The Absurd Consequences of a “Right to Privacy”

English: Privacy Fence custom built by Nice Fence.
English: Privacy Fence custom built by Nice Fence. (Photo credit: Wikipedia)

British MP David Davis’s text messages poking fun at the appearance of a female colleague make him the latest whipping boy for those determined to root out sexism and misogyny in public life, the Daily Mail reports. Curiously, they also make him the latest poster boy for exponents of an expansive “right to privacy” like Brendan O’Neill of spiked magazine.

I’m not sure how Davis’s text messages — in which he denied attempting to kiss MP Diane Abbot because “I am not blind” — became public. The Daily Mail doesn’t say. Perhaps the recipients talked about them. Perhaps his phone was hacked.

If the latter, there are certainly moral and legal aspects of the matter which bear at least tangentially on privacy.  But O’Neill takes those aspects far beyond the realm of the reasonable. He asserts a general ethical constraint along the lines of the legal “fruit of the poison tree” standard under which evidence illegally obtained cannot be used in trials, but on steroids.

“That Davis’s texts were leaked,” writes O’Neill, “doesn’t make it okay to haul him over the coals for them, to insist that he retract and repent, because this still amounts to shaming someone for a private conversation.”

Under O’Neill’s standard of personal behavior, you cannot allow something that you learn about me to affect your opinion of me or your behavior toward me in any way if I did not intend for you to be aware of it.

If I’m a Christian clergyman and a parishioner catches me praying in the Islamic manner, or engaged in sexual congress with a woman not my wife, when he barges into the parsonage uninvited, well, he should just keep his mouth shut about it — and even if he doesn’t the congregation certainly shouldn’t  discharge me or ask their denomination to defrock me. After all, that would be a violation of my privacy!

That’s absurd.

A number of rights do, in effect, protect personal privacy. The rights of free speech and free press include the right to refrain from speaking or publishing if there’s something I don’t want to tell you. Property rights mean that I can bar you from my house and knowledge of what goes on there absent a warrant issued on probable cause to believe I’ve committed a crime. It’s proper that information gained in violation of those rights be excluded from criminal proceedings, if for no other reason than to discourage police from violating those rights.

But personal and public opinion aren’t court proceedings such as those referred to by Edward Coke when he said (as quoted by O’Neill) “no man, ecclesiastical or temporal, shall be examined upon the secret thoughts of his heart, or of his secret opinion.”

Nor is there a “right to privacy” — a right to forbid other people to know things — as such. Privacy is merely an effect, an imperfect intersection of penumbrae emanating from other rights.

Like the European Union’s “right to be forgotten,” O’Neill’s “requirement to forget” is illiberal and Orwellian.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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