The overall goal of this thesis:
In this thesis I interrogate both the right to privacy and communication in the public sphere as co-implicated in the difficulties posed for inclusive political participation in a constitutional democracy.
I identify what I call a ‘paradox of privacy,’ or the difficulty of navigating the border between public and private in a system in which laws both set that limit and overstep that limit in moments of protection. Breaching this limit, even under the claim of enhancing private autonomy, the law risks arbitrary action in which only a few are affected. The difficulty of navigating this boundary involves finding a consistent and coherent explanation for these supposed protections that accommodates a diversity of individual experiences.
This concern becomes more than just a difficult question to answer when we investigate the deliberative practices according to which liberal democracies seek to answer it…and recognize that public and private, however delineated, continue to produce effects within one another. Privacy is important because it establishes a space that is left untouched by the law and allows for different experiences within that relation to the law. But a strict boundary between private and public results in the former’s exclusion from public deliberation proper, which works to delegitimate just as many people as it legitimates, because to say what is private, one must also say what is public, and in public, many of us cannot say anything at all.
What’s wrong with Habermas:
I begin my inquiry into public communication with an analysis of deliberation in the public sphere according to Habermas. Although most of my interaction with Habermas here is in the form of critique, I do owe him for his emphasis on communicative action as essential to political action, in which deliberation is itself the legitimating process of laws. However, Habermas falls short of establishing a mechanism that guarantees laws that are in equal interest of all citizens through his very requirements and expectations of the deliberative process. In short, his process is not prepared for the equality it calls for.
Habermas speaks of public and private in terms of different senses of autonomy, in which private autonomy is ensured by establishing the “basic rights” of all individuals, which he says allows for a “reasonable will-formation” that enables the public autonomy of a citizen. Public autonomy is utilized in the deliberative process, which confers legitimacy to laws because the basic framework that is inscribed in a citizen’s private autonomy will allow for a common will to be established through discourse.
By enjoining citizens to take on the ‘fiction of freedom’ to establish an original equality from which the deliberation can begin, Habermas says the process reconciles the democratic ‘unrestricted will of the people’ and the constitutional limit of the medium of law imposed on a people’s sovereign self-determination.
However, this formal claim of equality requires participants to bracket social inequalities, which I see as unintentionally calling for their maintenance. Additionally, constructing a strict barrier between public and private before the deliberation begins limits the experiences that can contribute to the deliberative process. By limiting deliberation only to the so-called common good, many issues are preemptively eliminated from the list of relevant concerns.
Ultimately, my criticism of Habermas follows two main concerns. His standards for deliberation are insufficient for actual participatory inclusion and he does not acknowledge the full extent to which differences might be experienced within the bounds of law.
Both of these problems are co-implicated. By establishing basic rights, private autonomy is thought to be ‘unchangeable’ in its essential content. This space of negative freedom allows for a range of different experiences in relation to these laws.
A normative account of private autonomy that arises out of its presumably basic status establishes a scope of differential legitimation that sets some actions beyond the protection of privacy. This differentiation is often arbitrary, and exposes how said normative accounts can work to constitute illegitimate accounts of privacy.
These differences are mediated by a sameness, and in public some differences becomes impossible to speak. Public autonomy is more unified than actual experience can support, making certain experiences of private invisible in public, silencing those individuals in the deliberation.
These differential delegitimations hinge on publicly constructed social identities and the relation between publicity and social status that is more complex than Habermas acknowledges. The meaning of our communication is not determined only by the language one uses and the way we speak to each other, but also from where we speak, and where we are situated in the conversation. In this regard, Habermas problematically constructs a homogeneous public sphere. He assumes that all speakers, as citizens, can invoke at least the fiction of equality and treat each other as such. He assumes that all citizens can deliberate on a level playing field secured by co-original private and public autonomies.
But these discursive arenas are themselves sites of the formation and enactment of social identities. For this reason, in the second chapter I attempt to elucidate complications with communication in general.
I turn to Derrida’s essay “Signature Event Context,” in which he states that all communication is itself homogeneous. But here Derrida uses it differently: homogeneity occurs in the possibility of communication operating in an endless amount of contexts, officially indeterminable according to the always already absence of both senders and receivers. This is a structural necessity of all iteration and readability. For Habermas to establish one context is to implicitly delegitimize certain other contexts, or what I call “accounts.”
Next I turn to Judith Butler to further this notion of the public sphere as a locus for the construction and reconstruction of social identity. Her account of hate speech and censorship inverts the common assumption of censorship as proscribing certain speech, but says instead that it is ‘productive.’ To be sure, it is productive not in the sense of inspiring certain instances of hate speech, but of producing legally-consequential speech by establishing categories of what is sayable and impossible speech.
More specifically, I cite her discussion of ‘don’t ask, don’t tell’ to show how these categories of speech are constitutive of speakers. The regulation of ‘don’t ask, don’t tell” proscribed the self-declaration of gays in the military, which Butler says produces a figure of the homosexual soldier that is sanctioned by the state, a figure for which there is ultimately no proper context.
*Of course, these might seem like extreme examples, but I think it gets at the more general point I’m trying to make here, which is that when we establish what is legitimate as sayable, even in public deliberation, we also produce categories of impossible or illegitimate speech. To quote Butler, “To purify the sphere of public discourse by institutionalizing the norms that establish what ought properly be included there operates as a preemptive censor.” (129)
Speakers create themselves in public through words, and limiting this representation according to a regulated domain of speakable discourse produces speakers according to these categories. To move outside of this domain of speakability is for Butler to risk one’s status as a subject, or to put it back in Habermas’ terms, to risk one’s status as citizen in the deliberation. Censorship proper illustrates the state’s intervention in a formation of subjects through the regulation of speech but this more implicit mode also shows the ways in which this boundary of speakability also constitutes a boundary for who is to be a speaker. Because Habermas establishes one position, one location, and one context of this sort of communicative creation and identification of concerns, he necessitates a sort of ‘discursive assimilation,’ and the actual needs for some are not determined as sayable.
My critical solutions:
In light of all this, through a normative account of privacy and a deliberative process that is preemptively exclusive but is not acknowledged as so, deliberation can actually serve as a veil for domination and a subtle form of control.
Nevertheless, by the end of the thesis I maintain both a deliberative solution and a boundary between public and private. However, such boundaries are subject to scrutiny and always dynamic. I attempt to provide a solution that rehabilitates Habermas to the extent that it explicitly opposes the problems that are named, which requires a shifting or an expanding of the discursive arena. For this task, I take up Nancy Fraser’s solution to Habermas of multiple ‘subaltern counterpublics’ as my own.
Wherein the public sphere is a homogeneous space that unifies the context of deliberation and of its speakers’ location, multiple publics are arenas in which accounts are being offered that counter this unified normative experience.
It is also here that I take up Derrida’s concept of the signature. The question of what is needful will be answered from a particular speaker’s situation, but in a unified context this situated position is veiled. The signature maintains a link between the utterance and the subjective value of that utterance arising from the speaker’s social location.
This notion of the signature implies that the meaning of a certain chain of words or phrases depends in many ways on who is communicating them. When there are many voices participating in the deliberation, only a sample will be heard. These counterpublics emerge in response to exclusions within the dominant public and can expand the discursive space to include the many voices that are silenced under assumptions of unified experiences.
But this solution relies on a preliminary distinction between incorporation and recognition. In a regulated public sphere, social locations and discursive assimilations are themselves the authorization and deauthorization of certain accounts.
By acknowledging the presence and activity of a variety of publics, the signature gets at the distinction between discursive recognition and discursive assimilation because it reflects this social location. Acknowledging that there are many who speak with authority without being authorized to speak, this recognition expands the scope of ‘authorization’ such that the concept itself is displaced and multiple contexts of authorization are afforded. Authorization as such, then, is realized through a recognition of situated speakers rather than incorporation into a regulated process.
Maintaining this signature makes it possible for the different experiences of private autonomy to be recognized. In conjunction with this notion of multiple counter publics, I endeavor my own positive conceptualization of the right to privacy. Although I maintain privacy’s basic structure according traditional accounts, the content of privacy becomes positive in the sense that this determination occurs in and through deliberation rather than in a determination of ‘private’ according to its exclusion.
To mimic the hopeful tone of those theorizing these revisions, conceptualizing a range of publics enables us to envision democratic possibilities beyond the limits of actually existing democracy. They enable an assertion of perspectives rather than an assimilation into pre-established regulations of what is and what is not legitimate. And they also attempts to overcome subtle forms of power occurring in deliberation that can result from the translation of ‘I” into ‘we’.
In the traditional distinction between the public common concern and private individual interests, there is a middle ground that is so obvious that it sometimes gets ignored: the common affair of modern life being regulated by law. Through these revisions, we can also question the ends of law. The object of legitimating deliberation should be open to the array of concerns contending for recognition.
Insulating the deliberation from the non-political and maintaining these barriers that contribute to systemic relations of inequality will do nothing to inhibit it. Instead, members of subordinated groups are discouraged in implicit and explicit ways from bringing their needs or objectives into the deliberation. But if we open up the ends of deliberation to actual equality, then what follows is that we necessarily expand the scope of deliberation. The regulation of the domain for speakable discourse results from a hierarchizing of communicative actions according to a dominant mode of discourse. These discursive hierarchies can only be disrupted if the voices that are silenced are recognized and permitted to speak for themselves.
1. I have no recollection of reading these words out loud just a few months ago.
2. Not only can I not stop reading this, but I can’t stop editing it.
3. I feel pathetic obsessing over my undergraduate thesis that I finished six months ago.
4. I feel appreciative and maybe even happy about the fact that my thesis is still extremely important, and present, to me.
5. I wish it was a little bit better.