13.0 Worse than college football itself: The oppressive fallout from the Paterno scandal—AGAINST mandatory-reporting laws

"Political correctness" drives fake astonishment

The aftermath of Penn State’s cover-up of the locker-room statutory rapes will prove that the adage “hard cases make bad law” applies to legislation, not just common law. A Pennsylvania legislator has already proposed tightening the mandatory-reporting laws, imposing on ordinary citizens a punishment-enforced legal duty to report hearsay knowledge on which they might base a suspicion.

Most everyone evinces amazement at the Penn cover-up, but the amazement is itself what’s most amazing. When the Catholic Church would be implicated in a cover-up of childhood rape, it is truly amazing that people are startled that such should transpire within a university football team. “Political correctness” evidently drives the expression of unbelief, and the odor of political correctness is pervasive, as when Warren Olney on public radio felt compelled to issue the caveat that pedophilia and homosexuality bear no mutual relationship—when, in fact, four of five convicted pedophiles choose a same-sex victim.

The issue’s saturation with political correctness is responsible for the absence of any outcry—even a word of criticism—of mandatory-reporting laws. For liberal social engineers, mandatory-reporting laws support using the state to reform the family. But these laws also support the rightist view that authoritarian means are acceptable if they protect the sexual innocence of children and comport with the general proposition that victims lack sufficient “rights.” So, approbation of such laws intersects the Stalinist political correctness wielded by liberals and the fascist "moral majoritarianism," by reactionaries. Is it surprising that this intersection has fostered the incipience of an institution common to Hitler’s Germany and Stalin’s Russia—state-compelled snitching?

Although forced snitching against family and neighbors is repugnant to most Americans—or at least used to be—I haven’t found any explicit arguments against it. Let’s get out of the way one reason for condemning totalitarian snitching, a reason which doesn’t apply to reporting child rapists: they don’t come close to being political dissidents. But mandatory snitching is odious, even when used for a good cause, such as protecting children from predation. Here are the reasons why.

Mandatory reporting violates the reporter's free-speech rights

The first reason concerns freedom of speech, which includes not only the right to speak but also the right to remain silent. (Wooley v. Maynard (1977) 430 U.S. 705, 715.) While American constitutional law recognizes that freedom of speech includes the freedom not to speak, it hasn’t compiled any considerable law on the subject, a failing that expresses some disregard for freedom-of-speech’s omissive side. While the advantages of affirmative free speech have been enshrined in the “marketplace of ideas” metaphor, as regarding silence, the political poets have been, well, silent; but one clue about how the right not to speak fits into the total free-speech picture is a concept the Supreme Court has used to assess the protection given to religious practices that involve freedom of speech in addition to freedom of religion. The criterion concerns whether the compelled speech compromises the believer’s conscience. (See Christopher R. Pudelski, Comment: The Constitutional Fate of Mandatory Reporting Statutes and the Clergy-Communicant Privilege in a Post-Smith World (2004) 98 Nw. U.L. Rev. 703.)

This concept suggests that what should produce heightened protection of refusal to speak is the same factor—viewpoint discrimination—that is pivotal for affirmative speech. While religious believers are protected when their unique beliefs are implicated, secular people deserve protection against edicts that encroach ordinary viewpoints.

Millions comply with mandatory reporting laws each year, but many more fail to comply. One reason is that reporting clashes with their personal views. I’ll start with an extreme instance, which doesn’t represent the main reason for most people’s noncompliance. The protection deserved by people having extreme reasons should help show why those with moderate reasons deserve it.

A person is entitled to believe that child statutory rape should not be punished. This endorsement of statutory rape is a crackpot view, but the principle that you can think freely is inviolable, no matter how crazy the thought. As long as a person doesn’t act on his wicked beliefs, he is entitled to them. Since the right to think what you like is a widely accepted democratic absolute, it is a unique starting point for bright-line rules—its trespass, a slippery slope. We should not compel people to speak what they don’t believe: we shouldn’t compel people to express a viewpoint or express it in a way that conflicts with their viewpoint. This prohibition applies to cases from pledging allegiance to a flag the pledger doesn’t revere to reporting people for crimes the mandated private reporter doesn’t believe should be crimes. (See West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624 [compulsory flag salute; see, especially, concurrence of Justices Black and Douglas, "laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men"].)

Thinking that the sexual exploitation of children is OK is, fortunately, a rare viewpoint, but other perspectives more commonly oppose reporting. Some may believe their duty of loyalty to their friends is higher that their duty to unknown children. Compelling them to report crimes compels articulate transgression of their values. Some may hate the cops or social workers more than they hate child exploitation, and many might be revolted by all snitching. Again, compelled reporting is a viewpoint-discriminatory abridgement of dissenters' free speech because you're demanding expression of something contrary to their perspective, although not in virtue of what they say, but to whom they say it.

Mandatory reporting violates the accused's due-process rights

With the second reason for rejecting mandatory reporting laws, we move from the free speech of the mandated reporter to the due process rights of the accused. Mandatory reporting laws weaken citizens’ protection against police investigation, the initiation of which requires that the police have probable cause to breach citizens’ privacy rights. A mandatory report provides the supposed probable cause, even though it lacks serious evidentiary weight because the biases favoring a decision to report the crime degrade the reports as evidence. There is no penalty for good faith false reports, but there is a criminal penalty for failure to report. Citizens are urged to report any suspicion, and even reports based on hearsay are increasingly mandated. Although more citizens don’t report what the law requires than do report it, those who do often report unreliably. Ordinary civil protections—such as recourse to malicious-prosecution lawsuits—should govern reporting crime; good faith alone doesn't justify inviting the authorities into others’ lives.

Mandated reporting selects against the virtue of courage

But satisfying the requirement that negligent reports be subject to the customary procedural protections deepens the bite of the third argument against mandatory-reporting laws: people ought not to be forced by law to express a viewpoint they’re afraid to articulate, and often, one must be courageous to come forward. The law ought not demand speech in fear’s face, not to protect the cowards, but the courageous. If only the courageous obey the law, due to others’ succumbing to fear of retribution, then (except in the rare, high-profile case), only the courageous suffer the imposed risks. The law shouldn’t transmogrify virtue into disability: when, as here, it does so, it selects for cowardice; and its regime, correspondingly, eventuates in a nation of cowards.

8.0 Legal ethics: Agential versus moralistic

Ethical rules governing legal practice are framework considerations in that they help determine broadly what cases are brought to trial, what arguments are brought to bear, and with what effect they are presented to court or jury. Professional ethics purport to have two purposes—public protection and consumer protection—but ethical rules for the practice of law should protect lawyers' clients exclusively. The law should eschew contra-agential ethics; ethics that purport to serve the general public thwart loyal service to lawyers' client principals. Since legal representation is a prerequisite to parties' exercising various fundamental rights, provisions curtailing attorney responsiveness to client interests compromise litigants' fundamental rights.

Contra-agential ethical rules for lawyers (also termed moralistic or prosocial ethics) harm both clients and lawyers. Contra-agential ethics encumber clients' rights to representation; the right to be heard is the most important component of due process, but most citizens lack the forensic skill to cause a court to have heard what they say. Permission to be heard is a popular right only when it includes representation by counsel, and additional rules applying to attorneys attenuate the right to appear by counsel. Ethical rules punishing attorneys' litigation misconduct by career loss further empower the judges over litigants by controlling their attorneys and dampening attorney aggressiveness. These rules include the harsh penalties for disobedience to court orders, rules that make a lawyer tremble at testing an injunction's validity.

Contra-agential ethics fare no better from the lawyer's standpoint; they defame lawyers as unethical for infractions that don't involve ethical lapses. An attorney's ethical duties follow from the requirements of the attorney role, a role that must be one of strict agency to respect the represented party's right to be heard; strict-agency's requirements dictate the ethical imperatives: loyalty to the agent's principal and truthfulness in matters of the agency. A lawyer's ethical character is reflected in his obedience to these ethical mandates, not to court orders. Contra-agential ethics taint lawyers with allegations of moral turpitude when the offense consists of acts that are ethically neutral, such as violating administrative rules, or even ethically exemplary, such as defying judicial authority at personal risk to protect a client.

5.11 Rights: appendages of government structures

(Eleventh in series: The interpretation of statutes and the denial of judges' powers.)

If the drift of constitutional construction conforms to the structural blueprint, then what about protective, as opposed to structural, constitutional doctrines? The constitutional blueprint describes much more than government structure, but if checks and balances lies deep within a constitutional blueprint that emphasizes the division of powers between government branches, then civil rights come to comprise an aspect of the structural division of powers. Regardless of "original intent," interpretation will drift toward a structural alignment between rights and governmental branches, exercise of some rights strengthening one branch and diminishing another; the reverse for other rights. Some easy examples: the writ of habeas corpus strengthens the judicial branch and checks the executive branch; procedural due process checks both the executive and judiciary and strengthens the legislature.

Free speech at first blush seems less amenable to a structural interpretation, but the apparent complexity comes from the two separate free-speech components, each playing a different functional role. Restricting free speech means both regulating the viewpoints expressed (content restriction) and regulating the amount of speech allowed (time-place-and-manner restriction). Power's Congressional exercise depends on public opinion, as monolithic swings enhance the legislature's ability to act. Viewpoint discrimination preserves a monolithic public, as is in the legislative interest. Interpreting the First Amendment as primarily against viewpoint discrimination is encouraged by the First Amendment's targeting Congress for its directive: "Congress shall make no law ... abridging the freedom of speech ..." While Congress instinctively favors viewpoint discrimination, Congress naturally opposes restrictions decreasing the quantity of speech. A huge volume of speech nourishes the swings of unified opinion that empower Congress. The threats to speech quantity come primarily from the executive branch, too much speech upsetting administrative quietude.

A system of checks and balances gives rise to checks nested within other checks, division of the legislature into two houses a high-level example. In smaller grain, the same regulatory system emerges for the exercise of rights themselves, one right checking another. Although First Amendment law isn't cast in the form of a balancing test, the reigning clear-and-present danger test essentially involves balancing.