Enjoy the Right to Be Left Alone? Thank the Civil Rights Movement

(Bloomberg Opinion) -- Civil libertarians have been rightly celebrating the recent holding by a federal appellate court that you and I can’t be arrested simply for refusing to identify ourselves to police. As it turns out, the case has many layers, and the deeper we dig, the more important the win.

The contretemps began when a former automobile mechanic named George Wingate III pulled his car to the side of a Virginia highway one night and popped the hood to try to figure out why the check engine light was on. A sheriff’s deputy stopped to see whether he could help, but when Wingate refused to show identification and repeatedly asked whether he was being detained or was free to leave, the deputy called for backup. He wound up in handcuffs, charged with, among other things, violating a county ordinance requiring people to identify themselves to police.

The charges were soon dropped. Wingate then filed suit, claiming that his civil rights had been violated. The trial court ruled for the officers, but earlier this month, the U.S. Court of Appeals for the Fourth Circuit held that Wingate’s lawsuit can proceed to trial.

From one perspective, the decision might be read as simply a further and quite useful elucidation of the tricky issue of when we do and do not have to comply with the orders of law enforcement.  That alone would be worth noting — and celebrating. But two other ways of looking at the case bear mention.

First, the case provides an example of the general right to be left alone. The much-praised right to privacy has long struck me as a subset of the right to move anonymously through life — to remain, absent strict necessity, unknown and unidentified.

To take a current controversy, the standoff between Apple and Facebook over the former’s plan to make it harder for app-makers to monetize their users has largely been presented as a battle over the right to privacy. But it makes more sense to consider the tussle as involving the user’s anonymity, the ability to travel the web while leaving advertisers a far smaller digital trail than in the past. 

Seen this way, the issue dividing the tech giants isn’t all that different from whether we have the right to drive along the street without leaving a trail of identifying images captured by traffic cameras — also an affront against the right to anonymity, if by anonymity we mean not being forced, as the price of living our daily lives, to constantly tell others who we are.

All of which leads us to the second striking aspect of the Fourth Circuit’s opinion: The court makes no reference to Wingate’s race. When the lawsuit was filed, the press reported it as a challenge to arrests for “driving while Black.”  The court of appeals omitted that detail.

Now you’re thinking that I’ve committed what journalists call burying the lede.  But it’s notable that the court found a way to decide the case without reference to discrimination. Often we do damage to the cause of truth when we ignore the racial shadings of controversies that come before the courts. But now and then a case thought to be about race becomes a springboard for a ruling about the breadth of personal freedom.

Wingate’s lawsuit is like that. It’s a reminder of the many ways in which the Black freedom struggle has enhanced the rights not only of racial minorities but of all Americans. Indeed, to take us full circle, today’s legal debate over the right to remain anonymous has its genesis in the NAACP v. Alabama, a 1958 decision by the U.S. Supreme Court holding that a state cannot force an organization accused of no wrongdoing to turn over membership lists.

The justices rested their unanimous opinion on the freedom of association protected by the First Amendment, but the deeper worry was that the members, if known, would be harassed and perhaps even punished for their participation in what was at that time and place an unpopular movement. To prevent this likelihood, the court concluded that the constitutional protection for speech and assembly was broad enough to protect the right of NAACP members to avoid having their identities unmasked. Since that time, the case has been cited in support of the right to participate anonymously in groups taking controversial positions.

Everyone knew that NAACP v. Alabama was about racial oppression, but the Supreme Court wrote an opinion of broader application. The suffering of Black people that led the nation to recall and celebrate the fundamental democratic value of allowing association without identification — what in another case Justices Felix Frankfurter and John Marshall Harlan had memorably labeled the “inviolability of privacy belonging to a citizen’s political loyalties.”

Strange but true: There turns out to be a link between the right to remain unidentified in politics, the right not to be arrested for refusing to hand over an ID card, and the right to drive unmolested while Black. All involve the often-overlooked value of living the anonymous life.

Yes, one may pick at nits. For example, Wingate wound up fleeing from the two officers, before stopping when threatened with a Taser. The U.S. Supreme Court has held that fleeing the police can provide the reasonable suspicion necessary for a stop and a demand for identification. On the other hand, demanding that a citizen facing an unlawful arrest stand his ground might be asking a bit much.

On the question of whether such a phrase is properly a part of the pleadings in a lawsuit, see this essay.

There are later decisions of the same name, because Alabama kept trying to find ways to evade the justices’ unanimous order.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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