Why Justice Goldberg Cared So Much About Privacy
posted by Peter Swire
David Stebenne gave a fascinating talk today about how the personal experiences of Justice Goldberg made him very sensitive to privacy, and led to his strong pro-privacy concurrence in the Griswold case that established a right to privacy for use of contraceptives. David is a legal historian at Ohio State, now has a joint appointment with our law school, and spoke today at a John Marshall Law School conference on the history of privacy from Brandeis to today.
Stebenne has written a biography of Goldberg, and is a master of the historical record. Look at these personal experiences that shaped Justice Goldberg’s views on privacy:
(1) Brandeis and Warren-style press intrusions. Goldberg was the leading lawyer for the Steelworkers Union and the CIO during the 1950′s. The unions were subjected to many hostile press articles, often describing (or exaggerating) union corruption. The sorts of press excesses, at the center of the Brandeis and Warren privacy article, were lived by Goldberg.
(2) Intrusive police surveillance. The Steelworkers and other unions were pervasively wiretapped in the 1950′s. In one 1957 board meeting, the leadership reported that there were so many wiretaps on the line that they could barely hear each other talk.
(3) Mistaken FBI files. The FBI opened a file before World War II about a different person named Arthur Goldberg, who had suspected links to the Communist Party. Years later, Goldberg found out that a huge file had been accumulated on him based on this original, mistaken report. He met with the FBI, and had the unusual good fortune to clear the matter up. But he learned personally how invasive and unreliable FBI files could be.
(4) CIA spy and counter-spy. During World War II, Goldberg worked for the OSS, the predecessor of the CIA. For part of that time he was the target of enemy espionage himself. He knew the CIA kept a close eye on his clients in the labor movement, and thus knew more than most about the nature and scale of domestic surveillance by the government.
In short, Goldberg was not a privileged person who knew he had nothing to hide. Instead, he had direct personal experience with the intrusiveness and mistakes that could result from the media, intelligence agencies, and new technologies.
Insight can come from personal experience. Among other lessons from this history, it suggests some virtues of having judges and justices with a wide range of personal experience.