Privacy, Speech, and the Law

If we assume that individuals have moral rights to free speech, and that privacy may restrict such expression, then there appears to be a conflict of rights-a conflict where speech or expression may trump privacy concerns. For example, when a musician offers up a song about a romantic affair for public consumption, privacy rights may run headlong into speech and expression rights. Andrew McClurg has noted that judges are not willing to protect privacy if doing so threatens free speech: "Of the forty- nine invasion of privacy cases reported by state courts in 1992, trial courts granted summary judgment to the defendant in twenty- one of the cases and granted the defendant's motion to dismiss the complaint in fifteen of the cases. In other words, in thirty- six of the forty- nine cases (73 percent) trial judges deprived plaintiffs the opportunity to have their privacy claims heard by a jury."2 McClurg also mentions that the situation is nearly identical in the federal courts.3On the other hand, privacy and free expression may be mutually reinforcing. Anonymous communication, online or otherwise, allows individuals to express themselves freely without fear of censure. Citing precedents dating back to the 1950s, Nadine Strossen, former president of the American Civil Liberties Union, writes, "In all these cases, the Court has recognized that without the cloak of anonymity, many individuals simply will not exercise their First Amendment rights. They will not freely associate with controversial organizations, nor will they express controversial ideas or discuss sensitive subjects."4 Privacy also reinforces free speech by supporting access to information. When Virginia mandated blocking software to deny access to pornographic materials online and required permission and public disclosure to turn offthe blocking software, free speech was threatened. Professors and researchers across numerous disciplines were loath to disclose the subject matter of their studies-especially when such disclosures would occur "piecemeal" and unaccompanied by the final written document.5While privacy may strengthen speech or expression in some instances, it seems that in most cases there is conflict. Do we have a right to know the names of rape victims or the sexual preferences of citizens who act heroically? Are the daily events of politicians or entertainers newsworthy? Is privacy less important than freedom of speech? My answer is "no" to each of these questions. In this article I will argue that upon careful analysis there is little conflict between privacy and expression in the moral realm. Moreover, if legal systems are to reflect, promote, or protect basic rights, then it is not so clear that speech should nearly always trump privacy. The ascendancy of speech protection in the legal realm, I argue, is due to an expansive and unjustified view of the value or primacy of free expression-this is perhaps understandable, given that privacy has been understood as a mere interest, whereas speech rights have been seen as more fundamental. I have argued elsewhere that this view of privacy is false-privacy, properly defined, is a necessary condition for human well- being or flourishing.6 Part I will provide an overview of the moral foundations of privacy-while brief, the goal is to establish the claim that privacy is more than a mere interest. Part II will consider several arguments-or strands of argument-purporting to justify free speech rights. While these arguments, taken together, establish that free speech is important, they do not support the view that speech should nearly always trump privacy. In Part III, I will suggest a way to balance free speech and privacy claims in the law.Part I: Establishing a Moral Presumption in Favor of PrivacyI favor what has been called a "control" based definition of privacy. Privacy is the right to control access to, and uses of, personal information and spatial locations 7 Privacy may be understood as a right to control both tokens and types. …