The right to move freely
January 17, 2020 9:28 AM   Subscribe

History of erosion of the right to move freely in the US "Despite its prominence for centuries, this right began to disappear in the past century. The Supreme Court, beginning in the 1980s, developed a far more expansive conception of private property, holding in a series of cases that the right to exclude others from private land was “essential” to the concept of private property. In addition, in 1968, the court opened the door to far greater intrusions on freedom of movement by police officers, when in the case of Terry v. Ohio, it held that police officers could interfere with citizens’ right to be on the streets, by stopping, questioning, or frisking them, so long as they had reasonable suspicion that criminal activity might be afoot. In doing so, the court succumbed to the tunnel vision fear of urban crime that dominated American politics at the time. It elevated the government’s interest in proactive crime prevention to the same level as a fundamental right whose lineage far surpassed the rise of any organized police force in any Western society. This was a cataclysmic shift—only 10 years before, the court had confidentially asserted that “[u]nder our system, suspicion is not enough for an officer to lay hands on a citizen” in a public space."

"Simultaneously, the slow disappearance of the right to free movement coincided with a period during which civil rights advocates successfully convinced the court to recognize the right to privacy in cases involving sexual conduct, marriage, and family orientation. Because of this success, advocates were tempted to frame interactions with law enforcement in public spaces as violations of the right to privacy, as opposed to infringements on the right to free movement. Resorting to the right to privacy in police-citizen interaction cases proved to be far less successful than the cases involving intimacy of the home. The government welcomed this development: The right to freedom of movement would logically begin by leaving the house, while the right to privacy, on the other hand, was forfeited at the moment of moving into public space."

"Most importantly, erasing the right to free movement was the steppingstone for every central element of hysteric anti-crime measures in the ’90s, chief among them the juvenile curfew laws. By 2009, in 84 percent of cities with populations greater than 180,000, police officers now had cause to arrest youth for merely wandering the streets at nights. This was proceeded by the movement to enact strong anti-homelessness laws, which denied the indigent the right to occupy public spaces without hinderance. Both policies put already-disadvantaged citizens at a further risk of interacting violently with the police and decades after their adoption continue to have a negative impact on conditions in inner cities."
posted by Nancy Lebovitz (27 comments total) 48 users marked this as a favorite
[Link in the post originally was a mispaste it looks like; have swapped in what seems to be the intended Slate link, but let me know if there was an alternate URL specifically you'd intended to use.]
posted by cortex (staff) at 9:40 AM on January 17

cortex, that's what I meant. Thank you.
posted by Nancy Lebovitz at 9:49 AM on January 17

This why I support metafilter: moderation like that.
posted by sjswitzer at 9:56 AM on January 17 [8 favorites]

Agree, things like that are small but impressive/appreciated.
posted by RolandOfEld at 10:05 AM on January 17

I agree with the spirit of this article, and I think it’s right about what has happened post- 1968.

However, there are some serious rose-colored glasses going on about freedom of movement in the Western world prior to the civil rights movement, unless you were a light skinned, wealthy, landed man. Let’s not look to some idealized past when determining our civil rights - let’s think about what is right for humans, right now.

and nonhumans
posted by q*ben at 10:31 AM on January 17 [27 favorites]

Synchronicity, I was just talking with a friend about how successful vision zero has been in Oslo (zero deaths last year) and wondering if a culture of Allemansrätten made it easier to prioritize pedestrians and cyclists over automobiles.
posted by BrotherCaine at 10:41 AM on January 17

Shortcuts... Boston roads are wacky in places, guy I knew claimed his best shortcut was *through* a local firestation, I personally remember driving directly under the Mass State House to get from one side of the town to the other, would not drive up to that entrance now even if there wasn't a massive security barricade. Can't find the reference just now but a D.C. memoir from not that long ago recounted a short cut to get to the office again directly through the White House, not a bigwig just a guy (yes probably white) with an easy route. Perhaps we need legislation the restore our rights to shortcuts. Is it at least possible to imagine creating a less wonky world?
posted by sammyo at 11:01 AM on January 17 [7 favorites]

It makes me sad that in the US we don't have freedom to roam and people are able to hoard access to undeveloped land and potentially more or less legally kill you for trespassing.
posted by ghharr at 11:11 AM on January 17 [23 favorites]

freedom to roam
In Ontario, Canadian citizens and people who have lived in Canada for at least 7 months of the preceding 12-month period are allowed to camp for free up to 21 days on any one site in a calendar year, on crown land/conservation reserves.
I guess if nothing else works out for Meghan and Harry they can always fall back on that.
posted by clawsoon at 11:38 AM on January 17 [9 favorites]

@gharr: depending on where you live, sometimes it’s pastureland and it’s intentionally undeveloped because the owner runs livestock on it, though said livestock may not be in evidence at the moment. My grandfather, a rancher in his later days, certainly would not have appreciated trespassers on his private land in the least, fearing that some idiot would start messing with his cows or sheep, or even just carelessly leave a gate open or cut a fence.
posted by drivingmenuts at 12:01 PM on January 17 [3 favorites]

The article makes good points, but now I keep having Sovereign Citizen "Travelling not Driving" tropes run through my head, even if this article makes no references to that movement or it's skewed worldview.
posted by Badgermann at 12:14 PM on January 17 [2 favorites]

As a counter opinion regarding a grandfather concerned with "messing with cows or sheep" or people who, in their hypothetical efforts to use the land, would "leave a gate open or cut a fence", I'd like to voice an emphatic 'Screw that' For two reasons:

1) Somehow other countries that have a right to roam manage just fine. Strawman arguments need not apply.
2) I'm sure your grandparents are great people but trying to leverage some sort of "previous generations have the right of way regarding land ownership principles" in hopes of explaining why things are the way they are in the US is particularly problematic because, well, that land that they fenced in was likely forcibly and immorally stolen from native peoples who viewed land ownership in very different ways so, if I get to choose who I defer to anyway, it'll be my native ancestors, thanks.
posted by RolandOfEld at 12:16 PM on January 17 [30 favorites]

these laws are also used to restrict citizen enforcement of the clean air and clean water act. You can't be in a place if being there means you are documenting environmental releases or crimes. Even though you are protected under the first amendment, trespassing invalidates your evidence, de facto.

Pipeline operators have been trying to pass "conspiracy to trespass" laws that describe 5 years jail time for communicating with people (like, sharing public maps) who are then convicted of trespassing.

And that's even if you are the landowner through which the pipeline passes...

Suffice it to say that it's not granddad i'm worried about, granddad needs to be afraid of the oil company that will threaten him with jail time for walking on his own property that has been leased or seized by Energy Transfer Partners.
posted by eustatic at 12:23 PM on January 17 [19 favorites]

Back when Chile was a functioning democracy, you could cut through the Moneda, the presidential palace, going through its two inner courtyards as a shortcut, where you might run into the president, who worked on the second floor, or her ministers.
Now, not so much.
posted by signal at 12:40 PM on January 17 [6 favorites]

You can't be in a place if being there means you are documenting environmental releases or crimes.

Related: If you live near, say, a chemical plant, you have a right to know what chemicals are present at it. It is illegal, however, for you to share that information with your neighbors or anyone else. At least, that was the case back in the '80s. I can't imagine that the corporate citizens have loosened that restriction.
posted by Kirth Gerson at 12:53 PM on January 17 [8 favorites]

It was really eye-opening living as an American in Germany, and being allowed to roam around on farm lanes. Obviously, you need to be a polite guest and not disturb crops or go near buildings, but that's just common sense. We Americans are not as free as we believe, although anyone who experienced Jim Crow, Native American removal, or the dust bowl, just to name a few, probably doesn't have too many illusions
posted by Maxwell's demon at 12:56 PM on January 17 [10 favorites]

Beyond freedom to roam over undeveloped land and the right to just exist in public without being harassed by law enforcement or anybody else, I'd like to see local zoning laws tackle access across and between larger lots of land.

We shouldn't have to walk or wheel a significant distance out of our way just because somebody wants to put a fence around their enormous car dealership or golf course, or because they won't let people cut through their otherwise-open-to-the-public lobby that takes up a whole city block.

Land's a limited resource, and if people want their rights to control it backed up by force of law, they accept limits on those rights. Some of the limits we have now are far too excessive, and some don't exist at all, but should. Why do we require property owners to dedicate vast tracts of land to storing the automobiles of anyone who might ever want to visit, with extremely specific regulations about how that automobile storage must be designed? Why don't we require that property owners allow safe, fully accessible paths across their property if they're going to claim ownership of large areas of land?
posted by asperity at 1:03 PM on January 17 [10 favorites]

The folks who brought us the Trump-lite premier of Ontario are now pushing to dramatically increase fines for trespassing on agricultural property. Supposedly to secure our food supply from terrorists but actually to deter animal rights squealers.

And at the federal level, US border agents in Canadian airports can now detain and search anyone for any reason. It used to be you could withdraw from an interview if you felt like you were being profiled or whatever.
posted by bonobothegreat at 2:12 PM on January 17 [5 favorites]

You can't be in a place if being there means you are documenting environmental releases or crimes.

Related: If you live near, say, a chemical plant, you have a right to know what chemicals are present at it. It is illegal, however, for you to share that information with your neighbors or anyone else

Both of these statements scare the bejezus out of me. Do you know the relevant statutes?
posted by grumpybear69 at 2:17 PM on January 17 [1 favorite]

Generally this'll be under EPCRA, the Emergency Planning and Community Right-to-Know Act.
posted by asperity at 2:22 PM on January 17 [3 favorites]

In general, the laws of the state you're in are far more relevant to your right to roam than federal law. Many of them still have pretty reasonable trespass laws, especially those where hunting is still a popular sport or necessity of survival for many.
posted by wierdo at 3:55 PM on January 17 [1 favorite]

In Ontario, Canadian citizens and people who have lived in Canada for at least 7 months ... are allowed to camp for free up to 21 days

I guess if nothing else works out for Meghan and Harry they can always fall back on that.

I look forward to their swearing in ceremony.
posted by not_that_epiphanius at 3:55 PM on January 17

Also, several state constitutions themselves have things to say on the subject. While federal law has certainly been weakened, it's only really relevant today because of the increasing presence of federal law enforcement in dealing with crime that was formerly left almost entirely to the states.
posted by wierdo at 3:59 PM on January 17 [1 favorite]

Both of these statements scare the bejezus out of me. Do you know the relevant statutes?
posted by grumpybear69 at 2:17 PM on January 17

I'm talking about Louisiana, and the "conspiracy to trespass" law has not passed to date. But the effort is ongoing.

The trespass laws in Louisiana are already terrible, but we ve always been a plantation colony. So I know of different former agency employees who, in their retirement, have become accidental alleged criminals by trying to notify the government of different companies dumping waste into Rivers. The trick is, the river is public if you are in a boat, but if you are walking in the river bottom, and that river bottom was land in 1912 (because river channels migrate) you are walking on private property. Weird!

And if you make trouble for a company, it s so much cheaper for them to hire a couple lawyers and charge you with everything they can than to incur the capital and labor expenses involved with compliance with federal law.

There s a different, federal law, that was passed on 2013, that pretty much guarantees that oil pipelines cAn seize your property under eminent domain if you refuse to lease your land. This means there are a lot of shitty leases, and good luck getting the company to comply with the terms of the lease.

This 2013 law was in preparation for the lifting of the oil export ban in 2015, which has led to an explosion of pipelines, since oil demand is flat.

I believe most dem senators voted against selling us oil in 2015, and Sanders has pledged to reverse the ban, which would end DAPL overnight, and save about 3000 acres of Louisiana lands from the bulldozer and bucket dredge.

But all these things together mean that landowners who refuse to sign leases to pipeline companies have to be careful about walking on it near their land slated for pipeline construction sites.

It s not any one law, but the grim totality of all these powers of the state granted to oil companies.

This is why most nations have figured out that you have to nationalize the oil companies: otherwise the companies nationalise you.
posted by eustatic at 5:06 PM on January 17 [7 favorites]

Also, I'm sorry i scared you, as the point of these laws is intimidation and SLAPP.

Let's be clear--I know of no one charged under these situations who has spent more than a couple days in jail, but 100% of them have been charged, and spent tens of thousands of dollars and / or weeks out of their year in court, occasionally the hospital.

Environmentalists of color have been beaten up by sheriff's deputies moonlighting for the pipeline, white guys in professional-looking shirts like me have merely been stopped, detained by private security (who do try to take your camera, but that is assault), told to leave (once the sheriff gets on scene), and then walked free after the required FBI 'suspected terrorist' interview.

(Did you know that the first question in the 'suspected terrorist' interview is "Are you a terrorist?" Great stuff.)

Probably the biggest and weirdest case of this kind of oil-companies-abusing-trespass is the company suing the Couvillion Group for trespassing onto an oil lease in the Gulf of Mexico.

Now, the area of the lease is public--Mississippi Canyon 20--owed by you and me and the USA. It's the ocean, in the USA EEZ.

The Couvillion Group are oil workers doing clean up of a failed oil rig and large oil leak (which is going since 2004) under the orders / contract of the United States Coast Guard under the Oil Spill Pollution Act. (this has been covered well by the Washington Post.)

The oil company gave up on clean up because they didn't want to spend the money. Clean up wasn't 'feasible.' Couvillion is proving that it is feasible, so that looks very bad for the company, who could face criminal charges, potentially Billions in fines if this DOJ wanted to stick it to them.

So the oil company is suing Couvillion for trespass onto their lease of a public ocean. Couvillion has removed over 250,000 gallons of crude oil out of the ocean while 'trespassing.'

The kicker is that many of the oil workers doing the alleged trespassing (divers, boat captains, and ROV operators, engineers, legal compliance officers, safety people, roughnecks) are the same people who installed the oil rig in the first place. These are some of the only humans who have ever been in these waters at all--it's them, turtles, sharks, tuna, and whales. But apparently they are trespassing.

Couvillion is likely spending hundreds of thousands of lawyer-dollars a year in court dealing with trespass charges, so they can capture the oil leaking continuously from the failed rig and clean up our ocean. Yeah, they are making millions on the contract, but still. it's absurd. If they complied with the request, they'd likely lose a similar amount of money for breaking their clean up contract with USCG.

Most clean up companies were too scared of the trespass litigation to take the USCG contract. In this case, we've all been harmed as the natural resources of the USA were oiled from 2004-2019, until Couvillion had the guts to trespass.
posted by eustatic at 6:09 PM on January 17 [15 favorites]

Are these federal trespass laws they're getting snared under? If so, claiming that someone gathering their flotsam in the open ocean is trespassing is..novel.
posted by wierdo at 9:34 PM on January 17

When it comes to harassing environmentalists, the main concern is finding some excuse to detain them. Whether the charges hold up in court is strictly a secondary concern.

(The best example of this is all those people who get busted for "unlawful assembly" any time there's a protest. The charges almost always get thrown out, it's just a cover to protect the cops against a countersuit for wrongful arrest.)
posted by tobascodagama at 5:36 PM on January 20 [1 favorite]

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