Joshua Cohen, MIT
Controversy about privacy can be divided into two areas. The first is the right to privacy, understood as requiring legal protections of certain kinds of information and conduct from public disclosure and regulation. A second concern, more cultural than constitutional, is about conventions of privacy that distinguish topics fit for public discussion and revelation from topics that are unsuitable for such consideration. I explore both issues within the framework of the idea of deliberative democracy. I begin by sketching the deliberative conception, and briefly indicate how it provides an essential place for the liberties of the moderns. Second, I extend this framework to the special case of privacy rights. I argue that independence in certain kinds of personal judgments and decisions has an essential place in democratic life. Once we acknowledge democracy's characteristic pluralism, we should understand privacy rights as expressing the values of democracy, not as constraints on such expression. Finally, I discuss conventions of privacy, and argue that the case for strong norms of reticence in the informal sphere of public discussion and cultural argument in a democracy is much less compelling than the case for such norms in the formal political sphere of authoritative collective decision-making. I endorse the Rawlsian "duty of civility" in the political public sphere, but reject its extension to the informal public sphere-to the system of cultural democracy. The fundamental pluralism that makes privacy rights essential to a deliberative democratic system of authoritative collective decision-making should achieve more open expression in the informal, democratic public sphere.