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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I am excellent. How are you?
J. Aughenbaugh: I'm feeling interrupted. The reason why I say I'm feeling interrupted-
N. Rodgers: I don't know why you would think that. Sorry.
J. Aughenbaugh: We thought we were beginning our annual summer of SCOTUS, but, alas, the justices are not working on our timeline.
N. Rodgers: They're dragging their feet. I'm like, really? Come on now.
J. Aughenbaugh: The date of this recording, the Supreme Court still has a little over 20 cases still to hand down. Pretty much all of them are the big ones, the ones we're all waiting for.
N. Rodgers: They released a couple yesterday that we are going to talk about in one instance because don't be declaring bankruptcy if you think you're about to come into a payday.
J. Aughenbaugh: Then the other one is-
N. Rodgers: Don't run with your crime. Stay where you are if you want to be tried in a certain spot.
J. Aughenbaugh: The Sixth Amendment's prohibition on the government picking and choosing a favorable venue to prosecute you. We'll probably get around to those. We're interrupted.
N. Rodgers: But today.
J. Aughenbaugh: Today, however, we're taking a brief pause from the summer of SCOTUS to deal with a phenomenon in politics that was, actually, suggested to us by one of our listeners. The phenomenon, Nia, is called the Streisand effect.
N. Rodgers: As in, Barbra Streisand, one of the greatest singers of her generation.
J. Aughenbaugh: That's right.
N. Rodgers: No question, she's talented.
J. Aughenbaugh: Yes. Singer, actress.
N. Rodgers: Also, no question she's a little bit crazy.
J. Aughenbaugh: Yes.
N. Rodgers: She a little bit crazy, but she's incredibly talented.
J. Aughenbaugh: Yes. The Streisand effect generally defined listeners. If you ever hear this, this is what it means, it is the unintended phenomenon where a person attempts to hide, censor, or remove information backfire. It backfires because by attempting to remove the information, you inadvertently draw massive public attention to the content you want to suppress. Now, in politics, this usually happens when governments or politicians or institutions use legal threats of censorship to suppress criticism only to have the suppressed message go viral.
N. Rodgers: I present to you the Epstein files.
J. Aughenbaugh: Yes.
N. Rodgers: Are a perfect example of what we're talking about. Aughie's going to explain the case with Barbra so that you understand how this becomes the Streisand effect. Then we'll talk about a few instances of how, boy, does this not work out in your favor most of the time.
J. Aughenbaugh: Yes. The Epstein files, in many ways, are the classic most recent example.
N. Rodgers: But there are plenty to be had by many politicians on both sides.
J. Aughenbaugh: Yes. The origin of the term is in 2005. This journalist, Mike Masnick of Techdirt, and by the way, I actually had to look it up, I was not familiar with that publication. There was a photograph by a photographer by the name of Kenneth Adelman, where he showed Barbra Streisand's clifftop residence in Malibu, California in an attempt to document coastal erosion in California.
N. Rodgers: Not that he cared about it being Barbra Streisand's house.
J. Aughenbaugh: House.
N. Rodgers: He was saying, look, Malibu is falling into the ocean.
J. Aughenbaugh: Ocean. That's right.
N. Rodgers: Here's proof of it. Because underneath her clifftop house, there is erosion.
J. Aughenbaugh: If this erosion continues, you-
N. Rodgers: Her house will fall into the ocean.
J. Aughenbaugh: Yes.
N. Rodgers: And many other homes. Malibu is in danger of falling into the ocean. It's a known thing.
J. Aughenbaugh: These mansions, these palatial estates of some of our best known singers actresses, athletes, it's such a-
N. Rodgers: Hollywood people.
J. Aughenbaugh: Yes.
N. Rodgers: Hollywood centric people. Not all Hollywood, but Hollywood centric people. In part, I suspect what he was also documenting was the fact that when you put a 60,000 square foot house on an eroding cliff, it causes it to erode more, I would think.
J. Aughenbaugh: Yes, and much more quickly.
N. Rodgers: But he's just taking pictures of a cliff happens to get her house in it.
J. Aughenbaugh: Yes.
N. Rodgers: She does what Barbra does best, she hits a high note.
J. Aughenbaugh: Yes. Barbra Streisand, in 2003, sued the photographer and an Internet website, pictopia.com, for $50 million for violating her privacy. In particular, the lawsuit wanted to remove the image that was entitled 3850 because that was the particular number of photograph. It was labeled The Streisand Estate in Malibu, and it was an aerial photograph in which Streisand's mansion was plainly visible. By the way, this was an image that was publicly available through the California Coastal Records Project. This was a project, where there were over 12,000 coastline photographs. The project's goal was, as Nia just explained it, listeners, to document erosion to influence government policymakers. This project basically said the privacy concerns of the homeowners are secondary to the fact that we have a significant environmental problem here in California. Coastal-
N. Rodgers: We have a slow motion environmental disaster. We're not so worried about John Agenba's opinion of us taking a picture of his house hanging off the edge of his cliff in Malibu.
J. Aughenbaugh: The lawsuit was eventually dismissed. However, Barbra Streisand was ordered to pay Adelman's legal fees, which totaled-
N. Rodgers: How much were they?
J. Aughenbaugh: - $177,000.
N. Rodgers: That is some expensive attorneys because that didn't take all that long, I would assume. I would assume, and I don't know, because I didn't read the ruling, but my guess is that the ruling was, you were not singled out.
J. Aughenbaugh: That's right.
N. Rodgers: You were not personally damaged and singled out. There's 12,000 photographs, and it's documenting something that it doesn't even care about your house particularly. It's documenting the ground beneath your house or the cliff beneath your house. I'm sure that's the argument that was made on the other side was, Your Honor, we did not single out Ms. Streisand.
J. Aughenbaugh: Barbra Streisand, yes.
N. Rodgers: We took pictures of everybody's houses and cliffs because we were worried about the cliffs, not the houses.
J. Aughenbaugh: And we just used this as an example.
N. Rodgers: Not to mention the fact that you live in a house, and houses are public. You can find out where anybody lives in the United States. You can look at tax records and figure out who owns a home. That's why a lot of rich people do it under LLCs and corporations because they don't want you to know which home they live in. But those are public records. Ownership of homes are public records in the United States.
J. Aughenbaugh: In part, because as Nia just pointed out, listeners, when you own a home in the United States, local governments charge property taxes. One of the ways that we try to make sure that everybody is paying their fair share of property taxes is your property has to be listed, what is its value, and what is the property tax that has been charged? This is one of the ways that we ensure accountability.
N. Rodgers: It's also one of the ways, say, Aughie and his neighbor live in same size house. You guys roughly live in the same size house.
J. Aughenbaugh: Yes, we do.
N. Rodgers: You and a couple next door. If you were paying, let's say something outrageous, $65,000 in taxes every year, and they were paying 10,000 you could look that up and go, I'm being discriminated against charge, overcharge, punished something because this is not fair. That's another way. The other thing too is when you go to buy a house, that's a thing you're going to want to know because you're going to have to pay it next year. If you go buy a house and you're like, my taxes each year are only $4,000, that's great. I put aside a certain amount of money each month and I pay that off at the end of the year. Great. But if you suddenly got hit with a tax bill that was $65,000, I know you, you would have heart attack. You wouldn't because you have a good heart. But you would say, oh, no, a mistake has been made.
J. Aughenbaugh: Now, the funny thing, and this is where the-
N. Rodgers: The Streisand effect comes in.
J. Aughenbaugh: Yeah, the title of the phenomenon comes in, is that during the court proceedings, Image 3850 prior to the lawsuit, had been downloaded only six times and two of those six times were by Streisand's attorneys.
N. Rodgers: Four people before that cared about this image. Four people. It could have been that it was one person who cared four times. We don't know that for sure, but no more than four people cared about this.
J. Aughenbaugh: But because of the lawsuit-
N. Rodgers: She pitched a pit. Aughie, how many people after that?
J. Aughenbaugh: Over 420,000 people visited the Pictopia site to view just in the following month after the lawsuit. Journalists massed it.
N. Rodgers: To go from four to 420,000.
J. Aughenbaugh: This journalist coins the name. I love the quote from the article. How long is it going to take before lawyers realize that the simple act of trying to repress something they don't like online is likely to make it so that something that most people would never ever see, like a photo of a urinal or somebody's house, is now seen by many more people? Let's call it the Streisand effect.
N. Rodgers: Because he comes up with that because apparently Marco Beach Ocean Resort had a sign. They got mad at Urinal.net because they were using their sign to bring up a urinal. they didn't want their name associated with urinals, even though I don't know that urinals are necessarily offensive, and therefore, I'm not sure why you would not want your name associated. Yes, we have them here at our resort. But either way, people get prickly about something, and it turns into this thing, and that's what she did. She said, you can't take pictures of my house. They said, we already did, and we put them up on this website, nobody cared until you brought it up. Not only did it cost you $177,000, but 420,000 people downloaded the photograph. But it's weird to me that you and I know that this thing exists and you and I live in a world where we would not tempt at this kind of fate. If someone online posted a little piece of this podcast and said, listen to these two dufuses talking about whatever thing, you and I would be like, they don't like us. Moving on. Because if we made a bigger deal out of it, then it becomes, look at these two dufuses arguing about this guy listening to their open access podcast. Then we just look like schmucks.
J. Aughenbaugh: How idiotic. Because we're both generally very self deprecating, we would be like, do we want to appear even more idiotic than we already are?
N. Rodgers: No, thanks. I'm good with my current level of idiocy. I don't need more.
J. Aughenbaugh: Let's draw attention to what we already are afraid of, which is a lot of people will go ahead and listen to us and conclude that we are dufuses, or in my case, can you believe how excited he gets about arcane government stuff?
N. Rodgers: And what kind of person is she that she loves books that much? The answer to that is, have you met a librarian? But the other thing too is that what it draws back to with our current example of the Epstein files, but also, other examples like that is that when you attempt to suppress, what you make people think is that there is more there than there actually is there. It's Bill Clinton saying, I did not have sex with that woman. That woman. Does that mean there were women you did have sex with and we don't know about them? People started to say, if you would do that with an intern in the White House, what other fire is there burning that we have no idea what it is?
J. Aughenbaugh: Psychologists refer to this as, excuse me, psychological reactants. It's a well-recognized, if you will, phenomenon. Basically, it works like this, when people become aware that information is being kept from them, then we get more motivated to acquire and spread that information.
N. Rodgers: The Warren Commission report was so sparsed on details and could not explain the magical bullet that people are like, it was aliens, it was-
J. Aughenbaugh: The mob.
N. Rodgers: - Cubans, it was the FBI, it was the mob, it was Hoover himself. It got more because that's what politics- wait, let me back up and say, if a totally benign person who had never really offended anybody had something come out about them, probably everybody would go, that's too bad. But if a person who has any enemies, any enmity at all, anybody who doesn't like you for any reason, and a little thing comes out about you, they're like, there must be more to the story.
J. Aughenbaugh: Yes. Again, it is that process of trying to keep something hidden, and there may not actually be anything actually meaningful, but the process of you trying to hide something is what leads people to go ahead and say, if they want this hidden, what else do they want hidden? It's not just the Barbra Streisand-
N. Rodgers: What other thing have they done?
J. Aughenbaugh: She didn't want her privacy invaded. I understand that, but what are you doing at this palatial estate on the Malibu coastline that you don't want people to go ahead and see?
N. Rodgers: That's weird. Then it becomes weird. Then once it becomes weird, it attracts. The way to live if these people would just do it is quietly and benignly, and then nobody will notice. I would be hard pressed to tell you where Warren Buffett's house is. It's somewhere in Iowa. But I don't know that for sure. Kansas, I don't know. You know what I mean? Well, anyway. The other thing that thing reminds me of is this thing where people say, I want you to remove me from Google.
J. Aughenbaugh: Now you're talking about the right to be forgotten.
N. Rodgers: Which in Europe it's a big deal. They're like, you cannot make me find if I don't want to be found in Europe.
J. Aughenbaugh: This is one of these really good examples in comparative politics of how in the United States, there is no in law, there is no right to be forgotten. If a search engine, like Google, goes ahead, if you Google somebody's name and a whole bunch of entries come up. In the United States, you cannot sue Google and say, I want you to remove this.
N. Rodgers: By the bye, if you want to test this, put John Aughenbaugh into Google and what you'll find is he's given interviews over the years. Reporters call him and say, what the heck does qualified immunity mean? What the heck does this thing mean? He's explained those things to those reporters and his name is on those bylines. If he were ashamed of them, if he no longer believed those things, his only defense in the United States is to start giving interviews where he says, in previous interviews I said this, and I was totally wrong, and try to turn the tide because you can't just have the other stuff removed.
J. Aughenbaugh: That's right. But in Europe, nations have passed laws that allow you to make a request of Internet search engines to remove private information about you.
N. Rodgers: By the bye, this does not apply in the United States to children. If there is children's information out there, you can make Google take that down. If there are photographs of your child out there, you can make Facebook take them down or Google take them down unless they put them up themselves or you put them up. But if other people put them up, that's a whole different because we do protect somewhat the privacy of children. But we don't of adults. You got yourself into this news cycle, you can get yourself out of this news cycle. That's not Google's problem.
J. Aughenbaugh: What's fascinating to me is when a person makes a request to be forgotten, what researchers have already found is that until that entry or that posting gets removed, there's usually a slight uptick.
N. Rodgers: People hear about it.
J. Aughenbaugh: People hear about it.
N. Rodgers: People hear about the lawsuit and they go, what's interesting about this person who I didn't know about before today?
J. Aughenbaugh: There are numerous examples as we mentioned, listeners, in politics. I found a bunch of them. Some of them are unrelated to the United States. For instance, the French Intelligence Agency, the DCRI attempted to delete a French Wikipedia article about a military radio station. That actually resulted in the restored article temporarily being the most view page on French Wikipedia.
N. Rodgers: What's so special about this radio station? I don't know, let's go find out.
J. Aughenbaugh: We go find out.
N. Rodgers: It's like when you yell, don't look at somebody. What's their first reaction?
J. Aughenbaugh: Of course, we're going to look. A more recent example was.
N. Rodgers: Hunter Biden and his laptop. There's nothing going on with this laptop. Really? Well, then why is it being such a weird thing?
J. Aughenbaugh: In October of 2020, the New York Post published emails from a laptop allegedly owned by the president's son Hunter Biden. At the time, he was the presidential nominee because this was one month before the election. Now, there was a whole big discussion brouhaha, whether or not the story may have originated from Russian misinformation and propaganda. Twitter blocked the story from their platform. However, before the story could be blocked, researchers at MIT found that in 15 minutes there were over 5,500 shares. It went from 5,500 shares to 10,000 shares.
N. Rodgers: Fifteen minutes.
J. Aughenbaugh: Yeah, in 15 minutes.
N. Rodgers: Because Twitter banned it.
J. Aughenbaugh: Yes.
N. Rodgers: Why is Twitter banning it? What's going on with that? What's underneath? Can I just say, I think that this modernly probably started with President Nixon and the Watergate cover up and the idea of that?
J. Aughenbaugh: Scholars go ahead and point to the Warren Commission Report. That primed the pump. But then when you had Nixon come into office, and he was so secretive and so wanted to punish people for leaks.
N. Rodgers: People think, what is he hiding that he's so secretive?
J. Aughenbaugh: Why is the government hiding? You saw this a lot with the attempting to censor the Pentagon Papers. For listeners who don't know, the Pentagon Papers was actually a study done by the Rand Corporation to explore the United States' involvement in Vietnam. The Department of Defense contracted the Rand Corporation to come up with, if you will, a complete history, in part because the Department of Defense wanted to figure out, how can we avoid getting involved in this situation in the future?
N. Rodgers: What went wrong.
J. Aughenbaugh: The Rand Report went ahead and identified that as early as the Truman administration because of the Truman administration's Domino's doctrine. If one country falls to communism, then other countries in that area might also fall. Starting with the Truman administration, going up to the Nixon administration, the United States government had been involved in Vietnam. Now, Nixon attempted to join the New York Times and the Washington Post from publishing the leaks of the Pentagon Papers. Of course, a whole bunch of Americans were like, well, what's in the Pentagon Papers?
N. Rodgers: Why are you so scared?
J. Aughenbaugh: Many Americans weren't even aware that such a study had taken place.
N. Rodgers: Existed. What are the Pentagon papers and what's in them?
J. Aughenbaugh: But starting with that, then we find out about Nixon's involvement in covering up the Watergate break in. It just keeps on piling on. The most recent president, for instance, Donald Trump, when Trump sued the Wall Street Journal for publishing a letter between Trump and Jeffrey Epstein.
N. Rodgers: Was that the famous birthday letter?
J. Aughenbaugh: Birthday letter.
N. Rodgers: Infamous birthday letter. Wouldn't have been anything except he fussed about it.
J. Aughenbaugh: The Wall Street Journal's readership exploded.
N. Rodgers: Boom. In a subject very close to my heart, and this is something I would tell every school board, the instant that you ban a book, a whole subset of people are going to go read the book. Because they don't understand why you're banning it and they want to know what salacious thing is in it. There's a part of me that thinks what publishers should do is urge for their books to be banned so that they can sell more of them. But then the system would break down. Because there has to be a genuine protagonist and a genuine antagonist in these cases. If you get the feeling that everybody's playing you and it's slick, then you're not going to cave. But when somebody says, we banned this book because it talks about witchcraft, a whole bunch of kids are like, I want to read that. I loved Harry Potter, that one's probably going to be just as good. Or whatever.
J. Aughenbaugh: To give you an example, listeners, of what Nia is describing, we've mentioned on this podcast that I went to a Catholic school. I remember when I was in eighth grade, I had an English literature teacher who asked students books that we might want to read that she could assign. I had seen The Godfather, and I said, hey, wasn't The Godfather of the movies based on a book? She said yes. I said, well, I think we should read The Godfather, because it was a very powerful movie. I was just like, hey. Looks at the mob, violence, blah, blah, blah. She went to the board that ran the school, and the board said, no, too much violence, too much sex. She reported that to us.
N. Rodgers: Which meant young John Aughenbaugh had to go find it and read it.
J. Aughenbaugh: The following Saturday, I went with my mom to a yard sale. There was a tattered copy of The Godfather and my mom, who basically just encouraged me to read everything and anything, was just like, go ahead. There I am, and I'm like five chapters in, and there's already somebody's head being cut off. I was just like, wow. Then a few chapters later.
N. Rodgers: They left a lot out of the book, and they left a lot out of the movie.
J. Aughenbaugh: The movie. Then sex that was suggested in the movie was graphically described, and I was just like, wow. Of course, I'm in an eighth grade, and then I'm like, wow. But again, I wouldn't have even been remotely interested in reading the book until it was basically told to us, the book's being.
N. Rodgers: I couldn't.
J. Aughenbaugh: I can't.
N. Rodgers: My mother said I could not read Russia House so my dad slipped me a copy. He said, I don't think you're going to understand most of it, and he was right because I was in the, I don't know. I was going to say I was in the seventh grade or eighth grade. I didn't understand the intricacies of it. The sex was a little wild. I was like, oh, okay. But anyway, he my dad believed that taking the salacious out of it meant that I was less likely to be interested, and I, in fact, did not finish it then. I finished it in college much later. His attitude was the right attitude, versus my mom's attitude, or your school's attitude of you can't read this. If you tell kids not to do something, they're more likely to do it. But also I think it's interesting here lately, we've been seeing the FCC chairman Brendan Carr, who, I say this with all the love in my heart, is a nut job. He says stuff, and you're like, you're just trying to offend everybody in the world. But anyway, he's constantly talking about taking journalists offline and firing them and stuff. You can't fire journalists, they don't work for you. Anyway, whatever.
J. Aughenbaugh: Let's take a step back. Brendan Carr, who is the chairperson of the FCC, Federal Communications Commission, wants to resurrect a doctrine that used to be in place for decades. It's called the Fairness Doctrine. Basically, the Fairness Doctrine requires that any radio or TV station that has been granted a license by the FCC, as they go through their license renewal process, they have to show that they are promoting fairness in their coverage of politics. Now, one of the ways you used to be able to show that you were being fair was known as the equal time rule. If you allow one group to go ahead and give an opinion editorial, recommending a particular policy, you had to give the opponents equal time to also air an opinion editorial suggesting the counter.
N. Rodgers: Auggie and I are so old that we remember when there used to be editorial moments at the end of the news where the guy who owned the station would come on and say, mama, and he would read from a script of where he was giving what they called fair play or the other side, or whatever. In fairness to that doctrine, in general, that's a good thing to have. The problem is that if the ideas go completely nut job on one end, then finding an equal nut job on the other end and giving them equal time, that is really complex. That's a really complex way to divide the United States.
J. Aughenbaugh: Because then that becomes a mischaracterization of actually where the policy debate might actually be or where our politics is.
N. Rodgers: Now it seems super extreme because you've got AOC and Nick Fuentes on the same show trying to argue. She, by the way, is not a Nazi, and neither is he. They're both people who live in the podcasting. I know she's a congress person, but they also live in the podcasting world of extremeness. Auggie and I live in the podcasting world of non-extremeness. We're over in the corner with a whole bunch of other people who are just like, no, we don't get into extreme opinion craziness. Because we don't want to tell you what to think. That's not what we're trying to do here. But this in particular, comes into play with an interview with a candidate in Texas. Briefly, the Texas election going on right now?
J. Aughenbaugh: Oh, my goodness.
N. Rodgers: It's insane. Because John Cornyn had been a senator from Texas for what? Two hundred and fifty years or something? He was there at the first bicentennial. He'd been a senator for a long time, and Ken Paxton, who was the Attorney General in Texas, said, I'm feeling it. I'm going to go for it. Ken Paxton has a, let us say, checkered past. Let's put it gently and say, Ken Paxton has had legal troubles, and a variety of them. Everybody thought Cornyn was going to win because Cornyn was the incumbent. Excuse me. He's relatively benign.
N. Rodgers: I mean, especially when you compare him to Ken Paxton.
J. Aughenbaugh: That's on the Republican side.
N. Rodgers: On the Democratic side. Your opponent.
J. Aughenbaugh: Go ahead.
N. Rodgers: Wait.
J. Aughenbaugh: So that's the Republican side. On the Democratic side, you had a candidate, James Talarico, who was in a primary fight on the Democratic side. Now, Stephen Colbert, when Colbert still had his lady talk show was doing an interview with-
N. Rodgers: Beto O’Rourke rapport. He interviewed James Talarico, he did not interview Cornyn or Paxton.
J. Aughenbaugh: Paxton. That's right. So Brendan Carr, who again, wants to resurrect the fairness doctrine, reaches out to CBS and says, If you guys air the extended version of this interview, the FCC is going to look very unfavorably on your license renewals. Again, CBS television.
N. Rodgers: Needs to license renewals.
J. Aughenbaugh: Owns TV stations across the country.
N. Rodgers: And needs the FCC to approve their renewals. So they said, okay, we won't air it. And then Stephen Colbert, who is perhaps one of the most popular comedians and certainly one of the most popular late night talk show guys, said, I'll put it on YouTube. Because he has a YouTube channel, where it probably got seen five times more than it would have been seen on CBS who stays up that late and who has TV anymore? Seriously, who has network television anymore? The numbers on that are very low, relatively speaking. Mostly it's geezers like me and Aughie. It's not generally young people. Generally young people don't have channeled television anymore. They have tuning services.
J. Aughenbaugh: [inaudible] services on their computer. I mean, very few younger Americans will stay up late, and even if they did, they would not have that broadcast TV.
N. Rodgers: They're not watching that. YouTube was like, hey, thanks for the bounce, man, we like the numbers, this is great for us.
J. Aughenbaugh: The other thing that we want to touch upon before we conclude this episode is that, in the United States, per the Sixth Amendment, jury trials are to be public. Now, many litigants in trials want to remain anonymous. They want to protect their privacy. I mean, let's face it, if UNIA were being charged with a crime. Even though you claim you didn't commit the crime, you wouldn't want your name in public records. You wouldn't want your name splashed across the media, as committing.
N. Rodgers: The worse the crime, the less I would want that, because, one, if I did it, I don't want anybody to know especially my friends and family. But two, if I didn't do it, I don't want to be associated with that crime forever, which has the potential of happening. Podcast host Nia Rogers or librarian associated with VCU will fire me if my name is associated with harming young people or doing something against our mission.
J. Aughenbaugh: The problem is, again, this is where my former students who are listening are like, good Lord, he's going to go ahead and bring up the colonists. The colonial experience with the British crown was trials were frequently done in secret. So there was no way to hold the British crown accountable. So they insisted their trials be public, including the names of the litigants as a check on the government.
N. Rodgers: You can't just disappear John Aughenbaugh into a prison somewhere and try him without people knowing that that's what's happening. I'm also shared on that, the safer it is for John Aughenbaugh because otherwise you get Chile in the '80s where people just [inaudible] .
J. Aughenbaugh: The 1970s and '80s under Pinochet
J. Aughenbaugh: So again, this is the classic, if you will, tension or balancing that goes on in constitutional law. The right of the public to know what their government is doing so that they can hold the government accountable versus me or you, if we are being charged with a crime, wanting nobody to know. And it's fascinating phenomenon when people attempt to go ahead and be anonymous and ask the courts to do it, is when scholars are just like, well, why do they want to be anonymous. What else is going on here?
N. Rodgers: Sometimes, people want to be anonymous because they're accusing somebody of a personal crime like a crime against their person. And that person is wealthy and known and they are not. And there are arguments on the other side of that saying, How come the wealthy guy's name gets dragged through the mud, but not the accuser.
J. Aughenbaugh: Accuser. That's right. Think about accusers.
N. Rodgers: That is a complicated needle to [inaudible].
J. Aughenbaugh: Think about victims of sex crimes. They've already had their life destroyed.
N. Rodgers: They're already victims, but then we victimize them again.
J. Aughenbaugh: Again. By forcing their name to be in a whole bunch of government and public documents, their name has to get published when they go to testify etc. On the other hand, how do you make sure that the government is bringing a legitimate criminal complaint.
N. Rodgers: And not just saying, I believe without substantiation or without. That brings us back to the beginning where we were talking about the Epstein files. One of the things that the government did was not redact the victims names. They did that I think deliberately. In my opinion, it was deliberate to try to suppress those voices because those women's lives have already been destroyed and many of them did not tell people in their current life that they had been trafficked by Jeffrey Epstein. However, when they make accusations against Alan Dershowitz or against Bill Gates or against some other public figure, I struggle with the difficulty of saying should they not be identified because the aggressor is being identified?, Where's the fairness in that? Where's the fairness in naming wealthy male names and not naming, I don't know, that's really hard.
J. Aughenbaugh: The Epstein files case for listeners who don't know the origin.
N. Rodgers: Such a mess.
J. Aughenbaugh: The case was settled between the government and Jeffrey Epstein in regards to human trafficking. And the settlement was supposed to be private. And many of the victims ended up finding out in the media that the case had been settled and that the sordid details would not be made public. They then went to court to force the release. And when the government, said, no, we settled the case and one of the terms requested and we agreed to by, Epstein and his attorneys was that the details would not be released. Again, this is where everybody's attention was like, so what's being hidden here? Again, once you go ahead and try to keep secret, is where people all of a sudden are like, Well, we want all of the files released. Well, when you release all the files, as Nia just pointed out, listeners, now you're talking about not only the names of the associates who attended is Epstein sorted various parties, but also the victims who actually brought the complaints in the first place.
N. Rodgers: And some of them were okay being named. Some of them were not. You have the right to face your accuser in American trial system, but do you have the right to name them? Yeah, it's a very strange. It's a complicated and that's where that stuff gets super complicated. Where it is clearly the Streisand effect is to say, there are no files. Which was the government's tack for quite a while. There are no files. You know, we can see files, we can see them from over here. They're in Donald Trump's bathroom or whatever. Well, I mean, what are you talking about? I'll go back to don't tell me that, what is it you said the other day? Don't piss down my back and tell me it's raining? Like don't me there isn't a conspiracy here when I can see there is a conspiracy here.
J. Aughenbaugh: Even going back to the Streisand case. Now, I got to admit as a property owner, I'm not ashamed of my house. At the same time, I'm not necessarily happy about the fact that, I have students.
N. Rodgers: Who just likes pictures?
J. Aughenbaugh: I've had students go ahead and say, Aughie, I've seen your house on Google.
N. Rodgers: Or I could just drop my paper off at your house, I know where you live. That's not creepy?
J. Aughenbaugh: So I can understand Streisand wanting to be private. But at the same time, there's that part of me that's like, once you go down the road of trying to keep something private, you are practically begging people to go ahead and say, so what are you trying to hide? Even though I may not be hiding anything at all.
N. Rodgers: What's so weird about your house? Now I'm more curious than I was if you had just not said anything. There's more people who downloaded the picture of her house would be still the only four people who had a picture of her house. Until she said, you can't have pictures of my house, and then people went, really? You think?
J. Aughenbaugh: Or the Pentagon papers. So what kind of horrific things have we been doing in Vietnam?
N. Rodgers: What are we trying to hide? Warren Commission, especially. What are we trying to hide about this assassination? Are we trying to hide.
J. Aughenbaugh: What is your explanation of this magic bullet? I'm not entirely sure.
N. Rodgers: How did it travel in those directions that way? I don't think that bullets can actually do that. There's some really weird and there's a reason that people gather at Area 51 to try to look in. Don't tell us we can't go to a place, but then there's nothing going on there. Well, clearly, there's something going on here, or we could just go there.
J. Aughenbaugh: It's like accidents on the side of the road. The cops get there and they basically are like, motioning you to just keep on driving.
N. Rodgers: But most people have to rubberneck. They have to [inaudible] .
J. Aughenbaugh: Again, I've always thought that the most effective. Again, I want to respect the privacy of the accident victims, but at the same time, when the cops show up and basically are like, ordering you to keep on driving through, I'm just like well, why? Is there something going on here that is not readily apparent to my eyes? Let me look, right?
N. Rodgers: Right. Were there 20 keys of cocaine involved in this? Because now I want to know. This goes back to our earlier episode on the disposition of the papers of the Supreme Court. Because the Supreme Court is such a secretive closed environment. We want to know what they say to each other. We're desperate to know about their relationships, about their habits, biographies of the Supreme Court cell because they are such a quiet and private institution.
J. Aughenbaugh: When I read that the justices appointed by FDR, many of them could not stand one another and I'm reading biographies.
N. Rodgers: This made you want to read more.
J. Aughenbaugh: I saw how catty and juvenile and egomaniacal they were. There was a part of me that was just like you guys are supposed to be the elite of the American legal profession, and you engage in behavior that is as common place.
N. Rodgers: [inaudible] a 5-year-old.
J. Aughenbaugh: As commonplace as any office or organization, okay, around the world.
N. Rodgers: And it turns out you're a bunch of mean girls?
J. Aughenbaugh: Mean girls in black robes, right?
N. Rodgers: Exactly. That should be the biography that you write of the Supreme Court. Well, thanks, Aughie. I'm looking forward to more cases as they decide that they're going to spring them on us at the last moment like they're doing these days.
J. Aughenbaugh: But listeners, we hope that you enjoy our brief hiatus or brief, if you will, interruption of the summer SCOUTUS. But underlying, the Streisand effect are some complicated issues, and we really hope that [inaudible] .
N. Rodgers: You wrestle with it a little bit go read the Sixth Amendment and decide what it means to you. What does that mean to you, a jury of your peers?
J. Aughenbaugh: Look up the right to be forgotten and whether or not that's something that we should have in the United States.
N. Rodgers: Does Europe have that right?
J. Aughenbaugh: Do they have that [inaudible] ? Look up the fairness doctrine. I mean, there are generations of Americans who were raised on the fairness doctrine.
N. Rodgers: And who would always expect to see both sides in an argument. There's a whole show, counterpoint about that.
J. Aughenbaugh: Thank you, Nia.
N. Rodgers: Thank you, Aughie.
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