[lit-ideas] Re: Justice Scalia on privacy

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Sun, 3 May 2009 08:17:18 +0000 (GMT)

Two interesting blogs on the issue from the same link Robert posted:-

1. "Seems to me Scalia understood the point perfectly.  His comments 
demonstrate that.  The point being whether such information and activities are 
and should be protected by the First Amendment.  As Scalia observes, just 
because something is legal doesn’t mean you should do it.  There is much that 
is offensive yet protected by the First Amendment.  Anyone would be rightly 
annoyed at someone purposely digging into their private information; even more 
so when that person is in a position such as a U.S. Supreme Court justice.  
Scalia never said it should be illegal - in fact, he said the exact opposite"

2. "I second the Kudos to Professor Reidenberg for illustrating a point.  
We can agree legal and “right” don’t always go hand in hand.  
Being tired of privacy invasions and others profiteering on information I 
reasonably believe to be private without my consent are legitimate concerns. 
Maybe its time to link these two, legal & “the right thing to do” with regard 
to privacy.  Isn’t that what Reidenberg is asking us to consider?"

Some of the attacks on the blog are ad homimem (or should, it being Scalia, be 
'ad homunculus'?) but it is valid - I think - that, in doing this kind of 
investigatory exercise to expose certain facts, we target a public figure of 
relevant importance who has denigrated the dangers posed by those facts. 

Second, while the (im)moral and (il)legal are not, and should not be, always 
co-terminus, in many cases they _should_ be (e.g. murder). Adultery may be 
immoral, so may abortion (if, say, practiced as a form of mere belated 
contraception), but there it is possible - on a lesser evil basis -to say, 
morally and given practicalities, that the law should nevertheless have no 
business interfering with choices made. It of course does not follow that this 
is always morally the case. So this point is a red herring as an argument in 
that it does not favour one side over the other but merely sets us the problem 
of deciding in a given specific case whether immoral activity should be made 

Third, while access to information may be defended on grounds of openness, the 
downside is that it facilitates serious criminal activity (e.g. identity theft 
and fraud) - so the 'right to privacy' is not the only right that such 
information undermines: it potentially undermines well-established legal rights 
(to life and property). 

For these reasons, I don't see bad judgment on the Professor's part given this 
was an investigatory exercise to expose the current situation. The Professor 
didn't invent the situation and nor has he made public something unknown to 
those who would wish to abuse the freedom of access to information. Scalia's 
remarks seem to me small-minded and poorly thought out. 

There was a nurse in Britain struck off for secretly filming patients to show 
how badly treated they were. She did this after trying and failing to get their 
treatment improved using authorised channels. This result sends the message: 
expose the profession and you will lose your job (no one denied the treatment 
of patients was poor or otherwise defended it). Here the patient's privacy was 
thought to have been invaded and of course there were issues of 
confidentiality. The law hasn't really found a satisfactory way of allowing 
morally legitimate investigations in such cases and until it does bad practice 
will remain underexposed (as it usually is). But fortunately here we have a 
morally legimate investigation, using a well-chosen target, that is also within 
the law.


--- On Sat, 2/5/09, Robert Paul <rpaul@xxxxxxxx> wrote:

> From: Robert Paul <rpaul@xxxxxxxx>
> Subject: [lit-ideas] Justice Scalia on privacy
> To: lit-ideas@xxxxxxxxxxxxx
> Date: Saturday, 2 May, 2009, 11:05 PM
> http://tinyurl.com/crbzjg
> Robert Paul
> ------------------------------------------------------------------
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