Reflections on Coercing Privacy

Should privacy be a matter of coercion? Anita Allen thinks so, and her provocative essay Coercing Privacy(1) explains why. For Allen, "although the liberal conception of private choice is flourishing ... the liberal conception of privacy is not."(2) In other words, society's increasing tolerance of alternative lifestyles (privacy of choice) is not enough; privacy cannot withstand the attack from within, that is, from individuals who--while empowered to lead private lives--do not value their privacy. Making matters worse, Allen thinks it "too difficult" to turn this tide of diminished expectations through "preaching and teaching."(3) Consequently, Allen calls for regulatory measures that allow people to "experience privacy" and thereby live more genuinely expressive lives.(4) No doubt, desperate times sometimes call for desperate measures. Nevertheless, as I will argue below, Allen's proposal is unworkable. Institutional limitations in governmental decisionmaking make the successful implementation of Allen's proposal little more than a pipe dream. Rather than protecting and serving the liberal conception of privacy, Allen's call to regulate privacy almost certainly will limit types of privacy that Allen and other liberals deem essential to self-expression and, with it, self-definition. I. IS GOVERNMENTAL REGULATION NECESSARY TO COUNTERMAND THE EROSION OF PRIVACY? Let me start with the quite plausible assumption that Allen is correct and that some government-sponsored invasions of privacy may be necessary to protect privacy from itself. After all, in this age of cybersex, the JenniCam website, MTV's The Real World, Jerry Springer, and the like, it may be that the liberal commitment to privacy' is best served by a government that sometimes leaves us alone (privacy of choice) and sometimes protects us from doing what we want (privacy). Allen's proposal cannot escape the inherent limitations of governmental decisionmaking. Allen commits error in assuming the possibility of a beneficent government able to overcome its prejudices, and thereby expand privacy of choice, while simultaneously limiting personal autonomy in ways consistent with liberal ideals. This assumption does not wash. To counteract false stereotypes about, say, women who choose to abort their fetuses or same-sex relationships, it may well be necessary for the private to be made public. Social reform, as Linda McClain notes, sometimes requires "self-disclosures and confessions."(5) An inverse relationship between privacy and privacy of choice may well be endemic to our imperfect world. Tolerance of alternative lifestyles requires exposure to those lifestyles. Abortion rights and gay rights illustrate this phenomenon. A. Abortion Rights Before 1962, the prospect of public support for abortion rights seemed remote.(6) That year, Sherri Finkbine--a pregnant twenty-nine year old Arizona woman and married mother of four--sought an abortion after learning that her taking of the medicine thalidomide likely would result in severe deformities to the baby she was carrying. Unable to have an abortion in Arizona, Finkbine travelled to Sweden, had an abortion, and learned that her fetus was severely deformed.(7) With extensive news coverage, Finkbine's "very public ordeal ... altered the national consciousness concerning abortion."(8) In particular, because Finkbine seemed "`the perfect suburban housewife and mother,'" journalists began to treat abortion as a sometimes unavoidable human tragedy, not the subject of crime news.(9) Three years later, in 1965, an epidemic of rubella again propelled the abortion issue into the national consciousness. Because rubella was linked to birth defects, a significant number of married, middle class, stay-at-home housewives sought abortions.(10) With The Atlantic, Time, Redbook, and Look magazines publishing prominent stories about these women, public opinion in support of abortion rights began to grow. …