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Published online by Cambridge University Press: 04 May 2021
While autonomy arguments provide a compelling foundation for free speech, they also support individual privacy rights. Considering how speech and privacy may be justified, I will argue that the speech necessary for self-government does not need to include details that would violate privacy rights. Additionally, I will argue that if viewed as a kind of intangible property right, informational privacy should limit speech and expression in a range of cases. In a world where we have an overabundance of content to consume, much of which could be called “information pollution,” and where there are numerous platforms to broadcast one’s expressions, it is increasingly difficult to maintain that speech should trump privacy.
I would like to thank the other contributors to this volume, along with an anonymous reviewer, for suggestions and criticisms. I am especially grateful to Ken Himma, Alan Rubel, and Julie Howe for providing comments on early drafts of this essay.
1 Science fiction writers have imagined this sort of technology applying to everyone who has ever lived. See Clarke, Arthur C. and Baxter, Stephen, The Light of Other Days (New York: Tor Books, 2000)Google Scholar, and Asimov, Isaac, “The Dead Past,” in The Best of Isaac Asimov (New York: Doubleday, 1973)Google Scholar.
2 “GDPR Key Changes,” accessed October 2019, https://www.eugdpr.org/the-regulation.html.
3 Legal scholar Alexander Lawrence has argued that there is no free speech principle that provides a unique and independent grounding for speech or expression. For Lawrence, free speech is grounded in a more basic principle like liberty or autonomy. If so, it is hard to understand why speech or expression should be presumptively weighty when in tension with other values based in liberty or autonomy. See Lawrence, Alexander, “The Impossibility of a Free Speech Principle,” Northwestern Law Review 78 (1984): 1319–57Google Scholar.
4 For example, John Stuart Mill argued that expressions could be limited if they violate a “distinct and assignable obligation” such as a property right (something “society ought to protect you in the possession of …”). See John Stuart Mill, On Liberty, [1859], ed. Currin V. Shields (Indianapolis, IN: Bobbs-Merrill, 1985), chap. IV and Utilitarianism [1861], ed. Samuel Gorovitz (Indianapolis, IN: Bobbs-Merrill, 1971), chap. V. See also Daniel Jacobson, “Mill on Liberty, Speech, and the Free Society,” Philosophy and Public Affairs 29 (Summer, 2000): 276–309; Black, Hugo, “The Bill of Rights,” New York University Law Review 35 (1960): 865–81Google Scholar; Meiklejohn, Alexander, “The First Amendment is an Absolute,” The Supreme Court Review (1961): 245–66CrossRefGoogle Scholar; and Volokh, Eugene, “Freedom of Speech and Information Privacy: The Troubling Implications of a Right To Stop People from Speaking about You,” Stanford Law Review 52 (2000): 1049–1124 CrossRefGoogle Scholar.
5 See, e.g., March v. Alabama, 326 U.S. 501 (1946); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968); Lloyd Corporation v. Tanner, 407 U.S. 551 (1972); Hudgens v. NLRB, 424 U.S. 507 (1976); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. (2018); Janus v. AFCME, No. 16-1466, 585 U.S. (2018).
6 Judith Wagner DeCew, “Free Speech and Offensive Expression,” Social Philosophy and Policy 21, no. 2 (2004): 81.
7 See Grayned v. City of Rockford, 408 U.S. 104 (1972).
8 See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
9 See 18 U.S. C. § 175.
10 See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) and Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991).
11 See 17 U.S.C. § 106.
12 Meiklejohn, “The First Amendment is an Absolute.”
13 J. S. Mill, On Liberty, chaps I–IV. See also, Greenawalt, Kent, “Rationales for Freedom of Speech,” in Information Ethics: Privacy, Property, and Power, ed. Adam D. Moore (Seattle: University of Washington Press, 2005), 278–97Google Scholar; Strossen, Nadine, Hate: Why We Should Resist it with Free Speech, Not Censorship (Oxford: Oxford University Press, 2018)Google Scholar; and Baker, C. Edwin, Human Liberty and Freedom of Speech (Oxford: Oxford University Press, 1989)Google Scholar.
14 See Scanlon, Thomas, “A Theory of Freedom of Expression,” Philosophy and Public Affairs 1 (1972): 216 Google Scholar; See also, Greenawalt, , “Rationales for Freedom of Speech”; Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982)Google Scholar; Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985)Google Scholar; Strauss, David, “Persuasion, Autonomy, and Freedom of Expression,” Columbia Law Review 91 (1991): 334–71CrossRefGoogle Scholar; and Nagel, Thomas, “Personal Rights and Public Space,” Philosophy and Public Affairs 24 (1995): 83–107 CrossRefGoogle Scholar.
15 Joel Feinberg has broken autonomy into four, perhaps, overlapping areas. Autonomy is “(i) the capacity to govern oneself … ; or (ii) the actual condition of self-government and its associated virtues; or (iii) an ideal of character derived from that conception; or (iv) (on the analogy to a political state) the sovereign authority to govern oneself, which is absolute within one’s own moral ‘boundaries’.” Joel Feinberg, “Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution,” Notre Dame Law Review 58 (1983): 447. See also Robert Young, “The Value of Autonomy,” Philosophical Quarterly 32 (1982): 35–44 and Susan J. Brison, “The Autonomy Defense of Free Speech,” Ethics 108 (1998): 312–39.
16 Martin Redish, “The Value of Free Speech,” University of Pennsylvania Law Review 130 (1982): 591–645.
17 See Redish, “The Value of Free Speech,” 627 and Meiklejohn “The First Amendment is an Absolute,” 263.
18 In terms of media production, movies, television, and videos, it is estimated that each individual has 400 percent more choices now than ten years ago. Jeff Berman, “Avid CEO: ‘Massive Explosion’ of Content Has Created New Challenges for Media Companies,” M&E Daily, January 19, 2018, https://www.mesalliance.org/2018/01/19/avid-ceo-massive-explosion-content-created-new-challenges-media-companies/. In the last ten years, film production has doubled. There are now more than eight thousand films made each year. “The Numbers,” https://www.the-numbers.com/movies/year/2017. See Joel Waldfogel, “How Digitization Has Created a Golden Age of Music, Movies, Books, and Television,” Journal of Economic Perspectives 31 (2017):195–214. Perhaps consuming so much of this content is actually making us less productive and undermines autonomy. See Michael Cacciatore et al., “Is Facebook Making Us Dumber? Exploring Social Media Use as a Predictor of Political Knowledge,” Journalism and Mass Communication Quarterly 95 (2018): 404–24, and Newport, Cal, Deep Work: Rules for Focused Success in a Distracted World (Grand Central Publishing, 2016)Google Scholar and Cal Newport, “Is Email Making Professors Stupid?” The Chronicle of Higher Education, February 19, 2019.
19 See Barblan, Matthew, “Copyright as a Platform for Artistic and Creative Freedom,” George Mason Law Review 23 (2016): 793–809 Google Scholar.
20 There are over twenty-five thousand peer-reviewed journals publishing approximately two million articles per year globally. Mark Ware and Michael Mabe, “The STM Report: An Overview of Scientific and Scholarly Journal Publishing,” accessed October 30, 2019, http://www.stm-assoc.org/2015_02_20_STM_Report_2015.pdf. See also, Pyne, Derek, “The Rewards of Predatory Publications at a Small Business School,” Journal of Scholarly Publishing 48 (2017): 137–60CrossRefGoogle Scholar and Liebowitz, Stan J., “Willful Blindness: The Inefficient Reward Structure in Academic Research,” Economic Inquiry 52 (2014): 1267–83CrossRefGoogle Scholar. There are over eight thousand predatory journals and many with associated conferences and published conference proceedings. See Cenyu Shen and Bo-Christer Bjork, “‘Predatory’ Open Access: A Longitudinal Study of Article Volumes and Market Characteristics,” BMC Medicine 13 (2015), 1–15; Jennifer Ruark, “Anatomy of a Hoax,” Chronicle of Higher Education, January 1, 2017; Monya Baker, “1,500 Scientists Lift the Lid on Reproducibility: Survey Sheds Light on the ‘Crisis’ Rocking Research,” Nature 533, no. 7604 (2016); and Alexander C. Kafka, “‘Sokal Squared’: Is Huge Publishing Hoax ‘Hilarious and Delightful’ or an Ugly Example of Dishonesty and Bad Faith?” Chronicle of Higher Education, October 8, 2018.
21 See Allcott, Hunt and Gentzkow, Matthew, “Social Media and Fake News in the 2016 Election,” Journal of Economic Perspectives 31 (2017): 211–36CrossRefGoogle Scholar; Kai Shu et al., “Fake News Detection on Social Media: A Data Mining Perspective,” http://www.kdd.org/exploration_files/19-1-Article2.pdf.
22 One might argue that my analysis assumes the content of an expression can be separated from its instantiation without loss of meaning, while this is not always the case. My view, however, is that most privacy invasive instantiations could be replaced with versions that to do not impact privacy or autonomy. If it can’t be done in a particular case, if there is no way to separate the autonomy enhancing and privacy violating instantiation without changing its meaning, then prohibitions or damages may be appropriate—similar to the remedies available for libel, slander, or intellectual property violations. The author would like to thank an anonymous reviewer for raising this objection.
23 See Barns v. Glen Theater, Inc., 501 U.S. 560 (1991); Larry Alexander, “Low Value Speech,” Legal Theory 83 (1989): 547–54; Cass Sunstein, “Low Value Speech Revisited,” Northwestern University Law Review 83 (1989): 555–61; Alex Kozinski and Stuart Banner, “Who’s Afraid of Commercial Speech?” Virginia Law Review 76 (1990): 627–53; George Wright, “A Rationale from J. S. Mill for the Free Speech Clause,” Supreme Court Review 149 (1985): 149–78. See also David A. J. Richard, “Toleration and Free Speech,” Philosophy and Public Affairs 17 (1988): 323–36. Richards argues protected speech is “the independent communication of willing speakers and audiences sincerely engaged in critical discussion central to the conscientious formation of values” … and “grounded in the communicative independence of our rational powers.” Richards, “Toleration and Free Speech,” 334. Protected speech is not coextensive with communication and, thus, governmental regulation of deceit, fraud, defemination, or informational privacy is not worrisome.
24 In general, see, Fredrickson, Barbara L., “The Role of Positive Emotions in Positive Psychology: The Broaden-and-Build Theory of Positive Emotions,” American Psychologist 56 (2001): 218–26CrossRefGoogle Scholar; Kahneman, Daniel, Diener, Edward, and Schwarz, Norbert, Well-being: The Foundations of Hedonic Psychology (New York: Sage, 1999)Google Scholar; and Schueller, Stephen M and Seligman, Martin E, “Pursuit of Pleasure, Engagement, and Meaning: Relationships to Subjective and Objective Measures of Well-being,” Journal of Positive Psychology 5 (2010): 253–63CrossRefGoogle Scholar.
25 I would like to thank Andrew Koppleman and Bas van der Vossen for this objection.
26 Critics who claim religious rights not to be offended sometimes fail to see that defending such a right would likely eliminate all religions expression.
27 “GDPR Key Changes,” accessed October 30, 2019, https://www.eugdpr.org/the-regulation.html. While many have warned that the right to be forgotten will undermine freedom of speech, there is reason to believe that these worries are overblown. See Paul J. Watanabe, “Note: An Ocean Apart: The Transatlantic Data Privacy Divide and the Right to Erasure,” Southern California Law Review 90 (2017): 1111; Giancarlo Frosio, “The Right To Be Forgotten: Much Ado About Nothing,” Colorado Technology Law Journal 15 (2017): 307–336. See FTC v. Wyndham Inc. 799 F.3d 236 (3d Cir. 2015) where a U.S. court held that keeping personal information about patrons on an insecure system and not correcting the security flaws after the first intrusion was deemed to be actionable behavior and California’s Consumer Privacy Act (CCPA), https://oag.ca.gov/privacy/ccpa accessed October 30, 2019.
28 See Adam D. Moore, Privacy Rights: Moral and Legal Foundations (University Park, PA: Penn State University Press, 2010), “Defining Privacy,” Journal of Social Philosophy 39 (2008): 411–28, and “Privacy: Its Meaning and Value” American Philosophical Quarterly 40 (2003): 215–27. See also, Alan Westin, Privacy and Freedom (Cambridge, MA: Atheneum Press, 1967), R. Parker, “A Definition of Privacy,” Rutgers Law Review 27 (1974): 275–96, and Ruth Gavison, “Information Control: Availability and Control,” in Public and Private in Social Life, ed. Stanley I. Benn and Gerald F. Gaus (New York: St. Martin’s Press, 1983), 113–34. How privacy rights are codified in the law and applied to everyday situations is a difficult practical matter. For example, we may agree that when walking in public individuals are waiving access rights to others who may notice certain facts like height, eye color, and so on. Nevertheless, few would maintain that allowing such access would also grant the video voyeur permission to capture your every move and word while in public or to upload these expressions to the web. Note the difference between allowing access and waiving all downstream uses of and control over some bit of personal information. Similarly, letting you read my copyrighted poem would not be to transfer joint ownership rights to you. See Moore, “Privacy, Interests, and Inalienable Rights.”
29 Directive 95/46/EC of the European Parliament and of the Council (1995) OJ L 281 0031–0050.
30 Further support for the empirical claims made in this section can be found in Moore, Chapters 2–4 in Privacy Rights; Moore, “Privacy: Its Meaning and Value,” and Bryce Newell, Cheryl Metoyer, and Adam D. Moore, “Privacy in the Family,” in The Social Dimensions of Privacy, ed. Beate Roessler and Dorota Mokrosinska (New York: Cambridge University Press, 2015), 104–21.
31 See Fuller, Theodore D et al., “Chronic Stress and Psychological Well-Being: Evidence from Thailand on Household Crowding,” Social Science Medicine 42 (1996): 265–80CrossRefGoogle Scholar.
32 See Newell, generally, Metoyer, and Moore, “Privacy in the Family,” 106–113 Google Scholar and M. Kerr and H. Stattin, “What Parents Know, How They Know It, and Several Forms of Adolescent Adjustment: Further Support for a Reinterpretation of Monitoring,” Journal of Developmental Psychology 36 (2000): 366–80.
33 John Chalykoff and Thomas Kochan, “Computer-Aided Monitoring: Its Influence on Employee Job Satisfaction and Turnover,” Personnel Psychology: A Journal of Applied Research 42 (1989): 826; Clay Posey, Rebecca Bennett, Tom Roberts, and Paul Lowry, “When Computer Monitoring Backfires: Invasion of Privacy and Organizational Injustice as Precursors to Computer Abuse,” Journal of Information System Security 7 (2011): 24–47.
34 Maltby, Lewis, Drug Testing: A Bad Investment (New York: American Civil Liberties Union, 1999), 16–21 Google Scholar.
35 Benn, Stanley I., “Privacy, Freedom, and Respect for Persons,” in Privacy Nomos XIII, ed. J. Roland Pennock and John W. Chapman (New York: Atherton Press, 1971), 1–26 Google Scholar; Rachels, James, “Why Privacy is Important,” Philosophy and Public Affairs 4 (1975): 323–33Google Scholar; Reiman, J., “Privacy, Intimacy, and Personhood,” Philosophy and Public Affairs 6 (1976): 26–44 Google Scholar; Kupfer, J., “Privacy, Autonomy, and Self-Concept,” American Philosophical Quarterly 24 (1987): 81–89 Google Scholar; Inness, Julie, Privacy, Intimacy, and Isolation (New York: Oxford University Press, 1992)Google Scholar; Beate Rössler, The Value of Privacy, trans. Rupert D. V. Glasgow (Cambridge, UK: Polity Press, 2005).
36 See Benn, , “Privacy, Freedom, and Respect for Persons,” 1–26 CrossRefGoogle Scholar; Kupfer, “Privacy, Autonomy, and Self-Concept,” 81–90; Rössler, , The Value of Privacy, 42–76 Google Scholar; Goffman, Erving, The Presentation of Self in Everyday Life (New York: Doubleday, 1959)Google Scholar; and Schwartz, Barry, “The Social Psychology of Privacy,” American Journal of Sociology 73 (1968): 741–52CrossRefGoogle Scholar.
37 See Kupfer, , “Privacy, Autonomy, and Self-Concept,” 81–90 and Alan Rubel, “Privacy and Positive Intellectual Freedom,” Journal of Social Philosophy 45 (2014): 390–407 Google Scholar.
38 Spitz, René, “The Derailment of Dialogue,” Journal of the American Psychoanalytic Association 12 (1964): 752–75CrossRefGoogle Scholar.
39 See Barry Schwartz, “The Social Psychology of Privacy,” 749.
40 See Brussoni, Mariana et al., “What is the Relationship between Risky Outdoor Play and Health in Children? A Systematic Review,” International Journal of Environmental Research and Public Health 12 (2015): 6423–54CrossRefGoogle Scholar.
41 See Thomson, Judith Jarvis, “The Right to Privacy,” Philosophy and Public Affairs 4 (1975): 295–314 Google Scholar and Taylor, James Stacy, “Privacy and Autonomy: A Reappraisal,” Southern Journal of Philosophy XL (2002): 578–604 Google Scholar.
42 This structure is similar to Nozick’s argument in Anarchy, State, and Utopia against anarchists who claim that no state is justifiable. See Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 3–120 Google Scholar.
43 For arguments defending moral rights to intellectual property, as opposed to mere legal rights, see Moore, Adam D., “A Lockean Theory of Intellectual Property Revisited,” San Diego Law Review 50 (2012): 1070–1103 Google Scholar and Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (London; New York: Routledge, 2004).
44 Warren and Brandeis note that common law safeguards “to each individual the right of determining … to what extent his thoughts, sentiments, and emotions shall be communicated to others.” Samuel Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 198. Also consider the right of divulgation within the EU. The right of divulgation, when and if an intellectual work is placed before the public, is grounded in justified prior entitlements over the work in question and the wrongness of compelling speech. See M. Roeder, “The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators,” Harvard Law Review 53 (1940): 554–78.
45 See Moore, Adam D., Privacy Rights: Moral and Legal Foundations (2010), 57–99 Google Scholar; “Toward Informational Privacy Rights,” San Diego Law Review 44 (2007): 809–45; “Privacy, Interests, and Inalienable Rights,” Moral Philosophy and Politics 5 (2018): 327–55.
46 Violating a promise that was bargained for and relied upon may be part of the wrong-making features found in such cases. But as noted, the moral and legal force of this agreement depends upon a host of prior factors—and one of these factors is prior entitlement.
47 Part of our contract would likely include provisions regarding damages and disclosure rights if one, or both parties, are found to be out of compliance or have bargained in “bad faith.”
48 For an analysis of the EU conception of privacy and confidentiality law see Solove, Daniel and Richards, Neil, “Privacy’s Other Path: Recovering the Law of Confidentiality,” Georgetown Law Review 96 (2007): 123–882 Google Scholar.
49 See Doe v. Elam, Case 2: 14-cv-09788-PSG-SS (C.D. Cal., April 4, 2018).
50 Copyright Act of 1976, 17 U.S.C. § 106.
51 Kant, Immanuel, “On the Wrongfulness of Unauthorized Publication of Books,” in Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 1999), 35 Google Scholar.
52 McIntyre v. Ohio, 514 U.S. 334, 357 (1995).
53 See NAACP v. Alabama 357 U.S. 449 (1958). In Urofsky v. Gilmore (2000) six professors employed by several public universities in Virginia challenged “the constitutionality of a Virginia law restricting state employees from accessing sexually explicit material on computers that are owned or leased by the state.” Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000). Denial of access and requiring permission, they argued, would have the effect of suppressing research and constituted an assault on academic freedom. Ultimately the Virginia law was upheld and the U.S. Supreme court refused to hear the case. See also, Seth F. Kreimer, “Sunlight, Secrets, and Scarlet Letters: The Tension between Privacy and Disclosure in Constitutional Law,” University of Pennsylvania Law Review 140 (1991): 1–147, and Helen Nissenbaum, “The Meaning of Anonymity in an Information Age,” The Information Society 15 (1999): 141–44.
54 C. Edwin Baker, “Autonomy and Informational Privacy, or Gossip: The Central Meaning of the First Amendment,” Social Philosophy and Policy 21, no. 2 (2004): 221.
55 Baker, “Autonomy and Informational Privacy, or Gossip,” 268. See Barrymore v. News Group Newspapers (1997) F.S.R. 600 (U.K.).
56 For arguments in support of spying on family members see Anita Allen, “The Virtuous Spy: Privacy as an Ethical Limit,” The Monist 91 (2008): 3–22. For arguments against spying on family members see Bruce Newell, Cheryl Metoyer, and Adam D. Moore, “Privacy in the Family,” 104–21.
57 See Brinegar v. United States, 338 U.S. 160 (1949). In Brinegar, probable cause is defined as “where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed” (at 160).
58 Strengthening the torts of intrusion and private facts, in light of the motives, magnitude, and context of the privacy violation, would also be a welcome addition to limit the overreach of speech and expression. See Moore, Adam D., “Privacy, Speech, and Values: What We Have No Business Knowing,” Journal of Ethics and Information Technology 18 (2016): 41–49 CrossRefGoogle Scholar.