Background
A Fordham law professor assigned his students the task of snooping into Justice Antonin Scalia's personal information to see what they could discover through public sources. This was done in response to Justice Scalia's remarks that every data point about our lives is private as, "That's silly." To conclude that the law professor's assignment was anything other than "see how you like it" is disingenuous.
Scalia Responds
In response to the detailed report of Scalia's private affairs (including pictures of his grandchildren and his wife's email address) posted on the Internet in toto, Scalia emailed a response (Above the Law, Justice Scalia Responds to Fordham Privacy Invasion!, April 29, 2009):
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
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.
Justice Scalia demonstrated that he is both a brilliant jurist and a tempered gentleman.
Poor Judgement Indeed
There was a time when ethics were valued above all else. With ethical (and moral behavior) set aside, people will look to the law to control the inappropriate behavior of others. There was also a time, not too distant from today, when turning to the courts to resolve petty grievances was the mark of scoundrel. There is a word that sums up the assignment of this law professor: shyster.
Chapter 12: The Shame of Judge Driscoll, The Tragedy of Pudd`nhead Wilson, Mark Twain:
Courage is resistance to fear, mastery of fear--not absence of fear. Except a creature be part coward, it is not a compliment to say it is brave; it is merely a loose misapplication of the word. Consider the flea!--incomparably the bravest of all the creatures of God, if ignorance of fear were courage. Whether you are asleep or awake he will attack you, caring nothing for the fact that in bulk and strength you are to him as are the massed armies of the earth to a sucking child; he lives both day and night and all days and nights in the very lap of peril and the immediate presence of death, and yet is no more afraid than is the man who walks the streets of a city that was threatened by an earthquake ten centuries before. When we speak of Clive, Nelson, and Putnam as men who "didn`t know what fear was," we ought always to add the flea--and put him at the head of the procession.- Pudd`nhead Wilson`s Calendar
The Study of Ethics
"The entertainments of fiction are useful as well as pleasant... Everything is useful which contributes to fix us in the principles and practice of virtue. When any signal act of charity or of gratitude, for instance, is presented either to our sight or imagination, we are deeply impressed with its beauty and feel a strong desire in ourselves of doing charitable and grateful acts also. On the contrary, when we see or read of any atrocious deed, we are disgusted with its deformity and conceive an abhorrence of vice. Now every emotion of this kind is an exercise of our virtuous dispositions; and dispositions of the mind, like limbs of the body, acquire strength by exercise. But exercise produces habit, and in the instance of which we speak, the exercise being of the moral feelings, produces a habit of thinking and acting virtuously."
-Thomas Jefferson, 1771
Ethics (and honor) were a common theme in Mark Twain's works. He contrasted the application of the law against the backdrop of ethics and immoral law. No better was the conflict presented than in the mind of young Huck Finn when faced with the conflict of turning in his friend and runaway slave, Jim, or protecting him:
I felt good and all washed clean of sin for the first time I had ever felt so in my life, and I knowed I could pray now. But I didn't do it straight off, but laid the paper down and set there thinking- thinking how good it was all this happened so, and how near I come to being lost and going to hell. And went on thinking. And got to thinking over our trip down the river; and I see Jim before me, all the time; in the day, and in the night-time, sometimes moonlight, sometimes storms, and we a floating along, talking, and singing, and laughing. But somehow I couldn't seem to strike no places to harden me against him, but only the other kind. I'd see him standing my watch on top of his'n, stead of calling me, so I could go on sleeping; and see him how glad he was when I come back out of the fog; and when I come to him agin in the swamp, up there where the feud was; and such-like times; and would always call me honey, and pet me, and do everything he could think of for me, and how good he always was; and at last I struck the time I saved him by telling the men we had smallpox aboard, and he was so grateful, and said I was the best friend old Jim ever had in the world, and the only one he's got now; and then I happened to look around, and see that paper.
It was a close place. I took it up, and held it in my hand. I was a trembling, because I'd got to decide, forever, betwixt two things, and I knowed it. I studied a minute, sort of holding my breath, and then says to myself:
"All right, then, I'll go to hell"- and tore it up.
It was awful thoughts, and awful words, but they was said. And I let them stay said; and never thought no more about reforming. I shoved the whole thing out of my head; and said I would take up wickedness again, which was in my line, being brung up to it, and the other warn't. And for a starter, I would go to work and steal Jim out of slavery again; and if I could think up anything worse, I would do that, too; because as long as I was in, and in for good, I might as well go the whole hog.
In The Tragedy of Puddin' Head Wilson we find this passage between Tom and his uncle (Judge Driscoll). Tom begins:
"It's perfectly true. Wilson detected it in his hand, by palmistry, and charged him with it, and cornered him up so close that he had to confess; but both twins begged us on their knees to keep the secret, and swore they would lead straight lives here; and it was all so pitiful that we gave our word of honor never to expose them while they kept the promise. You would have done it yourself, uncle."
"You are right, my boy; I would. A man's secret is still his own property, and sacred, when it has been surprised out of him like that. You did well, and I am proud of you." Then he added mournfully, "But I wish I could have been saved the shame of meeting an assassin on the field on honor."
Earlier in the novel we hear Judge Driscoll's opinion of a member of his family having a matter of honor decided in court:
"You cur! You scum! You vermin! Do you mean to tell me that blood of my race has suffered a blow and crawled to a court of law about it? Answer me!"
In short, honorable and ethical men do not need the law (or the courts) to determine how to behave, nor to settle their grievances or respect a man's privacy as sacred. Hiding behind the law, excusing immoral laws, or lack of civil law, is the bastion of rogues. Regardless of what the law says, or how it is interpreted, ethnics and morality trump. To do otherwise is to set aside one's aspirations of being a gentleman... and a moral person.
The Law(yer) is an Ass
The Internet and vast computing power capable of storing trillions of lines of data on each of us (the datam Justice Scalia referred to) means that a significant part of our property and papers is now available to those who seek it out, but our property and papers are denied to the government without just cause, not to the public. Anyone with access to one of the credit reporting bureaus can find details of our financial history, our previous addresses, and our employers. Home valuations can be provided to anyone who types an address into an online calculator.
These individual data points are relatively harmless, in the hand of those who mean no harm, but aggregated, they provide a method and mechanism of stalking an individual by anyone inclined to do so. There can be no law that would protect us from those who wish to do us harm, or prevent individuals from aggregating the data for malicious purposes. The ultimate protection is a society that demands that others do no such a thing, under any guise, including and especially, "the ends justify the means."
How then to reprimand this law professor for what he has done? We should resort to other means to reject the immoral behavior of others, and demand that they lose all respect and privilege of our society.
"Society [has] a right to erase from the roll of its members any one who rendered his own existence inconsistent with theirs; to withdraw from him the protection of their laws, and to remove him from among them by exile, or even by death if necessary."- Thomas Jefferson, 1815
We do not need a law to deal with this law professor in the same way we do not need a law to tell us that aggregating one's personal history for malicious purposes is immoral. We need only act in one voice, and to remove from him any place or position in respectable society.
The first dictum of the Hippocratic Oath is to do no harm. Unfortunately, lawyers are not constrained in their actions by requirement to take the same oath that doctors do. It is far too common for lawyers to demand a civil law to constrain one's behavior. They too often look to the law books as their sole arbiter of personal conduct.
As I indicated in my opening paragraph, I was reluctant to link to any of this, thus the limelight of tainted fame be associated with those who have done and linked to this horrid thing. When I read the post this morning I clicked off it, disgusted, feeling dirty by reading about it, even without clicking on or reading the summary of Justice Scalia's private affairs. It is not the light of celebrity or praise that causes me to link to the above, but a different kind of light and attention: one that allows us to see the vermin that hide amongst us, and how good men such a Justice Scalia respond: not in the courts, but as a gentleman. It is, unfortunately, the perfect example of why our society, civilization, and country is in decline... and it is the charter of this blog to document these attrocities, regardless of how miserable it is to do so.
Justice Scalia was kind in his response, for there is no moral justication for what was done to him, and that was his point from the beginning. There is civil law and moral law, and there can be no set of laws to protect our data points, nor control completely who may access them. Good judgment is a requirement of all. Any law to prevent the kinds of actions done to Justice Scalia would be Draconian, and unenforceable, as it would be impossible to make a law requiring that everyone destroy their address books or letters. Moral law is the basis for sound judgements, and this law professor has shown that he has no such inclination to abide by it. For this, he should have no place in influencing the minds of future jurists, for a jurist without ethics and the practice of good judgement is not someone with whom we should entrust with the law.
"Is it the less dishonest to do what is wrong, because not expressly prohibited by written law? Let us hope our moral principles are not yet in that stage of degeneracy."- Thomas Jefferson, 1813
Take down from the Internet the summary of Justice Scalia's private affairs. It was wrong to create it and to post it.
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