Update

In researching how new media affect the public and private spheres in relation to democratic theory, it was important to have a grasp on some of the most influential formulations of the ideal public sphere from the past. One of the prominent theorists of the ideal public sphere was Immanuel Kant.

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June Update: Wading Through the Literature

So far my research has been enlightening, exciting, and challenging. Before undertaking my research project, I was away that the right to privacy and the distinction between “public” and “private” was convoluted, but I was not fully aware of the many different uses of “public” and “private,” as well as the distinct (but in many cases interrelated) uses of these terms in both theoretical and judicial practice. As an added difficulty, many legal scholars will often neglect to make the nuanced distinction between the different uses of “public” and “private,” leading to confusion in the literature and the debates between scholars. Nevertheless, a framework for understanding the different uses is starting to take shape. There are four general categories for the public-private distinction: 1) The civic category–an understanding of public and private broadly influenced by Habermas and his theory of the ideal public sphere of rational discourse. 2) The liberal-economic category–an understanding of public and private in terms of ownership (i.e. the state vs commercial interests). 3) The personal vs impersonal category– an understanding of public and private in terms of a personal sphere of intimacy vs the impersonal sphere of activity (i.e. everything that is not intimate). 4) Privacy as “the right to be let alone”–this is the understanding of privacy as the privacy over personal information and has become the dominant mode of thinking about privacy in modern times (to the ire of many scholars). Moving forward, I will be focusing on the civic category of privacy and how the internet and social media have shifted these categories. Additionally, I will be writing about the implications for policy that these shifts entail.

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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.

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