Right to Privacy As The Foundation of the Right to Free Speech

In the US, there’s been a lot of discussion about the right to privacy. The US constitution enumerates a lot of basic rights, but doesn’t specifically mention the right to privacy (probably because there were no recording devices back then, and heresy, telling a court what someone else said, was mostly forbidden in common law). So a lot of people wonder if privacy is part of an unspoken “umbrella” of rights that can be inferred from the other rights.
I would say that the right to privacy is an integral component of the right to free speech, and that any law or argument in favor of the right to free speech is therefor in favor of the right to privacy. To protect free speech, we must protect privacy.
The reason why free speech requires privacy is that context is an integral component of every type of communication. Every person, unless they are on the far end of the autism spectrum, tailors their every communication based on the audience and situation. You might whisper to your friend “I’d like to kill that guy,” but you would never say it to that guy, nor to a judge. And this isn’t just because you are being secretive and deceptive, it’s because those same words would mean something quite different if you said them to that guy or two a judge. Who you are speaking with, the previous communications and experiences and culture you share with that person, and in what setting, determine the perceived meaning of your words every bit as much as the words themselves. Without knowing the audience or the context, you cannot have effective speech. And by taking speech designed for one context (e.g. a message whispered to a friend) and making it available to other people in another context (e.g. a judge and jury) you are ruining the speakers ability to control (as much as anyone can control) what meaning will be perceived from their speech, and therefor ruining their ability to communicate.
And this goes just as well for those things in the quite wide grey area between actions and speech. Imagine for a moment that some friend of yours was making a WWII movie and asked you to play a Nazi in a movie. Imagine you are in your bedroom putting on your Nazi uniform. Imagine someone takes a picture through your bedroom window and it ends up on the first page of the newspaper. People will think you are a wannabe Nazi. Your right to free speech, to send a message to the people around you by choosing what clothing to wear in what context, is trampled on. Insomuch as your clothing is free speech, your choice of clothing in a non-public setting should be protected.
A thing is an act so much as it affects people, and speech as much as it communicates something. Your choice of sexual positions affects your sexual partner, and to them it is not speech but action. To everyone else, though, your choice of sexual positions (if you choose to make it known, or someone violates your privacy and makes it known to others) is communication, as it’s utility in those situations is to communicate something about you. Your sexual partner might have a legitimate right to tell people about your choice of sexual positions insomuch as it effected their lives. Your landlord, who has put a camera in your bedroom, would not have that right.
Or, similarly, if someone advocates something in private that would affect others, the action component of that, the advocacy, should not have a right to privacy. If a presidential candidate holds a private fundraising dinner and advocates to the attendees that rich people should be allowed to eat poor people, then the fact that he was advocating for that position should not have a guarantee of privacy. The choice of words he used to advocate for that position has a privacy interest, but that interest can be overridden if making a recording of the speech public is the only way to prove that the person was advocating for that position.
If we move far enough down the action-to-speech spectrum, though, we find things that are overwhelmingly more action than speech, and thus that the right to privacy shouldn’t apply to. If you murder someone and bury them in your basement, that’s not speech, that’s an act that affects another individual (that infringes on their rights), and you shouldn’t have the right to keep that private. If you sing “I’m a barbie girl, in a barbie world” while dismembering the corpse, though, that’s speech that should remain private because you might have chosen not to sing that particular song if you knew other people would be hearing you.
A careful judgement must thus be made: in this situation is the right to privacy paramount or is the right to protect people from actions you have done that would hurt them more important. As difficult as this is, it should not be unfamiliar to the judicial system, who have spent centuries trying to figure out stuff like whether it’s okay to yell “fire!” in a crowded theater. Insomuch as they can draw that line between speech and action, they can draw the same line between privacy of communications and privacy of actions.
We could imagine free speech is a table with three legs. The top of the table is the “right to free speech” and the three legs are, first, the right to say/communicate what you want to whom you want, second, the right to not say/communicate what you want when you don’t want to, an, third,d the right to choose to say/communicate one thing to one audience and a different thing to a different audience. Take any of these three legs away, and the table collapses. Without these three, you cannot communicate effectively. And that third leg, the right to choose to say what to whom, vanishes if you don’t have some basic guarantees about the right to privacy.
by Brian St.Claire-King

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