In January, Justice Antonin Scalia made some remarks about privacy at the Institute of American and Talmudic Law. The AP reported:
Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”
He added there’s some information that’s private, “but it doesn’t include what groceries I buy.”
In response to this commonsensical provocation, Fordham University law professor Joel Reidenberg had his class compile a 15-page dossier on Scalia, “including his home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and ‘photos of his lovely grandchildren.’”
Reidenberg apparently sent the file to Justice Scalia, eliciting this response:
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.
Being a jerk to Justice Scalia didn’t help Professor Reidenberg make his point, whatever it may be.
According to the Above the Law blog, Reidenberg believes that “technological constraints should be built into the infrastructure of online networks in recognition of users’ privacy rights.” He may also think the Nile should flow the other direction, but having his students dig up graves in Egypt won’t advance that cause.