Judge Posner: “Very nice for fat cats and enemies of abortion.”

That is the judge’s answer to the question: “The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?” Ronald K. Collins, On Free Expression & the First Amendment — More Questions for Judge Posner, Concurring Opinions (December 10, 2014).

Fascinating discussion. You should read the entire article. I am interested in your views about Judge Posner’s views.


H/t How Appealing.

26 responses

  1. Well, the opinions of a judge who claims that privacy is over rated and simply protects criminals don’t have much weight with me. Simply because a judge should be keenly aware that the below quote turns on the definition of “disreputable”, a concept whose universality is non-existent. Posner’s position effectively means who ever gets to define “disreputable”, gets control if privacy was non existent. With privacy, we need victims to assert they were wronged. Without privacy, there is no end to the power of those with the ability to define “disreputable”.

    The exact quote for those who are unaware is:
    “I think privacy is actually overvalued,” Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.
    “Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct,” Posner added. “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.”

  2. At a conference last week in Washington, Posner said the NSA should have the unlimited ability to collect whatever communications and other information it wants: “If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine.” The NSA should have “carte blanche” to collect what it wants because “privacy interests should really have very little weight when you’re talking about national security.”

    Have he forgotten that the constitution is an instrument to limit government? That it was drafted by those who had experienced the corruption that power manifests?

  3. “What is worrisome to me is what I sense in some judges as a certain casualness about truth.” If there is a more acerbic internal critic of the federal judiciary than Richard Posner, I don’t know of him. (Personally, I find this species of dishonesty in a lot of judges at all levels, but you have to plow through the record to find it.)

    Judge Posner is dead right, as usual. Our plutocrats buy politicians who, in turn, ‘buy’ judges (in some states, outright). John Roberts was selected because it was known that he would advance a factional agenda (cf., Judge Roger Miner, who was not selected because he wouldn’t). And in a perverse sort of “reverse-acquisition,” that faction of the Court — apparently, disdainful of the electoral process — selected our President on the most dubious of grounds (whatever happened to “states’ rights”?). Roberts is a predictable product of this overt corporate takeover.

    The strength of a judge’s reasoning is the only warranty we have that he or she did the job, and the consistently outcome-driven inanity of this “Court’s” (SCOTUS scarcely even pretends to be our High Court) First Amendment jurisprudence is an indictment. On McCutcheon, Posner asks:

    Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated chief justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. The legislator who does not honor the implicit deal is unlikely to receive similar donations in the future. By honoring the deal he is not just being “responsive” to the political “views and concerns” of constituents; he is buying their financial support with currency consisting of votes for legislation valuable to his benefactors. Isn’t this obviously a form of corruption?


    In a word, yes.

    You don’t get to where Roberts is by being stupid or naive. Roberts knows what he is doing, and that what he is doing is not “law.” Posner’s implicit conclusion (a judge really can’t say it outright) is hard to dispute.

  4. As a former chair of a Fortune 500 PAC I shudder at the power the Supreme Court has given Corporations. Money buys votes, whether by use of a bribe cloaked as a legimate political contribution, or a naked bribe. The former is much worse than the latter because very few use the naked bribe. There is no need when the Court approves such nonsense. A bribe is a bribe. Putting whipped cream on a dead rat makes it no less disgusting. Yet the Roberts Court sprays the whipped cream over many disgusting objects. A Court that shall live in infamy. I try not to be judgmental but can’t break the pull of the obvious.

  5. RNJ,

    The difficulty, of course, is denying an association of people from using their association to promote their views undermines the freedom to associate which is also part of the First Amendment–in the end, people are involved no matter the type of association. For example, on the other side of the “a corporations is not a person” argument is the “a labor union is not a person” rejoinder. And so forth.

    I presume, but do not know, that you would oppose all associations of people from contributing to candidates or causes. Is that right? If my assumption is incorrect, explain how you would draw a principled distinction between corporations, labor unions, and other forms of association.

    Thanks for explaining your interesting background, and your engagement with this question. All the best.


  6. If ‘disreputable’ is a non-universal concept (as you say), then what power is to be gained by anyone who ‘gets to define “disreputable” ‘?

    If anyones power could hinge on determining what counts as disreputable, isnt it implicit that the disrepute be convincing and easily understood as such (universal)?

  7. Word choice faux pas. I should have said the definition, not the concept failed to be universal. The concept is clearly universal, the definition of what meets the definition is most definitely not. The point is, the specific restrictions of the BOR not withstanding, the concept that privacy is solely a tool of the dishonest, ie; liars, cheats and thieves, is anathema to a free society. Again, ignore the specific provisions of the BOR for this argument so we don’t get hung up in this or that preconceived notion of how to achieve that freedom. View free society as one that one’s own destiny is self actuated, equity is the rule of law and that law is always honestly brokered.

    If privacy is not respected, no two people could ever work in concert except to further the goal of a powerful third party. Either a democratically elected society’s notion, or a dictators notion of that goal (either way, big brother). There would be no notion of individual, or uniqueness. Freedom is impossible in that situation. The result is dictatorial or democratic oppression of anything that can upset the status quo. Everything becomes a security risk to the safety and security of the collective.

    And I should point out, I actually think “privacy”, as it is conceived in some states, actually does protect liars, cheats and thieves. In any state where 2nd party recording is criminalized (usually a felony BTW) the honest are at the mercy of the dishonest. See here for a good perspective on what happened in IL recently and why it matters (http://ipweb-lb-1885590254.us-east-1.elb.amazonaws.com/illinois-general-assembly-revives-recording-ban.html).

    By criminalizing 2nd party recording, you in effect say that not only do two people have a privacy interest from non participating others (covered by 3rd party eavesdropping typically), they also have a privacy interest from each other, despite both being willing parties (ostensibly at least) to the conversation each had with the other. We would never broadly criminalize the disclosure of one’s conversation with another (HIPAA, NDAs, security clearances excepted) yet we criminalize the recording that memorializes it. This approach benefits liars, cheats and thieves who can rely on the second party to be helpless to defend themselves from lies.

    Even believing that, I still don’t ascribe to Posner’s view of privacy. It’s easier, and likely legally correct, to say that parties to a conversation don’t have privacy interests from each other (only that they both had privacy interests from others) than it is to swallow that a free society can exist without privacy.

  8. Judge you have changed the issue. You are right that corporations are a form of associations and generally have standing to assert associational rights of members, but associational rights have limits that pure speech may not have, as an examination of the NLRA or picketing under 1st Amendment would demonstrate. The problem is SCOTUS decision starting with Buckley to treat giving as speech right rather than association.better question for those who argue about corporations as opposed to limits on giving is NYT v Sullivan. Posner is a critic of decision to treat money as speech. The weird decision on corporations is Hobby Lobby, believe it when I see a corporation in the confessional.
    Seems odd people are discovering Posner’s disrespect for privacy this week. given that it predates his judgeship, not an easy argument to refute.

  9. I think I essentially agree with Judge Posner, and so speaking on his behalf. Let me advance the following:

    0. Having-something-to-hide is an objective property of a person. Someone has-something-to-hide when they are the sole bearer of information, such that they would suffer the consequence of the information becoming more widely known.

    1. If you are a criminal you typically have something to hide. If you spend an embarrassingly large amount of time watching television, you have nothing to hide. You dont have something to hide because you are shy about the mundane facts of your life, despite the plausible disagreement from the shy.

    2. Most people have almost nothing to hide. Among those who do have something to hide, their private information becoming public is not a risk borne from the NSA putting it in a database. Among those who do have something to hide, and have lives that could be negatively impacted by the NSA putting it in a database, almost all of them have privacy not worth protecting from the NSA.

    3. The biggest exception to this I have ever heard of was Martin Luther King, but even when Martin Luther King did suffer the worst case scenario of privacy violation (the FBI spying on him and threatening him with his private information), the course of history was not significantly altered for the worse. The civil rights mission was successful, and probably almost equally successful had MLK’s privacy not been violated.

    So following Posner’s style of cost-benefit analysis I think the benefits win out. There really isnt a cost, and its hard to imagine a modern nation state functioning without the insights provided by empowered intelligence agencies. However I am dubious of looking at law in such a way. Seeking benefits should be a uniquely political aspiration (but if someone disagreed with me on this I would love to be corrected, I really dont know what I am talking about).


  10. On the MLK front, I would add that political figures of his stature have no privacy today anyways.

    And even if that weren’t true, the threat to MLK’s privacy, like the privacy threats that generally concern us today, came and come from nefarious political actors, not career security analysts.

    So to my mind the question is not whether we should give all our data to the NSA, but whether we can give it to the NSA without giving it to the Hoovers and the McCarthys of the world. If we can, I’m with Posner–all for it. But he strikes me as somewhat cavalier in what I take to be his implicit belief that, in fact, we can.

  11. If the government has it, your enemies can get it, and it can and will be used against you.

  12. Chadstream1,

    You write: “I am dubious of looking at law in such a way. Seeking benefits should be a uniquely political aspiration . . . .” I, too, am dubious about the law and economics movement for precisely the same reason as you–the economics part more properly falls to the political branches of government. All the best.


  13. Judge, At least with regard to traditional privacy, informational privacy, as apposed to the misuse of privacy as a substitute for autonomy as in Casey plurality, distributional results are unavoidable. If one party wants information and another party can deny access, then the one who wants the info will bear the costs of ignorance or pass them on to others, and the costs are reversed if disclosure is required. If genetic information is kept from insurers in the name of genetic privacy, then the geneticly blessed will pay a subsidy for the insurance risk of the unblessed. Posner’s argument is that free flow and use of information is more efficient unless it amounts to free loading, which would lead the creation of legal informational blocks and their attendant benefit transfer to legislation.

  14. Leave not lead, no coffee yet.. I should add that I am not sure Terraformer\’s criticism, which seems to be an argument for autonomy or for the public private distinction touches Posner’s argument, he is not talking about the first, and the second is arguably promoted since if you do not want to share information you may refrain from dealing with those who want it, and when the dealings are forced privacy is protected as with lawyers or MDs..

  15. chadstearns1 says:
    December 10, 2014 at 8:55 PM

    RE: “something to hide”

    What did the framers have that they wanted to hide when the First, Fourth, and Fifth Amendments came to their minds?

    I think the proper background is that they were trying to build a structure of government that would shield both office holders in government, as well as the people not in government, from the mysterious corrosion that power can engender.

    Having observed that the kings tended to become corroded after too much exposure to power (and eventually could “do no wrong”), the framers split the exposure to power amongst three branches, which kindly limited a government office holder’s exposure to, at most, 1/3 of a king’s dosage.

    Also having observed the treatment of the peasants along the kings highway, they sought to shield the people from the egregious practices of those who could not even handle 1/3 of a kings dosage.

    Having “something to hide” seems to be a straw man well beside the real point.

    Nevertheless, your points are presented quite well on behalf of Judge Posner.

  16. Dredd, I am lost, What does separation of powers have to do with the privacy ? As to the Bill of Rights, it does not limit the kind of information government can obtain, traditional privacy or hiddenness, but the methods that can be used to obtain it. On the NSA issue, an originalist might see the writ of assistance or general search and argue the kind of wide open access to phones and computers is a version of the writ, but Posner is no fan of the original, and the Fourth Amendment requires the reasonable, which brings in his reading of Hand, and the argument that to prevent catastrophe the methods are reasonable.

  17. repentinglawyer,

    I understand that chadstearns1 is in sync with Posner and current legal trends.

    I am not criticizing the observation, defense, or presentation of it.

    Where I think Posner is adrift on this particular issue is that “having something to hide” could not be further from the thinking that was taking place when the Bill of Rights was being crafted.

    If they thought like Posner (it all turns on whether or not there is something to hide) they would not have written: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (4th Amendment)

    Instead, they may well have written: “Since good people have nothing to fear by an unreasonable search, stop whining about those searches.”

    There must be some reason they wrote the amendment in the sense of a right.

    History tells us that it was because of centuries of oppression by bad actors.

    They also emphatically warned that the bad actors would return if we did not remember from whence it all came, and set about to rigorously preserve it:

    Experience has shown that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” – Thomas Jefferson

    Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.

    War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied: and all the means of seducing the minds, are added to those of subduing the force, of the people.

    The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals, engendered by both.

    No nation could preserve its freedom in the midst of continual warfare.

    Those truths are well established.” – James Madison

    If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” – James Madison

    It is the government, those in power, those exposed to power’s corrupting influences, who have something to hide.

    But, we can’t search them under any circumstances to find out what it is they are hiding … so long as it is stamped “secret” (absolute government privacy).

    There is some really backwards thinking in Posner’s approach to the reasons for the Fourth Amendment IMO.

  18. Dredd, I would have thought the things to read on the 4th Amendment were the Northern Whig Case and Otis against the writ of assistance. I am not sure they support your argument. What they were interested in was the idea of the home as castle, where the home owner could usually bar the door. 3rd Amendment is also relevant here, the government may not use full time spies to reside in peoples homes except in time of war.None of this in any way ties in with government secrets..What is involved is a limit on means of gathering information rather than a limit on information sought per se.
    Torture, given current events, might provide an analogy, no one denies the information sought is needed, the debate is about means. Where citizens are involved the 5th as well as the 4th is relevant here and perhaps the ghost of Guy Fawkes.
    You may have a point that Posner to quickly transfers arguments from privacy against other actors with 4th Amendment issues but that is a different question.

  19. RGK
    Sorry to be so dilatory in responding but at present studying French with my Grandaughter which takes precedence.

    No I do not oppose associations of employees of Corporations organizing and forming PACs. So long as they do this on their dime and time. When I was head of the PAC I used corporate money to hire a ‘consultant’ to run and manage the ‘suggestion’ that managers contribute to the PAC.
    We gave conspicuous items for the desk display to contributors to show their participation. (And to highlight non-contributors.)

    The ‘association’ of managers always ran a courtesy list of recipients by me before making their ‘independent’ decision as to whom and how much the contributions should flow.

    Bear in mind a Corporation is not a person but is an artificial legal entity created by governmental rules and regulations. It neither serves on juries and to the best of my recollection no Corporation ever served with me in the military. Certainly none were killed in action as were some of my fellow officers.

    It is an ‘it’ and not a US citizen. In fact most publically traded corporations have significant foreign ownership and officers. We really don’t know because there are no requirements to disclose share owner identities.

    I ask rhetorically if we really intend for foreign influenced and or controlled corporations to make contributions to the campaigns of our elected officials? And distinguish this from petitioning the goverment on legislation. A far different right than influencing an election.

    Now if corporate employes want to form an association and pay for the fundraising on their own and not use company time or facilities that would be proper. Although an independent body of managers making contributions may be the Corporations worst fear.

    Note that Unions have no treasury to pay for the administration of PACS, independent of dues.

    I have some definite reform proposals. Enact Teddy Roosevelt’s plan for federal registration of corporations with full disclosure of ownership. And make Directors and Officers personally liable for torts, debts and corporate malfeaseance as a perquisite of participating in interstate commerce and in the electoral process. After all real persons bear such responsibilities.

    I have much more but it is time to conjugate verbs.

    In closing let me suggest you read Justice Douglas’s biography. (As a young lawyer I never thought I would suggest such heresy). But he understood the nature and need for corporations and came to realize ‘it’ should not be a ‘person’ but treated as an artificial legal entity.

    Happy Holidays OR Merry Christmas if you prefer.


  20. RNJ,

    Thanks for your response. I am glad that you are helping your grandchild with French. I can barely speak or write English. By the way, the bookshelf to the left of this computer holds a copy of Go East, Young Man: The Early Years, a memoir written by United States Supreme Court Justice William O. Douglas. All the best.


  21. “None of this in any way ties in with government secrets”

    Except that it is where the reason the constitution / bill of rights was drafted matters in the sense of understanding its purpose.

    Government secrets are not mentioned in the document, whereas, protecting secrets of the citizenry is specifically mentioned and protected as a right.

    Government secrecy evolved as Jefferson and Madison predicted it would as the republic degenerated back into tyranny (“Experience has shown that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” – Thomas Jefferson; “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” – James Madison).

    The “experience has shown” phrase means their experience … what they saw with their own “conspiratorial, lying eyes.”

    The attitude a nation has with respect to citizen privacy vs. government privacy is telling.

    It is directly related to the degree of that Jeffersonian degeneracy back into tyranny that it has already traversed.

  22. Judge,
    I meant to refer to the autobiography of Justice Douglas:The Court Years, 1939-1975: The Autobiography of William O. Douglas.

    It has been a few years since I’ve read it but as I recall he discusses how the Supreme Court could change a decision in order to reclassify a corporation as an ‘it’ and not a person. The ‘it’ is my word not his -he has a superior discussion of the issue.
    And I mention this work in the hope that perhaps you might agree with him and pass the idea to someone who might plant the idea with someone who has authority to act. I am out in the pasture watching birds, impotent in more than one way. I like to mix metaphors.

    Seriously, I suggest this as a heartfelt tribute to your abilities, your blog is most valuable and unique, a real pearl in the oyster. Or field, whatever.

    May the Force Be With You

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