The Relationship Between Privacy and Speech

Ronald J. Krotoszynski, Jr., University of Alabama School of Law, has published Bringing Meiklejohn to Privacy: On the Essential Complementarity of Privacy and Speech in Information and Law in Transition 243 (Anna-Sara Lind, Inger Osterdahl, and Jane Reichel, eds., Liber, 2015). Here is the 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 self-government, 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 self-government. Speech has value, and merits protection, because democratic self-government cannot exist without it. Strictly speaking, Meiklejohn never wrote about privacy and its relationship to democratic self-government. 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 self-government. 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 know/What I was walling in or walling out/And 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.

Download the essay from SSRN at the link.