Like Britney Spears and Paris Hilton, Barack Obama’s past has been laid bare for Internet gawkers everywhere. But that may be where any similarity ends.
Instead of Inside Edition and Perez Hilton, Obama has been scrutinized by the New York Times and legal eagles Akhil Amar, Randy Barnett, John Eastman, and Pam Karlan. Fortunately for Obama, the past under review has received largely glowing reviews.
The precise target of the scrutiny is Obama’s 1994 syllabus for a seminar and, more strikingly, his late Nineties through early 2000s exams and model answers for constitutional law.
The blogosphere is alight with commentary on Obama’s course materials and what this reveals about Obama.
I don’t want to focus on the quality of those papers and what they allow us to predict about Obama today, but rather on what this story reveals about (1) the New York Times and the way news is processed and received in the Web 2.0 era; and (2) the precariousness of our privacy today.
1. Little remarked on is the fact that the New York Times not only found these documents, but posted them online. We may have begun to take this approach as a given and wondered if the Times had not posted them. But the Times went further: after its story had run, it invited four constitutional law scholars with diverse political perspectives to review the materials and blog about them. At the same time, it invited us all to review and comment on them.
I want to suggest that the documents are far more important than the Times story. I suspect that overall, the reviews of Amar and company, and the reviews of average citizens, will have a greater impact on people’s appraisal of Obama than the reported story itself. This is not to deny the usefulness of the reporting, which must have involved many interviews and research into arcane law school minutiae and constitutional doctrine. We can receive a diverse set of expert opinions and review them directly, and then test them ourselves against the original documents. Now that we can see for ourselves, we can also judge for ourselves.
In a pre-Internet era, we would not have seen the actual documents, and would then have been stuck with reporters’ accounts and, perhaps, their discussions with experts. Were it not for the electronic form and computer networks, the Times might never have discovered his old exams as law schools typically do not hang on to these indefinitely. Specifically, these documents are now (1) computer data and thus more persistent; and (2) sometimes available on a webpage intended to be accessible to current students and thus more widely available than exams in a locked file drawer. The Times does not reveal its source for the documents here. Recall that we were never treated to either Bill or Hillary Clinton’s old exams (they too were once law professors).
The Times itself is able to tap professors to offer comments—in full, in their own words, without the reporter taking a snippet here and there to advance the paper’s storyline.
Cass Sunstein has worried about the echo chambers that the Internet and the blogosphere, specifically, might create, corroding the national discourse. But I think that this event shows how people on the left and the right might engage in a single conversation. The documents will always ground the conversation; mischaracterizations will find immediate challenge.
This process, of course, requires the expenditure of time and energy, and the inclination to spend such time and energy towards such a goal. But my instinct is that there will be a wide array of folk, on all sides, who read these materials directly. Many of the readers may be partisans, hoping to prove their side right, but the availability of the documentary evidence will make arguments more responsible.
Instead of “All the news that’s fit to print,” perhaps the Times might adopt the online motto, “All the documents that are fit to PDF”?
2. Another question raised by this incident is that it reveals how exposed we all are. Paris Hilton here becomes the canary in a coal mine. Old documents (or other recordings in digital form) can be dredged up with a few mouse clicks and circulated to the world instantaneously. Most professionals do not do their job expecting front page review or Internet postings.
Of course, Obama has invited this on himself by running for the highest office in the country (as has McCain). There is little privacy left for this office, as Ken Starr ensured in an early Internet episode.
My concern is that the public exposure will not necessarily be reserved for American presidential candidates. Two worries come to mind: (a) fear of future exposure of our current actions may make us too meek; and (2) actions in the past may have an excessive influence on perception today. Are these real concerns? Are individuals trimming their sails too much for fear of future reputational damage? Are past actions haunting us inappropriately? If so, how should we deal with these problems?
Anupam Chander, Visiting Professor, University of Chicago Law School