More Tightrope Acts

Strossen and Kozinski

More Tightrope Acts

Strossen and Kozinski

More Tightrope Acts
An email conversation about the news of the day.
Sept. 23 1998 9:59 AM

Strossen and Kozinski

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Alex,

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Consistent with your observation about privacy, most people value all of their rights more in theory than in practice, alas. Should they--and we--therefore forfeit those rights? Take the right to vote, for example. Most people simply can't be bothered to exercise it. I would support measures to reduce the inconvenience of voting, to encourage people's actual enjoyment of their theoretical right--for example, allowing voting by mail; where it's been done, it's increased voter turnout substantially. I should think that, even-- indeed, especially--from a small-government, libertarian perspective, one of the most legitimate government functions would be to facilitate the exercise of individual rights.

While we agree that the media--and its citizen critics--should respect the privacy of certain aspects of the lives of public figures, I want to re-emphasize that government must not police this line. As ACLU policy stresses, any legal sanctions for the publication of truthful facts on invasion-of-privacy grounds "would subject the press to someone else's assessment as to whether the information was overly intimate or of insufficient concern to the public so as to make the government, through the courts, the arbiter of ideas."

Thanks for drawing my attention to the Washington Post story about Justice Thomas. I have followed his increasing public appearances, over the past few months, with interest. As someone who regularly addresses hostile audiences myself, I especially admired Thomas's courage in carrying through on the National Bar Association's on-again, off-again invitation to address its convention this summer. And, from a free speech perspective, I was dismayed by the efforts of some NBA leaders to deny Thomas an opportunity to express his views. A year earlier, I had invited him to speak at New York Law School, and I was thrilled when he accepted--what a terrific educational opportunity for my students! Of course, I disagree strongly with some of his views and rulings, but if that were a disqualifying factor, I couldn't invite anyone to speak at my school--not even you, Alex!

I'm surprised not to have seen media discussion of Clinton's grand jury observations about Anita Hill's allegations against Thomas, which I found fascinating. As Clinton noted, given the disparities between Hill's and Thomas' versions of their interactions, most people concluded that one or the other was lying. But, Clinton said, he believed that both were sincerely recounting their good-faith perceptions. Obviously, Clinton had a vested interest in stressing the subjective nature of "truth," but I do believe that it can be a complex, nuanced matter--especially in the arena of sexual interactions. Which is why the law can be a clumsy tool indeed for policing these interactions, fraught with dangers to privacy, due process, and free speech.

A Slate reader who emailed me yesterday seemed surprised that I would acknowledge potential civil liberties downsides to sexual harassment policies, but the ACLU has successfully challenged some such policies--notwithstanding their important aim of fostering gender equality--as violating other rights. Yet another tightrope!

'Til later.

Nadine Strossen is president of the American Civil Liberties Union and author of Defending Pornography. Alex Kozinski is a federal judge in California. He sits on the 9th U.S. Circuit Court of Appeals.