Hey, in the past couple of years there have been a lot of people talking about Due Process. A lot of people seem to REALLY love due process, but do not seem to particularly know what Due Process is. Let's talk about it!

There are actually TWO due process clauses in the constitution. The Fifth Amendment, that repository of a BUNCH of powerful civil liberties says, in part, "No one shall... be deprived of life, liberty or property without due process of law." This applied only to the Fed govt.

After the Civil War, Congress realized states needed more regulation when it came to civil liberties, so in the Fourteenth Amendment, they included a Due Process clause "Nor shall any State deprive any person of life, liberty or property without due process of law."

Now the first big issue here is that the Due Process clause only applies to government action. The amount of process required for a private person or organization to say or do something is unrelated to due process.

Due Process is a HUGE legal concept. It ranges from things like "how much process is enough for the state to take a human life?" which we see in automatic appeals given to death penalty cases. Life requires a huge amount of process.

Taking someone's liberty, like putting them in jail, requires almost as much process. Juries, service, notification, presumption of innocence, proof beyond a reasonable doubt. It takes a huge amount of process to put someone in jail.

Then there's property, which requires process, but less. Parking tickets, car impound, even your RA at a state college dumping out your bottle of Southern Comfort at a state school is a state deprivation of property which requires some amount of process, but less.

So when men complain about people talking about sexual violence, remember: those accusations ARE part of the process, they are a necessary first part of an investigation. Proof beyond a reasonable doubt is only a required process for the state to deprive the assaulter of liberty.

Further, a demand that people not talk about something that happened to them is ALSO an attempt to restrict someone's liberty, specifically, their first amendment liberty. And there is due process for that!

If you would like the state to take money from someone because they said something about you, you can sue for libel or slander. BUT you have to prove by a preponderance of the evidence that they are lying. That is the due process to get money.

If you would like to wholesale stop someone from talking about something, you can seek an injunction or to pass a law baring that speech. Both of these require HUGE amounts of process to prove it is necessary, and even then it might not be enough process.

Because the deepest magic of the Due Process clause is that there are some things so important, that all the process the US Government can muster is not enough to take that right away from you. "Fundamental rights" include marriage, privacy, and freedom of speech.

If you care about due process, don't tell people to shut up about assault. Your buddy will not be put in jail unless his guilt is proven beyond a reasonable doubt, but there is no amount of process that's enough to put a prior restraint on honest, safe self-expression.

I should have said prison, not jail.