Reconstructive Tasks for a Liberal Feminist Conception of Privacy

McClain, Linda C., William and Mary Law Review

INTRODUCTION

If liberal conceptions of privacy survive appropriately vigorous feminist critique and re-emerge in beneficially reconstructed forms, then why haven't more feminists gotten the message and embraced, rather than spurned, such privacy? If liberal privacy survives feminist critique, does it face an even more serious threat if contemporary society has both diminishing expectations of and taste for privacy? Does the transformation of the very notion of "private life," due in part to the rise of such new technologies as the Internet and its seemingly endless possibilities for making oneself accessible to others and gaining access to others, suggest the need for liberal and feminist defenders of privacy to rethink the value of privacy and whether it is, indeed, indispensable for citizenship and a good life? Finally, if privacy is indispensable, is it consistent with liberal principles to force people not to surrender their privacy, even if they wish to, just as liberal governments force people not to surrender their freedom?

These are important and intriguing questions raised by Professor Anita Allen's elegant essay, Coercing Privacy,(1) to which it is a pleasure to respond. In this Essay, I state my substantial agreement with Allen's proposition that "[f]eminist critiques of privacy leave the liberal conceptions of privacy" (or the idea that government should respect and protect a degree of inaccessibility to persons and personal information) and "private choice" (or the idea that government ought to promote decisional privacy concerning important decisions with regard to friendship, sex, marriage, reproduction, religion, and political association)"very much alive," and that various forms of privacy and private choice, appropriately reconstructed, are beneficial to women and are helping women gain greater control over their lives.(2) Elsewhere, I have defended privacy against feminist and civic republican attacks, as an important principle and value, and I have maintained that liberal feminism is a tenable and attractive position.(3)

In Section One, I ponder why the critique of privacy continues to be a staple of feminist legal scholarship, notwithstanding the valuable work done by Allen and other liberal feminists to engage constructively with such feminist critiques and point to the possibility of an egalitarian, liberal feminist conception of privacy. I conclude that, to strengthen the case for such a conception of privacy, liberalism and liberal feminism should carry forward three reconstructive projects, each of which follows from Allen's defense of privacy. These three reconstructive tasks are enriching liberalism's normative account of the value of privacy, defending some form of a public/private distinction, and arguing for governmental responsibility to engage in a formative project to secure the preconditions for enjoying privacy and exercising "private choice" (or what I will also call autonomy or decisional privacy). I sketch the contours of these three projects, considering the resources available for their realization (including the legacy of the Reconstruction Amendments(4)).

I agree with Allen that reconstructed liberal privacy survives feminist critique.(5) I am less persuaded, however, by her suggestion that it may not survive society's reduced "expectations" of and "tastes" for privacy(6) and that, accordingly, government may need to shore up this erosion and "impos[e] privacy norms to undergird the liberal vision of moral freedom and independence."(7) She defends such regulation as "consistent both with liberalism and with the egalitarian aspirations of feminism,"(8) and suggests that all of us--liberals, feminists, and nonfeminists--should be worried "by the optional and challenged character taken on by personal privacy."(9) Of particular interest to Allen, as a feminist, is that some women have little taste for privacy and engage in self-exposure or objectification, offering up their privacy for consumption by others.(10)

By raising these concerns, Allen, a scholar thoroughly steeped in the intricate moral and legal debates over privacy, signals her eagerness to move on to a new set of issues about privacy. Her exploration of these new questions is valuable, potentially ground-breaking, and convincing to a point. At the conclusion of Section One, I raise some questions about Allen's claims that privacy, like freedom, is indispensable and a precondition for participation in liberal democratic society, and I suggest the need for some further thinking about what role privacy plays in a liberal or liberal feminist formative project.(11)

In Section Two, I offer some further responses to Allen's call to shore up privacy. First, I concur somewhat with her diagnosis of an erosion of tastes for and expectations of privacy. I read the ongoing debates over the proper social and legal regulation of information technologies, however, as evincing not the demise of privacy, but the desire to retain such core values of privacy as restricted access and anonymity while taking advantage of the unprecedented possibilities for forms of community, education, exploration, and, yes, self-exposure. In that context, I offer some preliminary thoughts about cyberspace and gender; for example, the potential of cyberspace to foster women's sexual agency, or what one feminist legal theorist calls "Cybersexual Possibilities."(12) Second, I suggest that, to the extent that Allen is correct regarding a diminished taste for privacy, this may not be entirely a bad thing, much less grounds for forcing people to be private. Sometimes, the repudiation of privacy may foster equal citizenship and facilitate social and legal change.(13) I interpret this development as a necessary step in solving what Allen elsewhere describes as women's "privacy problem"--"the problem of getting rid of unwanted forms of privacy" and "acquiring the privacy and decisional privacy they do not have."(14)

I. THREE RECONSTRUCTIVE TASKS FOR A LIBERAL FEMINIST CONCEPTION OF PRIVACY

Allen economically sets out the main features of common feminist critiques of privacy: privacy connotes female seclusion and subordination, leading to women's underparticipation in society and vulnerability to violence in the home, and privacy emphasizes negative liberty, precluding any robust conception of affirmative governmental obligations.(15) I believe, as Allen's present essay and her other writings addressing feminist criticisms illustrate, that liberal privacy, properly clarified, can meet these charges.(16) Why, then, does privacy continue to draw such feminist criticisms? Further, why have more feminist theorists not concurred with Allen that privacy can play an important part in helping women gain more control over their lives? To be sure, some feminist theorists (and here I include myself) do share Allen's assessment of the potential of privacy, if properly reconstructed.(17) Feminist work, however, often expresses an acute suspiciousness about and uneasiness over privacy and links it directly to the failure of law and society to afford women equal protection of the law and to promote their well-being.(18) Indeed, privacy continues to feature prominently in feminist work as a barrier to these ends.(19)

Feminist resistance to privacy likely has several sources. First, as Allen suggests, liberal privacy survives "appropriately" strenuous critique: feminists correctly attack deployments of notions of privacy that have created and perpetuated women's unequal citizenship.(20) Where liberal feminists such as Alien and myself may differ with privacy's feminist critics is not over the need to reject those harmful and unjust deployments of privacy and their legacy, but over the possibility of holding on to some core of privacy that is worthy of reconstruction or clarification. Second, the origins and imagery of the right of privacy may fail to capture feminists' imaginations and may instead alienate or offend them. At best, there is the image conjured up by Warren and Brandeis's famous article--a propertied, privileged white male in need of shelter from the prying eyes of the press(21)--or the equally gendered image of the modest, secluded female, conjured up by such early privacy precedents as De May v. Roberts(22) and Union Pacific Railway Co. v. Botsford.(23) At worst, there is the legacy of judicial refusal to "rais[e] the curtain" around the home and the marital bedchamber to "expos[e] [them] to public curiosity and criticism,"(24) leaving women injured within such private places largely without remedy.(25) Third, feminists associate liberal privacy with negative liberty (and the "negative constitution"), and too readily conclude that such privacy cannot sustain a conception of affirmative governmental responsibilities.(26)

To strengthen the case for privacy, liberalism and liberal feminism should carry forward three reconstructive projects that relate to these reasons for feminist resistance to privacy: (1) bolster liberalism's normative account of the value of privacy and the human goods that it helps to secure; (2) offer a persuasive argument for the continuing importance of some form of the public/private distinction; and (3) explore how best to conceive of privacy not merely as a negative liberty, but as requiring a conception of governmental responsibility to secure the preconditions for enjoying privacy and exercising autonomy (or "private choice"). Allen's essay helpfully suggests these three projects; moreover, her normative theorizing about privacy makes a substantial contribution to them.(27) I also draw on some of my own recent work on liberal justifications for toleration to suggest ways to fortify the case for privacy. Finally, taking the project to be reconstruction, I suggest valuable lessons from the Reconstruction era for contemporary imagery and understandings of privacy.

A. Articulating the "Goods" of Privacy and Private Choice

Allen usefully distinguishes "[t]he liberal conception of privacy," or governmental respect for and protection of' interests in physical, informational, and proprietary privacy, from "[t]he liberal conception of private choice,"(28) or governmental protection of decisional privacy--what I will at times call decisional privacy or autonomy. At the outset, I would caution against her term "private choice," because it unwittingly may trigger feminist criticisms of an atomistic model of the self, which assumes an unrealistic degree of isolation and independence in the decisionmaking process. Allen, however, embraces a version of liberalism that sensibly "understands persons as shaped partly and substantially by social forces not of their own choosing, but also and importantly by their own choices--their own decisions, commitments, and compromises."(29) Accordingly, I understand her to use the modifier "private" to mean independence from government, rather than from the inevitable influences of culture and other persons. Thus, in this Essay, I will employ Allen's privacy/private choice distinction, but at times I will use the formulation "privacy in its various dimensions" to capture both privacy and private choice.

In any event, this distinction between privacy and private choice is useful because it suggests that when we use the term "privacy" to refer to "private choice," "privacy" really is a stand-in for decisional privacy, or deliberative autonomy, which is a fundamental aspect of personal self-government.(30) Allen's conception of "private choice" thus seems compatible with, for example, Ronald Dworkin's argument that liberalism is premised on ethical individualism and moral independence;(31) on such an account, government "must not dictate what its citizens think about matters of political or moral or ethical judgment."(32)

Put this way, arguments for private choice likely will bear an obvious and close resemblance to arguments in support of liberal toleration; that is, arguments for a principle of restraint from coercive governmental action within a realm of individual liberty of belief, choice, and conduct.(33) Elsewhere, I have advanced a liberal feminist model of toleration as respect (as contrasted with a model of "empty" toleration) that rests upon three justifications: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale.(34) In brief, these three rationales are, respectively: the idea that compulsion or coercion corrupts belief or choice and violates autonomy;(35) the idea that there is a realm of personal belief, choice, and conduct that is not the proper "business" of government to regulate;(36) and the idea that it is inevitable that people freely exercising their moral powers will choose and pursue different or diverse ways of life, and that achieving orthodoxy would require an objectionable level of governmental coercion.(37) I think that liberalism readily supports these justifications for toleration, although they can and should be clarified and fortified in ways that I suggest below.

Do these rationales offer any guidance concerning the goods of privacy? All of them ultimately rest on a normative conception of personhood that includes an entitlement to autonomy and moral independence.(38) The paradigmatic case for liberal toleration stems from the cautionary tale of religious intolerance and persecution, and Europe's wars of religion.(39) Some liberal scholars use the backdrop of religious intolerance to argue that liberty of conscience undergirds our constitutional order and, specifically, the right of privacy concerning a range of significant personal decisions.(40) Constitutional jurisprudence concerning the protection and scope of such decisional privacy, or autonomy, also deploys all three rationales.(41)

The evil of religious intolerance is, undeniably, a powerful paradigm that should continue to inform arguments about the value of private choice. However, one way to fortify liberal arguments about the value of privacy and private choice is to look to other paradigms. One potentially powerful paradigm is the legacy of slavery's denial of privacy and private choice to enslaved men and women.(42) Recent scholarship on the Reconstruction Amendments suggests significant commonality among abolitionism, feminism, and the struggle for gay and lesbian rights.(43) Another related, but underdeveloped, paradigm (as Allen's …

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Publication information: Article title: Reconstructive Tasks for a Liberal Feminist Conception of Privacy. Contributors: McClain, Linda C. - Author. Journal title: William and Mary Law Review. Volume: 40. Issue: 3 Publication date: March 1999. Page number: 759. © 1999 College of William and Mary, Marshall Wythe School of Law. COPYRIGHT 1999 Gale Group.

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