No Search, No Service

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.