Washington, DC -- (ReleaseWire) -- 08/06/2015 --BENNETT: Todd Gaziano is the executive director of the Pacific Legal Foundation's D.C. Center. Before the PLF, Todd served in the U.S. Department of Justice's Office of Legal Counsel where he provided advice to the White House and US Attorneys General on constitutional matters. Gaziano is here today because Pacific Legal Foundation is suing Seattle for trashing privacy rights—literally—by snooping in their residents' garbage. They are requiring trash collectors to snoop in trash cans, in order to catch residents and businesses who are in non-compliance with new composting requirements. Todd, welcome to Financial Myth Busting.
TODD GAZIANO: Thanks so much for having me.
BENNETT: Is the Pacific Legal Foundation's lawsuit an attempt to block this draconian measure, and where do you think it will stop?
GAZIANO: Well, I hope it not only stops Seattle's current policy, we also want an injunction preventing them from violating privacy rights and due process rights ever again. And hopefully other cities will see from that precedent not to do anything similar. So if you live in another city, if we win, you will be on safer ground, or at least your trash will be less likely to be snooped by the city officials.
BENNETT: Does this act violate the US Constitution?
GAZIANO: It violates most clearly the Washington State's Constitution, because they have even stronger protections for privacy. I think it certainly also protects privacy that might be protected by the U.S. Constitution, but it also violates the U.S. Constitution's right to due process because under this ordinance the trash collectors are supposed to look to see whether their pizza crusts, or other things, like the coffee grounds that you didn't compost. And then what they do is they destroy the evidence by putting it in their truck and they flap the red tag of shame on your trash can and potentially fine you. The fines have been suspended while we are suing them, but they are there in the law. If you get this red tag of shame and you're exposed as a criminal non-composter to your neighbors, there's no way that you could contest the evidence because it's been destroyed.
BENNETT: I understand that Washington State is one of the states whose constitutions call specifically for a right to privacy. Prying eyes could certainly tell a lot about a person by the contents of their garbage, right?
GAZIANO: Sure. And the Washington State Supreme Court actually found years ago the specific right of not having your trash sifted through without a warrant. I mean, there's a lot of medical information they can find out about, a lot of financial information they can find out about you, but also just from debris, there's a lot of private information, and the city doesn't really have a good response to that.
BENNETT: I know that Seattle is historically a pretty left-leaning place, so I wouldn't be surprised if composting and recycling are already popular. But I am not sure anyone would really appreciate agents of the city rifling through their garbage. What kind of reception has this program received in Seattle.
GAZIANO: You're absolutely right that Seattle has a high level of compliance, and our clients certainly favor recycling and composting. It's the next degree. Nothing is good enough for the government bureaucrats unless you can authorize snooping, and that's really what we're trying to stop. There are many ways of encouraging people to increase recycling, composting and so forth without searching through their trash.
BENNETT: These nanny-state laws seem to be becoming more and more contagious, even when the laws are absurd and difficult to enforce. Have any other cities floated this kind of enforcement of recycling and composting rules through their garbage collectors?
GAZIANO: I know different cities have different regimes, but I'm not sure there's anything exactly like the Seattle one. The instructions to the trash collectors are especially bizarre because they're supposed to lift up bags and look through open holes and look through clear plastic bags, and then they are supposed to do this calculation—I don't remember my "pi r squared" volume ratio.
BENNETT: I'm sure they don't either by the way.
GAZIANO: They're instructed on that. And that's the basis. They've got to do this within whatever minute they have to dump it in the bigger trash truck, and then they slap the red tag of shame if their calculations reveal that you've not composted enough.
BENNETT: Are they getting paid, the garbage collectors? Are they getting paid some type of reward if they figure out so many are breaking the rules and the laws?
GAZIANO: I don't think that's the case and that's more clearly prohibited but you're still being flagged as a criminal non-composter with the red tag of shame, which is bad enough, but especially bad if you have complied with the law. I suspect if Seattle doesn't concede on this one, then we will just win the lawsuit which is perhaps even better because we've established the legal precedent. But it is very sad that we have to go through that. It's sad that the city hasn't already conceded it.
BENNETT: Help me understand this. If the police anywhere in the United States want to dig through city residents' garbage to look for evidence of a crime, they have to get a warrant first, but garbage collectors in Seattle can dig through trash without a judge's consent to find evidence of a so-called crime. How does that work?
GAZIANO: I am not sure. We don't think there's any logic to it but I suppose that the best argument I could make is that, well, geez, they've got to examine something about your trash as it goes from the bin to the truck, but they're actually instructed to do much more than that. They're actually instructed to separate, look through holes, look through, calculate and then make assessments as to whether this is recyclable, this is compostable. So really they are making judgments about your lifestyle and the content of your trash.
BENNETT: How are City Council members in Seattle defending the law in face of complaints about the intrusion on a resident's privacy?
GAZIANO: Well, there aren't too many individual members who are speaking up, but one of the city's responses is that they are not supposed to look through black trash bags and that's the defensive thing. So they can come in to your house without a warrant, they can look around, but they can't open your bedroom doors? That actually suggests they know there's trouble.
BENNETT: Right. What about the local press? Are they thinking this is a joke?
GAZIANO: No, I think the local press has been mostly balanced about this. I suspect they know that the city's program is wrong but we've gotten very good coverage from The Chicago Tribune, even a reasonable story in the New York Times. I think this is getting a lot of press throughout the country, and I would say that we have more support than even neutral coverage. The Chicago Tribune for example editorialized in our favor.
BENNETT: Are they any of them calling this the cutting edge of Nanny Statism?
GAZIANO: No, they are not going that far, they're just playing it fairly, which from our standpoint in defending individual liberty is enough. If you call a spade a spade people will come to the defense of their privacy rights. No one is saying that 'Oh, gee, the city will fall apart if they can't rifle through your trash without a warrant.' No one has gone to that extreme and if they do, we should just laugh at them.
BENNETT: You are also involved in Oakland California case where the city is trying to impose public art on new construction. What's happening in Oakland on that one?
GAZIANO: Well, that's another very interesting case. The City of Oakland says that it has a lot of public artists and it doesn't have money to fund their public art, so it wants to exact from the owners money, in lieu of proving their building permits, to fund public art and you're right, we've filed suit there too and that violates two different constitutional provisions. Both the Takings Clause and the First Amendment free speech right, since you have to choose a government-approved local artist, so it's essentially you having to pay for your government approved speech.
BENNETT: In other words, the government is deciding what is art.
GAZIANO: Well, yes. And one of the newspapers quoted one of the local artists saying that they're just trying to make Oakland cool and unless the government coerces money from private parties to subsidize their art, Oakland won't be cool. So that's the new excuse for government theft.
BENNETT: Is being cool a legal right now?
GAZIANO: Well, it's an objective that they want, and they don't care about your free speech right! They don't care about your right to use your property as you see fit. The Supreme Court cases that the Pacific Legal Foundation has won say that to get building approval, the city can't exact any fee that isn't really necessary related to the cost that the building construction is going to impose. They can look at health and safety codes to make sure your building is safe, and that sort of thing, maybe a sewer hook-up fee, but they can't then just charge you extra for their projects and that's what they are doing in Oakland with this public art fee.
BENNETT: The simple question actually is: what is the relationship? How does new residential or commercial development adversely affect public art?
GAZIANO: Well, it doesn't adversely affect it unless you think that you've got a cash cow through the owners and you want more public art. What's really sad though, is that, if it were constitutional and if we didn't stop it, it would just increase the price of residential rent and commercial rent, and it would make people trying to relocate businesses in Oakland on a margin less likely to do so. So it hurts the unemployed, the under employed, the workforce who have to pay more for housing. These cities in the Bay area and in trendy places like Seattle think that somehow they can suspend the laws of economics. They can't. And they care more about certain pet projects like public art then they do about the citizens who want jobs in their community.
BENNETT: Do you see it as harming the developers' right to free speech?
GAZIANO: Of course. Yes, some developers like to buy public art, if they chose it all by themselves and it doesn't have to run through this, although most public art is pretty trivial or ugly. But most would see that as up to the individuals To be forced to subsidize a certain type of public expression that's approved by the city is kind of a core violation of the First Amendment.
BENNETT: I read once that you can't become a world class city without world-class art What is the quality of artists is on these list?
GAZIANO: If it's true that you can't be a world-class city without world-class art then you should go to the private art galleries in San Francisco across the Bay and look at the good art.
BENNETT: And they are exquisite. I agree.
GAZIANO: And look at the good art that's in this private or even the public museums, but that was privately created. The idea that the city approved list is going to produce world-class art is very debatable, but if the city wants to do it, it has to do with tax revenues. It can't do it by coercing private parties to give to these public art shams; it has to use its tax money to do so.
BENNETT: Do you think that this will be overturned as well?
GAZIANO: I think we will win on both.
BENNETT: Thank you so much for being on Financial Myth Busting. Look forward to having you back. Todd Gaziano.
All data sourced through Bloomberg
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