The fact is that he believes this is an argument for why the legislature was wrong and the governor is right about the desperate need for MCE for private investigators (after SB 202 got unanimous votes in every committee and on the Senate floor, the Governor’s opposition to MCE for any profession got in the way of seeking final bill passage in the Assembly). What is scary is that as a former law enforcement officer, if his understanding of the First Amendment is below elementary level, one wonders what his understanding of the Fourth, Fifth and Sixth amendments is and how he applied those understandings while he was a peace officer.
CALI recently adopted a new ethics code. One of the ethical standards we adopted was adapted from the State Bar Rules of Professional Conduct. In essence, it says that if somebody isn’t personally competent to do a particular kind of work they should either obtain the knowledge of how to do it or associate or sub-contract with a licensee who is competent. This is just common sense.
So, it follows that if a private investigator keeps getting told that the constitutional right to free speech doesn’t apply to private groups, that he or she would be minimally competent enough to seek out the unbiased opinions of people who could render an opinion on the subject, like political scientists, government teachers, or lawyers. If this guy had talked to any political science professor, high school government teacher (or even junior high school civics teacher), or constitutional lawyer, they would probably look at him cross-eyed if he asked them whether the First Amendment protects his rights to “free speech” in a private association. Like, “say what????”
The constitution protects not only individuals from the government, it also protects groups of people from the government. The First Amendment also contains the right to “assemble,” which has come to mean the right to associate for the advancement of political beliefs. That right is in direct conflict with the concept that the government can, will, or should protect a person’s right to say whatever they want to within a private organization. Private associations have their own right to limit themselves and to not associate with people whose beliefs are incongruent with the organization’s reason for existence and whose behavior is detrimental to the smooth functioning of the group.
To illustrate how ludicrous the idea is that the First Amendment somehow gives somebody a right to advance beliefs in any way they see fit in private groups, remember that in the free society that we live in, the government tolerates and even protects the right of many unpopular organizations to exist and their right to propagate their beliefs. Can the government tell the Nazi Party to let Jews join its ranks and argue at meetings that Hitler was a dirt-bag? Would the United States ever tell the Ku Klux Klan that African Americans are allowed to join the organization, attend its cross-burnings, and argue that Martin Luther King Jr. was one of the greatest Americans who ever lived?
The answer is ‘obviously not.’ Neither can the government tell most organizations how to organize their affairs internally. The United States Supreme Court has ruled for example, that political parties don’t have to let non-members vote in their primary elections to nominate candidates or elect party officers if they don’t want to. This is why some parties let independents vote in their primaries and some don’t.
If an organization wants to be deemed to be non-profit and claim exemption from most taxes, that’s another thing. The states and the federal government can impose certain basic structures on these organizations. But precisely because of the First Amendment’s freedom of association, as long as the organizations don’t discriminate against people on arbitrary bases like race or ethnicity and maintain a fundamentally representative form of governance, the government can’t tell private non-profits that they must be run according to the strictures of the Constitution of the United States, nor should government try to do so.
Aside from the constitutionality of the issue, the fact is that you will always have gadflies in organizations who simply don’t understand the sociology of organizational arrangements. It would be a lot easier to explain this if everybody in the world–or at least if everybody reading this blog–had taken political science 100 or anthropology 100 (the course is the same or similar in a lot of colleges and universities) because they start out by explaining the four basic structures of society and government: every social grouping has a structure of ideology, a structure of authority, a structure of power, and a structure of society. In the most primitive groups, these structures are all the same (like in hunter-gatherer groups like the Bushmen of the Kalahari desert). In complicated nation-states, these structures are all inter-related and yet distinct.
But whether one exists in a primitive hunter-gatherer society or a nation-state with separated executive, legislative, and judicial branches of government, or something in between like a professional association, there is always to contend with what Robert Michels identified and described as The Iron Law of Oligarchy.
The fact is, that only in extraordinary times, such as during revolution, there is larger than normal mass participation in organizations, including government. During more normal times, most people leave governance of every social institution, including government, to others who have the time and inclination to spend the time and effort. Those people form an oligarchy and the overwhelming majority of people in every group acquiesce to it because it is most convenient to do so. I hate to come out sounding like John Locke, but when it comes down to this basic debate from 17th Century philosophy, Locke has it over Hobbes and Rousseau, at least when describing normal human behavior during times of relative calm and peace.
Some people are probably wondering why I’m writing this in the first place. It’s because I’ve been recently attacked, vociferously, by opponents of MCE for private investigators who’ve demanded that I resign, especially in light of a letter from the Same Page/Misma Pagina coalition in favor of MCE to the Senate Business & Professions Committee. This is the first of a series of essays I’ll do explaining why I’m right and they’re, well, not just wrong, but in a number of cases, semi-literate, lacking impulse control, obscene (literally), and in at least one case, outright defamatory.
Venceremos companeros! — jt