Anita Allen, 2003 DANIEL J.
MEADOR LECTURE: "Privacy Isn't Everything: Accountability as a Personal
and Social Good," Alabama Law Review, 54 Summer, 2003 (54 Ala. L.
Privacy, including private choice about personal matters, is a dominant
theme in public policy in the United States. My scholarship has often
emphasized the positive value of contested physical, informational, and
decisional privacies. n1 Moreover, I have applauded recent federal
efforts to mandate information privacy protections. The most conspicuous
of these protections, Title V of the Gramm-Leach-Bliley Financial
Services Modernization Act (Gramm-Leach-Bliley), the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), and the Children's
Online Privacy Protection Act (COPPA), are far from perfect legal
regimes. n2 But there is value in asking the commercial sector to modify
business practices to protect data relating to the sensitive areas of
personal finance, health, and family life.
The spectacle of terrorism on American soil appears to have stunned some
Americans into viewing privacy as a luxury we can no longer afford, a
[*1376] tool of our enemies. Even after the terrible deeds of
September 11, 2001, however, I remain firm in my beliefs about the
importance of informational privacy. The USA PATRIOT Act and other
homeland security measures enhance the power of government to intercept
communications and hold individuals captive. n3 I share the worry of
vocal privacy advocates and civil libertarians that new laws were
hastily enacted and proposed innovations are overly broad. n4 The
proposed (but abandoned) "TIPS" program threatened to turn neighbors and
public servants into community spies. n5 The "Total Information
Awareness" program would aggregate personal data on all Americans from
diverse sources in an unprecedented effort to track a small group of
people involved in terrorism. n6 In an era of increased surveillance and
security, we need to reassert traditional privacy claims voiced in free
and democratic societies. Intimate relations, sex, health, and personal
finances still merit a privileged status.
Because privacy is under siege in the contemporary world, it is tempting
to downplay the positive value of accountability for private life. Yet,
although privacy is important, it is not everything. Accountability
matters too. "None of your business!" in response to accountability
demands is not always warranted. Privacy and accountability each in
their own way render us more fit for valued forms of social
participation. Privacy is our repose and intimate accountability our
engagement. It is important to understand that privacy is our repose and
intimate accountability our engagement and, therefore, why some
accountability demands that relate to archetypical "private" and
"personal" realms are legitimate. It is also important to understand the
dynamics of political order that saddle some people with too much of the
most onerous forms of accountability.
In this Article, I will highlight personal and social goods that flow
from accountability for private life. At the same time that I highlight
the benefits of accountability, I will note significant risks. A series
of illustrations relating to the privacy and private choices of
African-Americans provides an especially useful context in which to see
both the extent to which accountability for private life is a reality
and the risks and benefits that flow from it. Standing in the wake of
September 11, it is especially important to recognize the risks of
injustice and indignity that can flow from governmental [*1377] and
non-government accountability mandates. By accountability mandates, I
mean expectations or requirements that we (1) inform others of what we
do, (2) explain ourselves to others, (3) justify our conduct to others,
(4) submit to punishments or other sanctions, or (5) live routinized,
II. ACCOUNTABILITY IN LAW AND SOCIETY
Privacy is a good. But accountability is also a good. It is a fact, and
it should be a value. Accountability for conduct is a pervasive feature
of human association. n7 Accountability operates explicitly and
implicitly in the fields of public administration and corporate
governance. n8 Accountability imperatives drive the law of tort and
crime. Accountability should not and cannot be total in any domain.
Still, in every sector of society a degree of accountability for conduct
is critical. n9 In the United States, as in other places, accountability
and concerns about accountability range beyond the affairs of government
and business enterprises. They range also into the territory of the
personal affairs of private individuals and non-commercial enterprises.
When designating certain realms or activities "private," "personal," and
the like, we imagine ourselves as citizens of a free society, each
entitled to enjoy a number of states, feelings, thoughts, acts, and
relationships for which we owe others no accounting. Although others
have a say in what we do in our capacities as managers, employees, and
motor vehicle license holders, they have no similar say in what we do as
private persons. We imagine that other people are allowed to share in
our private lives or not, at our discretion and on our terms, subject to
a very few exceptions. We often think and talk this way, drawing a sharp
divide between public and private. The political philosophies some of us
hold dear pay tribute to On Liberty, the classic essay in which
John Stuart Mill famously wrote that "the individual is not accountable
to society for his actions, insofar as these concern the interests of no
person but himself." n10 American jurisprudence on occasion [*1378]
prominently echoes Mill's sentiment. Dissenting in Poe v. Ullman,
n11 Justice John Marshall Harlan exploited the familiar political ideal
of the private home, marriage, and family to build a revolutionary
constitutional case for reproductive freedom that set the stage for
Griswold v. State of Connecticut n12 and Roe v. Wade. n13
Justice Harlan vigorously attacked Connecticut statutes on the ground
that laws criminalizing contraception intrude "into the very heart of
marital privacy" and require "husband and wife to render account before
a criminal tribunal of their uses of . . . intimacy." n14
However, accountability for the uses of intimacy is a common imperative,
expectation, and deeply felt obligation in our society. As individuals,
couples, families, and communities, we live lives enmeshed in webs of
accountability for conduct that include accountability for intimacies
relating to sex, health, child rearing, finances, and other matters
termed "private." We are accountable for nominally private conduct both
to persons with whom we have personal ties and to persons with whom we
do not have personal ties. We are accountable to the government, and we
are accountable to non-government actors. We are accountable for plainly
harmful and other-regarding conduct in our nominally private lives, for
example, date rape; and we are accountable for the best candidates we
have for harmless and self-regarding conduct, for example, consensual
oral sex between monogamous partners in their own bedrooms. We do not
simply face others' "advice, instruction, persuasion, and avoidance[,]"
devices Mill approved. n15 We face social and legal demands for
sanctions and other reckoning of which he disapproved. Mill's assertion
that individuals are "not accountable to society" for actions that
concern only themselves is debatable as a matter of ethics or political
morality and as Mill himself regretted, flatly inaccurate, as a matter
of fact. n16 Not only are we held accountable for what is commonly
termed private life, but our accountability for some personal, arguably
self-regarding, conduct extends to the extreme of criminal liability.
Accountability for and in private life is thus no mere oxymoron or
confusion. Social norms of every category--religious, ethical, moral,
legal, and customary--foster accountability. We are held accountable,
and we hold others accountable. We feel accountable, and we feel owed
accountability. [*1379] As citizens and scholars we debate what is and
is not private and what should and should not be private, always against
the backdrop of a culture in which accountability subsists in virtually
every corner of our lives. n17 Accountability for private life means
that the broad areas of individual and group life regularly labeled
private are not walled off. We do not label dimensions of life private
because they are immune from scrutiny and judgment by official and
unofficial or public and private "agents of accountability." Flourishing
accountability practices and policies examine and evaluate what goes on
in the personal and intimate arenas.
Legal liability for sex and sexual orientation is one of the most
emotionally charged forms of accountability. Philosophers, like legal
theorists, understandably focus on the implications of legal
accountability because of the onerous, coercive nature of civil and
criminal sanction. Legal liability for personal choices can feel
particularly unjust where the individual expected to account does not
share the moral, ethical, or religious outlook of the person demanding
the accounting. But non-legal sanctions for conduct are potentially
coercive and punitive too. It wounds the soul to suffer the social
sanctions of censure and isolation.
Liability to sanction is but one form of accountability. Accountable
individuals are called on to reckon with others for acts and omissions
that violate norms in several other important senses. An observer would
miss a stark feature of American life were he or she to allow pervasive
liberal values, aspirations, and rhetoric--much of which I find
congenial--to obscure the richly diverse ways in which we are constantly
called upon to report, explain, justify, and otherwise answer to others
for the choices we make about own lives.
In the spirit of toleration for individual differences, political
liberals are skeptical of collective interference with individuals' own
assessments concerning their affairs. Liberals are for leaving people
alone, living and letting live. But a society cannot afford fully to
leave people alone. And liberals know it. The practical reality that the
non-judgmental outlook fosters mischief was captured in
Accountability, an ironic poem crafted in ersatz African-American
dialect by the troubled African-American poet Paul Lawrence Dunbar. n18
The poem begins:
Folks aint got no right
to cen/suah othah folks about dey/habits;
Him dat giv' de squir'ls de bush/tails made de bobtails fu'
. . . .We is all constructed diff'ent,/d'ain't no two of us de same;
We cain't he'p ouah likes an' dis/likes, ef we'se bad we ain't
The words of the poem's
narrator make the case against accountability, while the actions of the
narrator as revealed in an unquoted final stanza illustrate the case for
it. People not subject to "censuah" may lack incentives for avoiding
antisocial behavior. The poem's narrator delivers a lovely philosophical
argument for respecting what he characterizes as God-given human
differences, but it turns out that the narrator's tribute to toleration
is merely a ploy to deflect criticism for having broken the law. His
words are self-serving rationalization. He is about to dine on a stolen
chicken, "one o' mastah's chickens," to be exact. n20
Accountability makes sense to committed liberals when the white man's
chickens begin to disappear. Liberals recognize reasons to hold others
accountable for personal matters if harm can thereby be averted. The
fights are about what constitutes the relevant sorts of harm. Sex and
health are considered very personal. Yet, accountability makes sense in
the case of a public official whose flagrant sexual immoralities impair
public duties, or a sexually active man who has concealed his AIDS from
unsuspecting partners. And many liberals are prepared to recognize
respects in which "personal" and "self-regarding" acts are also social
and other-regarding, for example, recreational drug use, casino
gambling, and third-trimester abortion. But these are modern examples.
To really understand the depth of accountability for personal affairs,
to really understand what counts as a chicken, we need to turn the clock
back a bit.
III. ACCOUNTABILITY TO JUDGE AND JURY
Eighty years ago a wealthy New York man, Leonard "Kip" Rhinelander, sued
to have his marriage annulled. n21 The peculiar ground for annulment was
that his wife, Alice Jones Rhinelander, had deceived him as to her race.
The legal proceedings and journalistic frenzy that followed led to
[*1381] expectations of accountability for the most intimate aspects
of the young couple's lives. The courtroom drama that ensued demanded
the ultimate in accountability of the information-emphatic and
explanation-emphatic sorts. Mr. Rhinelander endured opposing counsel
reading aloud in court his sexually explicit love letters to his future
bride. His wife's lawyers hoped to brand him in the minds of the jury as
a perverted and unmanly seducer. Attorneys asked Mr. Rhinelander to
explain intimacies (possibly oral sex) referred to obliquely in intimate
correspondence. Alice Rhinelander was the eventual victor in the case.
However, after listening to her premarital trysts with her husband
detailed in court, her own lawyer insisted, with the approval of the
judge in the case, that she bare her "dusky" naked breasts and legs to
the jury to prove that her lover-turned-husband had to have known she
was "colored" when he married her. Bizarrely, Al Jolson, the famous
blackface entertainer, was dragged into court to deny an affair with
Mrs. Rhinelander, solely because she once mentioned in a letter that
someone she met at work called "Al Jolson" was a flirt. That a perfect
stranger to the litigants was held accountable for his sex life, too, is
evidence of the sweeping character of private life accountability at the
In the light of the Rhinelander case, blaming feminism for Anita Hill's
or Monica Lewinsky's frank testimony looks like fallacious post hoc
ergo propter hoc reasoning. We had accountability for private life
long before Anita Hill and Betty Freidan were born. Clarence Thomas's
experience in Congress might fruitfully be compared to Kip and Alice
IV. ACCOUNTABILITY TO THE MEDIA, PUBLIC, AND RACE
In January 2000, newspapers reported that Reverend Jesse Jackson, a
married Christian minister, civil rights leader, and one-time
presidential candidate, had fathered a child by a woman not his wife.
n22 His lover worked [*1382] for Jackson's civil rights organization.
n23 Some people responded to the news with calls that Jackson be "held
accountable" for his private conduct. Among them was Clarence Page,
Pulitzer Prize-winning reporter for the Chicago Tribune. n24
Claiming special ambivalence about holding others accountable for their
personal lives, Mr. Page told a Columbia Journalism Review
interviewer that he felt a special obligation to hold Jesse Jackson
closely accountable, qua African-American leader. n25
People who agreed with Page that Jackson should be held accountable
could have disagreed about what forms of accountability were
appropriate. When the news of a "love child" hit the stands, some people
thought it would be sufficient for Reverend Jackson to confirm or deny
what newspapers were reporting. They thought it would suffice for
Reverend Jackson to say publicly something akin to this: "I had a sexual
relationship with Ms. So-and-so, an employee of my organization, and
fathered a daughter, to whom I provide this and that type of support
from monies earned in this and that way."
After Reverend Jackson provided the basic facts, though, some members of
the public and the media were still not satisfied. They seemed to think
the Reverend owed the public, or at least his public, an
explanation of the facts and circumstances of the affair:
Although I was married at
the time, and although I profess that adultery is a sin, I faltered; I
had a sexual relationship with Ms. So-and-so, an unmarried employee of
my organization, with whom I had enjoyed working for many years. I
fathered a daughter and assumed financial responsibility for her care.
I know that I have caused my wife and children pain and disappointed
Others seemed to want even more from Reverend Jackson. They seemed to
want an explanation that included an earnest effort at justification.
The most complete explanations are both explanations that and
explanations why. Justifications are explanations why. They
explain, for example, why a person's conduct seemed acceptable or was
acceptable under the circumstances:
I was very lonely and
feeling the emotional stress and isolation of long days and nights
away from my wife, necessitated by my civil rights mission; I was
overcome by Ms. So-and-so's kindness and devotion to her work; I
believed I was in love with her; I ignored the call of conscience and
betrayed my faith; I am a sinner, we are all sinners, but I have asked
for and received forgiveness; I am providing [*1383] financial
support for my daughter using only my own personal financial
resources, not those of any organization.
A few people seemed to want yet more from Reverend Jackson. Beyond the
information, the explanations, the justifications, they wanted his head.
They wanted to bring the big guy down. They wanted him punished with
moral censure, ostracization, and any criminal or civil liability
appropriate for adultery and hypocrisy. They wanted accountability in
the punishment-emphatic sense.
Recall that Clarence Page said, in connection with his coverage of Jesse
Jackson, that as an African-American journalist he held African-American
leaders to a higher standard of accountability than leaders of other
races. n26 A public figure may be accountable in one sense and to one
degree to the general public, but in further senses and to further
degrees to members of his or her identity group.
The late Supreme Court Justice Thurgood Marshall was accountable for his
personal life, not simply to the public, but also, and critically, to
his African-American public. Vivian "Buster" Burey Marshall, Marshall's
first wife of twenty-five years, died in 1955. That same year he married
his second wife, Cecilia Suyat, who was not, in the parlance of the day,
a "Negro." The victorious attorney in Brown v. Board of Education,
n27 Marshall was one of the most influential men in the United States.
Known to have had a large ego, Marshall enjoyed his stature as a voice
of leadership within the NAACP. One might guess that in mid-twentieth
century America, such a man could marry whomever he wanted, no questions
asked. But that was far from the truth in the decade before Loving v.
Virginia. n28 Marshall's closest advisors knew that questions would
be asked about his motives for out-marriage and his intentions about
continuing at the forefront of the fight for black civil rights.
Marshall's second marriage threatened to be a political liability for
the NAACP. His personal choice could have cost the organization money
and support at a critical juncture. Showing both moral sensitivity and
political savvy, NAACP leaders successfully urged Marshall to hold a
press conference in which he graciously introduced his bride and
affirmed his commitments to civil rights work.
More than a half-century later, accountability for out-marriage remains
on the moral landscape. n29 Only about ten percent of black men marry
women who are not black. Blacks are the most endogamous of the major
"racial" groups in the country. Among African-Americans, those who
out-marry still face a surprising degree of negative accountancy
premised on [*1384] feelings of betrayal. African-Americans are not
the only minority group many of whose members feel accountable to the
group for personal choices.
Problems of intra-group accountability exist in the world of
childrearing and adoption, too. Native American women seeking to place
their children for adoption are accountable to tribal authorities for
adoption decisions. Although one might think that a parent's decision to
place his or her child for adoption is a personal one, federal law gives
Native tribes the right to veto the placement of an Indian child with a
non-Indian family. Thurgood Marshall implicitly knew that accountability
is an effective signaling strategy for rational, self-interested actors.
If I routinize my conduct, I signal that it is safe to be my friend,
lover, or partner. Having successfully evidenced the intent to
cooperate, individuals can reap the benefits of appearing to be
desirable partners in cooperative endeavors. n30
V. ACCOUNTABILITY TO GOVERNMENT
The House of Prayer is a Christian congregation of African-Americans who
take seriously the Biblical maxim that to spare the rod spoils the
child. n31 In March 2001, Atlanta police seized forty-one children whose
parents belonged to the church after one boy showed up at school with
welts on his body. n32 He said he had been beaten with a switch at
church. n33 They also arrested sixty-eight year old Reverend Arthur
Allen and five House of Prayer members alleged to have encouraged or
participated in child-beatings. n34 Nearly a decade earlier, in 1992,
Reverend Allen had been sentenced to prison for beating a
sixteen-year-old girl accused of premarital sex. n35 In trouble with the
law again, Allen complained to a reporter, "We're getting persecuted.
They want to dominate us with their way of life." n36
To hold House of Prayer adults accountable to the state for their
religious practices is indeed to dominate them with "our" way of life.
But this is an apt example of the benevolent domination by the state
that feminist legal theorists have urged for years. Tear down the doors
of "private" citizens in "private" homes and "private" institutions as
needed to protect the vital interests of vulnerable people. It is also
the kind of domination that would not much worry a political theorist
for whom freedom in pluralist societies entails or consists in
non-domination. The restriction placed on the House of Prayer is not an
arbitrary, whimsical power play, but an attempt at humane law by
[*1385] Child discipline is one of those components of family life
that is sometimes defended by reference to privacy, as well as religious
freedom. Though the sternest of libertarians can see the justice of
attempting to intervene on behalf of the House of Prayer youth. I am
assuming that libertarians oppose violence against children, though I
admit that some libertarians may disagree with me about whether corporal
punishment amounts to violence or other serious harm.
I believe one of the fathers of Libertarianism, John Stuart Mill
himself, would agree with me that child beating of the sort at issue in
the House of Prayer case--nonconsensual, ritualized, capable of leaving
marks--constitutes harm. Preventing physical harm to children is a clear
prerogative of the just, liberal state, even if what counts as physical
harm is not so clear. People who harm children should be accountable for
the wrong they do. Mormonism was a much-maligned religion in Mill's day,
chiefly for its claim to a latter-day saint and to the virtues of
polygamy. Emphasizing its remoteness in the American frontier and the
voluntary nature of polygamy, Mill defended toleration of Mormonism. I
do not think he would have urged similar liberty for a Christian variant
closer to home that practiced child-beating.
Mill published On Liberty in 1859, n37 more than three decades
before "privacy" and the "right of privacy" entered the American legal
lexicon. n38 Yet American jurists and scholars commonly cite Mill as a
champion of personal privacy. Mill was indeed a champion of personal
privacy. n39 More accurately, he was a stern opponent of accountability
to government and society. n40 Thought, discussion, and actions that are
not harmful to others should be free. n41
In Chapters 1 and 4 of On Liberty, Mill argued that moral justice
requires laws and other rules, practices, and institutions that maximize
aggregate long run happiness or "utility." n42 Although some people are
better at judging what conduct is conducive to utility than others, when
it comes to self-regarding conduct, each person is the best judge of
what conduct will promote his or her own utility. n43 We have what
philosophers sometimes call "privileged access" to our own emotions and
needs. Therefore, as a general rule, a just government and society
should only prohibit conduct that harms third parties. n44 Society
should strictly limit interference with self-regarding conduct to
conduct that harms others. n45 Legal paternalism and legal moralism are
rejected in Mill's ideal just society. While Mill does not put it this
[*1386] starkly, it would seem to follow from his premises that
accountability for any aspects of personal or private life that are
self-regarding and not harmful to others is morally unjust. Hence, there
should be limits on governmental and societal requirements that persons
report what they think or do to others, explain what they think or do to
others, justify what they think or do to others, submit to others'
sanctions and punishments, or lead a transparent, predictable lifestyle
for the sake of others.
In Chapter 2 of On Liberty, Mill argued that individual and
social utility results from tolerance of diverse thought and discussion.
n46 Humankind is not yet perfect. Until such time as it is, tolerating
even unpopular thought and discussion will be conducive to aggregate,
social happiness. How so? First, Mill argues, it is unwise to limit
thought and discussion because what one thinks of as a dangerous
falsehood may be true. n47 Humans are fallible. n48 Second, says Mill,
toleration facilitates the ultimate reign of truth. n49 In addition,
sacred truths tend to become moribund, unthinking dogma, unless
perpetually revitalized by the challenge of dissent and falsehood. n50
We need not fear the reign of falsehood because over time truths
overcome falsehoods. n51 Falsehoods being inherently less useful tend to
fade away. n52 They attract few buyers in the marketplace of ideas. n53
Third, Mill concludes, there may be a kernel of truth in ideas and
opinions that are largely false. n54 Those truths must not be lost to
In Chapter 3 of On Liberty, Mill defended freedom of action. n56
Just as thought and discussion should be free, actions/conduct should be
free, he urged. n57 Individuality should be tolerated in actions as well
as in word and thought. n58 Yet Mill readily admitted that "no one
pretends that actions should be as free as opinion." n59 Mill proposed,
though, that actions should be free, subject to the obligation to
refrain from harming others. n60 He urged that:
If he refrains from
molesting others in what concerns them, and merely acts according to
his own inclination and judgement in things which concern himself, the
same reasons which show that [*1387] opinion should be free, prove
also that he should be allowed, without molestation, to carry his
opinions into practice at his own cost. n61
To make his case for individual freedom of action, Mill asserted that
"apelike imitation" of others leaves the distinctive human capacities of
reason, judgment, and making life plans unexercised. n62 Human nature is
like a tree, not a machine. n63 Each of us grows under the influence of
nutrients into a unique shape, though we, like two maples or two oaks,
belong to the same species. n64 Mill urged that human character and
genius flourishes though individuality. n65 And, finally, nations
flourish through a diversity of character and culture. n66
The case Mill makes for tolerating freedom of action and thought does
not offer a moral refuge for the House of Prayer, if child beating is
harmful to children. Child-rearing practices are not self-regarding in
Mill's sense. Like John Locke, Mill believed the authority parents have
over children is custodial and protective. Children are not parental
property. The special control pregnant women have over fetuses in view
of physical connectedness is not shared by the parents of fully-born
children. We can also distinguish the House of Prayer incident from
Wisconsin v. Yoder n67 and Meyer v. Nebraska. n68 In those
cases the Supreme Court allowed religious or ethnic minorities to "harm"
their children by removing them from regular public school at age
thirteen and by enrolling them in private parochial school offering
foreign language instruction. n69
VI. THE GOOD OF ACCOUNTABILITY
Accountability chills, deters, punishes, prompts, pressures, and
exposes. These are evils when they amount to unjust domination or frank
violation. They are not, however, always evils. Indeed, there are
positive dimensions to accountability's qualification of privacy and
private choice. Accountability protects, dignifies, and advantages. This
was true in the House of Prayer case.
Accountability protects. That a society looks after health and safety by
holding others accountable reflects the esteem in which its members are
held. The forty-one Atlanta children were taken from their homes for a
time because Fulton County values their well-being. At first, parents
whose children were removed from their homes refused to agree to stop
church-supported [*1388] corporal punishment. They eventually
relented. Accountability (the threat of criminal punishment, the loss of
parenting privileges, and the loss of reputation in the eyes of the
wider community) was protective of the children. It was also ennobling
of the children's angry and befuddled parents. Accountability dignifies.
The society that holds individuals to account dignifies them by
presupposing intelligence, rationality, and competence for dialogic
social performances of reckoning. No one expects hamsters and centipedes
to give account. That is one of the reasons they get squished and locked
into little cages. The fact that we expect accountability of fellow
humans is a measure of the seriousness with which we regard them. A
parallel point is made by moral philosophers about moral agency in
general all the time. Ascribe moral rights, obligations, duties, or
responsibilities as a measure of respect.
Of course, accountability can be a feature of ignoble compulsion rather
than protectionism or moral dignity. Serfs and slaves are expected to
answer to masters, expectations enforced with whip and chain. The threat
of brutality has led subordinated peoples to signal intent to cooperate
at a considerable loss to self-esteem. The accountability norms that
deeply ennoble are the type that are egalitarian and reciprocal. Some
African-Americans interpreted the House of Prayer intervention as
secular society's unequal, non-reciprocal subordination of black's
minority culture. Reverend Allen suggested that his arrests for beating
children were emblematic of the majority society's disrespect for
African-American religious and cultural traditions. Yet the laws that
prohibit excessive child discipline apply equally to all racial and
religious groups. White, secular child abusers get arrested too in
Atlanta, a Christian-dominated city with a recent history of black
mayors and many black police officers.
Accountability demands that are not strictly reciprocal and egalitarian
are potentially ennobling, if they flow from the requirements of care
and caretaking rather than from political domination. Accountability is
a demand of love and nurture. The intense accountability for intimacies
demanded by long-term lovers is missed when Alzheimer's, Huntington's,
or senile dementia sets in. Intense accountability is part of the
parent-child relationship, too. Parents need and want accountability of
their children. One of the saddest things about having a child who is
mentally disabled is missing out on the experience of teaching the arts
of description, explanation, justification, censure, and seeing those
lessons consistently put to work. A remote, autistic son speaks not at
all; when manic, a bipolar daughter does not provide coherent reasons
and explanations for conduct.
Physical discipline is a common expectation of good parenting in most
African-American families, communities, and churches, notwithstanding
the opposition to corporal punishment in the wider society. It is not
just the tiny House of Prayer that tells black parents to beat black
children. The House of Prayer parents who subscribed to church beatings
believed that physical discipline teaches accountability. They believed
corporal punishment molds children into respectful youth and law-abiding
citizens. Some forms of accountability [*1389] proffered in the name
of love and care are ill-conceived. African-Americans must understand
that harsh corporal punishment, though customary and Biblical, is not a
cause of good citizenship in a modern society. Children who are spanked,
whipped, or beaten by well-intentioned parents may be more likely to
turn into violent adults. There is absolutely no evidence that the
factors that lead black youth to crime include parents withholding the
switch. Black church practices do evolve and change. In the meantime,
black children remain accountable to black parents, who remain
accountable to grandparents, neighbors, and churches for the choices
they make concerning discipline.
Accountability norms are ties that bind. If you imagine lines drawn
between each one of us and the people to whom we are accountable for
personal matters, the resulting picture is a dense network of such
lines--a web of accountability. The web of accountability relationships
is both flexible and sticky. The web is sticky in the sense that
socially determined and reinforced expectations impel us. Expectations
impel us, for example, to tell our mothers certain things, to explain
certain things to our friends, and to justify much to our employers. The
web is flexible in the sense that we have a good deal of freedom to
stretch and mold the connections to suit individual taste. Not all
accountability imperatives result from contract or choice. Still, it is
oftentimes possible to avoid reporting, explaining, justifying, and so
on, because we live in a society that permits a degree of "exit,"
economists' compact term for voluntary separation and self-isolation. It
is not costless to escape societal accountability imperatives--the cost
is sometimes loneliness--but we can often do it. We can work ourselves
loose. We do not have to tell our mothers everything. We can
compartmentalize our friends and get new jobs. We stick, but the good
news about life in the United States is that we are not generally stuck.
To be sure, some people feel more stuck than others. Just how stuck we
are and feel is an empirical question. Faced with evidence of a great
many people unable to express a core identity and associated preferences
because of punitive accountability norms, I would abandon my belief that
"we are not generally stuck." In liberal societies, political freedom
limits accountability to the state. The extensiveness of political
freedom in the United States underlies my observation that "we are not
generally stuck." But in any society, including the most liberal, the
combined force of accountability to state, community, kin, and friend
will qualify both freedom and privacy.
Some cautionary points follow from the web of accountability
relationships one observes in the United States. First, in the name of
public health, safety, security, and morals, punitive legal
accountability for certain forms of ordinary personal conduct have
flourished in modern liberal societies. It has not been so long that
birth control bans, interracial marriage prohibitions, and sodomy
strictures were pervasive in American law. We still live with criminal
sodomy and adultery bans. Liberalism has never meant the end of
accountability to the state for what a great many people consider their
personal lives. A perpetual danger is that the ambition to protect will
[*1390] result in simple intolerance and oppression. A perpetual
regret is that, in addition to affronts to privacy and freedom, affronts
to culture and identity will be costs of accountability to the state for
personal matters. Ethno-racial and sexual orientation minorities pay
such costs everyday; sometimes for better, as in the case of the House
of Prayer's disciplinary violence, sometimes for worse, as in the case
of legal intolerance of gays and lesbians.
Second, although in liberal societies the government steps back from
extremes of intervention, extremes of accountability are not limited to
legal norms or totalitarian regimes. Unofficial, normative
accountability in liberal democratic societies can be constraining in
many of the same ways that official accountability to the state is
constraining. A liberal society--or segments of a liberal society--may
be a moralistic or clannish one, for example, in which people are bound
to admit, confess, forbear, etcetera, because of their creeds and
affiliations. Accountability is a device of group identity and
solidarity employed by many familial, religious, and racial groups to
positive effect. But suffocating, harsh, non-governmental accountability
can make a person wretched.
Finally, I use the term "the New Accountability" to stand for the
observed intensification of accountability experienced in the United
States in the past decades. The New Accountability is a product of
Americans' extensive social, economic, and political freedoms, and our
ambivalence about forms of privacy that secret truths useful to others.
The fact that people in liberal societies are not generally subjected to
state punishment for their beliefs or "self-regarding" conduct may
itself heighten accountability expectations. Indeed, contemporary
Americans are expected to exteriorize internal and intimate worlds in
ways they would not if there were a price to pay. In societies in which
sexually active unmarried women are stoned, no one would think to design
a television program in which women are asked to talk about their sex
The New Accountability means a demand for bare private facts and then,
inevitably, more. For with the revelation of bare private facts comes
the call for detail. State that you have AIDS and expect people to want
to know how and why you contracted it. They will want to know what
medications you are taking and your prognosis. They will want to know if
you have a partner and your partner's AIDS status. It feels good
sometimes to speak intimate truth to strangers. It feels good to know
that others take a compassionate interest in the details of your life.
So we talk. But we are not always socially free to stop talking. The New
Accountability means strangers may have no compunction about demanding
more than you wish to tell and putting facts about you to uses that
offend and hurt you. The freedom and openness of our conduct means just
that many more people know of it and perhaps witness it. Just that many
more curious, interested, nosey, inquiring people exploit
accountability-entitling ties. The links they find may be as attenuated
as membership in the public claiming a right to know what is at all
interesting, educational, informative, newsworthy, or governmental. As
[*1391] the New Accountability demonstrates, substantial
accountability for personal life is a product of excessively tolerant
and intolerant societies.
n1 I discuss privacy sympathetically in a number of articles and three
books. Including the aforementioned, see supra note *, my books
are: UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY (1988) and
RICHARD C. TURKINGTON & ANITA L. ALLEN, PRIVACY LAW (2d ed. 2002). My
survey articles include: Constitutional Privacy, in A COMPANION
TO PHILOSOPHY OF LAW AND LEGAL THEORY 139 (Dennis Patterson ed., 1996);
Genetic Privacy: Emerging Concepts and Values, in GENETIC SECRETS
31 (Mark Rothstein ed., 1997); Privacy, in A COMPANION TO
FEMINIST PHILOSOPHY 456 (Iris Marion Young & Alison M. Jaggar eds.,
1998); Privacy as a Practical Value, in OXFORD HANDBOOK OF
PRACTICAL ETHICS 485 (Hugh LaFollett ed., 2003); The Jurispolitics of
Privacy, in RECONSTRUCTING POLITICAL THEORY 68 (Uma Narayan & Mary
Lyndon Shanley eds., 1996); and The Public Right to Know, in THE
ENCYCLOPEDIA OF ETHICAL ISSUES IN POLITICS AND THE MEDIA 251 (Ruth
Chadwick ed., 2000).
n2 The Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 113 Stat. 1338
(1999) (codified in scattered sections of 12 U.S.C. and elsewhere),
requires financial institutions to protect the security and
confidentiality of customers' nonpublic personal information. The Health
Insurance Portability and Accountability Act of 1996, Pub. L. No.
104-191, 110 Stat. 1936 (1996), sets standards for security of
confidentiality of health information and medical records. The
Children's Online Privacy Protection Act of 1998, Pub. L. No. 105-277,
112 Stat 2681-728 (1998) (codified at 15 U.S.C. § 6501 (2000)) (COPPA),
requires commercial Web sites to refrain from collecting personal data
from children under thirteen without parental consent. I asses COPPA in
Anita L. Allen, Minor Distractions: Children, Privacy, and E-Commerce,
38 HOUSTON L. REV. 751 (2001).
n3 Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act), Pub. L. No. 107-56, 115 Stat. 272 (2001).
n4 See the ACLU, Electronic Privacy Information Center, civil liberties
group, and privacy advocacy group positions at http://www.aclu.org/Privacy/PrivacyMain.cfm
(last visited April 13, 2003), http://www.epic.org/privacy/terrorism
(last updated Nov. 12, 2002), http://www.libertydefense.com/privacy.html
(last visited Apr. 13, 2003), and http://www.privacyrights.org (last
modified Mar. 31, 2003), respectively.
n5 See http://whitehouse.gov/news/releases/2002/01/20020130-8.html
(last visited Apr. 13, 2003).
n6 See Jim Garamone, Boards to Oversee Total Information
Awareness Program, AMERICAN FORCES PRESS SERVICE, Feb. 7, 2003,
available at http://www.dod.mil/news/Feb2003/n02072003_200302074.html.
See also ACLU and EPIC positions at http://aclu.org/Privacy/Privacy.cfm?ID=11323&c=130&Type=s
(Mar. 23, 2003), and http://www.epic.org/privacy/profiling (last updated
Feb. 3, 2003), respectively.
n7 Richard McKeon, The Ethics of International Influence, in
ETHICS 120, 187-203 (1960).
n8 See, e.g., ACCOUNTABILITY IN URBAN SOCIETY: PUBLIC AGENCIES
UNDER FIRE (Scott Greer, Roland D. Hedlund, & James L. Gibson eds.,
1978); MARK BOVENS, THE QUEST FOR RESPONSIBILITY: ACCOUNTABILITY AND
CITIZENSHIP IN COMPLEX ORGANIZATION (1998); CORPORATE CONTROL AND
ACCOUNTABILITY (Joseph McCahery, Sol Picciotto & Colin Scot eds., 1993);
PETER FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY (1984); ROBERT B.
WAGNER, ACCOUNTABILITY IN EDUCATION (1989).
n9 Accountability "is an essential and undismissable desideratum for
orderly social interaction" without which "it is impossible to conceive
of a society resembling an organized interlocking of individual actions,
or for that matter maintaining sociality and intersubjectivity." G.R.
Semin & A.S.R. Manstead, The Accountability of Conduct: A Social
Psychological Analysis, in EUROPEAN MONOGRAPHS IN SOCIAL PSYCHOLOGY
32, 32-185 (1983).
n10 JOHN STUART MILL, ON LIBERTY 115 (Oxford University Press 1948)
(1859). In the second paragraph of Chapter V of On Liberty, Mill
lays out the maxim I quote that "the individual is not accountable to
society for his actions, in so far as these concern the interests of no
person but himself."
n11 367 U.S. 497 (1961).
n12 381 U.S. 479 (1965).
n13 410 U.S. 113 (1973).
n14 Poe, 367 U.S. at 553 (Harlan, J., dissenting). Quoting the
Justice in full:
In sum, even though the State has determined that the use of
contraceptives is as iniquitous as any act of extra-marital sexual
immorality, the intrusion of the whole machinery of the criminal law
into the very heart of marital privacy, requiring husband and wife to
render account before a criminal tribunal of their uses of that
intimacy, is surely a very different thing indeed from punishing those
who establish intimacies which the law has always forbidden and which
can have no claim to social protection.
Id. Harlan was not prepared in this case to extend the realm of
non-accountability to traditionally prohibited acts including adultery
or homosexuality. Id.
n15 MILL, supra note 10, at 115.
n17 While some tolerant individuals try to avoid the most overtly
moralistic accountability discourses and practices, it is nonetheless
fair to say that:
In our private lives we
wade in a constant stream of accountability initiatives. People hold
their children, parents, partners, friends, neighbors, colleagues, and
fellow citizens accountable for any kind of presumptive
misbehavior--for political incorrectness, insubordination,
disorderliness, bad memory, drinking and smoking, sexual misconduct,
sinful behavior, lack of courtesy, strategic errors, factual
ignorance, whatever. Because there are lots of rules that guide our
private lives, there are lots of opportunities for private agents of
accountability to step in to monitor and enforce compliance.
Andreas Schedler, Conceptualizing Accountability, in THE
SELF-RESTRAINING STATE 2 (Andreas Scheduler, Larry Diamond, & Marc F.
Plattner eds., 1999).
n18 PAUL LAURENCE DUNBAR, Accountability, in THE COMPLETE POEMS
OF PAUL LAURENCE DUNBAR 5, 5-6 (1895).
n19 Id. at 5. The narrator makes a case for both toleration and
When you come to think
about it,/how it's all planned out it's/splendid.
Nuthin's done er evah happens,/'dout hit's somefin' dat's in/tended;
Don't keer whut you does, you has/to, an' hit sholy beats
de/dickens,--/Viney go put on de kittle, I got/one o' mastah's
Id. at 6.
n20 Id. A rational slaveholder who wanted to reduce the
likelihood of losing food to rational underfed unpaid labor would have
to increase surveillance or increase the penalty of detection.
n21 See generally EARL LEWIS & HEIDI ARDIZZONE, LOVE ON TRIAL: AN
AMERICAN SCANDAL IN BLACK AND WHITE (2001).
n22 Lauren Janis, Q&A--Clarence Page on Jesse Jackson, COLUM.
JOURNALISM REV., Mar./Apr. 2001, at 9-10, available at http://www.cjr.org/year/01/2/qanda.asp.
We will always be aggressive in looking for accountability of public
figures. I was one of the first reporters to report on the questions
surrounding Jackson's operation Push for Excellence and their
expenditures of federal funds back in 1980. Jackson doesn't like
accountability. But that hasn't stopped us. When it gets into private
life, I know I am less aggressive in pursuing those stories.
. . . .
When it comes to the private life of any official, you approach it
with ambivalence. But my philosophy is, when in doubt, let it out. Our
impulse should be in favor of releasing information to the public, not
. . . .
As an African-American who has been covering the Reverend Jackson and
other civil rights figures for over thirty years, I particularly feel
that it is my responsibility to be as aggressive as possible. . . . I
am very concerned about leadership in general and about the quality of
black leadership. And he is the most widely known and respected black
leader. I feel obliged to be more aggressive because I feel a special
responsibility to African-Americans and others in Jesse Jackson's
constituency to hold him accountable. Like a sort of consumer
n25 Id. at 9-10.
n26 Janis, supra note 22, at 9.
n27 349 U.S. 294 (1955).
n28 388 U.S. 1, 12 (1967).
n29 RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY,
AND ADOPTION (2003).
n30 ERIC A. POSNER, LAW AND SOCIAL NORMS 5 (2000).
n31 Proverbs 23:13-14.
n32 Amanda Ripley, Whippings in the Pulpit: A Congregation Loses 41
of its Children to the State After a Boy Tells the Police What Happened
at Church, TIME, Apr. 2, 2001, at 47.
n37 MILL, supra note 10.
n38 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4
HARV. L. REV. 193 passim (1890).
n39 MILL, supra note 10, passim.
n42 Id. at 5-21, 92-114.
n43 Id. at 93-94.
n44 MILL, supra note 10, at 92-93.
n46 Id. at 22-68.
n47 Id. at 65.
n49 MILL, supra note 10, at 65.
n51 Id. at 22-68.
n54 MILL, supra note 10, at 65.
n56 Id. at 69-91.
n59 MILL, supra note 10, at 69.
n61 Id. at 69-70.
n62 Id. at 69-91.
n64 MILL, supra note 10, at 69-91.
n67 406 U.S. 205 (1972).
n68 262 U.S. 390 (1923).
n69 Yoder, 406 U.S. at 213-36; Meyer, 262 U.S. at 399-403.