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Privacy, Property, and Free Speech: Law and the Constitution

Privacy, Property, and Free Speech: Law and the Constitution

Professor Jeffrey Rosen
The George Washington University Law School
Course No.  9438
Course No.  9438
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Course Overview

About This Course

24 lectures  |  30 minutes per lecture

Dizzying new technologies are putting unprecedented stress on America’s core constitutional values, as protections for privacy, property, and free speech are shrinking due to the wonders of modern life—from the Internet to digital imaging to artificial intelligence. It’s not hard to envision a day when websites such as Facebook, Google Maps, and Yahoo! introduce a feature that allows real-time tracking of anyone you want, based on face-recognition software and ubiquitous live video feeds.

Does this scenario sound like an unconstitutional invasion of privacy? In fact, ubiquitous surveillance may be perfectly legal, according to Supreme Court rulings that give corporations broad leeway to gather information. The Court has even come close to saying that we surrender all privacy when we step out in public.

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Dizzying new technologies are putting unprecedented stress on America’s core constitutional values, as protections for privacy, property, and free speech are shrinking due to the wonders of modern life—from the Internet to digital imaging to artificial intelligence. It’s not hard to envision a day when websites such as Facebook, Google Maps, and Yahoo! introduce a feature that allows real-time tracking of anyone you want, based on face-recognition software and ubiquitous live video feeds.

Does this scenario sound like an unconstitutional invasion of privacy? In fact, ubiquitous surveillance may be perfectly legal, according to Supreme Court rulings that give corporations broad leeway to gather information. The Court has even come close to saying that we surrender all privacy when we step out in public.

Although the courts have struggled to balance the interests of individuals, businesses, and law enforcement, the proliferation of intrusive new technologies puts many of our presumed freedoms in legal limbo. Today, it’s easy to think that we have far more privacy and other personal rights than we in fact do. Only by educating ourselves about the current state of the law and the risks posed by our own inventions can we develop an informed opinion about where to draw hard lines, how to promote changes in the system, and what we can do to protect ourselves.

Award-winning legal scholar, professor, and Supreme Court journalist Jeffrey Rosen explains the most pressing legal issues of the modern day in Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century. Professor of Law at The George Washington University Law School and frequent commentator on National Public Radio, Professor Rosen delivers 24 eye-opening lectures that immerse you in the Constitution, the courts, and the post–9/11 Internet era that the designers of our legal system could scarcely have imagined.

What Would the Framers Think?

More than 200 years ago, the framers of the U. S. Constitution and the Bill of Rights drafted a set of protections for privacy, property, and free speech that were inspired by notorious violations of those rights during the colonial period. How would they have reacted to the following aspects of modern life?

  • Full-body scans: Passengers at airports now face “virtual strip-searches” with scanners that detect intimate features of the body as well as concealed contraband. The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures, but border crossings and airports are largely considered exempt from this rule.
  • Cell phone surveillance: Your cell phone tracks much of your daily activity—information that should be safe from warrantless search and seizure. But according to the Supreme Court, “an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties”—in this case, to your phone company.
  • Privacy in the cloud: Private papers were once kept under lock and key at home, where they were legally protected by the Fourth Amendment. But increasingly, these documents are on servers in the digital cloud, where they have weak protection at best, according to the Supreme Court’s third-party doctrine.

And what about social media websites that control more personal data for more people than any government spy agency could possibly match—and with few legal safeguards for the responsible use of the data? Or consider the implications of brain scanners, now under development, that can read a suspect’s mind during questioning, potentially violating the Fifth Amendment protection against self-incrimination.

Landmark Cases

In Privacy, Property, and Free Speech, you explore these issues and many more, tracing the landmark Supreme Court rulings that have defined the scope of government powers and individual rights over the nation’s history. Among the dozens of cases that Professor Rosen discusses are these:

  • Whitney v. California: In this 1927 case, Associate Justice Louis Brandeis wrote a concurring opinion that is the most stirring defense of free speech in the history of the Supreme Court. Brandeis’s distinguished record on individual rights makes him a recurring figure in Professor Rosen’s lectures.
  • Florida v. Riley: In 1989, the high court held that the police use of a helicopter to peer into a fenced yard from 400 feet without a warrant did not violate the Fourth Amendment. But a 2012 case, U.S. v. Jones, imposed some limits on the police’s ability to track our movements by affixing secret Global Positioning System devices to our cars.
  • Atwater v. Lago Vista: Decided in 2001, this case established police authority that the framers did not anticipate: the power to arrest and detain individuals for any crime, regardless of how inconsequential. This power was expanded to include strip searches in a 2012 case called Florence v. Board of Chosen Freeholders of Burlington County.

In addition, you cover Griswold v. Connecticut, the 1965 case challenging a state law that prohibited the use of contraceptives and that established a constitutional right of “marital privacy.” Griswold underlies the legal reasoning in Roe v. Wade, the high court’s controversial abortion decision in 1973. You also probe District of Columbia v. Heller, which held in 2008 that the Second Amendment protects an individual’s right to bear arms. And you get intriguing insights into the judicial mind of Chief Justice John Roberts, based on a lengthy interview that Professor Rosen conducted with the chief justice after his first term.

What Do You Think?

Called "the nation's most widely read and influential legal commentator" by the Los Angeles Times, Professor Rosen is renowned for his ability to bring legal issues alive—to put real faces and human drama behind the technical issues that cloud many legal discussions. When discussing a case in this course, he challenges you to make up your own mind, often stopping to ask, "How would you decide this case and why?" Then he encourages you to think about the impact your decision might have beyond the case in question. Could you live with consequences that might be unappealing to you?

Since our privacy, free speech, and other rights are increasingly threatened by corporations not ruled by restrictions on government, Privacy, Property, and Free Speech examines how companies get data about you and how they use it. To illustrate this process, Professor Rosen discloses a fascinating experiment that he conducted, in which he created two separate web identities for himself—a “Republican Jeff” and a “Democratic Jeff.” Then he watched how online ads quickly adjusted to target these two made-up individuals.

Finally, Professor Rosen offers a wide range of tips on what you can do to protect yourself in today’s intrusive society, whether online, at airports, or if you are ever stopped by the police for any reason.

An often-heard defense for the erosion of our liberties is that law-abiding citizens have nothing to fear. After taking Privacy, Property, and Free Speech, you’ll have a more informed opinion about whether modern life gives even the most innocent among us reason to worry.

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24 Lectures
  • 1
    Freedom and Technological Change
    Consider three hypothetical cases that could confront the U. S. Supreme Court in the decades ahead: ubiquitous surveillance, designer embryos, and evidence from brain scans. Each has profound implications for privacy. Then survey the history of legal protections for privacy. x
  • 2
    Privacy and Virtual Surveillance
    Examine areas where new technologies are challenging our existing ideas about constitutional protections for privacy in public places. Review reasons why the Constitution provides less protection against surveillance today than it did against the search of private diaries in the 18th century. x
  • 3
    Privacy at Home
    Study the evolution of privacy in the home, which remains the place with more legal protection than anywhere else. But what does that mean in an age when our most private papers are stored not in locked desk drawers in the home but with third parties such as computer networks? x
  • 4
    Privacy on the Street
    Today, police in the United States have the power to arrest and detain individuals for any crime, regardless of how minor. In this lecture, survey your rights on the street, where the degree of monitoring has spread to new technologies such as speed cameras and smart parking meters. x
  • 5
    The Privacy of Travelers
    In 2009, the Transportation Security Administration began using body scans as a primary screening tool at airports. What are your rights when faced with this and other security measures? Learn how to assert those rights while traveling in the United States and abroad. x
  • 6
    Privacy and National Security
    Analyze the domestic war on terror in light of the Fourth Amendment’s protection against unreasonable search and seizure. Begin with Perfect Citizen, a government program designed to monitor private computer networks to forestall cyber assaults. How should the courts weigh privacy rights in such cases? x
  • 7
    Privacy in the Courtroom
    The Fifth Amendment guarantee against forced self-incrimination has dwindled to a vestigial protection for suspected white-collar criminals. Suspects are now subject to procedures, such as blood tests, that can compel self-incrimination. The future holds even more intrusive technologies that rely on neuroimaging. x
  • 8
    Privacy in the Police Station
    The main protection for mental privacy today is provided not by the Fifth Amendment but by the Miranda warning, given by police to suspects in custody. Investigate the origin of this safeguard and the continued problem with false confessions and faulty eyewitness testimony. x
  • 9
    Privacy in Electronic Communications
    Have you ever had an email or text message go astray? Was it only embarrassing or were there more serious consequences? See how incentives in the law have led many employers to search the most private areas of the workplace, including email, as often as possible. x
  • 10
    Privacy in Cell Phones and Computers
    Examine privacy protections for data stored on cell phones and computers, Also look at how the Internet is blurring boundaries between home, work, and school. For example, should school administrators be able to punish students for their social media posts that are uploaded from home? x
  • 11
    The Internet and the End of Forgetting
    With job recruiters routinely vetting candidates through Internet searches, youthful indiscretions posted online can doom a career. Probe the alarming prospect that we may never be able to escape our past or reinvent ourselves in the classic American way. x
  • 12
    Follow-Me Advertising Online
    Thanks to online data mining, companies can guess facts about you that you may have told no one—such as that you’re planning to get engaged or that you have a child on the way. Discover how information about you is collected, analyzed, and used, and what you can do about it. x
  • 13
    Privacy and the Body
    Trace the constitutional right to privacy, invoked in two landmark Supreme Court cases: Griswold v. Connecticut in 1965 and Roe v. Wade in 1973. They dealt with contraception and abortion, respectively, but the reasoning and politics are vastly different in each. Explore the issues in depth and decide what you think. x
  • 14
    The Right to Die
    The increasing sophistication of medical care raises a host of legal issues about when treatment should cease and under whose authority. Investigate the response of the courts to right-to-die cases and practical steps you can take to avoid a legal struggle when the end nears. x
  • 15
    Privacy and Sexual Intimacy in Marriage
    Explore cases where the Supreme Court has been careful to not render a sweeping constitutional judgment on matters under intense public debate. Examples include eugenics and interracial marriage, which reached a national consensus several decades ago. Also look at today’s issue of gay marriage. x
  • 16
    The Constitution and Private Property
    Private property has a special status in the Constitution. Study how individual property rights apply to the Second Amendment’s protection of the right to bear arms, as well as to the Privileges and Immunities Clause, the Full Faith and Credit Clause, the Copyright Clause, and the Third and Fourth Amendments. x
  • 17
    The Supreme Court and Private Property
    In the first of two lectures on the Supreme Court and economic liberty, follow the court’s record in economic rights cases from the Gilded Age to the New Deal, focusing on Lochner v. New York, a 1905 case that limited the ability of government to regulate business. x
  • 18
    The Roberts Court and Economic Rights
    Beginning with insights from Professor Rosen’s interview with Chief Justice John Roberts, evaluate the current Court’s approach to economic rights cases, including the Citizens United case that struck down federal campaign finance laws and the Court’s decision to uphold the Affordable Care Act. x
  • 19
    Takings and Eminent Domain
    What constitutes a “taking” of private property? And what constitutes a “public use”? See how the Supreme Court has struggled with interpreting the Takings Clause, culminating in one of the most controversial decisions of the modern era, Kelo v. New London, in 2005. x
  • 20
    The American Free Speech Tradition
    The crowning achievement of the American free speech tradition is the principle that speech can only be suppressed when it poses an imminent threat of provoking serious lawless action. Learn how this key principle wasn’t embraced by the Supreme Court until the 20th century. x
  • 21
    From WikiLeaks to the Arab Spring
    Free speech is being tested by 21st-century controversies such as WikiLeaks, a website that publishes classified information and news leaks. Study the issues raised by this phenomenon. Also investigate the role of free speech in the Arab uprisings in 2010, and examine the effort to suppress offensive speech. x
  • 22
    Google, Facebook, and the First Amendment
    The gatekeepers for free speech online are not judges or legislators, but companies such as Google and Facebook, which decide what can be communicated case by case. Explore the power of these corporations, and look at the movement known as Network Neutrality. x
  • 23
    The Right to Be Forgotten
    Now that online posts live forever, it is hard to escape one’s past. Learn how a proposed data-protection law in Europe seeks to guarantee “the right to be forgotten.” But what are the implications for free speech if individuals and companies have a broad right to delete information that they don’t like? x
  • 24
    The Constitution in 2040
    Look ahead at technological challenges to constitutional values that may arise in the coming decades. One important conclusion is that you as a citizen have an obligation to protect your own rights. Close the course with five practical tips that you can use to protect your privacy today. x

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Jeffrey Rosen
Jeffrey Rosen
The George Washington University Law School
Jeffrey Rosen is Professor of Law at The George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution. He is also president of the National Constitution Center in Philadelphia, a museum and education center next to the Liberty Bell. Professor Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School. After law school, he clerked for Chief Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit. Professor Rosen was honored with the 2013 Golden Pen award from the Legal Writing Institute for his ìextraordinary contributions to the cause of better legal writing.î His books include The Supreme Court: The Personalities and Rivalries that Defined America, the best-selling companion book to the award-winning PBS series. He is also the author of The Most Democratic Branch: How the Courts Serve America; The Naked Crowd: Freedom and Security in an Anxious Age; and The Unwanted Gaze: The Destruction of Privacy in America, which The New York Times called the definitive text in privacy perils in the digital age. Professor Rosen is coeditor of Constitution 3.0: Freedom and Technological Change. His essays and commentaries have appeared in The New York Times Magazine, The Atlantic, on National Public Radio, and in The New Yorker, where he has been a staff writer. The Chicago Tribune named him one of the ten best magazine journalists in America, and the Los Angeles Times called him ìthe nation's most widely read and influential legal commentator.î
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Reviews

Rated 4.5 out of 5 by 11 reviewers.
Rated 5 out of 5 by A Mind is a Terrible Thing to Waste What a course- Intellectual lifesaver with different flavors, Dr. Jeffrey has given us a clear picture of both salt and sugar and where to use what and when. This is a quality of a wunderkind. A landmark course for all intellectual athletes, an intelligent benchmark that makes all viewers a doctors doctor, a managers manage, a teachers teach, a boss’s boss, an engineer's engineers etc. Vastly entertaining and informative for people with fire in the belly. Thanks Great courses and Dr. Jeffery for this gem course. Enjoy the summer, Sincerely, Adil July 11, 2013
Rated 4 out of 5 by Crucial information This course contained extremely valuable information regarding privacy and free speech. The highlight was the early lectures on electronic media (emails, iphones, social media etc). Students will definetly learn that the information they put in these media can and may be used agaist them without any court protection. The lectures on privacy and property were also good but did not seem as pressing as the lectures on free speech and self-expression. The professor is very well-informed and speaks formally and eloquently. The course presentation, however, feels more like an audio book rather than lectures (there are no pauses to emphasize important points, nor any repetitions of crucial information). I highly recommend this course for anyone who spends a significant amount of time with electronic media. The number of people who have lost their jobs based on innocent pictures or comments on social media is simply frightening. For teenagers or others with short attention spans, the first 12 lectures is enough to drive the salient points home. The course will definitely change the way you use such media, and that alone is reason enough to take the course! May 8, 2013
Rated 3 out of 5 by A little bit disappointing The course should be subtitled, 'Why you should be alarmed and outraged by the continuous erosion of your privacy rights.' While there is considerable information about law and cases, and I have no doubt about the accuracy of Professor Rosen's information, his evident feelings about the issues make it difficult to have confidence in the fairness of treatment of all sides of some issues. He presents a convincing case, but that is what the course ultimately is: his argument that privacy rights are being alarmingly eroded. He may be entirely right and reasonable, but I suspect there are other arguments to be made. Certainly many of his statistics are presented in a biased way, most often by not describing the population from which a sample is drawn. For instance, the citation of "250 proven false confessions" is repeated endlessly. These are certainly horrible miscarriages of justice and deserving of outrage. But practical remedies must attempt to weigh false positives and false negatives and, without any information from professor Rosen about how many cases these are drawn from, how can the problem really be assessed? Overall, he is passionate and knowledgeable and would be a formidable advocate in court. This course, however, offers no counterpoint to his opinions and selection of information to present. March 12, 2013
Rated 5 out of 5 by Privacy, Property, and Free Speech: Law and the Co The course was fascinating and well presented by Professor Rosen. He is very knowledgeable and his enthusiasm was infectious. How our privacy is being invaded through technology is certainly menacing. It was very disturbing to discover how little the Supreme Court members are dependent upon any absolute for their decisions. We had assumed they were tasked with applying constitutional principles set out by the founders of our Republic, rather than operating as if we were a constantly-changing democracy interpreting public opinion polls on the various issues. We have understood that it is possible to manipulate statistics to prove anything you want, and had certainly expected the Supreme Court of the United States of America to be above such schemes. March 8, 2013
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