December 3, 2008  ·  Lessig


This story is absurd. The message here is that Governor Rendell somehow screwed up because he said something not intended for broadcast near an open mic. But wait a minute: Who did the wrong here? It is plain from the context that Rendell did not intend his comments for public consumption. Yet intentionally or not, ever-more-invasive technologies captured what he said. So why isn’t the outrageous behavior here broadcasting what he plainly intended to be a private conversation, rather than, as this commentator makes it seem, the fact that he was having a private conversation at the mic?

Or again: To be sure, Rendell would be wise to remember that there are a million privacy invading technologies surrounding us, and that he, like a citizen in the former Soviet Republic, needs to make sure that whatever he says isn’t been snooped. But whether Rendell was wise or not (and I certainly have criticized him for not being wise), why isn’t the outrageous behavior taking what he plainly didn’t intend to be public and broadcasting it on a world-wide network?

Just because you can see, doesn’t mean you should look. And just because you looked, doesn’t mean you should broadcast what you saw to the whole world. I know a little titillation is good for ratings; I hadn’t known CNN had begun to stoop to such lows.

  • natthedem

    You’ll forgive me if I reserve the bulk of my sympathy for Janet Napolitano, not Ed Rendell.

  • http://sadamclemson.blogspot.com Adam Schreiber

    There’s an episode in the West Wing where the character Toby Zeigler made a statement in a staff meeting that “if the president won, it would be on the coat tails of the vice-president.” A reporter got ahold of the quote and was trying to confirm it with CJ. After checking with Toby, she confirmed it to the reporter. He said he wouldn’t be running it in his story. CJ asked him why and he replied that it wasn’t news.

    If only the reporters in this case had that sensibility. This is gossip, not news.

  • http://www.morydd.net Morydd

    I’m not sure how a microphone at a lectern at the front of a large public gathering constitutes “ever-more-invasive technologies”. I might be upset for him if there was the least reasonable expectation of privacy, but in this situation, he had none.

  • http://samgreenfield.com/log Sam Greenfield

    @Lessig: “This story is absurd. The message here is that Governor Rendell somehow screwed up because he said something not intended for broadcast near an open mic.”

    Were we listening to two different commentaries? The message of the commentary is that women get put into boxes because of their family choices while most men do not. The fact that the comment was made in front of a hot mike at a public gathering is incidental to the commentary.

    It’s funny that people assume by default they are off the record and having private conversations. The default is the other way, especially for public figures, and especially for public figures at a public gathering in front of a large, visible microphone.

    Is this news? It is news when a public official makes any kind of sexist, racist, or bigoted comment in public or in private. And while I don’t think the comment that the Governor made was necessarily sexist, it is definitely worth questioning. And that’s exactly what the commentary did.

    @Adam Schreiber: While a lot of people enjoyed the show, the portrayal of the media in the West Wing is as realistic as the portrayal of terrorism in 24. i.e. it’s fiction, not reality.

  • http://www.bitromantic.com/ Patch

    I think that this is a gray area …

    However, the Governor was in a public place, specifically a public place where he was acting in his capacity as a public official. He made some fairly sexist remarks, and the remarks were newsworthy because sexism is still entrenched in many ways in our culture, despite the lip service that we pay to equality between genders. I think that it is a legitimate and worthy goal to call out the hypocrisy there when you see it, and the CNN reporter seemed more focused on critiquing the remarks than demonizing the person, which is the right sort of way, I think, to call out that sort of hypocrisy, if you want to change people’s attitudes in a positive way.

    Overall, I think that CNN comes out on the right side of the gray area, here.

  • http://deep-structure.blogspot.com christopher

    i have to say i’m surprised at this post. i completely agree with those who rightly point out that the commentary was on the attitudes towards women in office and that he was standing at a podium with a mic surrounded by people. there was absolutely no expectation of privacy. regardless, private or not, this type of thinking is important to know about in our elected officials.

    sorry, this isn’t gossip or low-stooping. it’s pertinent.

  • lessig

    @all (save @adam) I guess I’m even more surprised.

    If we don’t learn how to stop thinking formalistically about privacy, all privacy will end. This was the implication of David Brin’s book generations ago. We are increasingly living in a world of pervasive surveillance. The question now is what is the appropriate response to that surveillance.

    One response is the Soviet response — learn to shut up in all contexts in which you might be surveilled. See my favorite testimony ever: http://www.lessig.org/content/articles/works/statement.pdf

    Another response is to start to regulate — whether through norms or law but at least norms — what people do with the information they capture. Such regulation would say, in this context: yes, your (likely) remotely controlled microphone was on, and it plainly captured something that Rendell didn’t intend to be broadcast, so do the decent thing and don’t broadcast it.

    I’m not saying regardless of what was said. But we get as much privacy was we give. And in this context, imho, the decent thing to have done was to say nothing — because, as @adam puts it, it isn’t newsworthy, and it was obtained by recording beyond what anyone was entitled to be recording.

  • Brian Fitz

    I’m not sure that the non-producing chattering class left-wingers in academia who are constantly agitating for “dialog” and “change” when it comes to notions of property are aware of how infuriating it sounds to people who are out there actually producing things.

    I just listened to Mr. Lessig on KQED and his utter contempt for big-name, extremely popular artists (which he would refer to as “quote, artists”) was naked and utterly childish, but expected when it comes to “scholars” like him and adolescents who spend all night illegally downloading music alike. He (and the illegal downloaders) has nil in the way of suggestions for copyright “reform” and lots in the way of excuses for illegal and immoral behavior.

    It sure is easy for “academics” like Mr. Lessig to sit on high in their ivory towers, under cover of tenure, producing nothing, sneering at producers who rely on product sales for their livelihood.

  • http://someofnothing.blogspot.com slag

    I have to say that I was skeptical of CNN’s culpability when I read this post. But after I watched the vid, they are definitely in the wrong. If Campbell Brown really wanted to correct Rendell’s thinking, she should have done it in email or on air in the abstract–not naming names and certainly not using the tape. Trashy…very trashy.

  • http://getoffmylawn.org Lance

    As others have noted, I don’t quite get the outrage over the purported “invasive technologies” present in this story. Mr. Rendell was in front of a microphone that he clearly knew was present and spoke within the its range. It was not a long range mic or bugging device that picked up a private conversation. It seems more appropriate to compare F.I.S.A.’s provisions with Soviet domestic surveillance than a hot mic at a podium.

    As for his comments, I expected much worse. Saying she is the perfect pick because she has no life, i.e. no children doesn’t seem much worse than when people commented that Sarah Palin (BTW not a Palin supporter!) is a lousy mother because she was campaigning full-time. Do his comments smack of old white guy sexism? Yes. Was it newsworthy? Not really.

  • http://www.socialsecuritybullshit.com Steve Baba

    Odd, this seems exactly like the TRANSPARENCY that all the openness fans, including Lessig are for.

    Lessig may be a “legal scholar” good at studying text as are “biblical scholars” but calling either an “academic” is insulting to real academics. This is what many academics think of lawyers:

    Except for a depressingly small minority among them, lawyers know nothing. They are incapable of logic. They don’t know the difference between necessary and sufficient conditions or between type I and type II errors. Indeed, any concept of probability is alien to them. They don’t understand the concepts of opportunity cost and trade off. They cannot distinguish between normative and positive statements. They are so focused on winning an argument through technicalities, that they no longer would recognise the truth if it bit them in the butt. If you are very lucky, a lawyer will give you nothing but the truth. You will never get the truth, let alone the whole truth.

    http://blogs.ft.com/maverecon/2008/11/no-change-no-hope-obamas-transition-economic-advisory-board/

  • Clint

    Sorry, Larry, though I usually agree with or am informed by your opinions here, I can’t see how someone standing next to a lectern microphone, apparently just before or just after a public presentation has been made, has the least expectation of privacy. This isn’t “ever-more-invasive” or “privacy invading” or snooping. It’s just a lack of common sense on the speaker’s part if he intended to have a private conversation in an extremely public setting.

  • http://samgreenfield.com/log Sam Greenfield

    @Lessig: “Such regulation would say, in this context: yes, your (likely) remotely controlled microphone was on, and it plainly captured something that Rendell didn’t intend to be broadcast, so do the decent thing and don’t broadcast it.”

    What if a journalist had been standing behind Gov. Rendell and had overhead the same comments? Is it the use of a recording device that makes a difference? What if Gov. Rendell had used a sexist or racist epitaph instead of merely making a borderline unethical and sexist comment? If Gov. Rendell had been describing blatantly illegal behavior, should that be quashed as well? If the person the governor had been talking to directly leaked the comments to CNN, would that have been acceptable?

    Gov. Rendell did not intend his comments to be broadcast, but it is unclear that CNN was attempting to intentionally “spy” on him. Furthermore, not publishing and commenting on his remarks would be a disservice to the public at large.

    You seem to be arguing that people should have editorial control over their own words and phrases beyond the context of fair use and journalism. I fear giving this kind of control to politicians far more than I fear journalists. Good journalists attempt to balance privacy versus public service on a daily basis, and your comparison of them to a totalitarian state in your ten-year old testimony is twisted.

    Do you believe that privacy rights should trump free speech rights in all cases? And do you feel that an elected official literally standing on a public stage after public remarks is making private comments? I feel we will disagree on both of these questions, and I feel that my answers to both questions do not mark me as either “bovine” or “Soviet.” [Both characterizations are from the testimony referenced by Prof. Lessig.]

    Incidentally, if you feel so strongly about “hot mike” comments, what are your thoughts on Jesse Jackson’s remarks regarding Obama during the presidential campaign?

  • Adam

    @Lessig: I can’t say when I wrote that post that I knew what Rendell said, because you didn’t say and CNN doesn’t let Linux users watch their videos and I didn’t bother searching. What he said shouldn’t have been said about any nominee, but he probably wouldn’t have even thought about it if she wasn’t a woman.

    @Sam: I realize that the West Wing is in fact fiction, but know that fiction is an effective way to comment on society and was bringing that commentary over. It was understood in that situation any ordinary/real reporter would have run the story.

  • http://sethf.com/ Seth Finkelstein

    Me too – I don’t get it. Why the reaction for this incident?

    “Hot mike” gaffes are quite old technologically now, hardly novel.

    And this particular one is pretty mild as such things go.

    There’s far worse outrages, “closer to home”, and even by people who might even care a little about your calling them out.

  • Jardinero1

    I second Steve Baba’s remarks about the issue of transparency. How can you advocate for state enforced transparency of political candidates and politicians but then grumble about the fourth estate doing its job and providing that very transparency.

    I cheer CNN for airing this. I wish only that they would air more of what is recorded by open mikes. It’s not fair that the networks should horde this valuable material and then air it only when they deem it profitable. Nothing so important could be trusted to a profit making institution. In fact, I wish that someone would start a campaign to “Free the Open Mikes”. The networks should make this valuable material available in a format so that anyone with an internet connection could view it and distribute it. Maybe we could make a law to force the networks to disgorge all open mike recordings.

  • http://technotaste.com/blog Judd Antin

    You all may know Gov. Rendell and his intentions better than I, but I’m surprised at how many people are so quick to gender this issue and cry foul. I’ve heard similar comments about both men and women many times and in many contexts. Is it not, sometimes, easier to devote time to thing when fewer other important things are competing for that same time? Not always, I’d argue, but sometimes.

    I can’t speak to what Rendell was really implying. It may very well have been a sexist jab, and as Larry points out it was certainly unwise. However, I agree that this is typical of CNN’s path from reputable news organization to sensationalist rag. As exhibit B I submit the following from earlier today:

    The top new story on CNN’s Political Ticker was listed on the CNN homepage as ‘Ticker: Obama ‘disappointed’ in Gov. Richardson.’ Snared and clicking through to the blog, I find the real headline ‘Obama ‘deeply disappointed’ Richardson shaved beard.’

  • Rick

    This is all just plain stupid; top to bottom. It was an open mic so he should have been more careful. Or perhaps he wasn’t more careful because he was speaking literally; speaking to the nature of the job and not the sex of the appointee.
    Campbell Brown creates a “story” to suit her own agenda. Must have been a way slow news day; just another absurd over-editorialized non-issue by an idiot reporter.

  • http://jcape.ignore-your.tv/ James Cape

    In this particular case, I don’t personally think that Rendell was making a point about women, I think he was making a point about work in general: if there was a single man appointed to the job, Rendell’s backhanded “No Life” praise would apply just as well.

    As to the point of this post, you’re reposting the story in it’s entirety, so there’s a bit of a double-standard to your complaints. I hadn’t seen or heard of it anywhere but here, and this dumb story would have disappeared eventually of it’s own ethereal nature.

    While I agree that the proper response to more and more surveillance is more and more regulation of surveillance, I do not have any problem with news organizations broadcasting any comments made by public servants. I think the people of Pennsylvania have every right to know as much as possible about the men and women they are electing to rule on their behalf: the dangers of overblown gotcha! journalism are far less than the dangers of a executive operating under a government-mandated veil of secrecy.

  • http://deep-structure.blogspot.com christopher

    “if there was a single man appointed to the job, Rendell’s backhanded “No Life” praise would apply just as well.”

    perhaps. but the editorial point was that he probably wouldn’t have made the point if it was a single man. he didn’t make the opposite point when it was married with children men doing the job. if their family obligations and “life” didn’t prevent them from doing a good job, why make a point of the supposed freedom a single person would have to give 19-20 hours a day to the job?

    i think also that number (19-20) contextualizes the statement. it’s exaggeration makes his comments appear as lazy sexism rather than serious analysis.

  • MightyLawd

    Oh come on, Shame on the CNN?
    Remember Bush talking to Cheney calling an Reporter a “major league asshole”?
    Right, it was EXACTLY the same.
    I did not hear anyone crying foul at this time. But of cause because we deal here in this case with a DEMOCRATIC Governor who’s comment is not that Chang’o'manic it is sooo mean and evil and bad what CNN is doing there, right?

  • SteveW

    Gov. Rendell is a public figure, at a public event, where there is at least one television camera, and an open mic at most a few feet from him, and he somehow has an expectation of privacy?

    That makes no sense. Rendell is an extremely sophisticated player in the world of the media, so he would have an even lower expectation than probably anyone else there.

    It wasn’t surveillance. He was a few feet from a microphone — set up for the event —  and close enough to have it pick up his voice. It’s not as if CNN was outside his home with a parabolic dish snaring the governor’s chats with his wife.

    The argument that Rendell would not have wanted his comment broadcast, so it was unethical for CNN to do so, would render reporters nothing more than stenographers.

    It reminds me of the comment by the late mayor of Chicago, Richard J. Daley, who once admonished reporters to print what he meant, rather than what he said.

    There wouldn’t be an argument at all if Rendell had made a racist statement off mic. Instead, he made a statement that some people find greatly objectionable, some mildly offensive and others wouldn’t think twice about it.

    The point isn’t what you think of the statement or what Campbell Brown thinks of it.

    It’s whether you believe people are entitled to the information concerning Rendell’s statement, so they can make their own judgment about it and what it says about Rendell and his attitude toward women, if it says anything.

    There’s a difference between whether you report the statement at all and whether, as Campbell Brown did, you devote a lengthy commentary to it. (At least lengthy for cable news.)

    That’s a matter of news judgment — or lack of news judgment — and I think that’s what more people are actually reacting to.

  • Jardinero1

    Free the open mikes! The public deserves full disclosure of what our elected officials are really thinking!

  • http://www.start-cleaning-business.com Cleaning business guru

    Expecting privacy at a press conference? Rendell was careless. I agree that comments made in private should be respected since they are protected by the constitution. CNN is sensationalist and non reflective about its narcissism, exampled by ALL of the commentators, that like to comment on themselves and each other more so that the news. Ditto for msnbc.

  • http://www.atlantahomerealtor.com/decatur.html Jodi Suguitan

    Agreed. The networks should examine some of their invasive practices. Rendell shoulders some blame for not being more careful while being in the spotlight. In the end the whole story is a non-event anyway. It’s just the networks trying to make news. Ever get tired of watching the CNN news rerun ever 30 minutes or so?

  • http://strangelybright.blogspot.com burnt offerings

    “I’m not saying regardless of what was said. But we get as much privacy was we give. And in this context, imho, the decent thing to have done was to say nothing — because, as @adam puts it, it isn’t newsworthy, and it was obtained by recording beyond what anyone was entitled to be recording.”

    ok, so let me see if i understand your point… some things are ok to publish if overheard at public events?

    i do not think there should be any reason that politicians should be entitled to extra privacy rights: this man was standing on a stage in front of a mike with an audience. why on earth should there be any expectation of privacy when he’s inviting people to hear him speak and he’s already taken the stage?

    i do think it was “decent” for the press to pretend fdr wasn’t in a wheel chair. i do not however think that their choices in the 40s should imply any sort of expectation for john mccain’s medical records. there is a limit on the expectation of privacy when you’ve put yourself in the public eye and “decency” is a concept which is as legally slippery as “pornography”. there are two problems with the comparisons you make:

    “One response is the Soviet response — learn to shut up in all contexts in which you might be surveilled. See my favorite testimony ever: http://www.lessig.org/content/articles/works/statement.pdf

    do soviet reporters have first amendment rights?

    “Another response is to start to regulate — whether through norms or law but at least norms — what people do with the information they capture. Such regulation would say, in this context: yes, your (likely) remotely controlled microphone was on, and it plainly captured something that Rendell didn’t intend to be broadcast, so do the decent thing and don’t broadcast it.”

    does this conflict with first amendment rights? i think it’s troubling that you do not discuss that at all while you’re leaping to the defense of a politician under the microscope of our evil, evil press.

    how would such regulation begin to work, and why don’t you see the obvious (to me) philosophical conflict you’re setting up in comparison to the way you talk about copyrighted work? if a politician can insist that his words not be published because of his privacy rights, isn’t that just as restrictive for our discourse?

    i am also troubled by the way you compare my privacy rights to his. i would love the chance to get up in front of the media on stage with prepared remarks. this is in no way similar to me to tapping my phone line or eavesdropping on my conversations at home. why are you equating the two? reality should matter, shouldn’t it?