2 - Performative Privacy in Theory and Practice

Summary

What can be done about the relative lack of doctrinal protections for privacy while in public? How can society – and the law – begin to recognize and appreciate that privacy while navigating public space is of critical importance, particularly for marginalized communities, and worthy of doctrinal protection? In this chapter, after first elaborating and deepening extant proffered justifications for a right to public privacy, I bolster these justifications by underscoring what is, perhaps, a more direct constitutional/doctrinal value served by a right to public privacy. In addition to facilitating future speech and attempts to freely associate (as rightly emphasized by many defenders of public privacy), attempts to preserve a degree of privacy or anonymity in public (often undertaken by members of marginalized groups) are frequently a form of performative and expressive opposition to an ever expanding surveillance society and, as explained in Chapter 3, may be protected as symbolic, expressive conduct under the First Amendment.