Abstract
We tend to think of freedom of speech in grand political terms, as the freedom to criticize and protest policies and politicians. But a society that honors freedom of speech ought to honor it in all the relations citizens may have with one another, whether private, professional, or civic. Freedom of speech ought to permeate a society. A condition of our having such freedom is that we choose whether, when, and what we shall say as well as to whom we say it. We thus have a modicum of control over what others know about us and what we believe, and a condition for those conditions is that we have a right to privacy. There is thus a connection between the right of free speech and the right of privacy, a connection signaled by our having the right to speak freely. Getting clearer on the relations between speaking freely and privacy in our personal and professional relations with each other will help us clarify the Constitutional relations between freedom of speech and the right to privacy as well as the Constitutional weight freedom of speech and the right to privacy ought to have.
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Notes
- 1.
For an excellent explanation of how we justify necessary conditions, see Robert Paul Wolff, Kant’s Theory of Mental Activity (Cambridge, M.A.: Harvard University Press, 1963), 52–53. Wolff makes several points that are of importance for what follows. We might think that if a is a necessary condition for b, say, then we must show that if we have a, then we have b, but the opposite is true. A necessary condition is to be deduced from, implied by, what it is a necessary condition for. So we start with b and show that b implies a. That may seem counterintuitive, but it is important to be clear on the matter since if we were to show that a implies b, we would be showing that a is a sufficient condition for b: if we have a, then we have b. What I shall be arguing is not that if we have privacy, then we have freedom of speech, but rather that if we are to have freedom of speech, we must have privacy.
- 2.
I shall use as examples only those situations where we actually speak, putting to one side other situations where we communicate through signs, or gestures, or anything else. Since anything can be a sign, freedom of speech as a generic, not Constitutional, concept obviously covers anything that is used to convey meaning – symbols, a raised middle finger, anything at all. I want to bypass the complications that may arise from considering other forms of communication besides verbal ones. I do not think that exclusion will taint my analysis. In regard to anything’s being capable of being a sign, see Francis Lieber, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics (Boston, M.A.: Charles C. Little & James Brown, 1839), reprinted in the Legal Classics Library (New York: Gryphon Edition, 1994), 14ff.
- 3.
See in this regard Alan Rubel, “Privacy and the USA Patriot Act: Rights, the Value of Rights, and Autonomy,” Law and Philosophy (2007) 26: 119–159.
- 4.
It is an interesting question, though beyond the scope of my concerns in this paper, what degrees of control are necessary and how different degrees and forms of control impact our capacity to speak freely.
- 5.
If our loss of control is permanent, then, as we saw above, we will also have lost our freedom of speech.
- 6.
For a relatively detailed account of these torts and their differences, see my “False Light,” in Liberty, Equality, and Plurality, ed. Larry May, Jonathan Schonsheck, and Christine Sistare (Lawrence: University Press of Kansas, 1997), 171.
- 7.
See in this regard Charles Fried, “Privacy: A Moral Analysis,” The Yale Law Journal, Vol. 77 (1967–1968): 475–493.
- 8.
The military value of such devices is enormous. They could be planted along paths used by militants or in typical invasion routes to give an early warning to the movement of individuals, tanks, and so on. I would assume that such devices have been developed or are being developed.
- 9.
See Nina Totenberg, “Blackmun Papers Detail Road to ‘Roe’,” NPR, 5 March 2004, (at www.npr.org/templates/story/story.php?storyId=1749005). See also Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 2005), 198–228, 275–289.
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Robison, W.L. (2010). Speaking Freely. In: Golash, D. (eds) Freedom of Expression in a Diverse World. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8999-1_13
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