CINDY HILL: Privacy is the most fragile of any of the rights enjoyed in America today. No right of privacy is found in the U.S. Constitution–it is a ‘penumbral right’ created by federal judges who pieced together the glimmer of protection implied by other listed Constitutional rights and came up with the notion that there is a sphere of communications which can be lawfully held from governmental or public eye. Abortion, contraception, and the legal privileges that allow spouses and parents to avoid being compelled to testify against one another in criminal matters are but a small slice of the many valued facets of American culture supported by this whispy idea that we have a right to privacy.
Internet technology is calling into question the value our society places on privacy. Younger people who grew up with the internet take it for granted that their entire lives will be posted online to the world, and that corporations are tracking their every move through RFID tags in their mall-bought clothing. Thus it was not surprising to me to see the content of Montana Federal District Court Judge Richard Cebull’s private email containing a tasteless joke of foul racial humor splattered across news and social media pages. But I find the stampede to villify Judge Cebull troubling and misplaced.
The joke itself was satirical bawdy humor of the type that led to one of our nation’s premier First Amendment Supreme Court decisions in Hustler Magazine v. Falwell. There is nothing unlawful about expressing negative opinions about a politician, or about any particular race or ethnicity or other classification of people, especially when that expression is in the form of ribald humor. The content of the judge’s communication –while it may remove him from our A list of dinner guest invitees — was perfectly lawful.
What disturbs me, however, is that the public has not hesitated to launch a vicious attack on Judge Cebull character for the lawful content of a communication that was clearly meant to be private. It was emailed –forwarded, actually–to a small list of personal friends. It was not a public statement; it was a communication intended to remain within the private sphere of his life, a place where we ought not legally or morally tread. People say stupid things all the time — and people engage in all manner of activities that others might find offensive all the time as well, whether it’s procuring an abortion or using contraception. If we’re going to go peering in Judge Cebull’s bedroom windows to make judgements on what locker-room humor he’s sharing privately with friends, he and his colleagues might just peer in our bedroom windows and make judgements about what sexual positions we employ, and with whom. We should have the civility of respecting that things done in private should stay private, and recognize that private communications do not necessarily reflect on one’s public life and public character.