On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others

I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others. Richard Posner

Privacy is overratedRichard Posner (2013)

 Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.Richard Posner (2014)

This is the seventh installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, and the sixth one here.

Privacy has been on Richard Posner’s mind for more than three-and-a-half decades. His views, as evidenced by the epigraph quotes above, have sparked debate in a variety of quarters, both academic and policy. In some ways those views seem oddly consistent with his persona – on the one hand, he is a very public man as revealed by his many writings, while on the other hand, he is a very private man about whom we know little of his life outside of the law save for a New Yorker piece on him thirteen years ago.

On the scholarly side of the privacy divide, his writings include:

  1. The Right of Privacy,” 12 Georgia Law Review 393 (1978)
  2. Privacy, Secrecy, and Reputation,” 28 Buffalo Law Review 1 (1979)
  3. The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173
  4. The Economics of Privacy,” 71 The American Economic Review 405 (1981)
  5. Privacy,” Big Think (video clip, nd)
  6. Privacy is Overrated,” New York Daily News, April 28, 2014

For a sampling of Judge Posner’s opinion on privacy, go here (and search Privacy)

(Note: Some links will only open in Firefox or Chrome.)


Privacy – “What’s the big deal?”

Privacy interests should really have very little weight when you’re talking about national security. The world is in an extremely turbulent state – very dangerous. — Richard Posner (2014)

Recently, Georgetown Law Center held a conference entitled “Cybercrime 2020: The Future of Online Crime and Investigations” (full C-SPAN video here). In the course of that event, Judge Posner joined with others in government, private industry, and in the legal academy to discuss privacy, the Fourth Amendment, and free speech, among other things. A portion of the exchange between Judge Posner and Georgetown law professor David Cole was captured on video.

Judge Richard Posner

Judge Richard Posner

Scene: The Judge sitting in his office, speaking into a video conference camera — As he rubbed his fingers across the page and looked down, Posner began: “I was thinking, listening to Professor Cole, what exactly is the information that he’s worried about?” Posner paused, as if to setup his next point: “I have a cell phone – iPhone 6 – so if someone drained my cell phone, they would find a picture of my cat [laughter], some phone numbers, some e-mail addresses, some e-mail texts – so what’s the big deal?”

He then glanced up from the text he appeared to be reading and spoke with a grin: “Other people must have really exciting stuff. [laughter] Could they narrate their adulteries or something like that?” [laughter] He then waved his hands in the air before posing a question to the Georgetown Professor.

“What is it that you’re worrying about?” Posner asked as if truly puzzled.

At that point, Cole leaned into his microphone and looked up at the video screen bearing the Judge’s image next to case reports on his left and the American flag on his right.

Cole: “That’s a great question, Judge Posner.”

Professor Cole continued, adding his own humor to the mix: “And I, like you, have only pictures of cats on my phone. [laughter] And I’m not worried about anything from myself, but I’m worried for others.”

On a more substantive note, Cole added: “Your question, which goes back to your original statement, . . . value[s] . . . privacy unless you have something to hide. That is a very, very shortsighted way of thinking about the value [of privacy]. I agree with Michael Dreeben: Privacy is critical to a democracy; it is critical to political freedom; [and] it is critical to intimacy.”

The sex video hypothetical

And then with a sparkle in his spectacled eye, Cole stated: “Your question brings to mind a cartoon that was in the New Yorker, just in the last couple of issues, where a couple is sitting in bed and they have video surveillance cameras over each one of them trained down on the bed [Cole holds his hands above his head to illustrate the peering cameras]. And the wife says to the husband: ‘What are you worried about if you’ve got nothing to hide, you’ve got nothing to fear.’”

Using the cartoon as his conceptual springboard, Cole moved on to his main point: “It seems to me that all of us, whether we are engaged in entirely cat-loving behavior, or whether we are going to psychiatrists, or abortion providers, or rape crises centers, or Alcoholics Anonymous, or have an affair – all of us have something to hide. Even if you don’t have anything to hide, if you live a life that could be entirely transparent to the rest of the world, I still think the value of that life would be significantly diminished if it had to be transparent.”

Without missing a beat, Cole circled back to his video theme: “Again you could say, ‘if you’ve got nothing to hide, and you’re not engaged in criminal activity, let’s put video cameras in every person’s bedroom. And let’s just record the video, 24/7, in their bedroom. And we won’t look at it until we have reason to look at it. You shouldn’t be concerned because . . .’”

At this point, Posner interrupted: “Look, that’s a silly argument.”

Cole: “But it’s based on a New Yorker cartoon.”

The Judge was a tad miffed; he waved his right hand up and down in a dismissive way: “The sex video, that’s silly!Waving his index finger to emphasize his point, he added: “What you should be saying, [what] you should be worried about [are] the types of revelation[s] of private conduct [that] discourage people from doing constructive things. You mentioned Alcoholics Anonymous . . .”

Cole: “I find sex to be a constructive thing.”

Obviously frustrated, Posner raised his palms up high in protest: “Let me finish, will you please?”

Cole: “Sure.”

Posner: “Look, that was a good example, right? Because you can have a person who has an alcohol problem, and so he goes to Alcoholics Anonymous, but he doesn’t want this to be known. If he can’t protect that secret,” Posner continued while pointing, “then he’s not going to go to Alcoholics Anonymous. That’s gonna be bad. That’s the sort of thing you should be concerned about rather than with sex videos. . . . [The Alcoholics Anonymous example] is a good example of the kind of privacy that should be protected.”

David Cole

Professor David Cole

Privacy & Politics 

Meanwhile, the audience listened and watched on with its attention now fixed on the Georgetown professor.

Cole: “Well, let me give you an example of sex privacy. I think we all have an interest in keeping our sex lives private. That’s why we close doors into our bedroom, etc. I think that’s a legitimate interest, and it’s a legitimate concern. And it’s not because you have something wrong you want to hide, but because intimacy requires privacy, number one. And number two: think about the government’s use of sex information with respect to Dr. Martin Luther King. They investigated him, intruded on his privacy by bugging his hotel rooms to learn [about his] affair, and then sought to use that – and the threat of disclosing that affair – to change his behavior. Why? Because he was an active, political, dissident fighting for justice.”

“We have a history of that,” he added. “Our country has a history of that; most countries have a history of that; and that’s another reason the government will use information – that doesn’t necessarily concern [it] – to target people who [it is] concerned about . . . – not just because of their alcohol problem [or] not just because of their sexual proclivities – but because they have political views and political ideas that the government doesn’t approve of.”

At this point the moderator invited the Judge to respond.

Posner: “What happened to cell phones? Do you have sex photos on your cell phones?”

Cole: “I imagine if Dr. Martin Luther King was having an affair in 2014, as opposed to the 1960s, his cell phone, his smart phone, would have quite a bit of evidence that would lead the government to that affair. He’d have call logs; he might have texts; he might have e-mails – all of that would be on the phone.”

The discussion then moved onto the other panelists.

Afterwards, and writing on the Volokh Conspiracy blog, Professor Orin Kerr, who was one of the participants in the conference, summed up his views of the exchange this way:

“I score this Cole 1, Posner 0.”

The First Amendment — Enter Glenn Greenwald

Following the Georgetown conference, several commentators took sharp exception to Judge Posner’s comments on privacy. For example, Nick Gillespie, the editor of Reason, tagged Posner’s comments as “incredibly – even willfully – naive.” But the most critical and extended comments came from Glenn Greenwald, the controversial Pulitzer Prize-winning journalist who transmits his editorial barbs from Brazil.

Glenn Greenwald

Glenn Greenwald

Coating some of his other claims with rhetorical gloss, Greenwald nonetheless tendered three key arguments: (1) he contested the idea that if one were law-abiding, one had nothing to fear about government surveillance; (2) he alleged that the wealthy and powerful are seldom the targets of government surveillance; and (3) if Judge Posner really believed in what he said, he should, among other things, make his e-mails public. And then by way of a thumb-in-your-eye kind of tactic, Greenwald posted Posner’s 2010 Financial Disclosure Report — in it the name of a trust account that the Judge oversees (or once did) is redacted.

When asked about Greenwald, Posner wanted nothing to do with the man. When I asked him to comment on one of Greenwald’s arguments (see below) and thereby offer his side of the argument, he declined. Here is the passage in question:

Glenn Greenwald on Posner, Privacy & the First Amendment

“To see how power-based rather than principled Posner’s views are, consider what he said and did in a 2011 case – brought by the ACLU — where he mocked the idea that citizens have a First Amendment right to film the police. During oral argument, he immediately interrupted the ACLU lawyer arguing that citizens have this right, and the following exchange occurred:

Judge Posner: Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.

ACLU attorney Richard O’Brien: Is that a bad thing, your honor?

Judge Posner: Yes, it is a bad thing. There is such a thing as privacy.

“Like so many federal judges, Judge Posner recognizes rights only when they belong to agents of the state or the economic elite. When it’s ordinary citizens at issue, he snidely rejects any such protections. Of course, this is exactly backwards: those exercising public power (police officers) have a lower entitlement to privacy than private individuals. But power-servants like Judge Posner view only actors of the state and those who serve it (such as himself) as entitled to these prerogatives.” [Source here]

Note: Judge Posner’s dissent in the case in question, ACLU v. Alvarez (7th Cir., 2012), can be found here.

The Future

Screen Shot 2014-12-14 at 8.32.59 AM“There is a tendency to exaggerate the social value of privacy. I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society.” Those are Richard Posner’s words. They are also the words that may one day be quoted back to him when it comes to his own privacy.

Sometime next year the public will be able to peer into the private life of Judge Posner as never before. Why? The answer has everything to do with William Domnarski’s forthcoming biography of Richard Posner. When that time comes, the Judge will be the subject renewed commentary of all kinds.

When those biographical pages are turned, how will the public judge Posner? How moderate will commentators be when they quote the following words back him? – “‘Privacy’ is really just a euphemism for concealment, for hiding specific things about ourselves from others.”

Bold claims indeed. They are the kind of open-ended statements that can boomerang on a public official, even one who enjoys the secrecy of the judicial robe. Undeterred, Posner is bolder still: “Privacy-protecting laws are paternalistic.” That “paternalism” may one day be sought out by the very man who mouthed those words. And then again, perhaps not.

Words, words, words — so many more words: “We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.” Here, too, those are Posner’s words. They are the kind of words likely to linger once we see Richard Posner in a more revealing biographical light. (I will return to this point and related ones in the final installment in this series – “Afterword: Posner at 75 – ‘It’s My Job.’”)

This next installment, the eighth, in the Posner on Posner series is titled “On Judicial Reputation – More Questions for Judge Posner.” Future installments include “Posner on Same-Sex Marriage – Then and Now” (which does not include questions posed to the Judge since the 7th Cir. case is on appeal) and a Q&A with Judge Posner’s biographer.  

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8 Responses

  1. Paul Horwitz says:

    I don’t agree with much Posner says here, beyond the initial point that “privacy,” like any other term that is brandished freely and often, should be subjected to critical analysis. But I think you put it mildly when you describe Glenn Greenwald as coating his claims with rhetorical gloss. Good Lord! That’s not a single coat of rhetorical gloss: it’s the whole damn paint store. Without denying that there is some foundation for his statement, I must say that it is literally, and extraordinarily, sophomoric.

    • Nete Peedham says:

      OH, GOOD! Another :but…” argument.

      Difference? Posner is a judge with a lot of power. Greenwald has none…and YOU go and crap on Greenwald more than Posner.

      Makes you a snivelling bootlicker.

  2. Howard Wasserman says:

    Tangential: I want to commend Prof. Cole for finding legal ideas and analysis in the New Yorker cartoon. I have thought in the past that it would be fun and interesting in an upper-level class to ask students to write essays explaining legal concepts as seen in a cartoon.

  3. Joe says:

    “coating his claims with rhetorical gloss” is sort of his thing

  4. Brett Bellmore says:

    I have to say, this series has been a public service, likely killing as it does any lingering chance this man might ever end up on the Supreme Court. My God, I think I’d have preferred Bork, and I despised Bork.

  5. Gerard Magliocca says:

    Ask the folks at Sony what they think about privacy (now).

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