Document Type

Working Paper

Publication Date

5-13-2015

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network; European Private & Public Law eJournals

Abstract

The standard account of the relationship between privacy and speech posits that privacy and speech constitute restive neighbors lacking good fences "“ essentially conflicting rather than complementary rights And as Robert Frost observed good fences make for good neighbors In many circumstances privacy and speech do present conflicting human rights values that courts must reconcile However if one posits that freedom of speech merits constitutional protection primarily because of its role in facilitating democratic selfgovernment then privacy and speech actually possess a necessary and inescapable connection Simply put a surveillance state may be many things but it will not be a functioning participatory democracy a society without privacy cannot be fundamentally democratic in nature Alexander Meiklejohn forcefully argued that the best rationale for protecting speech arises from its integral relationship to the project of democratic selfgovernment Speech has value and merits protection because democratic selfgovernment cannot exist without it Strictly speaking Meiklejohn never wrote about privacy and its relationship to democratic selfgovernment However the logic of his position clearly would support extending constitutional protection to privacy as well as to speech This Chapter argues that a strong and important linkage exists between privacy and democracy Indeed one of the best rationales for affording privacy protection is privacy's relationship to selfgovernment Accordingly we should think of privacy and speech as essentially complementary rather than conflicting human rights As Frost observed Before I built a wall I'd ask to knowWhat I was walling in or walling outAnd to whom I was like to give offense So too in thinking about privacy and speech we should take care to focus sustained attention on how these two rights work together to facilitate democracy Moreover we must avoid the potential trap of viewing their relationship exclusively through the lens of those instances in which these rights conflict and require courts to engage in careful line drawing and balancing

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