also learned more about the dangers of suggestive interrogation techniques when used against vulnerable witnesses, especially young children. Courts around the nation and in Massachusetts consequently have reviewed and often nullified convictions from our modern equivalent of the Salem witch trials — the prosecutions in the ’80s, including several in the Bay State, of childcare workers accused of ritual and mass sexual abuse against very young children. The junk science proffered by phony child-abuse “experts” to support such outlandish conclusions has finally been turned on its head. Scores of the wrongly convicted — in Massachusetts and elsewhere — have been set free. Given the imperfections of the system, we still need a statewide innocence commission in Massachusetts, but we’ve been successful thus far in staving off Governor Mitt Romney’s myopic “errorless death penalty” initiative.
Perhaps the most important recent liberty issue is the executive-branch attack on the power of the federal courts to protect civil liberties during an age of terror. Curtailed under anti-terrorism legislation during the administration of the “liberal” Bill Clinton, federal courts’ review powers over state and federal convictions were even more drastically limited under the wartime presidency of George W. Bush. This development prompted the federal courts finally to kick back.