The new public.

Author:Seo, Sarah A.
Position:Correlation between police discretionary authority and automobile governance in criminal procedure development - III. The New Private Sphere of Automobility through V. Coda: The Future of the Fourth Amendment, with footnotes, p. 1648-1671

    1. Reich and the Road to Freedom


      In 1954, with a J.D. from Yale Law School and a Supreme Court clerkship with Justice Black on his resume, Reich settled into an upwardly mobile life as a young, single lawyer at a white-shoe firm in Washington, D.C. (152) Even though he had secured the highest accolades in his profession and a promising career lay ahead of him, Reich had misgivings about the life he was pursuing. Visiting a friend who had the life that society upheld as ideal--family, a suburban house, and a respectable job--sent him into a depressive state. (153) That life was within his reach, but it did not appeal to him. Reich dated several impressive women, but his heart was not in it. (154) He saw no way out of his despair. By midcentury, heteronormativity had concretized into a nonnegotiable social mandate, especially in the context of the Cold War when the nuclear family formed a bulwark against the threat of communism. (155) His longings for a different life than the one that "[t]he most powerful elements of American society" had devised seemed an impossible fantasy. (156)

      To escape the stifling environment of the 1950s District of Columbia, Reich went for long drives, often with David, his secret crush. (157) As he later recalled in his memoir:

      Driving around was always something special. In the first place, unlike anything older people did, it was always unpredictable. I never knew where we were going next, and David simply let the ideas come to him. We might suddenly veer off our route to ring the front door of a friend's house, spend a few minutes, and then zoom away. We might stop unexpectedly for jelly doughnuts. (158) Reich experienced driving as freedom. It gave him the ability to be spontaneous and independent and, more importantly, to decide what to do on a whim rather than according to the dictates of social convention. Reich also associated driving with rock 'n' roll, which was always playing in the car and represented "the glimmer of an authentic opening to greater freedom." (159) Even on his lonely walks in the middle of the night, feeling "intense depression," Reich could find comfort when passing an Esso station:

      It had good smells and good associations. I liked the pungent smell of gasoline and the smell of tires. I thought of long trips with my car, the surge and the rhythm of driving especially at night on unfamiliar highways, brief stops at turnpike gas stations in the blazing sun, checking the tires outside the motel on a fresh morning, something going wrong with the car and the satisfying feeling of successfully getting it fixed. The gasoline smelled like outboard motors, lakes and summertime without city staleness. (160) The autonomy that driving a car summoned, the roads to new adventures, and the fresh, upbeat music all stirred in Reich a "real feeling" and energy that renewed his faith in the possibility of a full, vibrant life. (161) It was liberation. Throughout The Sorcerer of Bolinas Reef, the automobile figured significantly in Reich's "consciousness-raising" journey, from oppression in a society that viewed man and wife as natural, to liberation as a gay man. (162) While on academic leave in San Francisco in 1971, Reich discovered cruising--defined, according to a Webster's dictionary that Reich consulted, as "to go about the streets, at random, but on the lookout for possible developments"--as a way to explore the city's gay subculture and publicly acknowledge his sexuality, albeit tentatively. (163) Cruising literally became Reich's first step as a free person. (164)

      Paradoxically, Reich did not feel free in the traditional private sphere of the home and domestic life, which were laden with heteronormative expectations, and instead felt more liberated out in the public sphere. Being free--to do the unexpected, to buck social norms, to do what one cared about, to be oneself--happened out in the open. (165) He had come to embrace the social and cultural revolutions of the 1960s that redefined the public. For Reich, the youth seemed to understand freedom better than the adults. Rather than placing "unjustified reliance" on "organizational society for direction, for answers, for the promise of life," students were beginning to question authority and "to see life in very different terms." (166) With a fresh outlook and with their consciousness raised, young people were generating a new creative culture spanning the arts, fashion, literature, and music--and, importantly, many of these activities were happening in public. In the process, young people had created "a new use of the streets, the parks, and other public places...." (167)

      To be sure, a similar attitude toward New York City's streets and parks existed even earlier among the immigrant working class, wage-earning young people, and gay men. (168) Parks especially have a long history as a public space for private expression, and the youth of the 1960s took part in that tradition. But the new world of automobility transformed thoroughfares of transportation into another usable space for private or semiprivate pleasures. Moreover, the counterculture claimed the public in new ways. In early twentieth-century New York, for example, many gay men "claimed their right to enjoy the city's public spaces" as a meeting place and the setting for sexual assignations, but this "Gay New York" nevertheless was for the most part invisible to the dominant city. (169) In contrast, in the latter half of the century, experiencing freedom in public posed an outright challenge to prevailing societal norms and realizing this freedom would require that the police stop harassing nonconformists. (170)

      Reich embraced the countercultural attitude when he argued that strolling, cruising, and being out in public were not trivial; they deserved constitutional protection. "If I choose to take an evening walk to see if Andromeda has come up on schedule," Reich maintained, "I think I am entitled to look for the distant light of Almach and Mirach without finding myself staring into the blinding beam of a police flashlight." (171) He continued just as resolutely, "If I choose to get in my car and drive somewhere, it seems to me that where I am coming from, and where I am going, are nobody's business." (172)

    2. The Freedom of Movement and the Automobile

      In 1972, Justice Douglas opined on the freedom of movement in Papachristou v. City of Jacksonville, in which a unanimous Court held unconstitutional a local ordinance prohibiting the "wandering or strolling around from place to place without any lawful purpose or object...," (173) Even though wandering and strolling were "not mentioned in the Constitution or in the Bill of Rights," Justice Douglas identified them as "historically part of the amenities of life as we have known them." (174) He endorsed Reich's sentiments by quoting from Police Questioning of Law Abiding Citizens--that if one "[chose] to take an evening walk to see if Andromeda has come up on schedule," one ought to be able to do so without "staring into the blinding beam of a police flashlight." (175)

      As the case that overturned vagrancy laws, Papachristou stands for the right to amble, to loiter, and to just be on the streets. But, in fact, Papachristou was fundamentally also a case about the freedom of automobility. Margaret Papachristou and her three companions were in a car on their way to a nightclub at the time of their arrest for vagrancy, or more specifically, "prowling by auto." (176) None of them fit the description of a vagrant, a category under the ordinance that included "[r]ogues and vagabonds, or dissolute persons who go about begging, ... persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers." (177) Two had full-time jobs, one as a teacher and the other as a tow-truck operator; another was a part-time computer assistant while attending college full-time; Papachristou herself was enrolled in a job-training program at Florida Junior College. (178) Although the police denied it, (179) the fact that Papachristou and her friend were white women with black dates probably played a role in the arrests. The additional fact that the interracial couples were in an automobile, an enclosed space amenable to romantic rendezvous, must have seemed suspicious.

      The Supreme Court consolidated four other cases with Papachristou, and two of those cases also involved automobiles. In one, the police arrested Henry Heath and his friend and searched the car after they pulled up the driveway to Heath's girlfriend's house, where police officers were in the process of arresting another man. (180) In the other, the police arrested Thomas Campbell when he reached his home, purportedly for speeding. (181) In the third case, although Jimmy Lee Smith was not in an automobile at the time of his arrest, he had been waiting for a friend with a car so that he could drive to a produce company to apply for a job. (182) In each of these cases, the automobile provided the means to pursue a life and livelihood, from socializing with whomever one wanted, to looking for employment, to coming home. Automobility had become so essential to American life that cars figured prominently in a twentieth-century case about vagrancy.

      Although Justice Douglas focused on walking in Papachristou, driving was within the decision's ambit. Reich's article, Police Questioning of Law Abiding Citizens, which inspired much of the content and language of the opinion, was just as much about driving as it was about walking. (183) The differences between the two "are practical," Reich wrote, but "the similarities are ones of principle," and he treated both "almost interchangeably." (184) For Reich, both walking and driving fostered "independence, boldness, creativity, [and] high spirits" (185)--a list that Douglas had in mind when he wrote that the activities...

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