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The Right To Privacy, COVID Eviction Moratorium

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
August 20, 2021 12:00 pm

The Right To Privacy, COVID Eviction Moratorium

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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August 20, 2021 12:00 pm

Attorneys Josh Whitaker and Joe Hamer talk about all aspects of your constitutional right to privacy, including some early cases involving it from the 1920's up until today.  They will also talk about the COVID eviction moratorium.

To reach the law firm, call 800-659-1186, email or visit 

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This week on The Outlaw Lawyer, did you know you have a constitutional right to privacy?

Well, you do. Joe and I will tell you where it comes from and what it protects this week. You are dialed into The Outlaw Lawyer. As always, I am one of your two hosts. My name is Josh Whitaker. On my right here in the studio is Joseph T. Hamer. Joseph, how are things? Hello, Josh. I'm doing great.

It's great to be here as always, and I'm happy to talk with you. I feel like every, the first minute and 15 seconds of every episode of The Outlaw Lawyer is almost verbatim the same. I've never, I haven't gone back and confirmed that, but that's my, that's my guess. The people love consistency and I think it gives that sense of normalcy.

That's what the people are looking for. I've not listened to a second of any episode. I hate my voice and I apologize to anyone that has to hear it, but yes, I do get deja vu every time you do that. I might try to get more creative next time. If it ain't broke, don't fix it. If it's your first time listening to The Outlaw Lawyer, Joe and I are practicing North Carolina attorneys, and what we try to do each week for about an hour or so is kind of sit down and pick things out of the news, uh, pick things that we think are interesting to, to non-attorneys. So we try to take legal cases, statutes, happenings, you know, out of the news and kind of look at them from an attorney's perspective, just like they were coming across our desk at the law firm. Um, I think it's important for you to know that Joe and I are the owners and managing partners of Whitaker and Hamer.

That's a law firm with offices in Riley, Clayton Garner, Goldsboro and Fuquay-Varina. I try to mention those offices in different orders every week, but I don't know that I'm doing it. You're doing a good job.

I think you've, I think you've successfully, there's only so many combinations, but I think you've hit them, hit them all. And before we get started, I always want to let people know. We really, uh, we say this every week and some people are taking us up on it, but if the firm can be of any service to you, if you have any questions or anything you want us to talk about on the outlaw lawyer, you can call us. So we have a phone number set up 1-800-659-1186. That number is set up to take a message. If you call it, please leave some contact information so we can reach back out to you or get the right appropriate attorney over at the firm to reach out to you. Um, and you can also text that number now.

Um, so if you have a message, you want to text it 1-800-659-1186. As always, you can shoot us an email at questions. Again, that's plural questions at the outlaw Our website is the outlaw where our vintage shows exist.

Um, all of our old shows are archived there and we do live on social media as the outlaw lawyer and, uh, social media and we did have someone reach out to us, uh, about one of our show a week or two ago, we talked about ransomware. And so, um, one of our listeners named Jimbo, and I've never met a bad guy named Jimbo. Every single human being named Jimbo that, that I've ever met as well has been a fantastic human being.

I've got another theory. I've never met a guy. I met David's that maybe I don't like that much, but if they go by Dave, I've never met a Dave that was a bad guy. I can't think of a Dave period that has ever been a bad guy.

Dave Coulier. Yeah. Joseph, you're, uh, you're probably a bit too young, but you ever watched the kids in the hall?

You familiar with the kids in the hall? Yeah, yeah, yeah, yeah. Somewhat. All right.

Well, there's a Canadian comedy troupe. Yeah. Yeah. So Dave Foley. Yeah.

All right. So Dave Foley. And he has this song called, these are the Dave's I know. Have you ever seen that? I have not. Well, it's worth the Google.

Okay. But it goes back to my theory that there's not a, I don't think there's a bad Dave. There's no evil Dave's out there, but I'm trying to think, I'm trying to dig deep a bad Dave, Dave, like even historically, like in history, even, even better than that is there's no bad Jimbo. I think we can conclusively say there's never been a bad Jimbo. Well, Jimbo, you know, there's one of the bullies on the Simpsons is Jimbo. Yeah.

He probably had reasons for bullying people though. It justified, but Jimbo pointed out to us, right. And rightfully so I think we maybe came off, uh, on our ransomware episode, we kind of talked about, uh, technology a little bit and low, maybe low tech attacks versus, uh, high tech attacks. And, uh, so he pointed out that some of these ransomware attacks are in fact, very, very, very sophisticated.

Yeah. And I think that's a fair point. You know, we talked about the ransomware with kind of a broad generalization and of course there's, there's, there are ransomware attacks that are probably far more sophisticated than either Joshua or myself could ever even comprehend. And, you know, that's a very fair point. I'm glad Jimbo brought that up because it is, it is a very complex thing and the mechanism of action and the way that they, they lock these systems up.

There's nothing, there's nothing simple about that. I think, I think what we were trying to emphasize, and we may have done a poor job of that, but I think what we were trying to emphasize is the way that access is gained a lot of times is a very low tech method, which again is just targeting individual users with just simple phishing schemes or just simple scam emails. And I think that, that, that does happen a lot, but of course the ransomware there, it's very complicated, it's very calculated and that's a great point. And I appreciate Jimbo reaching out to us with that. And just to continue to update some things that we've talked about in prior weeks. So our young man in North Raleigh who had the, uh, the spitting zebra Cobra, he got charged how many misdemeanors? He got charged with like 40 misdemeanors, several misdemeanors. So I saw, I saw the follow-up stories this week where he pled guilty, I think to one misdemeanor. And I didn't see what it was, but I think he had did, uh, did forfeit all of his snakes. So our, our friend in North Raleigh no longer has any dangerous venomous reptiles.

And so now we don't, we don't have to worry. His, uh, his, uh, time in the public eye has come to an end. So hopefully he can rebound from that. What's he going to do on his TikTok channel now? We need to check that out. That needs to be the research we do.

I would imagine that's a complete loss. I don't know what you turn to. I think he just starts doing snake impersonations himself. Sock puppets.

Staring at the camera. And Joe, I got a note down here. This is our, I believe this is our 13th show. So this is our 13th show anniversary. Spectacular lucky number 13. You guys are so lucky to be here for the 13th show. Um, we put a, we put way more thought than normal into this 13th show because it's so special to us.

13 of the greatest hours of my life spent with you, Josh Whitaker, talking to the people. And speaking of the people, we, we really want to focus this on things that people would be interested in hearing. So we're attorneys. We get geeked out by, uh, the law by statutes. And so I don't think we'll ever have any problems coming up with something to talk about now, whether it interests non-attorneys who may be listening that I don't know about that. So if there's a listener out there and you've got a legal topic or a legal news item that you would like to hear me and Joe bounce off each other, talk about we'd really, if you tell us about it, we'll talk about it for better or worse. Yeah.

For better or for worse, we are not experts in several, several different fields, but we'll talk about those things as if we were with all the confidence in the world. But seriously, you can text us now who can't text. It's very easy.

It's very simple. We encourage every single one of you right now to pull out your phone 1-800-659-1186. Shoot us a text. Uh, and, and we would love to hear from you. And I think what, you know, you touched on it, Josh, what we try to do a little bit different, which I would hope would be semi refreshing is, is really taking that neutral, apolitical perspective where you're not getting, you know, you're not getting, uh, any kind of slant or bias. We're coming at it strictly neutral. I literally don't even have opinions anymore. I can't form one.

It's just purely neutral. Well, today we wanted to spend some time. This came up. I can't remember exactly what we were talking about. Oh yeah. We're talking about marijuana and our marijuana weed episode, the Alaskan Supreme Court back in the seventies, um, we had made simple possession, decriminalized it because they said it was part of our constitutional right to privacy to have small amounts of marijuana. Yeah.

And that got reversed, but that intrigued me. And then this constitutional right of privacy, this is what's been used for, uh, for a while now for the past hundred years to kind of, uh, reinterpret the bill of rights and, and what the bill of rights were originally trying to do. And, uh, you see this come up a lot now. You sure do. And you, you're a very private person, Josh. So who better, who better to guide us through the constitutional right to privacy than Josh Whitaker himself on today's episode, we're gonna take you through some of the, uh, some of the bill of rights, some of the more, uh, the rights that are more attuned to creating privacy to protecting your privacy, kind of look at what the court took from that and how they've kind of created this zone of privacy, this right to privacy that, uh, I don't know, it's pretty important protects us all from a lot of stuff. It's extremely important.

And I couldn't agree with you more. Uh, we're also going to talk about COVID. We seem to touch on that topic very frequently, but, uh, specifically, we're going to talk about the eviction moratorium. There was, uh, you know, there's been some recent developments where the CDC has actually come out and issued, uh, an extension of that. And we're going to talk about the nuances, uh, if you need to employ or utilize that, what are the steps that you can take? What are the effects?

Uh, what's the effect of how it plays out, things like that. We're going to talk about that in some more detail as well. All right. Well, Joe, I think this is a good time to take a break. So we'll take a stop for some, uh, for some commercials and we'll be right back up next on the outlaw lawyer, Josh, and I talk about the COVID eviction moratorium and the recent developments with welcome back to the outlaw lawyer, Josh and Joe here ready to once again, discuss COVID-19 and its implications on society. I think our, I think our listeners need to know that we have a switch spots in the studio. So where I used to sit in the studio, there's a, there's a nice little soundboard that gives us a lot of sound effects that I've never, I've never used. Um, and we noticed that.

And so now Joseph's over there. So we're going to have some, uh, and I'm pressing the buttons. I'm not afraid to press the buttons.

I don't know what several of them do, but I know how to use an iPad. And that's what this is. And there's several pictures of the sounds they're going to make. So I'm just going to try to insert some color into this, uh, whenever it is appropriate.

So COVID-19 Josh, the interesting sound that worked out pretty good. So we got, we want to talk. So we're, we're attorneys. We, we are practicing attorneys. And one of the questions we get a lot, we represent a lot of landlords. Uh, we do, uh, at least used to do quite a bit of eviction work for better or worse. It's something that happens. Um, and so we've kind of been paying pretty close attention to this eviction, uh, moratorium. And, uh, you know, the Supreme court's kind of already spoke to this before Joe, they have, that's not the one I was looking. I like that one though. We'll bring it back out.

Um, yeah. So the CDC, they issued a new eviction moratorium, uh, on August the 3rd. So I'm not sure exactly when this episode will be airing, but on August the 3rd, that is when it was issued. And it basically was intended to temporarily halt evictions in certain counties where COVID-19 is spreading rapidly. And, and it's interesting because the, the first eviction moratorium, the Supreme court kind of had a chance to look at it in a case. And we won't go into the facts is not important, but it was another one where, uh, justice Cavanaugh kind of said, Hey, the CDC doesn't have the right to do this. And, and I think at the time the original moratorium was about to expire.

So the Supreme court didn't take any action. Uh, but they basically said, Hey, if this happens again, just know CDC, this is not in their purview of things that they can do. Yeah. And so what we wanted to do today is, you know, talk a little bit about the moratorium itself and, and more so talk about procedurally, uh, what, what you need to do if you're potentially in an area where, you know, one of these counties where COVID is spreading rapidly, if you're still being affected by it, so many people have been affected in so many ways. Um, so if you are someone who is, has had some issues, I know a lot of folks have had issues paying rent and, and keeping gainful employment and folks need help sometimes. So we're going to talk a little bit about procedurally what you can do to take advantage of this new eviction moratorium. Joe, one of the things that the original moratorium does, the original, I guess the that's an important distinction. The original moratorium was just, you really couldn't evict for non-payment of rent, right? You could evict further things, a holdover tenant, uh, damaging the property, violating other provisions of your lease, but non-payment of rent, no evictions. That's how it, that's how it worked on the old moratorium.

Sure. So, and I think that's an important distinction because I think some, some people probably erroneously assumed that you just couldn't evict anyone for anything. Um, but, but yeah, that's a, that's a very important distinction. And so I think the most important thing, uh, with this eviction moratorium is the need to present your landlord in the event that you need to take advantage of it with a CDC declaration. So if you've received a demand for rent, if you've received an eviction notice or an eviction lawsuit, um, this, this can help you. So you, you know, you have new, you have protections that will protect you, um, starting August the third.

Exactly. Starting, starting August the third. And so, you know, the, this, this declaration is the first step as far as what you need to present to your landlord to take advantage of this moratorium. Um, but I think it's also important to note that the CDC also gives some additional guidance.

So there, and you can go onto there's, there's several places where this information is available. I think the CFPV is actually, uh, where we pulled this from, but in addition to the, the statutory protection or the declaration, the protection of that declaration, they've given you some other, just, I guess, practical tips of what you need to do, uh, to kind of get back on your feet as well. So it's not just taking advantage of the moratorium and getting relief from those payments because there's other things that you need to do as well to get back on your feet in general.

So. I think one of the big things here, so we were, I represent, I'm a landlord, I represent a lot of landlords. Um, I think the big thing is I don't think landlords are lining up to evict people that, that haven't paid, you know, the landlords, they don't want to lose that money. That back rent still owed.

I think that's important. Like if someone, if a tenant doesn't understand what a moratorium is, that's not a, that's not forgiveness, right? So if you owed rent, you still owe rent. Um, and, and landlords, I think for the most part that I talked to are going to want to work with tenants to get some, some, if not all that money back.

Yeah. And one thing that the, the CDC notes is that several, several renters will give up before they have a chance to go to court. I think some people just assume that there's nothing that they can do.

There's no, nothing to protect them. And that once that eviction proceeding is started, that that's really it, but that's not the case. You know, this is a hot topic for legal aid. Legal aid ends up, you know, helping a lot of tenants who, who may be in this situation. And so this is going to be a real, a big issue, uh, you know, coming up. And I think, you know, I think reaching out to your landlord, especially if you have a good relationship with your landlord, paying anything you can pay now, you know, even though you don't have, you know, if there's a moratorium, you don't have to, but anything you can do to show good faith, if you want to stay where you're at, you know, to work with the landlord ahead of time, because you're going to owe a lot of rent and they want that rent. A lot of, a lot of rent.

I mean, potentially $1 million. See, that was pertinent. That was, that was good. You line that one up. Yeah.

I'm looking, I'm looking for opportunities to plug these in, man. Um, but yeah, there's also some federal and local programs that are available in the event that you need assistance covering rent and utilities or other housing costs. So again, all this information is available out there. If you go and you check out the resources available to you online, uh, just again, don't assume that there's nothing that can be done because there are things that can be done. And I would say the moratorium, you know, you can argue back and forth, whether it was needed or not, you know, people were definitely struggling.

Um, you know, the PPP loans were out there for small businesses. So I think it was definitely right for the government to do something. I think there may be an argument that this has gone on almost too long. And, you know, we always talk about how this is anything in the law, anything in a statute, anything in like a moratorium, it's a balancing act, right? So you definitely have tenants who need immediate help, but you know, these landlords that that's how they're making their living too. You know, that landlords aren't all, you know, top hat wearing small mustache, having, uh, bad guys or people with mortgages and those mortgages still have to get paid.

Yeah. You got a lot of landlords out there that are, like you said, not just completely affluent, living the dream on their yacht types. There's a lot of individuals. It could be the only rental they have, and they could be, they could really need that money as well.

You know, that's a very fair point. Look, man, these landlords need to pay for their yachts. These, how are, how are the landlords going to afford their yachts? No, but there's a lot, there's a lot of landlords, uh, that I know that are in danger. Like the, the, you know, you're a tenant, you're staying in a house and that house is going to go into foreclosure because the landlord isn't collecting rent. Can't pay the mortgage. So that doesn't help anybody. That's a double whammy of bad things happening to people.

And I think one thing we haven't mentioned yet, but I think it's also very important. If you, if you get hit with this eviction notice, or if you're in the midst of an eviction proceeding, it's important to seek legal assistance as well. Reach out to an attorney and, uh, and get that help. There there's, like you said, there's legal aid available for a lot of people where you could even potentially have pro bono work done for you on your behalf or get some kind of assistance. And that's something that you should absolutely consider if you're in that situation. Yeah. You know, uh, attorneys, you know, unfortunately will cost money. Um, most attorneys don't work for free, although a lot of attorneys do do pro bono work, but if you're, you know, if you're a tenant and you're trying to catch up on rent, legal aid may be a good resource for you.

Absolutely. And so we, we talked a little bit about the programs that are available to you as far as they've got programs available to help you cover rent, to help you cover utilities, to help you cover other housing costs. But, uh, there's also programs that are designed really their local rent assistance programs that'll be designed to help people seek new housing as well.

So it's not limited to just monetary assistance to catch up, but they, there may be programs out there that will help you cover the cost of moving, cover your security deposit, cover application fees. So there's things out there for everybody. Just to talk more about the legal aspect, not what actually is available, but I think Biden himself, if you kind of read on what was going on. So the original moratorium expired for a couple of days and then this new one came down the pipe. But, um, I think Biden himself knows that, that this new one, you know, if anyone challenges it, I'm assuming, and that would take some time. And I think that's the point. Um, but I'm assuming if it gets challenged, it's going to get knocked down, but it probably will provide a lot of relief before it gets that far along in the process.

Yeah. Even if it does ultimately get knocked down, I think, like you said, it's gonna, it's gonna provide some relief because sometimes all folks need is just a little bit of time. I mean, no one, no one wants to see anyone put out on the street that, that, you know, is having a difficult time and it really has been an unprecedented time for people. And there's been folks going through a lot, dealing with a lot. So, you know, that's a good point.

But once I think you said it well, once these yacht owning, uh, rich landlords come together and start, start pushing against this, you know, it's going to be interesting to see if it does survive that scrutiny. Well, that's our COVID segment for today. Um, if you have any questions or concerns, give us a call. You can reach me and Joe here at the Outlaw Lawyer, or you can reach me and Joe at the firm of Whitaker and Hamer by dialing 1-800-659-1186.

That's 1-800-659-1186. And again, you can call and leave us a detailed message, or you can text us on that line. So, uh, send us a message there. Our website, as it has been since day one is And that's where all of our archived old past episodes live.

You can email us questions at And then we do exist on social media, Facebook, and Twitter as the Outlaw Lawyer. Uh, Joseph, I don't believe we're on Instagram or anything. That's correct, Josh. We are not on Instagram. Can the government prohibit you from buying birth control?

They tried once, but your constitutional right to privacy stopped it. We'll talk about it next. We're back on the Outlaw Lawyer. You've got Joe and Josh here. I will warn you, Joe is still next to the soundboard. So be ready for that. Oh, that's too long. So I'm retiring the soundboard.

The dwarves, that was my last soundboard. Back to legal talk. Well, Joe, before we get into with anything, we got to talk about how the constitutional right to privacy developed. And so it started with just the court hearing factual arguments and trying to make the bill of rights apply when they thought it should to the things that came before them. So the bill of rights is kind of a magical document. You know, our founders went ahead and spelled out to the best of their ability at the time, everything our government shouldn't be able to do to us. It's innocent, loving citizens. We are innocent and we, and we are loving and we are citizens. So, but our founders of course, couldn't imagine a lot of things that we're dealing with today. Um, you know, I kind of am one of the attorneys, there's a couple of different camps, but I like a strict interpretation of the constitution and the bill of rights. But even when you do that, there's still, you still have to make some, some leaps of faith, some jump, try to figure out what the founders probably intended, and then try to apply that to the issues of today. That's right, Josh. And, uh, you asked the question, can the government prohibit you from buying birth control by God, people need their birth control, Josh, any and all kinds of it as a person with so many children, people need their birth control.

So you do have a lot of kids, several hundreds, four, actually. So what I want to do in this segment is I want to pick out, we're not going to go through the whole bill of rights. We've already talked about a lot of these on the show and in different and different lights, but I want to go through the ones that the court have kind of used. I'm going to say tent poles. They've used them as tent poles to create this tent zone of, uh, of privacy. And so the first one we've already looked at it on this, on one of our shows, but we're going to talk about the first amendment. I like that, man, the tent poles I'm closing my eyes right now, and I'm picturing a tent of rights.

And it's a big tent with room for everyone in America, right up underneath it. So yeah, the first amendment. So I guess we let's start with the text.

So I will now literally read the text and then we shall, shall dive into it. So first amendment says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. And so when we talk about the first amendment, we need to break that down and kind of figure out what, what rights are in there. So we've talked about this before the constitution, the bill of rights. They're not lengthy. This is not a lengthy document.

This is a succinct, uh, document. And we kind of have to go through and look at every clause to figure out what, what our founders were protecting there. And so the first clause clearly there, they it's the establishment clause.

You remember that Joseph? I remember the establishment clause from my several years in law school and my studies. And I also remember it from one of our classic, the outlaw lawyer episodes, one of my favorites, where we discussed the establishment clause. So that's the one where, where Congress shall make no law, uh, establishing a state religion, right? So this is one where we, we, our founders never wanted religion to, to, uh, to be, they never wanted a religion that the government endorsed.

They never wanted a national religion. That's a very fair point. And, you know, we, I encourage everybody to go back into the archives and check that one out. A real banger of an episode we put out on the establishment clause. I remember that was a lot of case law, a lot of case law. That's what the people want.

We're going to give, we're going to give the people what they want. Uh, right after that, you've got the free exercise clause. And again, similar to how, you know, Congress is not going to make any law that is going to promote or respect any establishment of religion. Uh, you're also going to have no prohibition of the free exercise of, of your own religion.

That's right. So the government cannot establish a religion and, but they also can't prohibit you to, from practicing your within limits. And we've talked about those limits, your own real religion.

There's some solid religions out there too, Josh. And so the next clause is going to talk about freedom of speech and the press. I know freedom of speech.

That's, that's a whole episode by itself. And that's the one that, that a lot of people come to when they, you know, freedom of speech, your first amendment, I think most non constitutional scholars, they look at, they look at that first amendment as being just free speech based, and that's what they really harp on. And that's the thing people really associate it with. And then it finishes up, uh, people peaceably. So you have the right to peaceably assemble. So, uh, you don't have the right to riot. You don't have the right to, uh, to fortify a police station and hole up in it, but you have the right to peaceably assemble. And as a nice callback, that's another, another classic, the outlaw lawyer podcast, a radio episode.

We talked about riding, check it out. Yeah. So the first amendment is chocked full of, of rights. And so in a, you know, if you read a bunch of Supreme court cases, they've kind of said, okay, well, this amendment, one of the ways you can think of it in this context of privacy is this is, uh, there, this is the, this is your founders trying to protect your privacy of beliefs, right? So you have the right to believe, uh, their computer chips and vaccines. If that's what you want to believe, you have a, you have a right to believe and practice any, you know, believe anything.

You won't practice your religion and the government can't, can't, you know, can't keep you from exercising your freedom of speech. Now Facebook might be able to. Yeah. And that's, I was going to touch on that. Cause you get it.

You see a lot. If you spend a lot of time on Facebook and you've got the right friends, you see a lot of people who, who may, you know, get banned from Facebook, have a post taken down and then they're going to, they're up in arms because their first amendment right is being infringed. And that's, that's not what's happening. You're, you know, again, it's the government doing these things. It's, it's, you know, a private actor discriminate against your, your right to think or your ability to speak. That's not what the first amendment protects.

Right. Or when your boss fires you for, uh, for espousing beliefs they don't agree with. That's not, uh, that's not that they're your boss. Maybe your boss is the government in which case they may have an issue, but just generally, that's not the case.

All right. So that's the, that's the first amendment. And then we also need to take a good close look at the third amendment. Um, it's a little dated, um, but it reads the text of the third amendment of the bill of rights reads no soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war, but in a manner to be prescribed by law. We're not really worried about this happening right now, although I guess it could, if it wasn't protected in the, uh, I'll tell you what, man, I'd open my house to the soldiers. If it was needed and we would, we'd give them a comfortable place to stay with all my mini children. There's a Simpsons. I don't remember the, I don't remember the episode, but there's a Simpsons where Homer gets really good and drunk and he's yelling at somebody and saying, you know, if it went for the constitution, the king of England could come right into your house.

I encourage all of our listeners to let the veterans stay with you and live with you. So this, this amendment, when courts kind of look at this zone of privacy, they call this privacy of home against the demands of the government, right? So this is what they, we kind of read this as, you know, the government and there's other ones that'll, that'll kind of play into this, but this is the privacy of your home against demands from the government. So still kind of looking at this from a privacy aspect. And, and I think we can all agree, there's few things more important than having that expectation of privacy in your home.

That's your home. And we should all have the right to feel very private against the demands of the government in our homes. And the next, you know, the fourth amendment is the next one that we're going to take a look at.

And that kind of builds on that, but it does build on that. And I was kind of segwaying into it, but the fourth amendment says the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue, but upon probable call supported by author affirmation and particularly describing the place to be searched and the persons or things to be seized. We talk about this a lot in law school, Josh. If you, so I, I am not, me and Joseph, we are not the criminal law attorneys at, at our firm Whitaker and Hamer, but if you practice criminal law, the fourth amendment is your bread and butter. If you're a practicing criminal, come see the, uh, so this, this is kind of another tent pole.

So this is, uh, protecting the, this is how the founders kind of try to protect the privacy of your person and your possessions and, and so many cases every year dealing with the fourth amendment and what the government can do, what's reasonable. And this is where we won't get into the discussion today, but you know, the, I can't remember the guy's name now who, who leaked how the NSA was listening to everybody's phones. Snowden. Was that Snowden? One of those fellows. Yeah. So, you know, when you see something like that, and I still feel enough people didn't get mad about that. What do you do? It should make you upset.

I mean, what do you do about it? Peaceably assemble. We peaceably assemble and we don't let them be quartered in our house.

Those are our options. I would argue the fourth amendment's one of the most important, important ones we have there in the bill of rights. And that's another tent pole that is again, protecting.

I think it kind of goes with the home thing, but protecting your privacy. It's a massive tent pole and it's, it's kind of the foundation upon which so much criminal procedure is built upon. I'm gonna let you think about it, but I would have to think on that sound board. There's a sound that would go with massive tent pole.

Oh man, massive tent pole. I don't know. I'll let you look at it. I'll, I'll do it.

I'll be digging in the interim. We're going to skip over it. We don't have too many more of these to look at to kind of get our privacy discussion underway, but the fifth amendment, which is kind of long, but I'm just going to read it.

So we've read the text, but, uh, no person shall be held to answer for a capital or otherwise in famous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or Naval forces, basically the army, uh, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb nor shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty, or property without due process of the law, nor shall private property be taken for public use without just compensation. There's a lot there in the fifth amendment. That was a lot, Josh. I was following along with you and I thought several times during it, this is a lot.

Yeah. So this is a, you know, you got a lot of stuff in here. You've got your double jeopardy in here. So you can't be tried for the same crime twice. You've got due process of law. You've got due process of law and you've got your, your, I always called it kind of your, your Liberty clause, but you can't be the, you know, the, you can't be deprived of life, liberty, or property without due process of law. So that's a very important one. Very, very important one. Um, and you can't, you know, that's, that's that fifth amendment. I plead the fifth there that should be on here for sure.

Yeah. And nor shall private property be taken for public use. So that's a, you know, eminent domain.

The, the governor can't come take your house, uh, just for the heck of it, unless he is, uh, there's a proceeding and there's a, you know, uh, proceeding to determine the value and you get just compensation for that taking. I think when the, from the privacy standpoint, this is the kind of privacy of personal information. So you, you can't be a witness of against yourself. The government cannot use your personal information against you against yourself. Exactly.

That's right. And that brings us to amendment nine, as we kind of kind of pushed through these to get to the ultimate discussion, uh, amendment nine says the enumeration and the constitution of certain rights shall not be construed to deny or disparage others retained by the people. So the way that this gets interpreted a lot is this is kind of a catch-all like the founders are smart enough to know, like, these are all the things that are important to us now. Cause we suffered, you know, under the king of England and we, you know, this is what we know we need to protect you from.

There'll probably be other things in the future. You need to be protected from your government. Government's always the bad guy. You're going to need to be protected from them. So this is kind of a catch-all It is a catch-all and that you said it, the government's always a bad guy.

At least that's the assumption. That's what this is designed to protect against these rights, you know, are designed to protect you from the government being the bad guy. And then the 14th amendment is the last one we'll look at, which we're kind of out of the bill of rights now, but the 14th amendment gets talked about a lot.

And so real quick, I want to read a portion of it anyway. All persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of the law, nor 90 person within its jurisdiction, the equal protection of the law. So the equal protection clause is in there. There's a couple of other things, but basically applying the bill of rights. So this is a federal document. This is telling us what the U S government, the federal government can't do, but this one kind of applied that to the state. So because of this, the states also can't do this to you. Exactly.

And so if you take this clause and its application to the states and you couple it with the bill of rights, uh, that's basically what the Supreme court has said, gives us citizens the broad right to privacy that we're discussing right now. So all of the tent poles come together. They form the privacy tent and, uh, that's where we'll go from. We'll kind of build off of that.

Everybody's got the background knowledge that they need. And I think we can keep discussing some specific case law and elaborate on this coming up next on the outlaw lawyer. We keep talking about your right to privacy and we discussed some early cases dealing with this right to.

Josh Whitaker, Joe Hamer back with you in studio. So we've kind of, we've kind of set up all our tent poles for the, uh, the, the right of privacy. It's going to be implied based on what we, what we already have in the constitution. And so this kind of first starts to take shape and the 1920s, so in the 1920s, uh, just to give you some historical reference, um, you have got, uh, some, some anti, what would you say? Some anti sentiment, uh, fostered by world war one. So some anti international, I don't know what the right word is there. Some anti foreign. Yeah, sure. Some xenophobia.

I never heard that word till like three years ago, but yeah, you've heard it again today. So the U S is kind of hesitant about foreign influences in the U S and especially in schools. So, um, the first kind of case we want to take a look at is called Meyer the Nebraska and it's from the early 1920s. Um, and in this one, Nebraska had a law that banned learning foreign, foreign languages.

I think it was a ninth grade and under you couldn't teach foreign languages. Um, and Meyer, whoever that was, I didn't read the whole case, but Meyer, uh, took umbrage to that and the Supreme court invalidated the Nebraska law, uh, banning that. And so the chief justice at the time was McReynolds. And I liked his, we've got a quote from the case.

And again, I don't want to do too much on air reading. That can't be very exciting, but I liked this quote. So I was going to read it says, while this court has not attempted to define with exactness, the Liberty thus guaranteed the term has received much consideration and some of the included things have been definitely stated without doubt. It denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God, to worship God, according to the dictates of his own conscious and generally to enjoy those privileges long recognized that common law as essential to the orderly pursuit of happiness by free men. So here is, uh, you know, justice McReynolds is kind of interpreting, uh, life, Liberty pursuit of property. And this is kind of where this notion that you have more than just the enumerated rights. That's right.

Justice McReynolds, an all time classic justice, pumped out some of the greatest hits. And I think it's fair to say justice McReynolds said that this Nebraska law was no bueno, which I would not know what that meant had this law passed. Yeah, absolutely. And so you're going to see this trend. So this was a popular, um, how you use, you know, this is, uh, back when public education was kind of coming into full swing and you had a lot of people who were new to the United States who weren't really keen on their kids going to public school.

You had a lot of parochial schools, Catholic schools, uh, you know, they didn't really call it homeschool then, but a lot of kids didn't, but you had this nationwide movement towards public education. Um, and so you're going to see a lot of laws early on that have to deal with that. Exactly. And, and basically what, what justice McReynolds here is doing is, is just reinforcing everything stated in the amendments that we discussed and just applying those concepts. And again, stating that, you know, you've got the right to pursue these things and you, and you can do that.

And there that's essentially that. So the next case was a couple of years later, Pierce v. Society of sisters. And again, we're taking complicated cases and just giving you like a sentence here, but, um, the court kind of looked at what happened in the previous case, the Meyer case. And there was an Oregon law that basically, uh, said all children have to attend public schools. And so if that law was going to be on the books and basically all private schools, religious schools, any other option would have closed and every kid would have had to go to public school. Yeah. So again, you see the court just fleshing out this right to privacy and, and again, fleshing out the right to raise and educate your kids the way that you see fit.

You've got the right to, to do that and, and to do it in private without governmental interference. And this is how, you know, this, this ruling is again, the court reinforcing that fact. So this was really the doctrine and it was quiet for a little while. It kind of died down until the 1960s.

When you get into the Warren courts in the 1960s, the Warren court, they issued the ruling in Griswold v. Connecticut. And in that case, the court struck down a state law prohibiting the sale, the possession and the distribution of contraceptives to married couples. So we're, we're on birth control, Josh.

We're finally there. Right. So this is, uh, it's hard for me to believe there was a time when, when the government could control, and this was, I think this was married couples too. So this made it distribution possession, sale of contraceptives to married couples, illegal in the state of Connecticut, which I mean, that's 70 years ago, 65 years ago.

And, uh, and that's bananas. That's been, so an individual has a right to possess and view pornography. So there was a law. I think it was in Georgia that said, you can't, you can't own, you can't possess pornography even in your own house, even if you're by yourself. Um, and it was weird because the court not only said, yes, you absolutely can. But then they even came out and said, you know, at the time it was a crime, you know, a lot of States, it was a crime to make pornography, to produce pornography.

And if you can't produce pornography, then how are you going to watch pornography? People still did it and they could, and they could be charged with a crime, but they said, it's not a, it's not a crime. This was really interesting to me. And I'll have to read more. I got to read over it really quickly. And then it just came back to me, but you could still possess it in your house.

Like it wasn't a crime for you to possess it, even though it may have been a crime for someone to produce it, to make it. I thought that was interesting. That is very interesting. And you didn't look like you thought it was interesting.

No, that my face is, uh, I'm just thinking about it. I'm just, I'm just really debating the merits of the case and thinking on it. And then again, this was, uh, kind of 68, 70, uh, but it was, um, justice Marshall and it was Stanley v. Georgia. And so he wrote whatever may be the justifications for other statutes, regulating obscenity.

And he didn't say this, but I'll say it. There's a ton of cases that have to do with pornography. We could, we could do an episode on it, but back to, back to justice Marshall, we do not think they reach into the privacy of one's own home. If the first amendment means anything, it means that a state has no business telling a man sitting alone in his own house.

And I would say he doesn't have to be alone. Exactly. I don't like how this justice is assuming that people aren't watching their pornography in large groups of individuals, but back to the quote, what books he may read or what films he may watch our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. And I thought that was a fine quote. I think it's a great quote. And I think it's something that by God, every single person should be able to agree with. I, I don't see any benefit to the alternative of allowing those types of things to be dictated. It's a slippery slope, Joseph.

It's a very slippery slope. I like how you worked that into our pornography discussion. The, uh, all right. So that kind of gives you, that's, that's kind of the early cases, uh, kind of gets you to where the quarks thinking about the zone of privacy and how it needs to be protected. Um, so I think the odds are that the court in 1969 could predict the state of pornography today versus what it was in 1969. He refers to reading books. I'm assuming they had pornography books where it was literally just spoken word at one point. I don't know, man.

I don't think they, I don't think they could, uh, foreseen the pornography avalanche that we would see today. That's yeah, that's a whole, whole separate topic. But again, you're in the privacy of your own home.

Why should the government be able to dictate what you do? So next up in our next segment, we're gonna take a look at more recent cases. Cause there's some, there's some big time issues that are coming into our, our tent, our zone of privacy.

So we'll talk about those up next. And we also want to remind you guys, uh, Josh and I, again, practicing partnering attorneys with the law firm of Whitaker and Hamer. We always want you guys to know you can reach out to us at any time via phone at one 800-659-1186. Or you can text us at that same number. Very easy to text us.

Please. Everyone text us right now. Even your questions, your concerns, your thoughts, what you'd like to hear us talk about. You can visit us at the outlaw

You can email us at questions, plural that's questions at the outlaw And we're on all social media minus Instagram at the outlaw lawyer. We got to get on that Instagram. That's what the kids they're on the Instagram.

The kids are on there. We're getting on Instagram. We should, we get the Tik TOK account.

The snake guys lost a lot of viewers since he lost the snakes. There's a whole market of people out there that we can cater to. There are a lot of important rights protected by the constitutional right to privacy, including abortion. We'll talk about it. All right, Joseph. So now we're, we're, we're pretty far along in our journey.

We're getting into the seventies, uh, to the present. And I don't know if there's a more important, no matter what side of it you're on this debate. I don't know if there's a more important recent case, um, under this, uh, topic than Roe v. Wade. Never heard of it. It didn't come up in law school.

No, man. I've never, never heard of it. Period.

That's brand new. Never heard it mentioned in the news several thousand times. The, uh, but it's, it's an important case. That's why I was going to ask you what law school you went to. I know what law school you went to. It's the same one you went to. Somebody asked me what law school I went to the other day. I told him I went to the law school of hard knocks.

So they didn't cover that there. I just was in the streets learning the laws from the people. Yeah.

That's how it used to be. You didn't go to law school back in the day. Yeah. You just lived in, you just, exactly.

There's a very famous attorney. So I, you know, I always treat myself like I'm a boxer, even though I couldn't box for 30 seconds, but I fight out of the South Raleigh area. Man, that 30 seconds.

It'd be intense. That 30 seconds. But there was a, there was an attorney there and he came back from world war II and a very smart guy, very good attorney, uh, practice for a long, long time, but he, uh, didn't go to law school. He came out and back then you just set for the bar, you passed it. You were an attorney. Yeah, man, that would have saved me substantial sums of money. And, uh, but no, man, I enjoy my law school experience.

And, uh, I was really molded into the lawyer I am today. So Roe v. Wade, we don't really have the, you know, we're not really worried about the case here as much as much of the result. And so this was, uh, you know, there was a time period where abortions in any form or not, not legal and States kind of govern it. And so some States were more lenient than other States.

And so this, this was not available to, to women at the time. And so Roe v. Wade landmark, I think it was seven to two. Uh, it's very interesting to go read about it, but, but yes, this zone of privacy, uh, your PR your body, it was said, Hey, uh, you know, women have a right to abortion.

Um, and it stood, you know, since 1972. And so I think there's some, um, you know, there's always some worry that this is going to be revisited because they are passionate. And again, we, we're not going to wade into, to this issue. We're not going to take sides on the issue, but albeit to say there's passionate folks on both sides of this debate. I think it's incredibly fair to say that there is a substantial amount of passion on both sides to the point.

I mean, there's individuals willing to carry out violence because of their passion about this issue. There's few issues that are, that have this level of passion behind them. So again, and like you said, there's, there's been a lot of concern about this being revisited hasn't happened yet, but there's been a lot of speculation. And that's one of the, that's one of the key factors you hear debated when there are new appointments to the Supreme court.

You hear a lot about concerns over this, this case being, you know, revisited in some way. So, you know, the due process clause of the 14th amendment protects against state action, uh, that affects the right to privacy and a woman's right to choose to have an abortion. The court has held falls squarely within that right to privacy.

Like you said, Josh, it falls within that zone of privacy. So any state law that broadly prohibits abortion without respect to the stage of pregnancy or certain other interests violates that right. And the 14th amendment.

Yeah. It doesn't allow States to make laws that, you know, if you restrict this right, you know, it's gotta be a compelling interest. You know, there's a whole, this could be a whole episode, so we won't get too more into it than that. But, um, these amendments all work together to create this right. And then to extend it on, you know, onto the state where the state can attend to it. But you know, the Supreme court wants precedent, you know, this is it, this is a precedent and, and not often are precedents overturned, you know, especially ones that have been sitting for like 50 years. Now I could see people being worried about the Supreme court going back and, and limit trying to limit it, or, you know, cause again, everything in the law is competing interests, right? So you've got on this side of abortion, you've got people who are certainly concerned for a woman's right to choose, and you've got the side that's concerned at what point does the, uh, does the fetus become someone who's entitled to constitutional protections as well, you know?

Yeah, exactly. It's like you said, there's competing interests there, and that's how the state has always looked at it. And the courts looked at it. There are legitimate interests in protecting the health of pregnant women. And then also that, that as they call it, that potentiality of human life and the, you know, really you have to weigh those interests. Um, and I think the court's always held that there's kind of a sliding scale where they, that interest varies over the course of the pregnancy. And, you know, there needs to be distinctions in the law that account for that variability.

I'm going to make a bold, a bold last segment prediction, Joseph do it as a country. I don't think we will ever agree on the abortion issue. I think, I think that's a fair thing to say, and I don't see a path to agreement on it because again, it's a hot button issue. Anytime you have an issue that is, has provoked and caused people to literally commit acts of violence, vandalism, things of that nature, it's a hot button issue, man. That's the very definition of a hot button issue. And this one's hot. It's about as hot as they get. I remember, uh, I think the first day, I think I took debate in high school on the first day that was the first issue. Oh man, they came out of the gate swinging. The, um, so this, it continues, you know, in 03 Lawrence feet, Texas, uh, you've got a case here where there was a law that made, uh, you know, side.
Whisper: medium.en / 2023-05-30 15:13:08 / 2023-05-30 15:36:25 / 23

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