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A year ago, I criticized a California Supreme Court ruling that said the state's constitution guarantees a right to freedom of speech on other people's property. Now the court has an opportunity to go further in the dangerously misguided direction of treating private action as equivalent to state action when it comes to civil liberties. This week the court heard a case brought by Daniel Sheehan, a San Francisco 49ers fan who objected to a post-9/11 NFL policy of patting down spectators at the entrance to stadiums before championship games. As an anti-terrorism measure, this policy seems gratuitous and ridiculously ineffectual, and Sheehan may be right that the true aim is to catch people bringing their own booze to games. If he felt strongly enough it, he could have stopped buying 49er tickets. Instead he filed a lawsuit accusing the team of violating his constitutional right to privacy.

"There is, of course, no constitutional right to attend a football game," lawyers for the 49ers noted. They also pointed out that fans consent to searches when they buy their tickets; furthermore, Sheehan bought season tickets again even after he was offended by the pat-downs. Based on that decision, the trial judge concluded that Sheehan did not have "a reasonable expectation of privacy" and that "the pat-downs are not sufficiently serious in their nature, scope and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right." The appeals court agreed. But both accepted the notion that a private business's search policy could violate the privacy clause of California's constitution, which lists privacy as "an inalienable right." At least one California appeals court, in a 1989 decision involving drug testing, has held that the privacy guarantee applies to "both governmental and nongovernmental conduct."

Conceiving of civil liberties this way transforms them into arbitrary demands that can be satisfied only by violating other people's rights. If Sheehan has a right to attend a football game, an applicant has a right to a job, and a protester has a right to distribute leaflets in a shopping mall, each on his own terms, then the team owner, employer, and mall owner lose (some of) their freedom of association, freedom of contract, and property rights. Constitutional rights are supposed to protect people from the government. For right violations by individuals, the proper recourse is the civil or criminal law. Unless Sheehan can show that the 49ers committed a tort or a crime by searching him as a condition of letting him into the stadium, this case does not belong in court.

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  1. So how does one sneak their own booze into a 49ers game? Did I miss the point?

  2. I agree completely… but what if the public paid for the stadium?

  3. This mishmash of myths and authoritarianism called “property rights” is the problem.

  4. Give me a break, Jake. Shockingly enough, itt is the state that creates private property and “rights.” I don’t have the “right” to stage a cockfight on my own land (with my own cocks), well, because the state says I don’t. If I own a football stadium, I don’t have the right to refuse to sell tickets to black people because, again, the says I don’t.

    I have the right to walk around naked in my own house, but for some reason I don’t have the right to walk around naked in my own department store. (Why, God, why?) Maybe because “rights” are irrational accretions peculiar to each society rather than a looming presence in the sky or leaping fully-armed from the brow of Zeus, or whatever striking metaphor you prefer.

  5. You have every right to walk around naked in your own department store, and I have every right to not shop at it so I don’t have to see your naked self.

  6. an applicant has a right to a job, and a protester has a right to distribute leaflets in a shopping mall, each on his own terms,

    Hush, dammit! “Change!” is afoot!

  7. Eh, I guess Locke never really caught on.

  8. It seems that the California Supreme Court is engaging in dangerous judicial activism. Who could have possibly predicted this?

  9. Right on Alan!

  10. Plus, it’s the 49ers.

  11. ucktofu: bring a fat chick as a date and cram a few flasks under her flabby udders.

  12. Wow Warty – that’s class

  13. “”””I have the right to walk around naked in my own house,”””

    Just curious. Where is that right written? I remember a case in Florida back in the 80’s maybe early 90’s where a couple was arrested for having sex in their house. Their window was not covered and someone looked into the window and called the cops. It was close to a swimming pool and the rational for the arrest was anyone who looked into the widow, including children, think of the children, could see what they were doing. I think the person video taped the people through the window too and used as evidence. Of course, back when I was young we would have called that person a peeping tom and they could be subject to arrest, or shot by the owner. But then again I’m talking about FL.

    I don’t believe that the states create rights but they are the gatekeeper of which rights you can exerices in the practical sense. Citizens create rights as protection from the state. I dare say if states did create rights, the first right would be the right to obey the state.

  14. Maybe because “rights” are irrational accretions peculiar to each society rather than a looming presence in the sky or leaping fully-armed from the brow of Zeus

    So what you’re saying is they leap, full-armed from the brow of some legislator who got elected to the city council after running a successful dry-cleaning operation.

  15. Shockingly enough, itt is the state that creates private property and “rights.”

    No, the state is the mechanism a society uses to enforce its conceptions of right and property. If we all agreed there was no private property, the state would quit enforcing it. The problem we are facing as a republic is a societal debate over the nature of rights with both sides trying to co-opt the enforcement mechanism of the state to enforce their point of view instead of reaching consensus.

    Of course, since consensus doesn’t seem to be possible, we’re all kind of screwed.

  16. When I saw this yesterday my first thought was who owns the stadium and was it built with taxpayer dollars?

    Here’s where I’m coming from. The Joe Louis Arena is owned by Detroit. The Red Wings lease it. Ford Field is owned by the Detroit/Wayne County Stadium Authority. The Lions are just tenants. Any rules Mike Ilitch or Willian Clay Ford or the governmental owners make should have to pass constitutional muster.

    The Palace of Auburn Hills is privately owned by the same guy who owns the Detroit Pistons. Comerica Park is owned by the same guy who owns the Detroit Tigers. As far as I’m concerned Bill Davidson or Mike Ilitch* could ban white circumcised males from his arena/ballpark with the accompanying short arm inspection.

    So I googled it, Candlestick Park is owned by, [ta daaa!] The City and County of San Francisco. Want to make unconstitutional rules, do it on private property, 49ers.

    *Yes, he owns both the Tigers and the Red Wings.

  17. There is no such thing as an inalienable right either, in the practical sense. Religious right-wingers, and some left will say life is an inalienable right, yet they support the death penalty which allows government to alienate that right. So they believe you can alienate an inalienable right if they believe it’s the right thing to do.

  18. Purchasing a ticket to the game means you have agreed to a contract, the terms of which are on the back of the ticket and on the team’s/stadium’s website.
    Pleading ignorance is not a valid plea.

    All this is moot, of course, if you don’t recognize the validity of contractual law, or the concept of property rights, or that humans are capable of understanding said rights.

  19. Alan – how many cocks do you have, just out of curiosity?

    TrickyVic – it was in the 80s in the Tampa area, IIRC.

  20. Eventually, time is going to alienate all of us from the life to which we have a right.

  21. Want to make unconstitutional rules, do it on private property, 49ers.

    That’s a two-edged sword you’re walking down. Alternatively, the 49ers can just call in TSA an voila! no more constitutional issues.

  22. Eventually, time is going to alienate all of us from the life to which we have a right.

    Not if we successfully avoid HFCS, fast food and second hand smoke. Humans are immortal except for those things.

  23. “””Pleading ignorance is not a valid plea.”””

    Depends on who’s making that plea, regular joe, or member of the state. Plausable deinal works great for people in government most of the time.

  24. I’m not sure how they can rule in favor of this guy at all without setting a precedent for the TSA. The Airline is a private company, but they’re not the ones screening you, etc.

  25. “””Eventually, time is going to alienate all of us from the life to which we have a right.”””

    Damn time, can’t we stop it yet.

    “””TrickyVic – it was in the 80s in the Tampa area, IIRC.”””

    Great, I didn’t know if anyone else would remember it.

  26. So I googled it, Candlestick Park is owned by, [ta daaa!] The City and County of San Francisco. Want to make unconstitutional rules, do it on private property, 49ers.

    J-Sub, you new here?

    That’s public property! You can’t be in there!

  27. So, do we want Candlestick to be considered public property, meaning that the state is going to search you anyway before you go in, or do we want it to be private?

    I’m just saying that if you make the argument that public money = public property, you’re on a slippery slope the state controlling everything, because somewhere, somehow, someway, the government is involved with property, if by no other vehicle than they provide the roads that get you from A to B.

  28. so the diner owners in the South who didn’t want to serve blacks were in the right then?

  29. fs – not in the right, but should have had the “right” to do so.

    I don’t have the “right” to stage a cockfight on my own land (with my own cocks), well, because the state says I don’t.

    You actually do have that right; it’s just currently being violated. By your logic, Alan, Soviet peasants did not have the right to life because the Soviet state said they didn’t.

  30. I find it ironic that a senior Reason editor is basing his indignation about this issue so heavily on the proposition that Candlestick Park is — heh — “private property.”

    Care to guess where I got this from?

    Or San Francisco, where earlier this year [1998] taxpayers narrowly approved a $110 tax subsidy for a new football-only stadium for the 49ers. The tax itself was pretty outrageous. But if the tax had failed, the 49ers would have received $125 million from taxpayers to renovate Candlestick/3Com Park, and then could have walked out on their lease. The locals were being blackmailed however the vote turned out.

  31. i figured the angry optimist to be one of those moder apartide types. do you still beat your slaves?

    right on lurkerbold. down with private property.

  32. kipesquire, excellent example of how corporations corrupt government. must be some reason amnesia for not pointing that out this time.

  33. Kip – I’ll ask again: since Candlestick is public property, should we just call the TSA to do the searches?

  34. TAO, I agree with you but J SUB D’s is saying public ownership = public property. That different than saying it’s public property becuase the state chipped in a few bucks.

    But how many times have the feds arugued you must obey their rules if you accept a few federal bucks. Public schools once had prayer sessions with the states approval, but when they started taking federal bucks, the seperation of church and stated then applied and the practice had to stop. But then again you give up some 4th amendment rights if you move into federal housing. In the name of the drug war.

    “””so the diner owners in the South who didn’t want to serve blacks were in the right then?”””

    I’m sure rights not applying to personal property would be news to Denny’s.

  35. TrickyVic,

    I remember it. Of course, I live in Tampa. As I recall, there was some question about whether the couple was intentionally entertaining the neighborhood. The videotaping issue was interesting, because if the couple didn’t intentionally expose themselves to the public, then the taping was arguably illegal.

    I wonder if that tape has found its way onto Youtube?

  36. The separation of church and state applies to public schools because of the incorporation doctrine, whether or not public schools accept federal monies.

  37. What part of Candlestick Park is part of the transportation infrastructure? You have to have the T in TSA.

  38. What part of Candlestick Park is part of the transportation infrastructure? You have to have the T in TSA.

    Sidewalks, elevators, escalators.

    C’mon, man, if GM is a financial institution eligible for TARP funding, then this isn’t even a hard one.

  39. That different than saying it’s public property becuase the state chipped in a few bucks.

    That “few” bucks is the undoing. I mean, does the public have to have over 70%, a majority interest or just a controlling minority interest in the park before it becomes subject to the public’s whims?

    Even though I have zero doubt that the NFL is running these searches trying to prevent snacks and booze from making in to the park, I would say that if you declare these searches illegal on public policy grounds, out come the state troopers (since, as you said, it might not be TSA) to run the same kind of checks. A sports stadium is a big, fat, easy target.

  40. to go in tandem with R C Dean: TSA doesn’t search the airplanes, do they? They can just search you in your car on the way into the parking lot, then.

  41. Are some of you trying to say that if I lease a house, even from the government, I have to ‘obey’ the Public Accomodations Clause of the Voting Rights Act when admitting people to that house?

    I don’t think I do and I believe that I can frisk people, with fair warning, before letting them in too.

  42. Guy are you having people cast votes in your house? No? Then I wouldn’t worry about. Of course no one is saying that.

    But I would aruge people do have a rights on private property, and the owner has the right to ask you leave for any reason. Frisking people with fair warning before letting them in would be fair game. The person has the ability to walk away. People have a right to free speech, no where is it said they have a right to be on your property. But, say I’m a buildings code inspection coming to inspect your building which is your house, then all bets are off.

    I have a friend that lives in an apartment building. He came home from work and found a ticket for lack of cleanliness (forget the exact charge) on his living room table. It was a $50 fine. They entered and inspected his apartment when he was at work! No permission needed.

  43. so the diner owners in the South who didn’t want to serve blacks were in the right then?

    Nah. They were assholes. But they were within their constitutional (and libertarian) rights.

  44. He came home from work and found a ticket for lack of cleanliness (forget the exact charge) on his living room table. It was a $50 fine. They entered and inspected his apartment when he was at work! No permission needed.

    Where was this? Every place I’ve ever lived, the property owner has to give at least 24-48 hrs notice before he or his agent enters your apartment (except in an emergency). I would assume that goes for agents of the state doing a consensual search as well.

  45. “Public Accomodations Clause?” I think not.

  46. Guy are you having people cast votes in your house? No? Then I wouldn’t worry about. Of course no one is saying that.

    Correction. The Public Accomodations Clause of the Civil Rights Act of 1964. I am sure of you were aware of this you would have corrected me.

  47. Mike,
    I agree completely… but what if the public paid for the stadium?

    They they’re suckers for helping finance a private venture. Just because a private enterprise manages to get the public to pay for their infrastructure, it doesn’t make it a public enterprise or public anything.

    J Sub D

    Ok so it’s owned by the City . . . but it’s still a 49’ers event . . . Hmm . . . ok, now I’m not so sure.

  48. Don’t make me kick your ass, Guy.

  49. Don’t put me in fear of my life. I did not bring a spare pair of pants with me today.

  50. “They they’re suckers for helping finance a private venture. Just because a private enterprise manages to get the public to pay for their infrastructure, it doesn’t make it a public enterprise or public anything.”

    Sort of like how rape victims are suckers for wearing short skirts?

  51. California lawyer here. The California constitutional protection of the right to privacy was enacted by the voters as a constitutional amendment, and it was clearly intended to apply not only to government action, but also to private action. It is vague, though, so it’s up to the courts to determine how much private people can violate the privacy of other private people.

    Sullam writes: “For right violations by individuals, the proper recourse is the civil or criminal law.” Indeed. And this case is a civil action, alleging a right violation by a private party. I’m not sure why other civil actions are permissible but this one is not, but I suspect Sullam’s position is based on a misconception that the California constitutional right of privacy applies only to government action.

  52. SP,

    Thanks for clearing that up. Yet another good reminder to avoid California when possible.

    Fortunatly, when I visited last month, I was on a military base where the federal law seemed much more sane and free than CA State law.

    I would imagine having the same feeling in a military reservation on Manhattan Island too.

  53. Wait, since gay rights groups are challenging Prop 8 by claiming the electorate can’t amend the constitution in a way that conflicts with the basic rights laid out in the constitution, can’t private property owners challenge the privacy amendment on the same grounds?

  54. ‘Wait, since gay rights groups are challenging Prop 8 by claiming the electorate can’t amend the constitution in a way that conflicts with the basic rights laid out in the constitution, can’t private property owners challenge the privacy amendment on the same grounds?’

    Sure, assuming property-rights activists are a favored class with the intelligentsia like gay-liberation activists. How likely does that seem?

  55. If intelligent terrorists had wanted to reduce Roland James to rubble or turn Gilette into Gaza, they would have succeeded and, in any event, they would not have been, and will not be, deterred by wide brimmed state troopers or private security get a lifers patting pants, parkas and pasties.

  56. Football fans know that Dwight Clark made THE CATCH at Candlestick on January 10, 1982 in the NFC Conference Championship helping the 49ers beat the Dallas Cowboys, 28-27. Nearly twenty seven years to the day, constitutional scholars and privacy advocates will now know Candlestick as the venue where THE FRISK took place.

  57. libertymike, do you reserve your natural right to kill any security guard who attempts to search your fanny pack yada yada….

  58. “Football fans know that Dwight Clark made THE WORST PLAYER PERSONNEL DECISIONS IN THE HISTORY OF THE CLEVELAND BROWNS”

    FTFY.

  59. cunnivore-

    …and your fanny pack.

  60. John-David-

    Yeah, but what gets more screen time? What means more to NFL Films?

    Besides, it was one of the top ten games in NFL history. It also represented the changing of the guard from Dallas to San Fran.

  61. Sorry, LibertyMike, but being the provincial creature I am, I just had to make the “correction”. Obviously, “The Catch” is an historic moment. How he parlayed that into being the first GM of the Browns 2.0 is beyond me. Fucking Carmen Policy, I guess.

  62. I don’t have a fanny pack. I don’t even have a fanny, as Bev Crusher sewed it shut with one of those bone knitters while we were getting freaky one night.

  63. Steve Premo:
    Thanks for clearing that up.

    I think Jacob Sullum was arguing that the constitutional amendment is a bad law as it stands, not that Sheehan is ineligible to go to court.

    The point is that it’s usually unwise to extend the notion of “rights” beyond their traditional meaning — protections against government abuses of force. If the law doesn’t distinguish between government and private action, we clearly have some problems. There ought to be things that are legal for private institutions that are illegal for the government; having an official religion, for example. A “right” not to be searched amounts to a requirement that all private establishments treat their customers a certain way. Arguably, that’s very different from a Constitutional right.

  64. could john-david just be envious of dwight clark because clark married a miss universe?

  65. Manning to Tyree in the 2008 Super Bowl has become The Catch, for me.

    Kevin

  66. gay rights groups are challenging Prop 8 by claiming the electorate can’t amend the constitution in a way that conflicts with the basic rights laid out in the constitution

    They are essentially claiming that the CA constitution is a game of Nomic, without the ability to change an immutable rule into a mutable rule, and the immutable rules are whatever the intelligentsia want them to be. As a matter of law, their position is untenable. Nowhere in the CA constitution does it say that a particular section is immune from amendment. We all know that neither the CA Supreme Court nor the 9th Circuit care about law, so I think this lawsuit is preordained to succeed, just like the MA Supreme Court decided that the MA constitution contains immutable rules, the actual text of said constitution to the contrary.

  67. Well, the argument is more nuanced than that. The California Constitution sets out two methods of changing it: amendment and revision. While an amendment is valid if it is passed by initiative, the procedural requirements for a revision are greater.

    Generally, a change that affects only one topic is an amendment. A change in the basic structure of the state government, even if it affects only one topic, is a revision. Also, if the change to the constitution is extensive and involves many different areas, that is a revision.

    The argument (with which I disagree) is that any change which abrogates the rights of a specific group is so significant that it must be considered a revision rather than an amendment.

    I also disagree with the argument that one’s right of privacy is infringed by being searched as a condition of entry to a voluntary event. We music fans have been putting up with that for many years, and while I don’t like it, I don’t think it’s a violation of my right to privacy as long as I’m given the choice of staying away from the event.

    Finally, the idea that “neither the CA Supreme Court nor the 9th Circuit care about law” is as absurd as saying “George W. Bush does not care about human life,” and the idea that “we all know that” is an attempt to legitimize that idea.

    The courts can be a threat to liberty, but the biggest threats come from the legislative and executive branches. For the most part, the courts cannot create new laws; the worst they can do is to fail to strike down bad laws passed by the legislature or bad policies and regulations adopted by the executive branch.

  68. “””Where was this? Every place I’ve ever lived, the property owner has to give at least 24-48 hrs notice before he or his agent enters your apartment (except in an emergency). “””

    Sorry for the late post Cunnivore, Little Rock, Arkansas.

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