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Strossen and Kozinski

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from: Alex Kozinski

Truth Be Told

Posted Wednesday, Sept. 23, 1998, at 4:42 PM ET

I think we have identified a very important question about when it is legitimate for the government to get involved in regulating human relations. As I understand your position, it's fine for government to regulate even though there are relatively cheap and easy private means for individuals to protect themselves from the threatened harm. But aren't individualized private solutions superior because they allow people to modulate the remedy to fit the degree of harm they perceive? Thus, some of my email buddies feel strongly about privacy and always send encrypted messages--good for them. I don't feel that strongly about the issue, so I don't. And government regulation, particularly in the area of expression, has hidden costs and dangers: Bureaucrats have to make delicate judgments that may have important substantive effects on people's ability to engage in the regulated activity. Do we want to hand such power to the government absent some compelling reason?

Note, for example, the story on CNN interactive discussing a decision of the European Court of Justice holding that British law violates human rights because it allows parents to cane their children. Of course, we all deplore child abuse, but this did not look like a case of parental sadism but an effort (perhaps misguided) to discipline a child who was "totally out of control" and had "run riot" (according to his mother). Note also that the case was brought by the boy's father who is estranged from the mother. The court's judgment (which runs against Britain!) requires the payment of compensation and a change in the law to prohibit such punishments. Is it really wise to require legislation that will interject the government into disputes between parent and child, and between estranged spouses?

I too had noted President Clinton's reference to the Thomas/Hill testimony. While I have my own view of who told the truth there, the important thing to keep in mind is that there was a truth to be told, though we may never know what it was. The simple fact is, Thomas's and Hill's accounts of some of the details can't both be true. I found the president's suggestion that somehow he believed both of them (or something like that) most troubling. It tells the public that in some matters--perhaps in all matters--there is no such thing as objective reality; it's only a matter of individual perceptions and prejudices. I know that this view has been disseminated in our universities and law schools for the last three decades, but it has very troubling implications for the truth-finding process in our courtrooms. How can we send anyone to prison--even death; how can we resolve contract disputes; how can we award tort damages, if past events are not a matter of objective reality but of personal opinion? Sure, I understand that sometimes memories get fuzzy and that perceptions are unreliable, but that is very different from saying that everyone is entitled to come into court and testify to his own version of reality.

On a brighter note, the LA Times reports that Salmon Rushdie has been taken off Iran's hit list. In terms of human rights that is certainly to be applauded as a step in the right direction, though it's a long ways from the enlightened days of the Shah.

Until tomorrow.

Ciao. AK

the breakfast table
entries
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from: Alex Kozinski

Truth Be Told

Posted Wednesday, Sept. 23, 1998, at 4:42 PM ET
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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.
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