giidas

As most of you probably know, someone somewhere dumped a deluge of purported nude photographs of a number of female celebrities online yesterday. The victims include the likes of Kate Upton, Victoria Justice, Ariana Grande, Kirsten Dunst, Mary Elizabeth Winstead, Krysten Ritter, Yvonne Strahovski, and Teresa Palmer. But the focal point for this story has been Hunger Games/American Hustle actress Jennifer Lawrence, since the Oscar winning actress is perhaps the most famous actress on the planet right now. Without going into sordid details ( Justice and Grande have claimed their respective photos are fake, others have confirmed they are real), I’d like to make two very specific points. Ms. Lawrence and the other victims have absolutely nothing to apologize for in terms of the contents of the photos or the nature in which they were leaked. The story itself should not be addressed as if it were a scandal, but rather what it is: A sex crime involving theft of personal property and the exploitation of the female body.

Outlets as mainstream as People and CNN are referring to the photo leak as a “scandal.” All due respect, it’s not a scandal. The actresses and musicians involved did nothing immoral or legally wrong by choosing to take nude pictures of themselves and put them on their personal cell phones. You may argue, without any intended malice, that it may be unwise in this day-and-age to put nude pictures of yourself on a cell phone which can be act and/or stolen. But without discounting that statement, the issue is that these women have the absolute right and privilege to put whatever they want on their cell phones with the expectation that said contents will remain private or exclusive to whomever is permitted to see them just like their male peers. The burden of moral guilt is on the people who stole said property and on those who chose to consume said stolen property for titillation and/or sexual gratification.

halfhardtorock

Far fewer articles describe the other constitutional violations taking place on the streets of Missouri, and those violations are every bit as urgent as the infringements on speech and assembly. We’ve seen very little coverage of the use of tear gas and rubber bullets as constitutional violations. But the due process clause bans the police from using excessive force even when they are within their rights to control a crowd or arrest a suspect. And tear gas is in a category all its own. Not only is unleashing it into a crowd an unconstitutional exercise of excessive force, but its use is banned by international law. That’s one of the reasons Amnesty International sent a team of investigators to Ferguson. Similarly, the use of rubber bullets under the circumstances is also unconstitutional. Some kinds of rubber bullets are more unconstitutional than others, because certain types are more likely to injure and maim.

But excessive use of force is only the beginning. Pulling people out of the crowd and arresting them without probable cause (or for being 2 feet off the sidewalk) violates the Fourth and 14th Amendments, particularly when those arrests are disproportionately of black protesters. The general arrest statistics in Ferguson reveal what looks to be a stunning constitutional problem. According to an annual report last year from the Missouri attorney general’s office, Ferguson police were twice as likely to arrest blacks during traffic stops as they were whites. Emerging reports about racial disparities in Ferguson’s criminal justice system and the ways in which the town uses trivial violations by blacks to bankroll the city (and disenfranchise offenders) all represent constitutional questions. Why don’t we characterize them as such? These are not just violations of the law or bad policy. These are violations of our most basic and fundamental civil liberties.

Of course, probably the biggest potential constitutional violation of all—and eyewitness testimony suggests this as a real possibility—is the alleged use of excessive force by the police in shooting an unarmed 18-year-old at least six times. Under the law, each of those bullets must be separately justified, as necessary, even if one believes the officer’s story that Michael Brown rushed him. To be sure, the news media has covered this, but very few of us talk about the shooting as a potential violation of the Constitution. Remember, the Constitution is the foundational bargain between the people and their government, the framework on which our legal order rests. When we fail to talk about the arrests, searches, racial profiling, and government brutality in constitutional terms, we are failing to capture how profoundly the state has betrayed its promises.