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Strossen and Kozinski

the breakfast table
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from: Nadine Strossen

From Ham to Salman

Posted Wednesday, Sept. 23, 1998, at 5:10 PM ET

Dear Alex,

There's government regulation and there's government regulation. Don't forget that all I've been advocating in terms of online privacy (in addition to government lifting the impositions it has imposed on private companies' development and individuals' use of encryption) is a consumer-information-type approach. I don't want government to mandate that any particular computer user disclose (or not) any specific information. Rather, I only want government to mandate that computer users be given the information that will facilitate their decisionmaking. Also, the government should ensure that, absent a computer user's affirmative waiver of privacy, the "default" set-up should preserve that privacy.

In the resulting universe of fully informed computer users, freedom of choice and market forces could truly flourish. Drawing upon the writings of my free-market-economist spouse, I look forward to a scenario in which companies and consumers bargain about the (non)disclosure and (non)use of personal information, and money is exchanged, in ways that would reflect the value that each entity and individual places on the use--or withholding--of the information. Some individuals might choose to provide certain personal data in return for a fee; some might choose to pay a fee in return for special privacy protections; and some Hams might even pay for opportunities to be exhibitionists!

Yes, it is tricky to determine when government should intervene in parent-child relationships for the same reason, as I noted earlier today, that it's tricky to determine when government should intervene in sexual relationships. So here you and I are, yet again, in still another context, discussing how hard it is to draw the appropriate boundaries between the public and the private spheres!

On the one hand, we can easily agree that there are certain aspects of parental discipline of children that should be none of the government's business (e.g., "grounding" them, reducing their allowance). But, at the opposite end of the spectrum, we also would surely agree that there are certain kinds of discipline--the sadly real cases of parents starving and torturing children who "misbehave"--where the government should intervene, even to the point of terminating parental rights. Then there are those difficult borderline cases that keep us judges and activists busy. The Supreme Court has held that parents have a constitutionally-grounded right to shape their children's education, but it has also held that minors have their own constitutional rights. Sometimes the two sets of rights conflict--for example, when there are differing religious beliefs, or views about abortion.

As for the latter, the Supreme Court consistently has held that pregnant minors--no matter how young--must have an avenue for getting abortions without parental consent. In other words, even if a parent would want to prohibit the abortion, the law will intervene in the family relationship by preventing the parent from doing so. While I recognize the complexities, I firmly believe that's the correct outcome.

Speaking of complexities, the fact that human perceptions and recollections are so imperfect is why the law should proceed cautiously. This is particularly so in areas where perceptions are likely to be especially subjective (viz.: anything to do with sexual and gender relations--hence, the debates about whether sexual harassment should be judged from the perspective of a "reasonable woman" or that of a "reasonable person"), or where the consequences of inaccuracy are particularly draconian. In the latter category, I appreciate your (unintended, I assume) argument against the death penalty--the latest study (a 1997 report by the Death Penalty Information Center ) continues to document depressingly high numbers of Death Row denizens who turned out to be innocent.

And the death penalty brings me to the Fatwa against Salman Rushdie. Its lifting is great news, although I assume it won't dramatically change his life. That's because there must be many militant acolytes of the Ayatollah who will not have heard about this new development, and who would be eager for the chance to earn the huge bounty that had been put on Rushdie's head, not to mention the promised trip to paradise. In any event, I'm so glad that you raised this subject, Alex, since too many people have forgotten about the Fatwa, and it does continue to haunt not only Rushdie himself and his family (I recently had the pleasure of dining with them--and their bodyguards), but also many other lesser-known writers (as well as publishers and booksellers) who are chilled in their discussion of certain "dangerous" or "forbidden" topics .

But, thank goodness, your speech and mine is hardly chilled -- I look forward to more heated discussions tomorrow!

the breakfast table
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from: Nadine Strossen

From Ham to Salman

Posted Wednesday, Sept. 23, 1998, at 5:10 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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