Lessig’s reaction is plainly correct. People have a right to say mean things about other people in private.What gives? Ordinarily, a major reason that we critique saying "mean things about other people" is that it expresses bad character. Here, we see that Tanden is petty, allowing extraordinarily low-stakes political competition (from a fellow Democrat with no shot at winning) to devolve into intense personal hatred ("I fucking hate that guy"); we see that she's sadistic, actively wishing harm on him; and we see that she is, by her own admission, pretty dumb ("I know that is dumb"). Moreover, all of this stands in stark contrast to her public self-representation as a professional, an intellect, and a beacon of civility and maturity. The implications for her role in public life are obvious and direct. Correctly, most readers will come away from these emails recognizing that Tanden cannot be trusted, that she is vindictive, cruel, and immature. Whether they admit to this or not, even Tanden's apologists will obviously adjust the way they relate to her accordingly.
None of this changes just because Tanden happened to say these things privately instead of publicly; even if there is a public interest in protecting some "right to say mean things" privately, there is also a clear public interest in condemning Tanden's behavior. So why the nearly ubiquitous when they go low, we go high praise for Lessig's response as the "correct" one?
I think there are a lot of reasons for this, but here I want to float one that's fairly subtle: capitalism.
Ideologically, liberals have almost unanimously internalized a bourgeois theory of discourse, which they regard quite explicitly as a "marketplace of ideas". A crucial premise of this theory is that there's a hard distinction between "public" communications (which society has a stake in scrutinizing and criticizing) and "private" communications (which are the intellectual property of individuals, and which should not be subject to public referendum).
As the theory goes, if we set up and enforce an elaborate apparatus of discourse rules about what counts as "private" and what counts as "public", we can maintain a productive marketplace of ideas that facilitates intellectual progress while still honoring the usual inalienable rights of the individual (free speech, privacy, and so on). For this reason, defending Tanden's sovereign control over her private correspondence is necessarily more important than whatever it is she happened to say.
The critique of this reasoning cuts to the heart of capitalist ideology: even what we call "private property" (intellectual or otherwise) is absolutely "public" insofar as it effects the rest of society. Lessig pleas that he "can't...see the public good in a leak like this" but there's an eminently plausible counterpoint: as Corey Robin put it in response to yet another Tanden scandal:
If Tanden can act this way in the face of verifiable evidence that’s plain as day, and there for everyone to see, when the stakes are so low, is it completely implausible that she would act in a roughly similar fashion when the evidence is not so publicly available and not so easily accessible and when the stakes are much higher?Tanden is a powerful public figure, and the way that she wields that power behind the scenes can have obvious and extraordinary consequences that effect all of us. As I noted Sunday, for example, it is not entirely clear to me that her bellicose rhetoric about Russia is entirely disconnected from her reflexive loyalty to Clinton and her personal inclination towards disproportionate retaliation. And particularly since earlier leaked emails reveal Tanden explicitly entertaining the possibility of military actions that would be even more irresponsible, I see no reason to conclude so casually that Tanden's private intellectual property rights always trump the public interest.
None of this is a call for an abolition of privacy, particularly when it functions as a defense of the powerless instead of the powerful. Here, my point is simply that the absolute right to privacy at the core of the defense of Tanden expresses bourgeois capitalist ideology in a way that disregards entirely legitimate public concerns. Her comments about Lessig, once again, reveal serious character problems that anyone who cares about policymaking leadership in the United States should find extremely disquieting. Whether that warrants leaking her emails is another question, but the refusal of liberals to seriously grapple with that question says a lot about their ideological commitments.