A rash of very public scandals, of which the behavior of President Clinton and the activities of the late Princess Diana are merely the most famous examples, has raised the question of the appropriateness of the disclosure, or the newsworthiness, of the so-called “private” lives of so-called “public” figures or “public” officials. That is the question I address in this essay.
1 An ascriptive term is one that, in the guise of description, is largely evaluative. For example, a jury verdict of “guilty” not only says that the defendant engaged in certain behavior, but also that it is appropriate for the defendant to be punished for that behavior. On ascriptive terms, see Hart, H. L. A., “The Ascription of Responsibility and Rights,” Proceedings of the Aristotelian Society, n.s., 49 (1949): 171–82. See also Hart, , “Definition and Theory in Jurisprudence,” in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 21–44; and Baker, G. P., “Defeasibility and Meaning,” in Hacker, P. M. S. and Raz, J., eds., Law, Morality, and Society: Essays in Honour of H. L. A. Hart (Oxford: Clarendon Press, 1977), 26–52. For useful criticism (which Hart later acknowledged and accepted in his Punishment and Responsibility: Essays in the Philosophy of Law [Oxford: Clarendon Press, 1968], vi), see Geach, P. T., “Ascriptivism,” Philosophical Review 69, no. 2 (04 1960): 221–25; and Pitcher, George, “Hart on Action and Responsibility,” Philosophical Review 69, no. 2 (04 1960): 226–29.
2 A thick description is one whose moral evaluation of the conduct is inseparable from the description itself; the classic example of this is the word “rude.” See Foot, Philippa, “Moral Arguments,” in Foot, Virtues and Vices and Other Essays in Moral Philosophy (Oxford: Clarendon Press, 1978), 96, 102–5; Thomson, Judith Jarvis, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990), 10–20; and Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge: Cambridge University Press, 1985), 129.
3 The confusion to which I refer is underscored by the terms “public official” and “public figure.” Not all government employees are well known (although many are, such as the President of the United States and the Prime Minister of Australia), and not all well-known people are government employees. Despite this, there are issues about the extent to which even government employees who are not well known have less of an interest in keeping secret facts about their lives than do ordinary citizens. There are also issues about the extent to which even well-known people who are not employed by the government (including television personalities like Martha Stewart and sports stars like Michael Jordan) should be thought of as having relinquished a degree of control over the facts about their lives that is greater than that relinquished by the rest of us. As a result, the topic I address covers discussions of well-known government employees, government employees who are not well known, and well-known people who are not government employees. I may quite possibly reach different conclusions for each group.
4 On the issues surrounding the extension of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which was a libel case about governmental officials, to libels of “public figures” who are not government employees, see Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1976); Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157 (1979); and Hutchinson v. Proxmire, 443 U.S. 111 (1979).
5 The locution “would wish not to have disclosed” is of course an oversimplification. Previous policy fiascos would also fit under the heading of facts that officials or candidates would wish not to have disclosed, as would criminal convictions for bribery and election fraud, but in neither of these cases is there a plausible argument for nondisclosure. As is obvious, my attention is solely on the facts and activities that are often claimed to be “nobody's business.”
6 I do not mean that it is justified all things considered, but rather, I mean to focus on the fact that moral side-constraints are most important not when they constrain illegitimate or unjustified preferences, but when they constrain otherwise legitimate or justified ones.
7 This assumption may be counterfactual, but I will deal with this issue presently.
8 See Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975); and Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988). See generally Turkington, Richard C. and Allen, Anita L., Privacy Law: Cases and Materials (St. Paul, MN: West Group, 1999), 449–95; and Zimmerman, Diane L., “Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort,” Cornell Law Review 68, no. 2 (Spring 1983): 291–363.
9 They might have thought otherwise if, for example, it had been alleged that Ginsberg had been using LSD or other hallucinogenic drugs regularly for a period of ten years prior to becoming a judge.
10 The argument would, of course, also extend to Supreme Court nominees who exceed the speed limit while driving, who cross the street against the “Don't Walk” signs, or who, when such activity was unlawful, removed the label describing the contents from their mattresses and pillows. The fact that some of those who opposed Ginsberg's nomination on obedience-to-lavv grounds did not express a willingness to oppose a nominee who had engaged in these other forms of unlawful behavior does cast doubt on their sincerity, but the disingenuousness of some or many proponents of the argument does not address the soundness of the argument itself.
11 To make a causal claim is to claim that the trait or behavior at issue bears a causal relationship (including a probabilistic causal relationship) to the existence of the genuinely relevant trait or behavior, as when it is claimed that marijuana use increases the likelihood of heroin use. The indicative claim is that the trait or behavior at issue is evidence of the genuinely relevant trait or behavior, even when or if there is no causal connection. One example of an indicative claim is the claim that the incidence of heroin use among the population of marijuana users is higher than the incidence of heroin use in the population at large, making evidence of marijuana use some indication of heroin use. In the present context, the claim is more likely an indicative one, with the argument being that one who has disobeyed some laws presents a greater likelihood of disobeying other laws than is one of whom there is no evidence of disobedience.
12 For those readers who are golfers, I point out that it is well known that President Clinton's cheating at golf goes quite a bit beyond winter rules, mulligans (“do-overs”) on the first tee, and other rule modifications that are common among casual golfers. By all accounts, Clinton has a disregard for the rules of golf that is uncommon even among casual golfers of his skill level, a disregard that would lead many golfers to question whether the game he plays ought to be called “golf” at all. (“Is it chess without the queen?”) For a sampling of the published accounts, see Tucker, Tim, “Shooting a 60 with President Mulligan,” Atlanta Constitution, 08 16, 1999, 1D; Henneberger, Melinda, “Tom DeLay Holds No Gavel, But a Firm Grip on the Reins,” New York Times, 06 21, 1999, A1; Kirkwood, R. Cort, “Worst of All, He Cheats at Golf,” Ottawa Sun, 01 10, 1999, C4; Rosenblum, Jonathan, “Bill's Problem and Ours,” Jerusalem Post, 02 6, 1998, 9; Bunting, Glenn F., “Game Fits President to a Tee,” Los Angeles Times, 11 13, 1997, E1; and CNN Newsroom Worldview, 07 6, 1998, transcript 98070600VO5.
13 Constitutionalized American libel law reflects this view. Monitor Patriot Co. v. Roy, 401 U.S. 265 (1966).
14 I describe the interest in voting as an interest and not as a right because I want to bracket, at least for now, questions about how that interest might be enforced or effectuated. One way to enforce that interest is by giving people an enforceable right (a claim in the strict Hohfeldian sense) to obtain information from others that those others would prefer not to disclose. We can imagine, in theory, something like a Freedom of Information Act against political candidates, by which members of the public might claim access to various documents and various forms of information that a candidate possesses, just as a claimant under the Freedom of Information Act can enforce a demand for documents that are in the possession of the government.
Although this is one (extreme) way in which the interest in getting information relevant to a voting decision might be effectuated, there are others as well. For example, the institutional press could be given the enforceable claim-right just discussed, which it could exercise on behalf of the public. Alternatively, the institutional press could be given a Hohfeldian privilege against interference with its obtaining and publishing of such information. (This is reasonably close to the current state of American law, although in practice the privilege is extended to all, and not only to the institutional media.) Another possibility is the use of a statute or regulation requiring affirmative disclosure of certain information by all candidates. (This possibility has often been raised in the context of proposals to require all candidates to disclose their medical histories, and was made with particular frequency in 1991 and 1992, when the late Paul Tsongas, who had been treated in the past for cancer, was campaigning to be the Democratic nominee for president of the United States.) Note also that the law could be entirely uninvolved, but there might still be a norm, according to which candidates who do not disclose certain information (such as their past use, if any, of illegal narcotics and other controlled substances) would be subject to criticism for their nondisclosure, and under which journalists who locate and disclose the information would likely be the recipients of prizes rather than excoriation.
There exist other possibilities for effectuation of the informational interest, but my point here is only that the identification of a legitimate interest, which is what I address here, is largely agnostic on the question of which legal or other devices might best be employed to give effect to that interest.
15 Note that this qualification would only be impermissible for offices other than those of president and vice president of the United States; for those two positions, American birth, however morally problematic, is constitutionally mandated. U.S. Constitution, art. 2, sec. 1, clause 5. For a valuable critique of this provision and what it represents, see Kennedy, Randall, “A Natural Aristocracy?” in Eskridge, William N. Jr., and Levinson, Sanford, eds., Constitutional Stupidities, Constitutional Tragedies (New York: New York University Press, 1998), 54–56.
16 See, for example, Gutmann, Amy and Thompson, Dennis, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996). See also Bohman, James, Public Deliberation (Cambridge, MA: MIT Press, 1996); Fishkin, James S., Democracy and Deliberation (New Haven, CT: Yale University Press, 1991); Hamlin, Alan and Pettit, Philip, eds., The Good Polity (Oxford: Basil Blackwell, 1989); and Estlund, David M., “Who's Afraid of Deliberative Democracy? On the Strategic/Deliberative Dichotomy in Recent Constitutional Jurisprudence,” Texas Law Review 71, no. 6 (10 1993): 1437–54.
17 It is possible that previous use of controlled substances is a good example of this sort of situation. Although a majority of the population might disagree with those who think that unlawful drug use ten or fifteen years ago is properly a factor in a current voting decision, the majority would be hard-pressed to conclude that the minority who disagreed with them were voting immorally.
18 See especially Meiklejohn, Alexander, Political Freedom: The Constitutional Powers of the People (New York: Harper and Row, 1965). See also Schauer, Frederick, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982), chap. 2; and Sunstein, Cass R., Democracy and the Problem of Free Speech (New York: Free Press, 1993).
19 See Schauer, Frederick, “Judicial Review of the Devices of Democracy,” Columbia Law Review 94, no. 4 (05 1994): 1326–47.
20 This issue is a variant on the well-known paradox of democracy. See Popper, Karl R., The Open Society and Its Enemies, 5th ed. (London: Routledge & Kegan Paul, 1966), 265–66.
21 The argument from waiver appears to go nowhere. When confronted with the argument that one has the right not to be evaluated by race or gender, but that one waives this by choosing to enter public life, a proper response is that it would be wrong to make people waive this right just to enter public life. Many ambitious politicians would agree to have their pinky finger or little toe amputated if that would assure them of election to higher office, but it would, nevertheless, be wrong to make them waive their right not to have this done to them. An argument from waiver, therefore, is parasitic on an antecedent determination of what it would be reasonable or right to make people waive, and thus cannot avoid this central substantive moral question.
22 I have dealt with the calculus of all of this elsewhere. See Schauer, Frederick, “A Comment on the Structure of Rights,” Georgia Law Review 27, no. 2 (Winter 1993): 415–34; and Schauer, , “Can Rights Be Abused?” Philosophical Quarterly 31, no. 2 (07 1981): 226–32. See also Gewirth, Alan, “Are There Any Absolute Rights?” Philosophical Quarterly 31, no. 1 (01 1981): 1–16; Nozick, Robert, “Moral Complications and Moral Structures,” Natural Law Forum 13 (1968): 1–50; and Thomson, Judith Jarvis, “Some Ruminations on Rights,” Arizona Law Review 19, no. 1 (1977): 45–60.
23 There are interesting questions about when a minority interest is large enough to “count.” Under one view, consistent with the argument that I make here, the informational preferences of even one person are sufficient to justify disclosure. But given the impossibility of restricting the information to those who need it, as I argued above, it is unrealistic to suppose that it is wrong to fail to indulge the informational preferences of just one person. In contrast, requiring that the information be actually and legitimately desired by the majority is inconsistent, as I have argued, with the idea of the right to vote itself. The difficult task, therefore, is determining where, above one voter and below a majority, one should draw the line.
24 Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 190–94.
* Research for this essay was supported by the Joan Shorenstein Center on the Press, Politics, and Public Policy at Harvard University, which also provided the ideal forum for fruitful discussion and debate of the ideas presented here.
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