Opening Argument – Problems With ‘Privacy,’ And What To Do About Roe

National Journal

"Under our constitutional system, courts stand against any winds that blow, as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement." So wrote Justice Hugo Black, a liberal hero, in 1940, in one of the most eloquent defenses of forceful judicial protection of constitutional rights ever penned. But a Hugo Black could not be confirmed today — not if his views were known. He would be voted down by Democrats, and some Republicans, for the sin of rejecting the nebulous "right of privacy" that has become holy writ and, for some, codespeak for abortion rights and gay rights. "The Court talks about a constitutional ‘right of privacy,’ " Black wrote in dissent from the 1965 decision in Griswold v. Connecticut, "as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not…. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." In Griswold, the Court held by 7-2 that a Connecticut law barring contraceptive use even by married couples violated an ill-defined "right of privacy" that Justice William Douglas derived from "penumbras, formed by emanations from" various provisions of the Bill of Rights.

The President and the Privilege

Independent Counsel Kenneth Starr’s claim that Hillary Rodham Clinton should not be able to use White House lawyers to protect her personal interests and then hide behind the attorney-client privilege has some force. But the case that the White House was planning to take to the Supreme Court as of last Friday isn’t mainly about that.

The broader principle at stake is whether the president himself-any president-or any other government official can ever confide in or seek advice from a government lawyer without fear of compelled disclosure of their communications.

The answer is no, says Starr. If his broad claim prevails, it would mean that any conversations today between the president and his current White House counsel, Charles Ruff, about Whitewater-related issues could be subpoenaed by Starr’s grand jury tomorrow.

Starr won an unprecedented 2-1 decision by the U.S. Court of Appeals for the 8th Circuit that the White House and other government agencies are not protected at all, in the face of a federal grand jury subpoena, by the attorney-client privilege or the related attorney work product doctrine.

The logic of Judge Pasco Bowman’s majority opinion (filed April 9 and unsealed May 2) also casts doubt, as do Starr’s briefs, on whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants, congressional committees, or (it would apparently follow) criminal defendants who seek prosecutors’ notes of interviews with FBI agents.

If the 8th Circuit decision stands, any future president who is accused (as every recent president has been accused) of possible complicity in criminal conduct will be forced either to abandon any claim to the absolute confidentiality traditionally assured by the attorney-client privilege, or to confide exclusively in private counsel at huge personal expense.

The Internet: Smut for Dummies

Just after the big March 19 argument at the Supreme Court on the constitutionality of the Communications Decency Act-which makes it a federal crime to "display . . . patently offensive," sexually explicit words or pictures on the Internet "in a manner available to a person under 18"-I was interrupted by a phone call while perusing the plaintiffs’ brief.

It was my Internet-cruising, 12-year-old daughter, Sarah. She burst in while I was rereading the part about how the best way to protect our kids from wandering into the pit of Internet smut is not government censorship or regulation, but the sort of parental control software that you can install on your home computer or get for free through services like America Online.

"Dad," demanded Sarah, "what have you done to America Online?"

Uh-oh. What I had done, inspired by the litigation, was to activate the "parental controls," by clicking on various boxes that did things I little understood.

"You’ve ruined it," Sarah complained. "I need the IMs. That’s the funnest part. Dad, you can trust me."

IMs? Huh? I turned off the IMs? What the hell are IMs, anyway? (Instant messages, it turns out.) In any event, it seems that the "parental controls" had not only slammed the door on the smut peddlers, and the art museums displaying racy nudes by Mapplethorpe and classy ones by Michelangelo, and the like; they had also shut Sarah off from private, real-time discussion groups with her online buddies. (Here’s hoping they’re all really kids, like they claim to be.) So now there will be no peace in my home until I undo the parental controls (pending further study of whether I can fine-tune them), swinging the doors open to the whole vast, anarchic, wonderful, variegated, democratic, interactive, participatory Internet-porn and all.

In Defense of Dirt Digging

”They have the whole country blanketed, trying to dig up dirt…These are the smartest attorneys from the best law schools in the land. All paid for at public-interest expense. It’s what’s ruining our country in large measure. Because some of these groups…are vicious."

Sen. Orrin Hatch (R-Utah)

What’s so bad about trying to dig up dirt? In their furious attacks on the excesses of a few of Clarence Thomas’ opponents. Thomas and his supporters cynically sought to delegitimize the whole enterprise of investigating Supreme Court nominees and their records.

In the process, they uttered a lot of pious, hypocritical, demagogic nonsense.

Efforts by political opponents and the press to ”dig up dirt" about people in public life are as American as apple pie and as old as the republic. And such negative research is a tool used by conservatives no less than by liberals.

In the words of Bruce Murphy, author of a book on the failure of Justice Abe Fortas’ nomination to be chief justice in 1968 and his subsequent resignation under a cloud of financial improprieties: ‘ ‘The handbook for the dirt-digging operation was written by the Republicans in 1968, and the author was Senator Strom Thurmond of South Carolina."

Dirt digging is not only proper but good for the country-if kept within proper bounds.

By "proper bounds," I mean using legitimate investigative techniques-combing through speech texts, phoning former employees, and the like-to seek out and publicize any information that may be relevant to a nominee’s fitness for the job he or she seeks.

As for relevance, even Thomas had to concede that Anita Hill’s allegations of sexual harassment would (if true) demonstrate his unfitness for the Court.

Amicus Curiae for the Police State

"This is a free society." Solicitor General Kenneth Starr told the Supreme Court last week.

"You have the right to say no."

Starr was discussing a traveler’s options when confronted by two gun-toting sheriff’s deputies who corner him in the back of a bus, demand his ticket and identification, and then request "permission" to search his bag for drugs.

The solicitor general’s argument for the Bush administration would, if sustained, move us a step down the road toward a police state.

For Starr was pushing to allow police to hunt for drugs by interrogating at random tens of thousands of innocent people and soliciting "consent" to search them or their bags. Such techniques are spreading "across the country," he declared with evident enthusiasm.

The linchpin of Starr’s argument, eagerly seconded by Chief Justice William Rehnquist and Justice Antonin Scalia, was the transparent fiction that those who "consent" when approached in this manner know that they are perfectly free to refuse or walk away.

The case heard last week, Florida v. Bostick, arises from an operation in which police board interstate buses at regular stops and go down the narrow aisles interrogating passengers.

Two deputies wearing green "raid jackets" boarded a Miami-Atlanta bus at its Fort Lauderdale stop. They had "no particular reason to suspect" that anyone on the bus had illegal drugs, Starr conceded in his brief. The driver exited and closed the door. The officers went directly to the back row, where Terrance Bostick was reclining. Partially blocking the aisle, one officer questioned Bostick while holding a gun inside a small zippered pouch; at one point, Bostick recalls, the officer reached inside the pouch, putting his hand on the pistol.

The officers say Bostick consented to a search of his bag. They found cocaine. He got five years.

Client Cash Cows Sacred No More

The flashily dressed young man walks into a defense lawyer’s office, seeking representation in a drug-smuggling case. The tastefully dressed lawyer notes that this sort of thing can get expensive. The young man smiles, opens his satchel, and dumps $20,000on the desk Cash.

Assume for the moment the lawyer can take the money. Should he-unlike, say, a doctor or a car dealer-also be entitled to refuse to tell the government whom it came from? Should he be permitted to ignore the federal tax forms that most businesses are required to file every time they receive more than $ 10,000 in cash?

The Internal Revenue Service and the Justice Department have started bringing court actions to force lawyers to name clients on these forms. Respected criminal-defense attorneys-like Gerald Lefcourt of New York-say that enforcement of the reporting requirements conscripts lawyers as "informants against their clients" in derogation of their ethical duties and, in many cases, of the attorney-client privilege and the Sixth Amendment right to counsel. Hundreds of lawyers have filed the forms with blanks in place of the payer’s name.

These lawyers warn that the new cash-reporting push-together with the government’s efforts under forfeiture laws to seize drug and racketeering money paid out as attorney fees-threatens to poison the attorney-client relationship and destroy the criminal-defense bar.

The best will be driven out, warns Lefcourt. They will go to big firms where they can labor to make the world safe for "companies that put cancer-causing agents in pajamas, and everybody will think they are great."

Lefcourt and his colleagues have a point. A prime reason for a vigorous defense bar is to deter the government from bringing criminal charges in the absence of strong evidence. The system works pretty well in that regard: The vast majority of defendants are proved guilty of something because few innocents are charged.