The Right to Privacy
By Alec Rawls © 1991/1998 (1650 words) From The Stanford Review, / /91.

If John Stuart Mill's Principle of liberty is to become the standard of constitutionally protected liberty (see Publius No.'s 1-5) then some matters of interpretation need to be clarified. In particular, Mill himself was confused about what the logic behind his principle leads to when only indirect interests are in conflict. Clarifying this point turns turns out to yield a highly articulated understanding of the right to privacy.

Mill asserted that the only justification for forcing anyone to do or forbear is to protect the direct, or self-regarding, interests of others. As stated, this principle is not internally consistent. Consider the case of an act that does not harm anyone's direct interests, but which no one has a direct interest in being allowed to perform.

Mill's principle says that it is not justifiable to hinder the act, since harm to the direct interests of others is not as stake. But the principle also says that no one should be hindered from hindering the act, since that also does not harm anyone's direct interests.

In such cases, where indirect interests are all that is at stake, Mill's principle must be neutral, and the conflict can be turned over to majority rule. Once this is straightened out it is clear that Mill's principle allows many more things to be outlawed than Mill's naive statement suggests.

Consider the example of public nudity. Public nudity does not harm anyone's direct interests, yet if someone wants to go nude in public we can be pretty sure that his interest is in what other people think. (If his interest is in publicity per se, then by definition his interest is in what other people think.) An interest in what other people think is an indirect, or other-regarding, interest. Thus the majority can decide whether people must dress in public.

The close connection between acting in public and being interested in what other people think means there are many actions that people will only have an indirect interest in engaging in public. On the other hand, so long as an activity does not harm the direct interests of others, Mill's principle requires that scope be provided somewhere for engaging in the activity.

Thus Mill's principle will protect a sphere of privacy, just as our constitutional system of liberty does. But here we see the limits of the protection of privacy: that it cannot shield direct harm to others.


An example of indirect interests

Last October The Stanford Review ran a public reaction story on Stanford's new policy of allowing unmarried couples with alternative forms of marriage-like commitment to move into the university's married student housing. The rational thing is to let homosexuals undertake the legal commitments of marriage, but that is beyond Stanford's competence to effect, and so we get "domestic partners".

One mother interviewed by the Review voiced an obvious fear: "If the homosexual couples were being openly affectionate in front of my children, I don't know if they would understand." A poster responding to the article offered a rebuttal to that woman's concerns. It depicted a mother saying to her daughter: "Child, I want you to see same-sex, inter-racial, different sex, older couples -- so you can learn that love knows no boundaries."

What I want to point out is that, however compelling this vision is to gays, it is an indirect interest -- an interest in what other people think. Because it is an indirect interests, actions taken in pursuit of this interest can be regulated in public without violating Mill's principle of liberty.

Of course, there are many public sphere activities that people have direct interests in -- such as freedom of speech -- and these would be protected along with the Millian sphere of privacy. Beyond these guaran tees, homosexuals have the same opportu nity as others to make the laws for them selves. Also just like others, when the majority is against them, will they have limited scope for prosecuting their indirect interests. Is this unreasonable?

It is obvious that few if any homosexuals would actually embrace an agenda of moving into Escondido Village for the purpose of exposing children to homosexual love (an activist interpretation of the statement of the poster, which was dismissive at best of a mother's fears). Still, would it be too much to ask of homosexuals to renounce such behavior, in exchange for society's protection of their direct interests?

I think it is a perfect question for Escondido to vote on. Should it be against the bylaws of Escondido Village for homosexuals to act without circumspection in the presence of children? For recalcitrants, the ultimate sanction would be eviction. It ought at least to be discussed.

(Notice that the appropriate electorate for settling conflicts of indirect interests is the most local that includes the affected parties. Thus explicit constitutional protection of Mill's principle would have very interesting implications for federalism, enforcing protections at the widest level while limiting restrictions to the most local.)


Reject "the spirit of faction"

Just because Mill's principle of liberty would allow some restrictions on homosexual displays in public does not mean that the principle is in any way injurious to gay rights. Quite the opposite, constitutional protection for Mill's principle would greatly expand and secure gay rights. As things are now, even the direct interests of homosexuals have been denied protection by the Supreme Court.

Drawing a line that majority rule cannot cross means allowing majority rule up to that line. Rejecting Mill's principle as the place to draw the line means putting one's indirect interests ahead of one's direct interests. That is not the kind of realistic representation of concerns upon which amicable settlements can be based. I do not expect gays to be more insensible to this than anyone else.

The majority at Stanford is clearly very tolerant. Any group that wants to ask that some people's indirect interests be infringed will only have a chance of swaying the majority if their concerns are very compelling and their requests are to the point. Alarmist reaction to the possibility of some restrictions affecting indirect interests is not called for.

On the contrary, it is time for gays to move away from the politics of "faction" that Hamilton and Madison deplored as the great enemy of democracy. Rather than screaming "persecution" when anyone's concerns besides their own are acknowledged (the Review was labeled "Nazi" last fall), gays should start acting like the powerful political force they are and start shouldering some democratic responsibility for the concerns of others.

This would seem to be a natural for a group that so ardently wants and depends on acknowledgment of their concerns by others, and I am sure that the vast majority of homosexuals are glad to reciprocate concern, but it seems that most gay activists only care for their own side.


Fine lines

Any Escondido bill proposing to restrict public homosexual displays should stipulate that appeals may be made, to whatever panel has jurisdiction, on the grounds that the standards being enforced substantially infringe the direct interests of homosexuals.

I think Mill's principle would draw the line on restrictions somewhere between making out and holding hands. Privacy seems clearly to leave enough scope for kissing and other particularly absorbing expressions of affection. There is no reason these activities need to place a person in the public eye.

Holding hands is different. To tell people they must walk without touching eachother is to keep lovers from enjoying the outdoors as a couple, and this infringes direct interests. Any interest that people have only in each other that private quarters do not provide scope for cannot be relegated to privacy.

The restrictions that Mill's principle does allow can be placed on heterosexuals as readily as homosexuals. In order to protect everyone's direct interests, Mill's principle does not protect anyone's indirect interests. It is a resolution I think we can all be satisfied with.

What homosexuals might reasonably take exception to is the idea that there could be special restrictions placed on gay behavior. Mill's principle is not a complete system of liberty and is not alone sufficient to answer this question. We must turn to the Fourteenth Amendment's very important guarantee of "equal protection" and see if it prohibits special restrictions on gays.

I think it does not. Equal protection cannot prohibit discrimination based on behavior because it is the nature of law to discriminate between behaviors. Equal protection does probibit special restrictions based on race. That is what we fought the Civil War over. Like race, gender is not a behavioral catagory, so it would be an extension of the same concept to prohibit unequal treatment based on gender.

Behavioral categories are different. To protect a behaviorally defined group under equal protection one would have to argue that the behavior in question is not a behavior that should be restricted. But Mill's principle is the correct criterion for deciding what behaviors can be restricted, and Mill's principle allows conflicts between indirect interests to be settled by majority rule.

Another question is whether concern for what minors think is a special case that might justify some infringments of people's direct interests in order to shield children from otherwise admissable adult behavior. Again, I think not. You don't prepare minors for adulthood by taking extraordinary measures to hide the adult world from them.

My views are not unassailable. One might contend that special restrictions on gays do constitute unequal treatment based on gender, or one might reject Mill's principle as the place to draw the line on protected liberties, or one might want to make the case for not putting special restrictions on gays even though Mill's principle allows it. Responses are invited.

(Alexander Rawls is pursuing a Ph.D. in economics.)


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Date Last Modified: 8/27/99
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