Lessig’s reaction is plainly correct. People have a right to say mean things about other people in private.
I think there are a lot of reasons for this, but here I want to float one that’s fairly subtle: capitalism.
As the theory goes, if we set up and enforce an elaborate apparatus of discourse rules about what counts as “private” and what counts as “public”, we can maintain a productive marketplace of ideas that facilitates intellectual progress while still honoring the usual inalienable rights of the individual (free speech, privacy, and so on). For this reason, defending Tanden’s sovereign control over her private correspondence is necessarily more important than whatever it is she happened to say.
The critique of this reasoning cuts to the heart of capitalist ideology: even what we call “private property” (intellectual or otherwise) is absolutely “public” insofar as it effects the rest of society.
If Tanden can act this way in the face of verifiable evidence that’s plain as day, and there for everyone to see, when the stakes are so low, is it completely implausible that she would act in a roughly similar fashion when the evidence is not so publicly available and not so easily accessible and when the stakes are much higher?
Tanden is a powerful public figure, and the way that she wields that power behind the scenes can have obvious and extraordinary consequences that effect all of us. As I noted Sunday, for example, it is not entirely clear to me that her bellicose rhetoric about Russia is entirely disconnected from her reflexive loyalty to Clinton and her personal inclination towards disproportionate retaliation. And particularly since earlier leaked emails reveal Tanden explicitly entertaining the possibility of military actions that would be even more irresponsible, I see no reason to conclude so casually that Tanden’s private intellectual property rights always trump the public interest.
None of this is a call for an abolition of privacy, particularly when it functions as a defense of the powerless instead of the powerful. Here, my point is simply that the absolute right to privacy at the core of the defense of Tanden expresses bourgeois capitalist ideology in a way that disregards entirely legitimate public concerns. Her comments about Lessig, once again, reveal serious character problems that anyone who cares about policymaking leadership in the United States should find extremely disquieting. Whether that warrants leaking her emails is another question, but the refusal of liberals to seriously grapple with that question says a lot about their ideological commitments.