This morning’s Boston Globe reports on the criminal prosecution and college disciplinary proceeding simultaneously pending against two Wentworth Institute of Technology male students who had the bad sense (and bad grace) to videotape two female Massachusetts College of Art and Design students having an intimate moment in bed in a dormitory within all-too-easy sight range. The video ended up on Wentworth’s file sharing system and was widely disseminated around the city, although it is believed that a friend of the videographers was responsible for that.

Massachusetts law does not criminalize the surreptitious video recording of unsuspecting people; currently, only secret audio recording is a crime. However, Massachusetts does have a more general “peeping Tom” statute that has formed the basis for the pending prosecution. And Wentworth, being a private college, can penalize such conduct under any number of rubrics. So, it’s pretty clear that these two morons will not get away with their indiscretion.

            This said, one has to admit that defendant David Siemiesz, one of the Wentworth juniors being prosecuted, had a bit of a point when he told the Globe’s Maria Cramer: “This all would have never happened if their windows were closed” and if the shades were drawn and the lights turned out. Sometimes a peeping Tom takes affirmative steps to evade another person’s privacy measures, but in this case the viewing was easy.

            One is reminded of an attempt by the administration of the University of Pennsylvania a few years ago to discipline a student who, from his dorm window, photographed a student couple who were making love in a dorm room across a courtyard. The lovebirds not only were taking no steps to protect their privacy, but were seemingly reveling in the exhibitionism of the moment, as the female of the couple was pushed up against the window while the male did his thing – all obviously meant for the eyes of the passers-by in the busy courtyard below.Campus disciplinary officials, facing an outcry in support of the student photographer, dropped the investigation.

            The Wentworth case seems to be in the middle: The two women were not seemingly trying to advertise their tryst, but they did not take adequate and simple steps to try to protect their privacy either. The two “Toms” did not have to take any extraordinary steps in order to peep. So it’s not quite as clear-cut a criminal “peeping Tom” case as one might suppose, or wish. Still, the betting here is that Wentworth will take severe action – if for no other reason than that the two male students embarrassed the institution. But the prosecutors likely will be a bit more moderate.

            There is a common misconception that society pays a heavy price for allowing free speech – emotional harm to members of target groups, leakage of national security secrets, stuff like that. In truth, the substantial positives deriving from vigorous free speech are pretty clear, while the negatives are highly speculative and usually ideologically driven.

            An item in today’s The Boston Globe tells us an awful lot about one enormous societal advantage of allowing free speech. Globe staffer Bryan Bender reports that for over a year a “Burlington-based Internet company hosted a website that taught its members how to outfit a suicide bomber” and other ugly lessons. Some national security fanatics are screaming about this, including a fellow named Yigal Carmon, a former Israeli military intelligence officer and founder of the Middle East Media Research Institute in Washington, who decries “the damage they are causing.”

But the Department of Homeland Security and various American intelligence agencies see the web site as a blessing. They’ve determined that in most cases it’s “preferable to keep such sites operating as a way of tracking the spread of radical Islam, rather than try to quell them one by one.”  Besides, says these government agencies, if these sites are taken down – assuming it would be constitutional to do so – the radicals will “just find another host.”

            So, at least someone in the American intelligence community recognizes that one benefit of allowing free speech is that it helps us know who hates us enough to call for violence against us. It’s like a gay student leader, undergraduate Jason Shepard, said in a speech that I heard him deliver a decade ago at the University of Wisconsin, where the Faculty Senate was debating whether to repeal the campus speech code that banned, among other things, speech denigrating gay students. Shepard pointed out to the would-be censors on the faculty that while he did not particularly enjoy being called “a queer,” he found it useful to know who viewed him that way, so that he knew on whom not to turn his back. Precisely!

The Shepard speech led the Faculty Senate to repeal the faculty’s speech code, the only example of which I’m aware where a faculty repealed, rather than installed, a speech code. The full story is told by Professor Donald Alexander Downs in his fascinating 2005 book, Restoring Free Speech and Liberty on Campus (The Independent Institute).

Harvey and I have an article on Simon Glik in today's Phoenix, following up on some of the post-trial coverage we've featured on this blog. In the piece we argue that the legislature needs to change the state wiretapping law in order to better guarantee robust citizen oversight of police and other public officials.

If you doubt that Alice in Wonderland is the best primer available for understanding the legal system, you might read Tony Mauro's latest piece in the Legal Times. The Supreme Court just denied certiorari in the case challenging the government's warrantless wiretapping program, meaning that though it didn't make a decision as to the merits of the case, it couldn't muster four judges who wanted to consider the legal questions. As a result, according to the federal Ninth Circuit Court of Appeals, you cannot bring a lawsuit to redress unconstitutional government eavesdropping on your phone conversations if you cannot prove that they listened in on you. But of course, you cannot prove they listened in because the evidence that would support your case is secret! It's a complete circle!

Actually, Alice in Wonderland isn't the only piece of fiction that sheds light on the legal system. Charles Dickens likewise hit the nail on the head in Oliver Twist: "The law is a ass, a idiot." But there's reason behind this judicial and executive branch madness -- to keep We the People ignorant of what's being done to us in the name of "protecting" us. With more protection like this, our democracy will be undone.

Over at the law blog Concurring Opinions, Daniel Solove points to an AP article reporting that “Amtrak will start randomly screening passengers' carry-on bags this week in a new security push that includes officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains.” Solove sees a parallel between this and the New York subway’s security push, which he says was “largely symbolic.” As the head of Amtrak said, “[t]here is no new or different specific threat” that led Amtrak to add the new security measures, lending credence to Solove’s conclusion. It’s not clear what effect random searches of passengers’ carry-on bags will have beyond simple deterrence, though that seems to be offset by the apparent decision not to screen checked bags. Forcing people to undergo random warrantless searches of personal property makes me a little queasy – and more likely to take Greyhound next time I’m going to New York.

  Don’t be fooled by all of the partisan bickering. Congress’ recent debate over enacting a new federal wiretapping statute boiled down to one very simple question: should Congress transfer the authority to approve wiretaps from judges, whom the constitution specifically entrusts with this power, to the intelligence agencies and the Department of Justice, who conduct the surveillance?

            For most of the last century, prior to the Bush gang’s exploitation of the post-9/11 hysteria, the courts approved individual wiretap applications. This reasoning was crystal clear: The whole intent of the Fourth Amendment is thwarted by having the very people doing the snooping be the ones to approve their own snooping! Permission (“warrants”) to search (or eavesdrop) has to be given by a judge in the form of a search (or wiretap) warrant. In this way, the judicial branch of government keeps some check on the executive branch’s law enforcement and intelligence operations.

The Protect America Act, passed on August 5, almost entirely cuts the judiciary out of this process. The intelligence agencies and DOJ lawyers thus have been given the power to conduct electronic surveillance, on their own, of telephone calls involving American citizens, located on American soil, when those calls involve one party located abroad. Thus, all foreign phone calls made or received by Americans are subject to warrantless wiretapping, without the approval of a judge. This is unprecedented. Perhaps the only good news about the Protect America Act is that it expires in 180 days, at which point it will be reevaluated.

Is there any reason to believe that FBI, CIA and NSA agents and Department of Justice lawyers are somehow more trustworthy than federal judges who are appointed for life (to assure their independence) by a President and confirmed by the Senate? I’ve practiced criminal and civil liberties law for some four decades. I’ve come across a lot of Department of Justice officials and prosecutors, as well as FBI and other federal law enforcement and intelligence agents. Likewise, I’ve appeared before a lot of federal judges. I haven’t liked all of the judges, but I can say without reservation that, as a group, federal judges are far more trustworthy than prosecutors and agents.

 After all, within the last year, just in Boston, a federal judge found a federal prosecutor to have lied under oath about his misconduct in a criminal prosecution, and, more recently, United States District Judge Nancy Gertner issued a long and detailed opinion that awarded $101 million to the victims of an FBI operation that encouraged a hoodlum-turned-cooperating-witness to give false testimony convicting four innocent men in a state murder and sentencing three to death row. And what about the federal agents in recent decades who have been convicted of selling classified secrets to the enemy or otherwise disclosing classified material entrusted to them? How many federal judges have recently been charged with, much less convicted of, espionage? None comes to mind.

 Whom would you trust to protect both national security and the Constitution? I’ll put my money on the judiciary any day, just as the drafters of the Fourth Amendment did, but as the Congress failed to do. This is not rocket science. We voters have been swindled by the idiots, scoundrels, and cowards in the Congress. Hopefully they’ll get some brains and some backbone when it comes time to review this pathetic statute.

            Predictably, the massacre at Virginia Tech has unleashed an enormous volume of pseudo-psychiatric babble about developing pre-emptive steps to avoid such tragedies in the future.  The harsh truth is that the science of the human mind – to the extent it can be called a science at all – is insufficiently developed to have much predictive value. Moreover, profiling students that fit certain behavior patterns is not only ineffective, but is also an inexcusable encroachment upon their freedoms. It is my view that the supposed benefits gained by restricting the liberty of a seemingly troubled student are outweighed by the adverse civil liberties consequences that over-predicting violent or other anti-social behavior would have on our society. It is one thing to offer help to a troubled student, but quite another to restrict his or her liberty in some significant fashion.

            We have seen this for years in Massachusetts’ system for obtaining judicial declarations that particular inmates, who are near the end of their sentences for sexual assault offenses, remain “sexually dangerous persons” and hence should be civilly committed for an indefinite period (until “cured”), rather than released. Lawyers who handle these cases will tell you that many of the psychiatrists and other mental health “experts” hired by the state to testify that particular inmates would likely re-offend if released, are simply quacks who shill for the government.

            One is reminded of the case of Randall Dale Adams, the subject of documentary film-maker Errol Morris’ masterpiece The Thin Blue Line (1988). Adams had been convicted of the high-profile murder of a state police officer and was on Texas’ death row. State law required that, in order to execute a prisoner, there be sufficient proof not only that the prisoner had committed murder, but that he would likely kill again. Morris when down there to make a movie about the infamous psychiatrist, Dr. James Grigson, who was on virtual retainer by Texas prosecutors and who could be relied upon to testify, at the sentencing phase of capital cases, that the defendant was irremediably dangerous and would almost certainly kill again, either in prison or out, and thus should be put to death to assure the public safety. Morris’ movie about Dr. Grigson was going to be entitled “Dr. Death” (Grigson’s nick-name among defense lawyers). Dr. Grigson had testified against Adams, resulting in the predictable death sentence. What Morris learned, instead, was that Adams was entirely innocent of the murder, which he demonstrated in The Thin Blue Line, resulting in an exoneration and the discrediting of Dr. Grigson, who, it was suddenly revealed, had predicted that the defendant, later proven not to have killed at all, would kill again unless executed. So much for the value of the psychiatric “science” of predicting violence.

            The reason the subject comes up now is that there is a well-recognized phenomenon that occurs with alarming frequency after a high-profile massacre such as that in Virginia Tech – other unbalanced individuals sometimes engaged in “copy-cat” shoot-ups elsewhere. Panicked school administrators all over the country look to take pre-emptive steps to prevent repetitions on their campuses. The problem, however, is that the attempted cure is often far worse than the disease, since there is no demonstrated way of either predicting or preventing repetitions, but the logical result of such efforts would entail expelling or even locking up a huge number of students who are seen as being “odd.” In a free society, such pre-emptive action on the basis of expert psychiatric drivel is simply unacceptable.

            The National Research Council (NRC) issued a report in 2003, spurred by the disaster at Columbine High School in Colorado, entitled Deadly Lessons: Understanding Lethal School Violence. The NRC report discussed proposals for methods “to identify likely offenders in instances of lethal school violence or school rampages.”  But the report concluded that “the offenders are not that unusual; they look like their classmates at school.” And a report by the United States Secret Service concluded, similarly, that “there is no accurate or useful profile of ‘the school shooter.’”

            Gary Pavela, an attorney who specializes in social and legal aspects of higher education and who publishes the highly-regarded Synfax Weekly Report, has observed that one problem is “the waning role of college teachers as guides and mentors.” College administrators have jumped into the breach but, because of their very limited actual contact with students, spend more time and effort trying to control rather than listen to or guide students. As a result, the adults on campus appear to know less and less about their students, with a concomitant inability to offer effective guidance and help. Pavela, in his recent post-Virginia Tech newsletter, sagely quotes Harvard Psychiatrist George Vaillant, who wrote in his 1977 book, Adaption to Life, that the educator’s aim should not be to transform the human psyche, but to “help the paranoid’s projection become a novel, an eccentric’s sexual fantasy become a sculpture, and a delinquent’s impulse to murder evolve into creative lawmaking….” Amen.

I recall walking into the Cambridge Police Department headquarters in Central Square one day during the peak of the Vietnam era anti-war protests. Looking for a particular officer, I accidentally wandered into an office maintained by the “intelligence” unit of the department. There I came across a wall of photographs spanned of college students and Cambridge residents at local anti-war demonstrations. The police had circled a number of faces and written the names of the protestors above the circles. Given the utterly peaceful nature of the demonstrations and their protected status under the First Amendment, I felt a chill run up and down my spine. I sensed that the moment one of these “troublemakers” did something that could even remotely be seen as a crime, the cops would be there, handcuffs in hand, lying in wait – not because of an arguable crime, but because of the citizen’s political views.

            That’s why I was relieved to read a decision from Federal District Judge Charles Haight in Manhattan this week that barred the NYPD from photographing and videotaping political demonstrations. While the police, like the rest of us, are free to attend a public demonstration, Haight wrote, they are prohibited from videotaping or photographing any individual or group engaging in public political activity without having some basis for the heightened surveillance. 

            Haight’s decision is the latest order in a long-running lawsuit between the NYPD and the politically active citizens of the Big Apple that began back in 1971 and continues to this day. The decision does not exactly establish a precedent for other areas of the country, since the basis for the order is Judge Haight’s interpretation of a settlement of the original class action, as modified after the terrorist attack of 9-11-01 on New York City. Still, the order does put weight behind the notion that even though the police may view a public display of political protest or opinion, they may not take the additional step that experience shows can inhibit citizens from exercising their constitutional right, under the First Amendment, to speak freely and “to petition the government for a redress of grievances.”

Judge Haight sought to draw a line that would preserve some semblance of civilized police restraint in an era where it is generally – although not universally – agreed that earlier, more innocent practices must be somewhat compromised in the name of national security. The original class action lawsuit was brought while the Vietnam War and protests against that war were raging. One hopes we will be able to preserve a similar modicum of civilized freedom here in the Hub of the Universe, the City on a Hill. If they can do it in the Big Apple, we should be able to do it here.