Chris Wolf on Privacy’s Homophobic Present

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14 Responses

  1. So is Mr. Wolff intimating that the fears are of the opponents are unfounded? Perhaps in the future, we could legislate that voting on such issues should mimic the proposed “card check” rules…and make the “correct” vote a kind of poll tax.

    …and I’m sure some law professor somewhere has written a careful review of just why the principles underlying NAACP v. Patterson do not apply here.

  2. Orin Kerr says:

    With all due respect to Chris, I think this argument is weak. It seems to me that whether the state publicly recognizes same-sex marriages is a public question, not a matter of a right to privacy. The argument that this is about a right to privacy derives from Chris’s view that being legally married will make him more comfortable not disclosing his sexual orientation to other people if someone asks him if he is married. As I understand it, Chris doesn’t feel comfortable saying “no”, so he prefers to give an explanation that likely reveals his sexual orientation. But I’m not sure what that might have to do with a constitutional right to privacy, which presumably must involve the state’s interference with private affairs rather than one’s comfort with various ways of responding to a question from a friend or colleague. (Oh, and for what it’s worth, I personally favor same-sex marriage as a policy matter.)

    Danielle, I gather you agree with Chris’s argument, given that you gave it such prominent attention. If you have a free second, can you explain what you think I’m missing?

  3. Danielle Citron says:

    Thanks to both of you for your comments. Orin, I definitely hear you on your constitutional point. But I thought it worthwhile to note Chris’s point about those testifying against gay marriage and their desire for privacy even though they have willingly entered the fray on a matter of public debate.

  4. David Bernstein says:

    How do you feel about NAACP v. Alabama? It strikes me that based on your reasoning, that case should have come out the other way.

  5. Danielle Citron says:

    It seems that NAACP v. Alabama has limited application given the public nature of the trial testimony whereas the state in NAACP v. Alabama demanded the list of members. But it is a point well taken.

  6. And let’s not let Mr. Wolff be the last word on what the SC did in it’s ruling:

    “The judge in the trial of Proposition 8 appeared to strike a balance, to avoid a circus, by allowing only delayed videotape access to coverage of the trial. The Supreme Court disagreed.”

    well, yeah, the Court disagreed; Mr. Wolff has it exactly backwards: as noted in the stay order, the District Court was allowing live audio and video streaming to various courts around the country; “the delayed videotape access” I’m guessing refers to the proposed internet broadcast which, at the time the SC issued the stay was not yet approved by the 9th Circuit’s CJ Kozinski.

    For all Mr. Wolff’s whining on the subject, let’s remember that it wasn’t the Supreme Court that decisively said no to Gay Marriage; instead that was the BLUE STATE of California. And I’m not sure what more he expects of Chief Justice Roberts than his refusal to block the DC law from going into effect. Why do so many of you think “ringing endorsements” from the Court is part of their job description?

    Side Note: He also writes:
    “To those of us who strongly favor equal marriage rights — and who have a personal stake in them — providing cover to those who would keep those rights from us feels a little like a drive-by assault: We had a glance at the people attacking us, but now they are gone, not to be identified.”

    Well, I can give identify one for him: Barack Obama

  7. Ken says:

    >>How do you feel about NAACP v. Alabama? It strikes me that based on your reasoning, that case should have come out the other way.>>

    I fail to see the analogy.

    If the NAACP had submitted petitions signed by some of its members seeking to overturn some specific law, or some specific action, and those petitions were submitted as part of a legal process, then it appears that the signers of the petition would have chosen to become participants in a public process, and would not be entitled to protection of anonymity in that process. OTOH, I can’t imagine how the identity of other members, who were NOT signers of the petitions, would lose their right to anonymity.

    In Ms. Citron’s post it seems to me the key words are in the third paragraph: >>active opponents of gay marriage, in California and Washington, have claimed that their right to privacy will be invaded if they are not given legal protection to be unseen and anonymous.>>

    “Active opponents,” it says, not “passive bystanders who happen to disagree.” “Active,” they were, in delivering testimony in a public trial. To my simple mind, the rule is pretty straightforward — if you play in the game, the fans get to see you from the bleachers. If you remain in the dugout, the fans get no visibility.

  8. David Bernstein says:

    Nonsense. The NAACP lobbied for civil rights. Being a member of that organization meant that you were supporting its civil rights campaign, certainly in general if not necessarily in every single particular, a VERY public issue. And the NAACP didn’t want to turn over its membership list for the same reason people want to be able to sign anti-gay marriage petitions for referenda anonymously–to avoid harassment and reprisals from those on the other side.

  9. Danielle Citron says:


    Might one differentiate a person’s signing of a petition as falling within NAACP v. Alabama’s protection of one’s identity in a group and testimony at a public trial as implicating Laird v. Tatum’s notion of indirect effects on First Amendment rights? In Laird, Army intelligence agents attended meetings that were open to the public and wrote field reports describing the meetings and identifying the participants. There, too, the government collected the information raising the risk of future harm of blacklisting (which the Court found too attenuated to provide standing). The Court in NAACP v. Alabama explained that the repressive effect of the compulsory disclosure of the names mattered even though they would arise from private parties because it was “the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.” Here, however, the press sought to broadcast videotaped trial testimony presented in front of an audience, which the court prevented.

    These differences perhaps don’t change David’s point about chilling and the real risk of retribution that such witnesses might face. I have long been worried about the privacy risks of civic engagement, see Fulfilling Government 2.0’s Promise with Robust Privacy Protections, 87 Geo. Wash. L. Rev. (forthcoming 2010), and so this discussion has been helpful to me in sorting out the significance of broadcasting the videotaped trial testimony and its First Amendment/free speech values concerns.


  10. “Here, however, the press sought to broadcast videotaped trial testimony presented in front of an audience, which the court prevented.”

    I don’t think the press had anything to do with this – it was the District Court that was going to be doing the live streaming to other courtrooms around the country – not MSNBC. Finally, as noted before, at the time the stay was issued, CJ Kozinski had not yet authorized the internet broadcast of the videotaped proceedings.

    …and let’s also keep in mind that the stay didn’t exactly put a halt to a long tradition of broadcasting live District Court proceedings within the Ninth Circuit.

  11. That is a very helpful clarification, MC, and demonstrates the strength of David’s initial point.

  12. David Bernstein says:

    Danielle, I do think that there might be a difference between public trial testimony and other “associational” activity, but I didn’t read “Ken” as making that distinction.

  13. Jus' Sayin says:

    Uh, isn’t the difference between NAACP v. Alabama and this case that in NAACP, the Court protected the privacy of people fighting for civil rights….and in this case it’s the people that are AGAINST civil rights that are at issue? Why all this pointless flight from substance? (and really, wouldn’t Ely even recognize only Alabama as process protectin’?) Jus’ sayin’….