Abstract – Investigating the Public/Private Distinction

By now, the phrase, “right to privacy,” has become common legal currency, often invoked to prohibit intervention or encroachment (governmental or otherwise) on various human activities deemed private. The terms “public” and “private” have many connotations, and therefore, discussion of the public/private distinction often gets confused. For the purpose of my project, then, my discussion of the “private” will concern the connotation common to the Anglo-American legal tradition–the “descriptive-normative” connotation.  The descriptive-normative connotation of “private” can be understood as a conditional: if something is descriptively private (according to our beliefs, morality, laws, tradition, etc.), then that thing (i.e. a body part, action, or association) acquires a normative entitlement to non-interference and/or protection from interference by the government and/or other people (Gavison). However, there is much disagreement among legal scholars about what it is that makes something private. Some scholars, such as Matt Zwolinski, even argue that it is no longer possible to distinguish between public and private. While others, such as Catharine Mckinnon, argue that the public/private distinction ought not to exist.

This summer, I plan to write an academic paper which answers two interrelated questions: 1) How can/ do written laws, judicial decision makers, and legal theorists in the Anglo-American legal tradition distinguish what is private from what is public in the United States? 2) How should written laws and judicial decision makers distinguish what is private from what is public in the United States? To answer these questions, I will research court rationales wherein the “right to privacy” is invoked, legal scholarship concerning these court cases, and the works of various scholars who write on the topic of privacy.