Monday, May 18, 2009

Justice Scalia, Privacy, and the Distinction Between What's Legal and What's Responsible

The New York Times had a fun piece over the weekend (you can read it here) about Justice Antonin Scalia's comment, in remarks last year at a conference focused on privacy issues, that "the notion that every datum about my life is private" is "silly."

According to the Times's Noam Cohen, Fordham Law professor Joel Reidenberg asked students taking his course about privacy and the law to create a dossier about Justice Scalia's private life based on what can be found on the internet. Although Reidenberg denies that the assignment was a direct response to Scalia's comment, Cohen implies that the connection is self-evident.

So, how much information about Scalia's private affairs is publicly accessible? Lots. Cohen reports that "the class managed to create a dossier of 15 pages ... that included the justice’s home address and home phone number, his wife’s personal e-mail address and the TV shows and food he prefers."

Scalia, when told about Reidenberg's assignment, drew a line between what is legal and what is proper:

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.


In our practice, we find clients repeatedly surprised at the extent to which court records -- such as those involving real estate transactions and the probate of wills -- are readily accessible to the public. To the extent that individuals want to maintain a degree of privacy, there are legal tools to do so, but there's no doubt that Reidenberg's exercise correctly illustrates the ways in which maintaining privacy is far more difficult in the age of the internet.