Reconstructive Tasks for a Liberal Feminist Conception of Privacy
McClain, Linda C., William and Mary Law Review
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. …