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! COMMUNICATING PRIVACY: A Politico Philosophical Investigation of Private Autonomy in Deliberative Democracy BY KRISTIN MALOSSI A Thesis Submitted to the Divisions of Humanities and the Division of Social Sciences New College of Flo rida in partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Dr. April Flakne Sarasota, Florida May 2011
! # Table of Contents Abstract iii Introduction 1 1. Habermas, the Public Sphere, and Del iberation 9 2. Complicated Communication: A Regulated Domain of Speakable Discourse 33 3. Expanding Authority, Expanding Discursive Arenas: Multiple Publics as a Solution 55 Conclusion 74 Works Cited 83
! $ COMMUNICATING PRI VACY: A Politico Philosophical Investigation of Private Autonomy in Deliberative Democracy Kristin Malossi New College of Florida, 2011 ABSTRACT This thesis is a dual interrogation of the right to privacy and communication in the public sphere as two essentially related components of a constitutional democracy. A "paradox of privacy" occurs when the law oversteps its own self limit under the purported goal of enhancing private autonomy. In light of this paradox, any established normative account of privacy runs the risk of contradicting the actual experiences of some citizens. When private autonomy is freedom of action within the limits of the law, a normative account of what is private may marginalize voices offering a different account, and may ul timately marginalize those citizens in the public deliberative process necessary for the legitimation of laws. The solution provided within this thesis attempts to rehabilitate Jrgen Habermas' deliberative process that is the initial source of critique b y exploring and opposing the problems identified in his model. Establishing the concept of "multiple counter publics" as sites that expose the actual inequalities among citizens by recognizing the social locations of the law's addressees, we can look forw ard to the possibility of alleviating these inequalities and marginalizations. Theorizing one possible outcome of multiple publics, this thesis concludes with a provisional account of a positive reconceptualization of privacy. Dr. April Flakne P hilosophy
! % Introduction For a document that limits the government's interference with its citizens, the Constitution of the United States says very little about the private lives of these citizens. As a result, the Supreme Court's interpretation of specif ic laws has historically been the medium through which the right to privacy has been understood (Cohan 42). Laws reflect the particular climate of the public sphere at the time of their enactment; the right to privacy may be thought of as basic, but it re lies at least as much on public understanding as any other right. For example, some notions of the right to privacy leave it simply as "the right to be left alone" (Cohan 44). 1 In Roe v. Wade (1973), the subjects of which were married couples and their de cisions regarding "intimate relations," abortion became one specific manifestation of the right to privacy. (Cohan 44). In Eisenstadt v. Baird (1972) the justices recognized that if abortion was to be a specific right of privacy, it must be extended to al l citizens in order for the right to privacy to "mean anything" (Cohan 46). In these cases, the right to privacy was granted to individual decisions regarding sexual activity, not to the traditional space in which these relations occur (Cohan 44). Howeve r, attempts were made to establish a space or "zone" of privacy, as well as a protection of certain personal information, in Stanley v. Georgia (1969), which stated that obscenity regulation need not enter the privacy of the home (Cohan 46). In one of the most influential cases regarding the right to privacy, the Supreme Court decided in Bowers v. Hardwick (1986) to uphold a Georgia statute prohibiting !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! This formulation has its origin in Justice Brandeis' dissenting opinion in Olmstead v. United States 227 U.S. 438, 1928.
! & sodomy, and in doing so, prevented sodomy from being a protected private right (Cohan 42). The plaint iff, Michael Hardwick, was engaged in sexual relations with another man when his bedroom was intruded (Cohan 43). While the Georgia legislation made no mention of specific gender or sexuality, the Supreme Court nevertheless discussed Bowers as an issue re garding homosexuality (Cohan 42). Homosexual sodomy was not rewarded the status of privacy because the Supreme Court decided it did not relate to the "marriage, procreation, and family relationships" standard that they interpreted as making sexual relation s a private right (Rubenfeld 748). For all that it exposes about the justices involved and public perception of homosexuality, Bowers v. Hardwick is not only illuminating for an inquiry into homosexuality in the United States. It is also a crucial example of the paradox of privacy, or the difficulty of navigating the boundary of legal action in a system in which laws both limit and protect privacy. The paradox of privacy occurs when we lack a consistent explanation for when it is acceptable for the law to exceed its own self limitation: why some actions, such as rape or murder, will have the same legal repercussions regardless of whether they occur in public or in private spaces, but some sexual activities have not been permitted even in private. This col lapse between public and private, even when done in the name of greater private autonomy, can result in actions that are permitted in the privacy of only a select group of citizens, and certain laws that simultaneously protect the privacy of some citizens while revoking the privacy of another. The paradox of privacy blurs the line between what the law considers to be properly public and properly private, and between what one can do in public and what one can do in private, and poses a difficulty for accomm odating a diversity of individual
! experiences. As Bowers proves, this inconsistency often has serious repercussions: "arbitrary action by government becomes possible when only a few are affected by those actions" (Cohan 46). This short list of cases catal ogues the confused and confusing legal interpretation of the concept of privacy. Citizens may disagree about laws from perspectives that can never be reconciled due to diverging truths' of experience. Unfortunately, a normative understanding of privacy validates only some of these perspectives or "social locations." This thesis will investigate the paradox of privacy, taking as a positive point of departure the kind of reconciliation' offered by deliberative interactions among citizens in the law makin g and legitimation processes of constitutional democracies. As a right that is often considered to be a basic guarantee in liberal democracies, problems with privacy are important because they can manifest simultaneously in the disenfranchisement of certa in individuals and marginalization of their concerns. Problematic proscriptions result when the actual flaws of a law are concealed through false or mistaken claims of law's equality as the precondition of specified deliberative processes. What results i nstead is a merely formal claim to equality in public as "citizen," while differential delegitimation of certain claims to privacy limits the perspectives that might "equally" contribute to the deliberative process. Therefore, in this thesis I interroga te 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. This project will begin by exploring Jrgen Habermas' investigation of the difficulty for a constitutional democracy to sustain both political participation and basic rights in the legitimation of laws (Chapter 1). He
! ( reconciles the competing claims of this system by positing the co originality of private autonomy and public aut onomy. Habermas' private autonomy speaks in favor of the Constitution as itself the guarantee of "basic rights" protecting privacy, and establishes the legal guidelines for further rights citizens can attain through the deliberative political participatio n they are entitled to and expect of public autonomy. This approach is supposed to identify the abstract distinction between public and private autonomies in relation to the law: private rights are those that exist within the self limitation of law, but t hat do not interact with the law beyond that boundary. Throughout the course of this thesis, I will argue for the importance of the preservation of a boundary between public and private as critical for actual equality while maintaining that the content w ithin a concept of privacy is always changing. The proper function of such a boundary is mitigated by the insufficient standards Habermas requires for the deliberative process. One specific criticism of Habermas is that by supposedly allowing difference in private, but establishing "equality" as the initial criterion for political participants, he makes this category in practice too vague, nearly empty, and a potential veil for the problems arising from actual inequalities and persistent domination. For example, the Georgia statute against sodomy was supposed to apply to all citizens equally and not designate further specifications in its legislation; as a result, however, the Supreme Court was able to impose the legislation specifically against homosexua ls, depriving their status as equally entitled to privacy and equally having a voice in deliberation. Private autonomy is supposed to allow for different expressions by individuals within a set boundary, but the Bowers ruling shows that is not always the case. The different experiences of a right to privacy must be accommodated in the
! ) exercise of public autonomy in the deliberative procedure, but on this task Habermas' theory also falls short; instead, his claim to an equal starting position erases the di fferences that occur among participants, and in doing so, imposes a limit on acceptable deliberation. While the solution offered by Habermas is found to be unsatisfactory, a revised communicative solution that identifies and opposes these problems will nevertheless be sought. This necessitates further articulations of problems inherent in communication itself, problems that Habermas ignores. Communication is an act through which social identities and social locations are established and re established, and deliberation itself can serve as a veil for domination and implicit form of control. The problem with Habermas' understanding of communication is in the attempt to control legitimate contexts of communication through a legally bounded, homogeneous pu blic sphere. This problem is explored in the second chapter through the work of Jacques Derrida and Judith Butler. Derrida elaborates a theory in which communication has the capacity to function without speakers or receivers and without determinable con texts. Without being explicitly tethered to a speaker or receiver, contextlessness makes the citability of all utterances possible and makes all communication quasi public in relation to the law. By elaborating similar concepts through a critical examina tion of practical examples, Butler scrutinizes the state's activity concerning hate speech and censorship as one that is productive rather than proscriptive, in which the context claimed by legislation and legal discourse is undifferentiated from contexts of what the state views as intentionally harmful words. For example, in "Don't Ask, Don't Tell," censorship claims to prohibit only the self declaration of homosexuals and not homosexual activity.
! Turning again to the literature on Bowers in which non s pecific legislation against sodomy is translated into legislation against a homosexual act in the Supreme Court ruling, one can question whether such a distinction between contexts of self declaration and contexts of action is ever possible, showing that t he Supreme Court made definitive claims about homosexual identity and actions. By making the self declaration of homosexuality not an act of homosexuality, and by interpreting all acts of sodomy as the acts of a homosexual, the state not only imposed its interpretation onto these identities, but onto individuals as well. These are both examples of the state incorporating difference into its own narrative and establishing a limited domain of speakable discourse, producing categories of what is "sayable" ve rsus impossible speech. In this way, speakers are banished into social locations according to regulations in communication. Such state productions pose serious political problems. Hardwick's case was set in terms that emphasized his homosexuality rath er than his privacy, and yet, it concerned consensual sexual acts, which for heterosexual individuals are protected as private. When we refer to Derrida's notion of homogeneity, we mean the possibility of communication operating in an endless amount of co ntexts, officially indeterminable according to the always already absence of both senders and receivers. For Habermas to establish one context is to implicitly delegitimize certain other contexts and so leads to homogeneity in another sense: homogeneity o f context. Since Habermas' version of deliberative participation cannot answer to the problem of actually inclusive political participation, I will venture a solution that initially appears similar to his, but that differs in crucial nuances. In the thir d chapter, I will turn to the solution of multiple "counter
! "+ publics" as an expansion of spheres of authorization for these marginalized or unauthorized accounts, and use Derrida's concept of the signature as a tether to and mark of these situated locations which can work to counter Habermas' homogeneity. Much of the Bowers literature traces the protection of the rights of homosexuals from being enjoyed at once only in "relative anonymity," to developing explicit public thematizations of private rights as the basis for the rights for homosexuals, as homosexuals, in general (Cohan 51). By maintaining the signature rather than invoking the fiction of equal citizens, we can move toward measures that seek to empower homosexuals and other excluded perspectives and anticipate a valued recognition of various lived perspectives. Rather than normalizing implicit exclusion, this shift of the discursive arena in revealing the discourses of multiple publics can work to expand the space for explicit inclusion. Perspe ctives that counter the claim of a law's equality are evidence of a dangerous flaw in the law. By recognizing these counter claims, we can try to alleviate the inequalities causing that experience. Public exposure and authorization of marginalized perspe ctives is necessary if we want legitimate, equal laws. The solution of multiple publics as possible counter publics moves beyond a politics of merely appeasing identity, in which representatives of marginalized groups may be subsumed into the regulated de bate and an entire group of citizens are awarded only superficial participatory parity. This can still work to veil many actual inequalities. Instead, recognition must occur from the location of this marginalization as it occurs, as an authorization of t he conversations already happening where they are happening, rather than an authorization awarded in a translation of the account to participation in restricted deliberative practices.
! "" Only in this way can the full spectrum of experiences of private autono my expose the disadvantages initiated by laws, and only when these experiences are given serious consideration can they be included in a communicative process that strives to alleviate these problems and produce legitimate laws.
! "# Chapter 1: Habermas, the Public Sphere, and Deliberation Contentions around public and private space are yet to be exhausted by the abundance of voices weighing in on the conversation. The focus of the present discussion will be the work of J rgen Habermas, who interlaces concerns for the political/public domain and rational communication throughout much of his philosophy. Established as an influential contributor to concepts of the public sphere, his work presents one way of pursuing our pre sent goal of a communication oriented rethinking of public and private. While much of the engagement with his thought will be critical, Habermas' work is useful for all that it gets right. Indeed, his ideas are compelling, and much of the work attempted here could not have been done without his contributions to political philosophy. What Habermas and this project share is an emphasis on communication in the political process. This chapter will identify some problems with Habermas' approach that will be challenged throughout the thesis. Habermas views political development as a learning process, in which gaps in equality can be bridged by forming new laws in the deliberative process, which for him relies on a confluence of rational communication and univ ersalizable principles. Instead of using deliberation as a mere means to laws that are legitimate, Habermas' deliberative process is itself the legitimation. Habermas establishes the co originality of public and private autonomy as the reconciliation of competing standards for the legitimation of laws within a constitutional democracy. The distinction between public and private autonomy orients the individual's relation to law. Private autonomy encapsulates "basic
! "$ rights;" private autonomy, or "negative liberty," allows for the freedom to act in a space that is limited only through the law by which it is bordered. Public autonomy, or "positive liberty," allows citizens to join in a process of deliberation and become co authors of the law, orienting the citizen toward the law out of respect. Deliberation produces the legitimation of laws because co originality guarantees that anyone who can participate in this process has already been guaranteed private autonomy. However, Habermas leaves many problems u nanswered or unidentified when he does not acknowledge the extent to which this process leaves many vulnerable to exclusion. Habermas: Reconciling Constitutionalism and Democracy Toward Greater Autonomy The co originality thesis In "Constitutional Democ racy: A Paradoxical Union of Contradictory Principles?" Habermas reflects on the oft cited paradox concerning democracy and constitutionalism with renewed interest in the interdependence of public autonomy and private autonomy. According to Habermas, the private and public spheres house separate versions of autonomy that are equally essential in hindering the risks associated with combining democracy and a constitution. Constitutional democracy unifies contradictory principles, which risks requiring priva te autonomy and public autonomy to compete for their emphasis as the source of the legitimation of laws. How does this system preserve both the basic rights prioritized in a liberal view and the republican emphasis on political participation without surr endering either position? Habermas takes from the liberal view his concept of private autonomy, and
! "% from the republican, his concept of public autonomy. He cites the classical relation of democracy to its modern counterpart as the source of this paradox: laws forged through a democratic process express the unrestricted will of the people, while the constitutional expression of power limits the people's sovereign self determination to the medium of law, or "basic rights." In legitimating common law, Haber mas says constitutionalism gives precedence to the basic or human rights maintained in the concept of private autonomy. From this perspective, "private autonomy of citizens assumes a form that -'unchangeable' in its essential content -guarantees the anony mous rule of law" (767). Democracy shifts the emphasis to the deliberative process in which laws come about; this self organization of a community arises from the use of each individual's public autonomy as a citizen. The equal necessity of both public a nd private autonomy causes Habermas to conceive of a "co originality" as the basis on which both are properly established (767). In Habermas' reconciliation, the emphasis on public and private is equally necessary for the deliberative process; the co ori ginality of public and private answers as a double source of legitimation. Co originality responds to what he calls an "intuition" of constitutional democracy, that basic rights in the rule of law "neither precedes the will of the sovereign nor issues fro m that will" (778). Basic rights are not merely imposed or instrumentalized, but instead the contradictory principles of constitutional democracy are equally original (767). The co originality thesis dictates that private and public autonomy require each other for their respective existence, but that they do not set limits on one another (767). They are interdependent and related by material implication, such that citizens may
! "& appropriately (his emphasis) use their public autonomy only if their private autonomy is equally protected; likewise, "individual liberties" (which form the content of private autonomy) are promised only if citizens make an appropriate use of their political autonomy (767). The content and extent of both autonomies, claims Haberma s, are enjoyed by and distributed to members of a society equally (767). Habermas clarifies what he views as a common misconception, that actually "the legal guarantee to behave as one pleases within the bounds of the law is the core of private, not public autonomy," established theoretically as reasonable will formation" (767). Public autonomy, then, calls for wills to be bound only to those laws "they give themselves" in a common will established through discourse (767). According to these conditions, only those laws that lie in the "equal interest of each can meet with the reasonable agreement of all" (768). The rule of law basic rights is inscribed in legitimate law formation via public autonomy (768). Deliberation as the legitimating act through ti me Habermas echoes the question of the founders of a constitution, "what rights must we mutually accord one another if we want to legitimately regulate our common life by means of positive law" in a discursive mode of deliberation and arrives at his own an swer of equally entitled participants in deliberation and a commitment to modern law as regulation for modern common life (772). Habermas says the idea of self legislation occurring within private autonomy marries itself to self legislation within the pub lic autonomy of the citizen, oriented toward a common good. This internal relation between individual will and reason is the basis for public deliberation as the legitimation of laws. In this view, laws are legitimate if they came about "according to the procedures of
! "' democratic opinion and will formation that justify the presumption that outcomes are rationally acceptable," namely, that wills are to be bound to only those laws equal participants give themselves after achieving a common will through disc ourse (767). But the project of reconciliation that takes place in the terms of legitimation of law calls for the legal institutionalization of a far reaching network of discourses" (772). Progress, for Habermas, requires reparations to current right s within an understanding of the "founding act" as a proper distribution of liberty and freedom, extending through space and time as a system of rights that can always be tapped, as we will later see (768). In deliberation, the founding act is extended th rough time; according to Habermas, deliberation provides the means of tapping that ever present resource. Related to both moments, public discourses among citizens are "temporally, socially, and materially specified" in relation to the more static "formal ly regulated deliberative and decision making processes" of the institutions of governments (773). Criticism of Habermas To resolve the paradox confronting constitutional democracy, Habermas says deliberation achieves a reconciliation of different indivi dual interests by filtering toward a greater common interest. Private autonomy is founded in the basic rights of the rule of law that are already inscribed in the political self legislation required of public autonomy (778). The legitimation of law is th erefore produced in the equal interest of each citizen as expressed in the deliberation. Because this capacity for deliberation is made possible
! "( by the participants' co original public and private autonomy, legitimate law mandates that the freedom of one depends on the freedom of all (779). The strength of Habermas' reconciliation resides in his emphasis on dynamic deliberation and his insight into its impact beyond deliberative democracy and within constitutional law. But this bridge to the paradoxica l gap is also his downfall. Habermas' solution provides an unsatisfactory concept of deliberation replete with problems. Once those problems are exposed, it calls for further interrogation of the premises of Habermas' solution and the rendering of privat e and public autonomy provided. Whereas Habermas intends his solution to guard both private and public autonomy equally and simultaneously, an analysis of his interpretation might inspire anxiety as to whether either is protected at all. The following s ections examine several weaknesses in Habermas' solution: first, Habermas' initial standard for deliberation is empty and potentially exclusive, as it appears to limit the expression of certain private experiences through a fiction of equality. Second, Ha bermas allows for criteria of "appropriateness" to be dominated by "pragmatic reasons" and "historical contingencies," thereby limiting the autonomy of the agents purportedly protected. Third, the extent of even basic rights is interpreted differentially, such that the boundary lines between public and private autonomies are less clear than Habermas imagines. This means, finally, that in practice Habermas' co originality thesis risks a collapse between the two types of autonomy that Habermas needs to leav e in mutually protective tension.
! ") Standards for deliberation and the quality of rights Equally entitled participants deliberate to produce what Habermas calls 'rational discourse,' possible when all participants are equally able to "freely agree" or c onsent (772). Rational discourse, plus a commitment to law as the medium through which common life is regulated, is supposed to result in laws that are officially in the equal interest of each (768). Legitimate laws, then, are those that are in the equa l interest of all citizens who come together anticipating to positively regulate common life: they must arise through a procedure that designates these rights produced as equal, that is, of "equal protection" and "equal distribution" (767) The question bec omes one regarding the experience of the quality of those rights guaranteed by law: can these standards actually guarantee equal treatment under the law? "Equally entitled participants" is a vague and virtually empty category. A charitable version might be that 'equally entitled' participants are those who are fully endowed with public and private autonomy. But this would be making a circular argument, because for Habermas, participation is predicated on this co original interdependence of autonomy, and stating it does not qualify as a guarantee of the quality of deliberation needed to legitimate laws. Indeed, Habermas says that the free entrance' of citizens is itself a fiction, but it allows us to imagine all citizens as equal and nevertheless satisf ies the requirement for the initial condition of "original equality" of participants whose "yes" and "no" count equally, allowing the focus to shift to ensuring further conditions of participation (776). This imaginative exercise is measured against the p articipant's perception of what compromises the fulfillment of this goal when she steps out "from behind the veil of
! "* empirical ignorance" and reflects on a set of historical circumstances and concerns arising in rational discourse' (778). Therefore, a ci tizen can legitimate laws only if she is a legitimate participant (as equal), but one is a legitimate participate only if laws are legitimated. This is not simply a mincing of words. The theoretical development of participants in deliberation requires a certain rigor that is absent in Habermas' current discussion, and it fails to establish the necessary requirements of actual inclusion. It is also unclear what makes this discourse "rational," especially since the contributors remain relatively mysterio us. Is deliberation among the aforementioned qualified participants necessarily and immanently rational? Or, must certain standards be implemented beyond who participates, extended to how one participates, such that rational discourse is equipped with a proper filter while maintaining certain inclusions? Habermas makes it clear that he aims toward institutionalized discourses, which he says stand in contrast to the "'wild' circles of communication in the unorganized sphere" as being fully situated or co ntextualized by the particular concerns of particular institutions at particular times (773). Institutionalized discourse, then, merges democratic self determination with a recognition of basic rights so that the constitution is imbued with "the procedura l sense of establishing forms of communication" that provide the measures to distance itself from the "wild" circles through certain regulatory exercises (771). Understood as being opposed to wild and unorganized circles of communication, rational discou rse is regulated, governed by strict norms and procedures (773). Within such a discourse, all participants are already citizens, an identity assumed because of its unifying characteristic based on a generalized notion of equality: public autonomy, as far
! #+ as its potential capacity is concerned, is stable. Rational discourse requires this further regulation in order to be qualified as rational, but why should so narrow a path be required in pursuit of an outcome so broad in its implications? We see that i n private autonomy that individuals may exercise their self legislation so long as it does not overstep the law; individuals can respond differently to their capacity within the limits of the law. Private autonomy allows difference, diversity. Conversely public autonomy seems to demand a subsumption of all under the same identity, Citizen, to utilize rational discourse toward corresponding goals. Coupled with an understanding of law, these citizens attempt to mediate common life through laws that are le gitimate. Because Habermas is no more specific than this, he leaves inconclusive the extent to which the standards implied in "equal participants" and "rational discourse" welcomes differences. Even more uncertain is whether accounts of inequality in dif ferent experiences of private autonomy will be validated at all. After all, he insists that neither the autonomy of the citizen nor the autonomy of the private individual can be realized without the other. Might the designations of "equal" and "rational" implicitly legitimate the exclusion of certain people from accessing narrowed channels of autonomy, threatening Habermas' much desired universalizability standard 2 and establishing an impoverished content to rights? Instead of establishing an ever presen t possibility of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! # !!,-.!/01231/4.!56!7218.09:41;:<152!=>?@!AB !250C!19!8:41D!E-.2!<-.!650.9..:F4.! 3529.G7.23.9!:2D!91D.!.66.3<9!56!1<9!H.2.0:4!5F9.08:23.!650!<-.!12<.0.9<9!:2D!8:47. I 501.2<:<1529!56! !"#$%&'(&)&(*"+ !3574D!F.! ,-&'.+/ !:33./<.D!FJ! "++ !3523.02.D!E1<-57
! #" inclusion, the empty categorization of participants risks the exclusion of individuals. 3 Intended to pave a way for future inclusions, the emptiness of Habermas' formulations concerning entitled participants and rational discourse leaves categories unestablished, flattening the status of participants, and potentially barring certain exclusions from ever being noticed at all. Equal rights that are equally distributed are not standards that can be attained under such vague, unidentifiable c ategories of participation. Rather than implementing specific categories, why not welcome participants as they are,' and acknowledge actual inequalities instead of veiling them behind a fiction' of equality? The appropriate use of public autonomy Eq ual rights are established, in part, according to measures provided by a citizen's exercise of her public autonomy, which necessarily makes deliberative practices as both the 'expectation' and 'entitlement' of political participation. For Habermas: Citiz ens can make an appropriate use of their public autonomy, as guaranteed by political rights, only if they are sufficiently independent in virtue of an equally protected private autonomy in their life conduct. But members of society actually enjoy their eq ual private autonomy to an equal extent that is, equally distributed individual liberties have "equal value" for them only if as citizens they make an appropriate use of their political autonomy (767, emphasis original). In the first sentence, Habermas places the onus on law. Citizens are capable of exercising their public autonomy only if their basic rights, the content of private autonomy, are equally protected by the rule of law. In the second sentence, the onus falls on the citizen herself. As a p rivate individual endowed with a realistic sense of these basic rights, she is also a citizen, which makes her already empowered to fulfill her !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! $ !!B!/05F4.C!<-:
! ## responsibilities within public autonomy, and the appropriate exercise becomes her choice.' This is Habermas' basic co originality thesis: the fact of co existence authenticates each autonomy. For Habermas, if the setting of public autonomy, as a capacity realized by all citizens, is properly established, the laws have done their job. It is the responsibility of the citizen to manifest the autonomy endowed to her by participating in the political process. They says Habermas of citizens, must make appropriate use of political autonomy, and in doing so, reinforce and redefine their claims to private autonomy. B ut public autonomy cannot merely exist as an option to be utilized appropriately or not. Rather, it seems that public autonomy can only exist in practice; it must absorb its possibilities through its use, undifferentiated between appropriate' and inappr opriate.' Surely, many citizens will not utilize the public autonomy endowed to them as citizens. But those who do use it can only do so appropriately. 4 If the category of political participant is vague or empty,' then so too is the concept of partici pation. While establishing equality among peers might seem necessary, what does assuming an equal vantage point imply about what is proper for the deliberation? Those who are equipped with public autonomy are already citizens, and as citizens, they are a lready capable of political participation. According to Habermas, all citizens have the potential to participate in the conversation. Calling for an appropriate' use, then, is a mere formality that exercises exclusive measures on the basis of historical !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! % !!X.!<:U.!<-19!/591<152!12!50D.0!<5!D19<:23 .!5709.48.9!605C!Y://05/01:<.!79.Z! :3350D12H!<5!/:0<131/:<152!12!:!3.0<:12!0.H74:<.D!D1935709.K!!O.0<:124J!95C.!79.9!56! /7F413!:7<525CJ!3:2!F.!12://05/01:<.!E-.2!<-.J!D5!25
! #$ contingencies. Entertaining the model of the "responsive judge" as interpreter of constitutional law, Habermas describes her as attendant to the "tangle of views" abounding in a site of discourse, exposed to the "full blast of the sundry opinions" that a re freely and uninhibitedly produced according to members' diverse life histories, current situations, and perceptions of interest and need (769). He dismisses such a view for asking too much, for requiring an analysis into the "cognitive role" of discour se and "social acceptances," and he opts instead for an emphasis on "pragmatic reasons" and "historical circumstances" as better judges of constitutional interpretation (770). Were the full "tangle of views" admissible, institutionalized discourse would r isk bringing the "wild" into the properly official, derailing deliberation from its proper course. But then can "appropriate use" actually be a choice made by the political participant? Are citizens endowed with the proper tools to navigate what is and wh at is not "appropriate" for discourse, as claims of will formation and recognition of common life would presume? Or, is the discourse structured in a way that preempts such a decision under normative presumptions about experience, determined not by agents but "pragmatic reasons" and "historical circumstances"? Instead, deliberation should be unfettered, released from the burden of such contingent criterion. For even in peripheral, "wild" discourses, citizens are expressing the will of public autonomy. Some attempts at deliberative contributions are not going to be included if it is possible to eclipse certain uses of public autonomy under a category of inappropriateness. The republican view of law maintains that legitimate law comes from deliberative p articipation, but this limitation of participation means some laws can be legitimated in a process that was unequally exclusive of certain citizens.
! #% By requiring an appropriate use, it presumes that those who do so will manifest all of the privileges accor ded in and by public autonomy; those bereft of those privileges are just not tapping into the possibilities of public autonomy (itself the only misuse'). It is this confusion that marginalizes accounts and infringes upon the corresponding private rights of these citizens: their attempts at utilizing public autonomy are sequestered to the wild' spaces of communication that disqualify them as appropriately participating. What the notion of appropriate and non appropriate uses of autonomy reveals is a del iberative process in which some individual contributions may never go beyond acts of consensus; by structuring deliberation immediately and always toward agreement (common interest), the individual's capacity to deliberate may never be actualized. Haberma s fails to address whether appropriate use of public autonomy is ever not a capacity for some citizens who can never leave the "wild." Questioning the bounds of law A lack of confidence regarding public autonomy also necessarily puts into question the co e xistent private autonomy and the basic rights held within. The "basic" nature of private autonomy means that all individuals are supposed to be granted the same liberties. But individuals are not the same: as we saw with Bowers the experience of basic r ights among different individuals is going to be different, and the risks for one individual may be a different experience from the risks posed for another individual. Again, the limitations of Habermas' vision given here provide little room for interpret ive generosity regarding difference or situated experiences. Private autonomy is supposed to be equal for all citizens; any divergence from this fact is supposed to be the result of a misuse of autonomy on the part of the citizen,
! #& not a flaw of legitimate law, according to Habermas (779). If nuanced experiences of private autonomy are difficult to asses because of more complicated invisibilities occasioned by public autonomy, if they are difficult to pin down within a public autonomy touted as "equal," the n the "bounds of law" within which such private autonomy dwells must be contemplated. Private autonomy, established by the legal guarantee to behave as one pleases within the bounds of law, centers on a set of rights that are static, "unchangeable," and basic, wherein the autonomy described is "enjoined" but not "legally required" (767). These bounds allow for a freedom of choice that accords a sense of reasonable will formation, by which they are inscribed in political self legislation. As authors, cit izens can utilize basic rights to establish secondary political rights of which they are the addressees (777). Habermas sets up basic rights involved in will formation as a standard for deliberation, but leaves the standard unchecked once the process has b egun. Does this mean these basic laws, as "basics," are unquestioned? Is the content of basic rights protecting private autonomy therefore assumed safe? Does everyone actually experience this equal protection? Insinuating that a private individual is f ree to do whatever she pleases in private as long as it is within the bounds of law is a misleading statement, for it does not acknowledge the reality that this determination of "in bounds" and "out of bounds" must face. Within the bounds of law,' privat e sexual acts have been excluded for some and not others, reproductive rights have been excluded for some and not for others, and other instances that for many others would still be private are instead exposed, quite publicly,
! #' to a confrontation with the l aw, with no equality in obligation. To claim that basic rights in the rule of law are 'inscribed' in self legislation as result of the reasonable will formation arising within private autonomy and practiced in public autonomy leaves these basic rights pot entially unchecked. Laws that arise through the norms of the legitimation process, such as those that work to inhibit any kind of homosexual activity, or sexuality in general, or reproduction in general, explicitly hinder private autonomy and implicitly cr ipple the political rights of a citizen. It is implicit, because as legitimate law, one is still expected and obligated to follow it as that which is wisely orientated toward the common good. If the individual's public rights remain merely formal, how ca n equal basic rights and equal private autonomy ever be secured? Collapsing public and private Despite the title of co originality,' Habermas gives temporal primacy to private autonomy by establishing it within basic rights. As an initial and initiatin g guarantee of a will formation, private autonomy establishes the platform for public autonomy to use will formation for the legitimation of laws. Deliberative discourse, the activity of public autonomy, illuminates the common will to which individual wil ls are then bound by law, the requirement of private autonomy. Therefore, Habermas gives practical primacy to public autonomy. In this way, the two still co originate: the first step toward private autonomy is an establishment of its counterpart, while t he first step toward public autonomy is an establishment of its counterpart. The problem is that the onus actually falls on public autonomy, the appropriate use of which stands as a choice for Habermas. Reflecting back on the emptiness of the
! #( category of participant, does this supposed choice do anything to guarantee that all citizens who are ensured access in theory are granted access in practice? If neither is supposed to exist without the other, but public autonomy is presented as a means of accounting for both, then public autonomy subsumes the private, collapsing the distinction. But if private autonomy is necessarily implied in every action of public autonomy, does private autonomy still claim to secure itself? An attempt to claim the mutual origins of public and private autonomy does not acknowledge the ways in which both purport to actually exist on their own, and why sometimes that means neither exists at all. While public and private are said to co exist, public autonomy nevertheless maintains t he facade of functioning when it is deprived of its counterpart, so long as the individual is assigned the title of citizen. While an imbalance between public and private means both spheres are being deprived of their "resources," the health of public aut onomy is ensured as a formality, and the effects on the private sphere are threatened to never be recognized. The collapse occurs in this moment, when the law directly intrudes the private sphere as a result of the negligence from the public sphere. Hab ermas' notion of co dependence rings true in this instance, but ignores the possibility that attempts at universalizing laws (and the categories of participation within) tips the balance between private and public in favor of a false maintenance of public autonomy. Although the two autonomies are co dependent, they are not always co original in the ways he claims them to be. Sometimes, public autonomy must be utilized spontaneously, a position that will soon be explicated.
! #) Habermas' solution for the fut ure and Honig's critique For all of its pitfalls, Habermas' piece nevertheless emerges with a solution to political exclusions that at first seems impossible to oppose. It is this very impossibility as it occurs in the present, an impossibility that is t emporal rather than logical, that grounds his solution: the system of rights works itself out in the future, in the dimension of historical time. For Habermas, public and private would neither co originate nor collapse in one instance, but instead would f ind their source in a two staged legitimation process that is continually being determined and redetermined. Implied in his solution is a historical question regarding the marginalization and disenfranchisement of individuals that is not always prevented b y formal practices of participation. For Habermas, this happens because the system of rights within those practices has yet to be tapped (774). The resolution occurs in two stages, the first of which is a setting of "constructive tasks" or the establish ment of requirements for participants, and the second as constitution making. Throughout the first stage, though, "nothing has actually happened" (777). Habermas elaborates four categories of rights: equal individual freedom of action, the status of all participants as members in a voluntary association of legal consociates, equal protection under the law, and the right to an equal opportunity to participate in political law giving (777). These four categories that comprise both (private) basic rights an d (public) political rights are created "in a single stroke" in the second stage (777). This single action is the result of an individual "engaged in inward reflection" shifting her focus outward, to perceive "what in general
! #* must be regulated" with an un derstanding of historical circumstances and necessary rights (778). For Habermas, deliberation extended throughout time eventuates this result. But if in the first stage nothing happens, what happens in the second stage occurs only in the future. The fu ture or historical solution suggests that citizens can only address problems after their appearance in the public sphere: the citizen becomes concerned only once she is affected, once her own rights are intruded in this instance (778). One is awakened thr ough a personal confrontation with possible risks that may have already existed for other individuals for some time, and through this experience, one finally recognizes the necessity of the particular regulation (778). What emerges is a figure that "turns outward," only by confronting itself with the potential risk, which cannot be deemed as acting appropriately' without finding the proper channels of deliberation. But what are these issues before they are addressed? What is the status or concern of thes e rights in the present? Habermas' reconciliation of constitutionalism and democracy claims that the "internal connection between will and reason can develop only in the dimension of time as a self correcting historical process," and makes the task of am elioration one of education rather than reformulation. This is because he understands the constitution as making "the founding act into an ongoing process of constitution making that continues across generations" (768). He assumes a "dynamic understandin g" to answer what he identifies as a regress of legitimation, which he says will always be met with skepticism, but continues to point toward the constitution. A dynamic understanding is that in which future generations "have the task of actualizing the s till untapped normative substance of the system of rights laid down in the original document of the constitution" while present generations ensure that "ongoing legislation
! $+ carries on the system of rights by interpreting and adapting rights for current cir cumstances" (774). Yet he says the regress is always the target of the "future oriented characterof the democratic constitution," in which present citizens have the task of 'laying down' the system of rights that the future generations have the task of a ctualizing (774) Habermas reduces the complex problem to one in which the solution is simple, almost a matter of faith: "Contemporaries can see that groups hitherto discriminated against gain their own voice and that hitherto underprivileged classes are p ut into a position to take their fate into their own hands...and all parties recognize the reforms are achievements" (774). He reduces these problems to being temporary and temporally contingent, believing that eventually everyone will recognize that equa l rights are not yet realized. How does Habermas' account of progress ensure the problem is not merely evaded but instead properly resolved? For Bonnie Honig, it does not. In "Dead Rights, Live Futures: A Reply to Habermas' 'Constitutional Democracy,'" Honig criticizes Habermas' solution because she says it results in an infinite deferral of rights that can never be claimed in the present (797). Habermas acknowledges that present citizens recognize injustices, but misplaces the blame when he frames the solution through a picture of historical progress, a perpetual moving forward that praises any distancing from previous injustices. What Habermas' resolution seems to create is a process of political participation in which the current participants are al ways already one generation behind the realization of the goal of progress, but whose future nevertheless is already
! $" fated by such a process. Present citizens are retroactively oriented toward a particular future. Yet his generous emphasis on the citizen' s agency ignores the barriers constructed against it. Utilizing a public autonomy against which there have already been many barriers seems like an unsuccessful activity from the start. Additionally, acting within the bounds of law for many citizens is a more narrow allowance of action than for many other citizens. In what way does the process "continue" across generations, and what is the nature of that continuity in the shift between possibility and actuality when an appropriate use of public autonomy in the present precludes certain futures from coming into existence and silences certain voices under the concept of citizen? For Honig, Habermas' paradox of constitutionalism and democracy finds its solution always a future that is only guaranteed if th e present generation fulfills its political responsibilities." This puts an emphasis on the idea of progress and not on specific accomplishments or their longevity, or rather, on appearances of change rather than any changes in practices attempted to atta in that progress (Honig 794). Honig's criticism of Habermas is rooted in this "faith in progress," where disenfranchisement, invisibility, and marginalization are all contingent in a "self correcting historical process" that "carries on the system of r ights by interpreting and adapting rights for current circumstances" (Habermas 772). The emphasis on progress acknowledges problems only once they are in public, and leaves certain rights vulnerable to future intrusions. Progress constitutes the future a s ground rather than horizon: "Its character as a future is undone by progress' guarantee" (Honig 797). The agency of the "autonomous" present generation relies on a "set of forces quite beyond itself," purported
! $# as tangible in relation only to what in th e present are fictions of a past which it cannot author, and fictions of a future which it cannot inaugurate (Honig 797). The act is one limited to repositioning, such that progress is always a result of the past and a goal for the future. Faith in progr ess inhibits the self examination, genealogy, and critique necessary to constitutional democracies (Honig 797). Habermas clings to contingencies as historical truths in his idea of political participation and progress, valuing certain uses of autonomy who se possibilities are merely contingent. In an important footnote, Honig accuses Habermas of dismissing "the experience of life under actual law," in which "legislation, even if technically universalizable and constitutionally permissible, tends to apply t o particular populations, many of which are marked as governed but not governing" (fn. 8). To keep rights "alive in the present," as Honig suggests, scrutinized in the active relation to the present, the distribution of rights and exercise of autonomy mu st be interrogated in relation to the actual experiences of citizens. Keeping rights alive for the present invigorates the demands of political participation: something cannot be preserved if it has yet to be established. Habermas' solution remains insuf ficient because the difficulty of his paradox is with the legitimation of laws, and Habermas leaves this for the future to figure out. He does not provide satisfactory standards for this process. Co establishing public and private autonomy requires an ac tive pursuit of and inquiry into both, rather than investigations of rights that come about only when inspired by problems. It forgets that these problems, some accounts of which can and cannot appear, are themselves historically circumscribed.
! $$ To state this otherwise: how is the appropriate exercise of autonomy anything but complicit in a code that will always translate to systematically predetermined bounds of rights? Addressing a problem of "underprivileged classes" in public only once they appear in public means they risk being forgotten again and again. For who is providing the real remedy? If an issue is addressed as a public problem, rather than as a preemptive deliberative concern, its consideration for common concern is contingent, and therefor e "underprivileged classes" are not taking fate (legally) into their own hands, but rather having their fate handled for them. Honig turns toward the clashes that occur beneath the radar of official constitutionalism, citing many contemporary theorists who have alerted us to "constitutional democracies' tendency to paper over moments of alienation they might otherwise engage and to translate the emergence of new world building power and agencies into rights claims that can be adjudicated positively or negat ively within an existing economy of rights and liberties" (800). While Habermas has a keen understanding of the importance of communication and deliberation, his version of practice realized in political participation fails to keep these rights alive in a ny sort of innovative fashion. Instead, Habermas' "constitutional democracy is fed (through discriminating sluices) by the publics and counter publics of a decentered and dispersed popular sovereignty that he repeatedly characterizes as 'wild' and 'anarch ic'" (Honig 799). For Habermas, such discourses affect movement only on the periphery, far and away from the "calm center" his conceptions of rational discourse assert (Honig 799). In positing a balance, rational discourse overtakes the wild action of th e periphery. Thus, when Habermas says that discriminated groups "gain their own voice" and are "put into a
! $% position" of agency, it is not those discriminated groups who assert this voice or position, but rather gains and placement are imposed by official regulation, and assented to and adapted by the newly authorized participants. Deliberation as it is conceived here seems to be a mere formality for legitimation of law. Not only are some laws formed that do not establish equal treatment for all citizens, but only certain accounts will be included in legitimation, making legitimation and equality only coincidental. Honig voices a similar concern: "The content and significance of basic rights and liberties may change in time (for better and/or worse), but the basic economy that supports and is supported by them does not" (800). She concedes that Habermas' co originality thesis emphasizes a political participation that claims an assertive influence on the system, but that his vision ultimately falls short b ecause: He does not take up the challenge to think about how the rights centered pressure of public reason may get in the way of a politics devoted to world building. He does not ask whether a rights centered constitutionalism, in its efforts to preserve the rule of existing constitutional norms and forms, might do unacknowledged violence to new forms of life. He does not really acknowledge clashes between constitutionalism's promise and risks (801) Habermas views deliberation in democratic institutio ns as enabling citizens to be both the authors and addressees of the law, but the learning process he credits to political development relies too much on the notion of progress to deliver equality. By summoning the fiction of equality in public autonomy a nd delegitimizing contrary experiences of private autonomy, Habermas' deliberative process perpetuates the reality of inequality. It also highlights the structural invisibility built into political participation and the exercise of autonomy. This invisib ility has serious implications for whether deliberation is a new elaboration of perspectives that challenge normative accounts, or if
! $& deliberation is translated into a pre established economy of rights. While inquiring beyond the surface of constitutional democracy has gotten us this far, questioning beyond the surface of institutionalized discourses and into the very experience of that communication will only take us further away from Habermas' vision, and closer to reconceptualizing privacy.
! $' Chapter 2: Complicated Communication: A Regulated Domain of Speakable Discourse The difficulty of properly delineating the boundary between public and private began with a questioning of autonomy within the respective spheres: the boundary between a public space for action orientated toward a common good through law, and a private space for acting within the non intrusive confines of the law. At this point the paradox of privacy compels us to move beyond inquiring into the limitations of privacy an d into the public counterpart of this dichotomy, because it is ultimately here that privacy becomes a normative assumption. Questioning public space in relation to the private compelled an inquiry into political participation through deliberation, which u tilizes public autonomy on the condition that its private counterpart is maintained. Habermas sought to prevent the collapse of public autonomy and private autonomy through a solution of co originality that put political communication as deliberation in t he spotlight for legitimating laws. But this solution was found to be insufficient, and even superficial, for the function of communication is more complex than he allows even while he relies upon it. Taking into account the deeper structure of communica tion provided by Derrida, we can perceive the practical difficulties of communication that might arise in the kind of public deliberation that Habermas thought could alleviate previous injustices. An inquiry into communication is necessary for two reason s. As we have said, the deliberative process can serve as a mask for domination and construction of social identities, which Habermas' recommendation of equal participants merely veils.
! $( Additionally, limiting deliberation only to the so called common goo d preemptively eliminates some issues from the list of relevant concerns and is an implicit form of control. The meaning of what we speak depends on from where we are speaking and where we are situated: it relies on a context of our social locations. Hab ermas unifies this context for every participant and establishes what is and what is not sayable, implicitly delegitimizing certain other accounts. These differential delegitimations hinge on publicly constructed social identities that are left out of Hab ermas' political assessment. This chapter will explore these complications in further detail. In Signature Event Context Jacques Derrida provides his account of communication rethought: "I have been constrained to predetermine communication as a vehicle, a means of transport or transitional medium of meaning and moreover of a unified meaning" (1). But the word communication is polysemic: one can "communicate" also in two physical senses of interaction: through a passage or opening, or through a displac ement of force,' in which what is transmitted does not involve mere meaning or signification. Derrida asks: which is the primary meaning of communication, the physical or linguistic, and which meaning is derivative or parasitic on this initial meaning (2) ? He pursues this question to provoke further questioning about the necessity of the concept of context. For many theorists, context acts as a limit upon which we may rely to reduce the field of any word, including communication.' A "conventional" cont ext is supposedly "produced by a kind of consensus that is implicit but structurally vague," and relies on engagement with discourse and signification located "within the horizon of an intelligibility and truth that is meaningful" agreed to in general amon g interlocutors (2). But Derrida questions whether the conditions of a context are ever
! $) themselves determinable, concluding that context is in fact never absolutely determinable (3). This conclusion of a perpetual uncertainty of context, a "structural no n saturation," as he calls it, posits the current concept of context as inadequate, since it excludes or displaces' the concept of writing from our understanding of communication.' But writing is the paradigmatic form in which words are continually subj ect to recontextualization. These remarks introduce the ideas that will lead Derrida to a deconstructive reconceptualization of all communication as "writing," reversing J.L. Austin's characterization of writing as parasitic to speech. For Derrida, wri ting relaxes the limits of space and time by which typical experiences of speech and gesture are confined, extending the field of possibility for communication. What is particular to writing, in its traditional contrast to speech, however, does not remain particular in Derrida's reconceptualization. Through a metonymy, Derrida invokes the necessary companion immanent to the concept of communication: absence. What the displacement of the limits of time and space anticipate is the possibility of communicati on through the absence of both addressee and author. The absence of the addressee is intuitively simple within the concept of writing: one writes in order to communicate something to those who are absent (5). The absence of the author, however, establis hes in Derrida's view not only the structural possibility of all writing, but of all communication in general. The absence of the author (sender) is established through the possibility of her mark cutting itself off from her and producing effects independ ently from both her presence and her intentions (5). This possibility occurs through the structure of iterability:
! $* In order for my "written communication" to retain its function as writing, i.e., its readability, it must remain readable despite the abso lute disappearance of any receiver, determined in general. My communication must be repeatable iterable in the absolute absence of the receiver or of any empirically determinable collectivity of receivers. Such iterabilitystructures the mark of writing itself(7). Iteration places an emphasis on neither the sender nor the receiver; instead, it relies on the necessary absence of both. Iteration requires that both the sender and receiver are equally' absent: the iterable structure of all communication a llows the utterance to maintain its function as readable' without being tethered to the source of origin or reception. Absence gives to writing, or rather, demands of writing, an indeterminable legacy. And it is this legacy due to absence that Derrida s ays is actually enacted in "every species of sign and communication" (7). Notice the action Derrida emphasizes: the mark cuts itself off from its sender through its very structure. The qualities of iteration qualify all utterances to be cited; that every thing must be iterable, means that everything can be cited. Both citation and iteration hinge on the possibility of a removal from context; thus, communication is always context less. It is this contextlessness that provides communication with a unity, a possible homogeneity. Contextlessness renders the landscape of communication devoid of the landmarks of interlocutors. Derrida posits communication as a field without identifiable limits, establishing a "unity and wholeness of meaning" that relaxes even the empirical limits of voice and gesture (3). It is "writing" that manifests all communication as a "sort of homogenous space of communication" through the extension of the field of communication in the written word the particular transmissions may oc cur by different means, but the medium itself "remains fundamentally continuous and self identical, a homogenous element"
! %+ exemplified in the concept of citation (3). Homogeneity and citation are coupled to enable a repetition of ideas expressed; that is, to reproduce the utterance, there must be something with which it can self identify. Therefore, iteration necessarily reinforces and requires homogeneity, such that in order for an utterance to be iterable, for it to be readable' in the absence of both s ender and receiver, the utterance must always occur in a homogenous space of self identity. The written sign is readable, is not exhausted, and subsists without clear context or intention, because it is repeatable and citable; it carries a force that brea ks with context (9). Iteration relies on this absence and the ensuing necessary legacy as a risk, as a necessary possibility belonging to the very structure of every mark, spoken or written, "which is to say in the possibility of its functioning being cu t off, at a certain point, from its original' desire to say what one means and from its participation in a saturable and constraining context" (12). Thus, everything one can utter has the potential of being taken up through citation into the homogeneous space of repeatability, independent of the author, and removed from claims of context because there is rightly no proper context, even for its "initial" marking moment, since this too relies on past iterations. Derrida does not remove senders and receive rs from the total situation, but removes them insofar as communication can function without explicit recognition of specified sender and receiver in many different contexts. Utterances can have a legacy that long outlives their creators. Understanding co mmunication as operating in a homogenous space that makes possible different contexts poses political problems that give reason to critically examine the unified context in the communicative answer offered by Habermas and the importance of recognizing the authors and addressees of legitimate
! %" law. Communication itself has a complicated relationship to the delineation of public and private, and if it is to pave the way to a better understanding of these distinctions, then its relation to both must be further explored. These two relations must be categorically distinguished to make compelling a public solution to the complexity of privacy. We will look at both private communication and public communication to see possible divergences in the treatment of publ ic/private individuals, and to ask what the implications of such relationships might be for deliberation in the public sphere. Private Citation: Protection and Harm Private communication' is what occurs in the space delimited by the law, while public co mmunication facilitates public deliberation. Communication that occurs in private may nevertheless become public communication. Private communication is susceptible to the law through a structure of legalized infringements in the name of private autonomy which makes the presence of law acceptable in claims of protection. This protective measure by the state, in which certain acts of communication are legally mediated in what is widely accepted as a beneficial act, finds its counterpart in a second case, which takes the initial protective measure of a legalized infringement as its premise. It makes more clear, however, the instances in which publicizing communication is detrimental and makes limiting the law's intrusion into the private sphere quite diff icult, especially given the iterative structure that potentially pulls any communicative act out of context.
! %# In private, the law is at times welcome but at times intrusively exceeds its limits. The mode of operation is the same, but the outcome distingu ishes the two. The cases of protection embody the possibility of non harmful intrusion that enhance rather than hinder the rights and autonomy of the citizens protected. The title of "protection" for this category accentuates this aspect of enhancement, because it locates a source of agency within communication. Certain injurious circumstances arising in private are not to be excluded from public consideration because they occur in private. Instead, a public or legal mediation is often needed to resuscit ate private autonomy. Sexual consent, for example, is communicated in private, but is by no means exempt from the law. Sexual acts without consent are then relegated to the legal category of rape, exterior to what is permitted within the bounds of lawful privacy. The determining factor is revealed through the communication between the individuals involved, making that private communication public. Likewise, threats on one's life may be similarly determined. These situations can be brought before the la w through citation of specific utterances, such that communication is publicized or exposed to law by the very possibility of citation. Citation, therefore, "constitutes the condition of possibility for [one's] agency in the law" by establishing legal cha nnels of examining communication (Butler 87). But through this possibility of citation, the initial utterance becomes public: hovering above each and every instance of communication is its potential to be made public through citation before the law, which an individual may utilize if necessary. The iterative structure that allows for citational possibility places all communication in a quasi public state, which can be taken up to cause harm to private
! %$ autonomy rather than protection. Harms can ensu e from communication that is not relevant for public knowledge, or that threatens to impede the private autonomy of an individual. What is not relevant for public knowledge or potentially damaging to an individual's private autonomy? This, of course, dep ends on who or what determines what is and what is not harmful, engendering possible circularity. Some accounts of privacy center on exactly this debate of what personal information is and is not relevant to a category of private. & For example, take a co nversation between two lovers in a bedroom, in which both the space of the home and the intimacy of conversation are typically considered private. Kind words may be spoken, such as declarations of love, or conversely, threats against the life of one anoth er might be made. The latter may be taken up as a protective legal infringement of the privacy of communication, but the result is that the former is not private or exempt from public disclosure just because it is found to be non threatening. It would be difficult to believe that kind words would be taken up against one lover or another in this situation, but the law cannot predict what will be said in these situations, and in this way the law's relation to communication is necessarily open ended, leaving the state the power to determine what is and is not relevant. The distinction in intrusion on private communication between protective testimony and harmful testimony is only in the outcome of whether a citizen is being protected by the law or whether t hey are harmed by the law; both have their foundations in citation via iterability. The utterance is situated in a temporal location, before' the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! & M5 0!:!D193799152!56!/018:3J!:2D!/7F413!D19345970.!56!/.0952:4!12650C:<152N!9..! P0599.0!!"+* I ""(K
! %% law, but it is also 'before' the law in another sense, susceptible to its determination the instant it comes into being. In other words, although specific communications occur antecedent to whatever their fate may be in relation to the law, they are nevertheless always confronted with possible legal or public ramifications. Legal citation implies an ever prese nt possibility of the law, since the legal determination of certain utterances can only occur after the utterance. Because of this retroactive determination, though, the law makes itself always already present in order to determine the legal status of tha t utterance. The anxiety induced by the possibility that all communication is potentially public communication is not produced only by the risk of a so called invasion of privacy, but also by the fact of contextlessness that the speaker is forced to confro nt: namely, that her intentions' are lost while the utterance nevertheless flourishes on its own. Picking up a communication out of context, without context, occurs with or without a speaker's authorization. All utterances are susceptible to this vulner ability, and through this, all speakers are vulnerable to something much greater. Just as citation can be a means of agency for those against whom the utterances being taken up were used, it is also a means for an expropriation of a citizen's communicati on in invasive ways (Butler 87). The iterability that structures the principle of legalized infringements, permissible in particular private situations, betrays the maintenance of privacy, and leaves no communication sheltered from potential public exposu re. This quasi public state of all communication exposes all citizens to a determination of legitimate privacy according to the state. Diverging experiences in
! %& private autonomy according to both speech and action means that all citizens are vulnerable to a narrative established by the state. If the legal designation of such utterances can only be determined once they are communicated, then the structural necessity of citation equips even the least injurious utterances with a capacity for legal appropr iation in the public sphere, subject to legal interpretation according to selective narratives produced and reinforced by the state. Utterances are already in a sense public; that possibility always waits to be tapped. While citation is a moment of agenc y within the law, that agency is determined by a legal authorization of the individual's position. If it is difficult to find a limit between communication and the law because communication that is initially private can be appropriated as public, how mig ht privacy be maintained if the line is always already necessarily blurred? Once we view communication as an act that is quasi public due to iterability and citation of all utterances, we can view the distinction between private and public communication a s another indication of protection that occurs according to accepted and unaccepted accounts, forcing us to inquire into the conditions of what counts as accept or unaccepted within the public sphere. Hate Speech If, like many before us, we resist Mill' s superficial separation of words and actions, and see the full impact of communication as discussed above, we are brought to ponder the wounding power of words. Reflecting on the purported quest to eliminate and/or manifest this "wounding power" directs our attention toward the officially public
! %' issue of hate speech as the legal category of words that wound. Judith Butler's depiction of hate speech and her accompanying account of censorship in Excitable Speech: A Politics of the Performative provides a c ompelling moment of entry for this discussion. Evidence has already been supplied for the way private communication is involved in publicity and legality, which calls for corresponding consideration to be given to communication initiated in public. That the law regarding privacy is sometimes welcome and sometimes intrusive distorts conceptions of privacy at every instance and endows all communication with a questionable status: the aforementioned quasi public characterization arising from the possibility of publication for even private communication. Hate speech, however, results in and from an entangling of law and communication such that the two are inextricably linked. We can look to the legal construal of communication encountered in hate speech as a solid example of the reflexive relationship between public and private in relation to communication. Additionally, the discussion of hate speech will revisit the problem of multiple versions of citizenship, the direct result of stresses the law places on the relationship between public and private autonomy, and the ways in which communication itself is constitutive of speakers. Hate speech is a legal categorization of words deemed by the state to be "harmful," or with the capacity to injure (Butler 96). In hate speech, speech performs an action of relaying the harmful message, and in doing so, institutionalizes that harm of subordination as well (72). These words are proscribed by further state involvement through censorship. The direct relation to ha te speech pulls censorship onto the scene; in a conventional account, it proceeds from the speech to be designated as hate speech. The
! %( legal definition of hate speech permits, and in fact, requires said speech to be followed by a regulation of law through censorship. Butler elaborates on this relationship between hate speech and censorship in order to show, through an inverse formulation, that the state actually produces the hate speech: not only could the category itself not exist without the state, but the state imposed limits of such a category are not the prohibitions they claim to be, but are instead productions (77). She makes it clear that she does not presume to say that the state inspires particular slurs or epithets, but that the category itsel f is a creation of the state, which she uses to unveil the extent of involvement by the state in the production of further restrictions or more implicit shapings of speech. Explicitly producing a category of speech or words that are not within the bounds of what is legally speakable calls for an ensuing explanation of how those words will be made unspeakable, and produces not only this category of what will be called "unspeakability," but within such an elaboration, already speaks it. To highlight this mor e complicated understanding of state censorship, Butler cites the October 1994 statute that put "don't ask, don't tell" into law, thereby prohibiting the expression or self declaration of homosexuality in the military (76). In this statute, the term "hom osexual" was impermissible only in the context of self declaration; in other contexts, "homosexual" was permitted. This prohibition' permits what Butler calls implicit censorship : a regulation that extends beyond the regulation of speech and into a regul ation of action, implicit' still because its explicit claims are supposedly limited to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! !![7<4.0!:DC1<9!<-:
! %) speech. When the state claims to distinguish contexts of self declaration from contexts of homosexual activity, implicit censorship extends the force of its regulation to a differential determination between speech and conduct, which "exceeds the bounds of legal definition even as it deploys the law as one of its instruments" (130). This implicit extension of force must lead to an interrogation of the censor's powers t hat are not explicit in policy and regulation, into ways that the censor's powers are greater than explicitly authorized. As previously introduced, Butler takes particular note of the nuance of this relationship between hate speech and censorship, and tur ns it around against itself. Rather than censorship countering something already stated, censorship precedes the hate speech "and is in some sense responsible for its production" (128). This is precisely because the category of hate speech is a creation of the state, a categorization that is a response to words that are determined as harmful by the state through this categorization. Just as the state is responsible for those productive mechanisms through a construction of the category's limits, "the rubri c [of hate speech] is a legal norm to be augmented or restricted by the judiciary in the ways that it deems fit" (97). What is censored as hate speech is "the sanctioned utterance of the state, which produces the act of hate speech produces, but does not cause" (96). The constraint expressed by censorship is its very proliferation: this constraint is the production of a platform of "legally consequential speech," or the speech that has legal repercussions once spoken (97). All of this unveils a fallacy o f censorship: the supposed prohibition by the state does not remove from publicity certain words or speech as intended, but instead publicizes the very object it seeks to remove from the public sphere. The regulation
! %* "states what it does not want stated" a nd injects legal content into all iterations of anything classified as hate speech, exceeding juridical power (130). Butler notes that the utterances that are censored are determined "as censored" when banished from public life (128). But to where are th ey exiled? Just as whatever is considered as uttered "privately" obtains a sort of residual publicity, tethered to the law and tarnished by that very relation, the citability of these terms prolongs the utterance's lifetime, allowing for the transfer of t he utterance before the court, into citation proper. The distinction between an utterance and the law's determination of that utterance is lost when what is spoken is already an invocation of the law. The proscriptive elements of hate speech account for a communication that is immediately and eternally accountable before the law, such that it may never be "before" the law in a temporal sense. This publication of censorship in "don't ask, don't tell" and similar instances is a state sanctioned delegitimiza tion of certain identities because it re institutionalizes the subordination that it claims such messages relay. By claiming to limit the prohibition to the self declaration of homosexuality, and not reference to homosexuality or homosexual lifestyles, im plicit censorship imposes its own divide between homosexual identity and expressions of that lived experience through action, thereby censoring declarative expressions, but also the very actions that may occur in private (131). The reach of state censorsh ip, then, not only retreats into the background of juridical power, but also exceeds communication and enters the realm of action. What censorship claims to restrict is only the use of the word in a description of oneself as homosexual; the state does not view censorship as restricting homosexual activity. But because contexts are irreducible, the line context could supposedly establish
! &+ between utterances that declare an identity and utterances that perform an action becomes impossible to define as well. There then becomes no context, no moment, for permissible homosexual action according to the productive proscriptions of censorship: for if there is one context' that is established as inappropriate for homosexuality (the context of self declaration), the n there is actually no context -no proper utterance or proper communication -for homosexuality. The restaging of hate speech is not limited to citation, but is an application to actions beyond communication. It is no coincidence that in this case, the ac tions restricted might occur in the space reserved for private autonomy, the space that was not to be constricted beyond the bounds of equal, legitimate law. Beyond hate speech: regulating speech and the domain of speakable discourse Is it the instituti onal conditions of an utterance, the circumstances, or the deployment of words that wounds? Butler replies that the answer "founder[s] on the question of who does the interpreting of what such words mean and what they perform" (13). As a category whose s pecifications are produced by the state, it is the state that is endowed with authority to determine what is and what is not harmful. These determinations occur prior to any such communication by structuring the speakable. Citation of hate speech is itsel f a reproduction of hate speech, a perpetuation of both the category and its content. Contextlessness makes even legal discourse not exempt from an open ended origin and space of citation. Derrida corroborates this notion of reproduction by insisting that the "possibility of repeating and thus of identifying the marks is implicit in every code, making it into a network [ une grille ] that is communicable, transmittable, decipherable, iterable for a third, and hence for every user in general" (8). Butler ass erts that the state produces the category of hate speech, but
! &" contends the notion that the state exclusively inspires or induces the malicious utterances. However, if citation of hate speech reproduces what it does not want stated, it reproduces hate spee ch. Neither the production nor the reproduction of hate speech retains a sense of intention.' The regulation of speech produces the speech, produces the speech as regulated, and as regulated, the speech becomes proper according to the implicit regulatio ns on speech. If censorship constrains in advance, it does this through a constraint on speech in general (Butler 128). Butler conveys her view of the extent of the state's activity in no uncertain terms: "I propose that censorship seeks to produce subjec ts according to explicit and implicit norms, and that the production of the subject has everything to do with the regulation of speech" (133). "To produce" is the activity Butler assigns to both hate speech and the regulation of speech in general, as the a ctivity assigned to all communication. As the subjects of this speech, the limits and terms of acceptable speakers produce a limit on deliberative exercises of public autonomy as well. For censorship to 'produce' subjects is for censorship to produce a c ategory of subjectivity premised on a regulation that includes and excludes certain content. This regulation must nevertheless confront that which it excludes, through its relegation to a category of difference. Butler continues: The subject's production takes places not only through the regulation of the subject's speech, but also through the regulation of the social domain of speakable discourse. The question is not what it is I will be able to say, but what will constitute the domain of sayable within which I begin to speak at all. To become a subject means to be subjected to a set of implicit and explicit norms that govern the kind of speech that will be legible as the speech of the subject (133). The regulation does not inhibit a capacity to utter, but rather, establishes an appropriate way to communicate and produces the capacity to say what is properly
! sayable. Thus it is not just a regulation of what one says (speech), but of what one can say if one wants to be authorized as saying anything at a ll (discourse). It is a regulation of the site itself, preemptive and antecedent to any particular utterances, framing them properly before they even exist. Those who are properly speakers in this regulation are co constituted: "to become a subject mean s to be subjected ," wherein regulation is the rigorous exercise according to the regulation (as production) of speech, perpetuating the regulation of the "social domain of speakable discourse." "Homosexual soldier" is then not a term with which one ca n describe oneself while wishing to remain within a space of speakability and a location that is speakable. As a prohibited term, it is a term determined by the state, and as the state produces subjects according to explicit and implicit norms, to speak a s a homosexual soldier is to speak outside of the domain of speakability. After all, to embody the norms that govern speakability in one's speech is to consummate one's status as a subject of speech" (my emphasis, 133). To embody these norms is quite li terally to bear the mark of their significance, but also to locate them in social space and time. These embodied norms mark locations that are within and without the norms, putting the social positions themselves into a sort of communication, such that th ey are "understood to be situated in a static and hierarchical relation to one another. By virtue of the social position he or she occupies, then, the listener is injured as a consequence of that utterance. The utterance also enjoins the subject to reocc upy a subordinate social position" (18). These social positions are not limited to the example of the homosexual soldier, and the occupation and reoccupation of positions are not limited to the instances of hate speech. Insofar as one does garner the au thorization to speak, it is through a self
! &$ identification of one's utterances with those regulations, both implicit and explicit, delimited by the state. Once again, one is forced to confront a sense of the homogeneity Derrida ascribed to communication: i n order to be communicable, iterable in the first instance, the expression of these identities (as self identities) must be reconciled with repetitions thereof, which introduces differences unless the "context" of repetition is itself policed. There are t hose whose social location makes it such that their speech is not proper according to this self identification of their utterances with the regulations set in place on communication, as in the example of the homosexual soldier. This highlights the intimat e link between social location and communication, whereby in an enforced homogeneous context, the locations too become homogenized in order to be recognized as proper speech, and one is constantly occupying and reoccupying social positions, both as a liste ner and a speaker. Reoccupying social positions by embodying norms of communication is then less of a confrontation with these social positions by those who occupy them than a reinforcement of them by those outside of them. ( Communication and citizensh ip The effects of constraint as proliferation, as regulation, legally manifest in the additional constraint of public and private rights. Censorship as a means of regulating speech is not just an issue of "free speech," but of substantive equality and possibilities of citizenship (Butler 128) The implicit mode of censorship that exceeds a regulation of speech and expands into the realm of action "operates to make certain kinds of citizens !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! ( !,-.!/5991F141
! &% possible and others impossible" (Butler 132). Since communicat ion is fundamental to politics, the restriction of speech by censorship is utilized to further other, "often unstated," state and social goals (132). The productivity of censorship that results in a category of communication that is formative of subjects and regulated boundaries of speech is entirely antagonistic to the goal of using communication to legitimate law and enhance the equality of rights. For example, in the case of "don't ask, don't tell," Butler claims that this mechanism of censorship "is engaged in the production of a figure of homosexualitythat isbacked by the state (131). Implicit censorship is that which not only presupposes a strict divide between speech and action, but this imposed divide adheres to the state's own interpretatio n of speech and action. When every action posits the possibility of declaration, what is proper (and possible) conduct for a homosexual? Can such a figure become an effective citizen, capable of equally utilizing her public and private autonomy? The imp acts on and effects of social location have already been made relevant to communication. Citizenship, as a category produced by the state, accommodates the censored production of the state that divides and hierarchizes social positions. The result is tha t there are multiple versions of citizenship implied in this division, rendering the concept insufficient to its purported goals of equality and liberty. Social location can be the result of infringing upon and publicizing some private actions, as in the example of the homosexual soldier. In some of these circumstances, what on the surface seems to be an intrusion on private actions is instead revealed as problematically situated in the deeper structure of proscribed communication. Identifying the prohib itions against what should be equally private to all, but is ultimately not for some,
! && may be a means of tracing a path back to the different experiences of privacy and establishing some private issues as serious issues of inequality that ought to be public concern. Communication and the public sphere In response to Habermas' anxiety over the preservation of both public and private autonomy, one might say he has more than the legitimation of law to fear. The citizen is the political participant in delibe ration. What is crucial to the conception of citizenship is that it forms the parameters of political participation, which in its most basic form for Habermas is participation in public deliberation. Yet the critical analysis of communication makes this emphasis on deliberation troubling, because it allows for participants to be excluded from the deliberative process when their accounts are unauthorized (as unrecognized) by the state. However, acknowledging these criticisms does not degrade the role of c ommunication as an essential component (regardless of its effects) of law making in a constitutional democracy, but rather re emphasizes its importance. Habermas' claim was that citizens find relief in deliberation among themselves over the long term in order to accord an equally acceptable and therefore legitimate set of rights to each. As long as participants are equally entitled and equally committed to law to mediate common life, it is assumed that through deliberation citizens will come to understan d what would be equally acceptable for all. Additionally, this exercise of public autonomy was predicated on an equally realized private autonomy, to which the law has
! &' no prohibitive claim. But in cases such as homosexual self declaration in "don't ask, don't tell," there is an attempt to conceal these subjects, to remove their sense of agency, to deprive the declared homosexual of both full citizenship and private autonomy. Such acts deprive the rights of citizens whose identities, as declared in uttera nces of/from their location indeed as utterances that declare these very locations do not meet the standards of the state. Here it is not just a case of intrusion of privacy, but an enforced privation or concealment of experiences that diverge from the eq uality proclaimed in a normative account: through this, their autonomy is suspended, and their citizenship is rendered insufficient. Individual citizens are not exempt from finding themselves susceptible to the state manufactured formative constraints tha t result from explicitly or implicitly regulated domains of speakability. They are not exempt from their decisions being limited by the fact that certain kinds of citizens are possible and others impossible, that the common good toward which they are orie nted may be preemptively excluded. They are not exempt from internalizing the standards of this regulation and perpetuating its reproduction, of themselves deterring the participation of some of their fellow citizens. Finally, participants in empowered positions also rely on these regulations to situate them in a hierarchy of positions. Censorship proper illustrates the state's intervention in a formation of subjects through the regulation of speech, but this more implicit mode shows the ways in which t his boundary of speakability also constitutes a boundary for who is and is not a proper speaker. The public sphere in which this process is said to occur is itself a site of far reaching regulation and a locus for the construction and reconstruction of so cial identities that can be disadvantageous in a deliberative process.
! &( Where does an ameliorative exploration of the right to privacy proceed from this set of realizations? Political participation has been set on shaky ground due to the preceding claims a bout communication and public deliberation. We have given good reason to doubt that citizenship provides the empowered position it promises to everyone. As was previously said, though, critically evaluating the ways in which deliberation thus far has bee n insufficient to deal with the problems and difficulties of legitimating rights does not entirely disqualify it from the pool of possible candidates for ameliorating the immense diversions from justice it may bring about. Instead, as the site most fully engaged with individuals attempting to co exist with other individuals and submitting to something in common, the public sphere will be the site through which privacy is rehabilitated. Deliberation is the act through which effective political participatio n can occur; as such, it is presented with the possibility of bestowing legitimation on laws that preserve both private and public autonomy in the most basic sense. Therefore, as the medium through which participants deliberate, communication in the publi c sphere will be revisited as what might allow this amelioration to occur.
! &) Chapter 3: Expanding Authority, Expanding Discursive Arenas: Multiple Publics as a Solution The problems for political deliberation result from implicit limitations on speakers and speakabilities in the general action of communication. Something like equality cannot happen by merely stating that it ought to happen. There may be voices claiming to be affected differently, unfairly, and restrictively by rights that are s upposedly equal because they are legitimated by a process that is supposedly inclusive. If the laws themselves make it impossible to hear these voices, these laws should become officially illegitimate. This does not always happen, and when it does, it of ten takes a long time and lasts for only a short period. However, by exposing the already existing divergences in experiences and authorizing (rather than explicitly de authorizing) these situated perspectives, we can move closer to a deliberation that wi ll actually take these perspectives seriously. Only then can we establish laws that are actually equal. This chapter seeks to conceptualize the public sphere and deliberation as explicitly reliant on and functioning by a contention of perspectives, a pos ition that is antagonistic to the homogeneity of the public sphere and assignment of social positions named in the previous discussions. Habermas makes deliberation to be exclusively interested in the "common concern" if the process is to legitimate laws that are in the equal interest of each equal participant. This unified context has been named as problematic. While Habermas accounts for changing contexts through his notion of future progress, he nevertheless maintains it as always unified at a partic ular time. Habermas' conception of the public sphere evades the existing contention of social
! &* interests and social locations and pursues a site of deliberation that ultimately subsumes this contention under a guise of equality and consensus in pursuing th e goal of common concern. While the deliberative process ought rather be an arena of contention that encounters diverging interests and acknowledges that they have been excluded from the supposedly common concern, we have seen that this exercise is marred from the beginning. Establishing that contention may better fit the contextlessness of iterable speech, ever establishing new and fragile but viable contexts. Instead, Habermas orients diverging interests toward convergence within an established idea of common good, and the contention that arises between existing perspectives is translated into a pre existing context of common interest and subsumed by a common good that favors dominant (and dominating participants). Deauthorization of certain speakers o ccurs (in part) when the topics of deliberation are preemptively determined by designating legitimate and illegitimate public concerns, and ignoring the vast array of experiences within both public and private concerns. Authorizations of new speakers can occur only when all concerns are given serious consideration, so that the laws can be more inclusive, more equal than Habermas' solution was able to guarantee. Habermas asserted that when public and private are "co original" the existence and utilization of autonomy within both functions properly if, and only if, its counterpart functions properly as well. What is a "co originality" of public and private autonomy in Habermas' thinking is more properly a communication' in Derrida's polysemic sense. Two r emote places may communicate' or interact with one another through a passage or opening; likewise, a displacement of force,' say, from my hand to the door, is a communication between my hand and the door, a communication that "does" something,
! '+ i.e., open the door. The communication can produce an effect that is not always a positive assertion of co constitutive possibilities. Undoubtedly influenced by its private counterpart, public autonomy must nevertheless be spontaneously enacted to even begin ensur ing the private autonomy of some. Although the integral role communication plays in the public/private relationship has yet to be fully drawn out, the framework that makes such an interdependence compelling has been sufficiently developed in the critical w ork of Derrida and Butler. Through further insights from Nancy Fraser, we will now take the problematic standards named in the first chapter and use this critique toward a positive revision enabled by a spontaneous use of public autonomy. Thus results th e private sphere's reliance on the public: privacy acquires content from the law, not from any pre established definition. What is claimed in deliberation to be private does not always earn that title through recognition of positive qualities. Instead it does so through its exclusion from the public sphere, which risks leaving a right to privacy unestablished for many, functioning to delegitimize, disempower, and disenfranchise those deprived of such a right. That private autonomy occurs differently for d ifferent citizens makes any claim to content possibly contentious. This different treatment responding to different experience necessitates that we only give a formal structure to privacy, and authorize all citizens' experiences of private autonomy and al l deliberative expressions of those experiences in public. Therefore, in order to establish what the limits and boundaries structuring privacy are, we must first establish the desirable features of the public sphere now that we are acquainted with some of the problems.
! '" Critique of the monolithic public sphere Derrida, the signature, and a homogenous space of communication One of the many illuminations provided by "Signature Event Context" was Derrida's exposition of the homogeneity of communication. Der rida begins this essay by asking whether communication is communicable as "univocal," provoking the reader to expand the scope of his question to the content of communication in general (1). To say that writing extends the field and the powers of locu tory or gestural communication presupposes, does it not, a sort of homogenous space of communication? The meaning or contents of the semantic message would thus be transmitted, communicated by different means by more powerful technical mediations, over a far greater distance, but still within a medium that remains fundamentally continuous and self identical, a homogenous element through which the unity and wholeness of meaning would be affected in its essence (3). Communication, as concept and content, is thought to be rendered accessible by literal or primary meanings according to predetermined constraints (1, 2). But this is exactly the assumption Derrida wants us to interrogate are there literal or primary meanings (2)? For Derrida, what J. L. Austi n calls convention' only signals one aspect of repetition; Derrida also links repetition to alterity as co constituents of iterability (9). He says that "a certain self identity of this element (mark, sign, etc.) is required to permit its recognition and repetition," but through repetition, might we also enact difference (10)? Repetition, via iteration, allows for a possible reinforcement of convention. But repetition also allows for a breaking of presence, a contextlessness, an introduction of alterity to that same concept of iteration. While contextlessness remains to pose the impossibility of differentiating context, we can also view it as a possibilizing of differences in the repetition. The possibilities are never confirmed, but that also means
! '# the y can never be denied. This possible possibility provides an opportunity to input a signature, which remains a tether to the author when absence is acknowledged. All utterances are liable to be swept up into a homogeneous space of communication, but meas ures toward attaching a signature can allow for a new alterity within the repetition. Who is speaking the iterable phrase repeats who has spoken it through a necessary non identification. The relation between polysemy and univocality of communication and repetition and alterity of utterances offers a space for investigating difference and unity in the deeper structure of communication. In "Wild publics and grotesque symposiums: Habermas and Bakhtin on dialogue, everyday life, and the public sphere," Mich ael E. Gardiner critiques Habermas through the work of Mikhail Bakhtin. He echoes Derrida's concern about meaning within pre constrained communication, especially when it is that through which participants in deliberation try to understand each other: "a particular utterance is only part of a potentially endless chain of signification, one that stretches in the distant past and anticipates responses in an unknowable futurethe meanings that utterances evoke are only provisionally stable because [they are] linked to shifting contexts and situations" (36). These descriptions already expose a problem for Habermas: if the public sphere is itself homogeneous, it levels the field of discourse by dissociating its practice of deliberation from certain matters thro ugh their conceptual exclusion from the public sphere. Questioning theories of intersubjectivity that inform such a conception of the public sphere, Gardiner suggests that with a space that is inclusive of all participants but exclusive of their differenc es, Habermas constructs a system in which rational discourse actually subsumes alterity into unified discourse (33). The solution to such a problem
! '$ becomes possible only through an authorization of that which a homogeneous space inevitably deauthorizes. Derrida and Gardiner (via Bahktin) would offer similar redress to a situation of deauthorization through the concept of the signature. The signature implies that the meaning of a certain chain of words or phrases depends in many ways on who is communicat ing them. The necessary possibility of an utterance or sign being cut off from its origin via an absence of author and addressee is the impetus for a tether to the source of the origin. The written signature "implies the actual or empirical nonpresence o f the signer," but also "marks and retains his having been present" in a general now ( maintenant ), "in the transcendental form of presentness [ maintenance ]. That general maintenance is in some way inscribed, pinpointed in the always evident and singular p resent punctuality of the form of the signature" (20). The signature is both a mark of general presence of the author even in her absence, but also, of specific location, established in action as an "emotional volitional tone" (Gardiner 33). Indicative of these situated social locations, the signature, as a tether to source of communication, would require the public sphere and deliberation to avoid inhibiting anything that informs or creates the location of that source; however, that is precisely what its exclusions do. To begin the critique of a monolithic public sphere, it must be underscored that this critique makes crucial the assumptions of the signature to revised goals of communication: that "utterances necessarily reflect systemic social contradict ions, the social location of particular speakers, and the forms of material and rhetorical power that regulate the relevant speech genres" (Gardiner 36). Access to the world is "mediated by our body" and "our embeddedness in concrete time/space makes
! '% each of our perceptual openings onto the world unique and non interchangeable" (Gardiner 34). This reality obligates a theory of the public sphere to give proper consideration to a signature to maintain its integrity. We look to the signature as tether not on ly to the identity of the origin, but for access to multiple worlds and heterogenizing implications for and from those identities. We will return to this signature as "authorization" as the recognition of the author from a social location who may then spe ak with authority. Only in this way can we attempt to make what is common sensitive to identity and difference. Fraser and a direct critique of Habermas In "Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy," Na ncy Fraser offers a direct and concise critique of Habermas' public sphere by listing its core attributes that claim to install the ideal medium through which legitimate laws can reflect the content of a common good. She qualifies his public sphere as the following: that it is "open and accessible to all," that "merely private interests were inadmissible," that inequalities are to be "bracketed" not eliminated, and that participants discuss and view one another as peers (59). She perceives that what propo nents of this conception claimed to be a contingent failure the non reality of accessibility by all is actually built into the very structure of the public sphere. Her critique is framed by this assumption that the failure of the public sphere to realize its basic tenets is structurally symptomatic rather than a contingent circumstance momentarily preventing its actualization. Fraser collects her criticisms and organizes her practical recommendation around a response to each problem. Her rejoinders to th e explicit exclusion of private interests
! '& and the implicit exclusion of bracketed inequalities align with the problems already named and warrant further exploration. Quite simply, she wants to undo these exclusions: to un bracket inequalities such that th ey are in plain view, "explicitly thematized," and to blur the line between the political and the non political, or to use the familiar terms, between private and public. Most importantly, she says that these ameliorations relocate, in a sense, the space for public deliberation further away from one public sphere proper as the structured setting of advantage and disadvantage, ) to a plurality of public spheres that are explicitly counter to the one just described, as "subaltern counter publics." In princip le, in the spaces of multiple counter publics, "assumptions that were previously exempt from contestation will now have to be publicly argued out. In general, the proliferation of subaltern counterpublics means a widening of discursive contestation" (67). To be more specific, Fraser's critique of bracketing social inequalities during deliberation as indicative of the claim of equality presupposed in the public identity of citizen is due to her concern that such a standard permits these inequalities to be ignored and perpetuated. In an attempt to ascertain a common good, one must also interrogate that which inhibits the common good namely, social inequalities. Not only do such practices of bracketing, in conjunction with claims of open accessibility and viewing one another as peers, constitute a structured refusal to acknowledge domination and thereby veil it, this bracketing also determines the deliberative participants as at once subjectless, restricted from exercising their singular voice, but also as overdetermined subjects !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! ) !,-.!/7F413!9/-.0.!:9!9<073<70.D!9.<<12H!0.974<9!605C!<-.!250C:<18.!:997C/<152! E1<-12!< -.!34:1C!56!:!912H74:01
! '' incorporated into a "false 'we'" without the marks of difference or diversity essential to their needs, objectives, and strategies (67). This bracketing practice "fails to grasp adequately the significance of the embodied, situatio nal and dialogical elements of everyday human life" that are often both the source and cure of these inequalities (Gardiner 30). If social inequalities are excluded even from the deliberation toward public good, how might they ever be eliminated? Bracket ing social inequalities in this way is an implicit call for their maintenance and works to situate the public debate in the perpetual stagnation feared in Honig's critique (Chapter 1). Fraser's criticism of the notion that "private matters," or any matters at all, should be exterior to and excluded from public deliberation of the common good, stems at first from her skepticism of the clarity and strictness of delineation between the public and private that such a position presumes. For her, this practical skepticism is a theoretical necessity. Participants in public deliberation enter the public as private citizens, and both identities are crucial to citizenship according to the co originality thesis. When the private is that which is left alone, a preset and fixed exclusion of private matters from public deliberation results in a risk of conflating concealment with privacy. It risks understanding some concerns as always illegitimate for public concern. For example, if we say that domestic issues among a family are not a cause for public concern because they occur in private, then we run the serious risk of devaluing accounts of physical abuse of one spouse by another, or of a child by a parent, making it an issue that needs be worked out among individual s in private and requires no state mediation (Fraser 71). Labeling certain matters private and relegating them to a category inappropriate for consideration without giving equal consideration to establishing an understanding of
! '( the full spectrum of expe riences within that category facilitates additional channels for the perpetuation of domination. What happens to the private issues of those who are already marginalized in the monolithic public sphere? What happens to the private issues of those who are consistently delegitimated by improper treatment of their private rights? The question in general remains, what happens to issues that structure subjectivity but never properly become public concern because they are defined as private? That these demarc ations are actually "fluid, permeable, and always contested" but are not treated as such "alerts us to the power relations that are involved in any such exercise of boundary maintenance" (Gardiner 30). Multiple publics inherently scrutinize the purported limitations of law, pulling to the forefront a concern for the boundary between public and private. If the public sphere is a space of collective self determination, common concern must arise through recognition by participants, and likewise, only partici pants can decide what is not of common concern to them (71). Multiple publics acknowledge the possibility and at times the probability of disagreement on this distinction, opening a space in which new distinctions can be introduced, and furthering the pos sibility of "sustained discursive contestation" that might reconsider what is of legitimate concern. Positive provisions for a conception of public sphere(s) Habermas is enthusiastic in his reliance on deliberative practices for legitimate law making and keenly aware that in a constitutional democracy, if a law is to be meaningful, it must be supported by the citizens, who offer and revoke their support through this deliberative process. The problem we have identified in its most general
! ') form is that Habe rmas' conception of the public sphere operates on a conflation of "the ideas of deliberation and the common good by assuming that deliberation must be deliberation about the common good" (Fraser 72). Habermas' solution falls short in his standards for pro cesses of deliberative participation, which do not give attention to the ways equality is compromised in conversations that exclude some participants based on publicly assigned social locations. Without giving serious consideration to the social location implicated by a regulated domain of speakability, Habermas establishes as many illegitimate participants as he does legitimate participants, which makes his conception of private autonomy just as exclusive. Private autonomy assumes a normative justificati on of basic rights, and in doing so, can delegitimize certain experiences. Ignoring these actualities of his communication thesis mars the feasibility of his co originality of public and private autonomy. If the problems associated with Habermas' concep tion of the public sphere are due to specific limitations for both participants and for communication, then the first step is to imagine a public sphere without those prohibitions. The second move involves a recognition of the ways in which a call for the public sphere as not just primary, but the singular site of large scale, unified deliberative realizations of political participation can only result in a monolithic sphere. The second part of this recognition is that difference is necessarily a part of the public sphere, in which perspectives may be concealed, delegitimated, silenced and ignored, but never fully removed. Therefore, calling for multiple publics, counter to and distant from the conceptual motives of the monolithic public sphere, results i n an expansion of the horizons of discursive space to reveal an already existing plurality which can increase political participation that was before
! '* restricted to a false unity. Rather than insulating public deliberation from wider systemic conflicts ove r power distribution, social inequalities, and private and public limitations, multiple publics expose these conflicts as necessary inquiries, and in doing so, identify the mechanisms of subordination of certain participants. The third move, then, require s a recognition and critical examination of the relation between public discourse and the formation and participation of located identities, which is no unfamiliar challenge after our careful analysis of Judith Butler's critique. This recognition realizes the extent that "discursive assimilation" to speakable discourse is not limited to the activity of censorship against specific groups of individuals. After these recognitions, the public sphere has the potential to be an "unpurified" site of contention that aims to illuminate common concerns without proscribing certain issues from consideration. What was exempt or liminal can now be welcomed and acknowledged as deserving consideration for common concern once the source of those concerns is relocated to multiple sites of legitimate deliberation. To evaluate this in specific relation to privacy, we should begin by taking a closer look at public deliberation. Public answers to the question of privacy Not only must what is of legitimate public concern be reviewed, but that which is found to be outside of this common concern must also be protected as private rather than merely being deauthorized as "not of public concern." We are trying to distance ourselves from regulative operations of the public sphere that legitimate public concern according to the explicit exclusion of private matters and matters that arrive out of "mere" social inequalities. It is our hope that marginalized accounts of an established
! (+ "minority" are accommodated in the normative acco unt of private autonomy. In the action of multiple publics, legitimate public concern still will have its boundaries, but these boundaries will be determined in and after deliberation. Multiple publics, therefore, can reveal the content of privacy; partic ipants must use deliberation itself to assert both public concerns and concerns about the establishment and maintenance of privacy. There may be concerns introduced to deliberation whose relief is decided to be outside of common concern or any sort of pub lic amelioration. This is usually the fate of what is considered private. However, some issues may become of legitimate public concern by the very fact that they are thought better off not to be. That may sound paradoxical, so consider an example. One might say that the reproductive organs and health of a woman's body inspire little public concern in themselves and are better dealt with in the privacy of a doctor's office. However, once women's bodies are taken up as objects of law or are treated as pl atforms for political debate (whether that is through restrictions on abortions or barriers to the acquisition of safe contraceptives), these bodies may compel a cause for common concern about the law overstepping its limits. From the same perspective tha t claims that decisions about women's bodies are within the bounds of private autonomy (and therefore within the bounds of what is legally possible for that body) arises a publicizing of those concerns once these private rights are viewed as infringed upon That those touted as equal individuals and citizens are susceptible to momentary, targeted suspensions of their rights constitutes serious threats to equality and invasions of privacy. But if the public sphere is a site that claims to be open to and in clusive of everyone, in which all are to be treated as equal peers, how could such exclusions seep into the public and become regulated by law?
! (" Of course, we already know the answer: some one else must have thought that women's bodies were not private and the regulation made no intrusion on private autonomy, and delegitimized accounts to the contrary. The predicates of the monolithic public sphere made it such that this truly could become an issue of common concern of those limited functional participants. Therefore, making accessible a public sphere for all important matters is not a complete solution if the deliberation in which one participates is catered to a certain hegemony. While expanded inclusion through a distancing from the monolithic public sp here by asserting multiple sites of public discourse is not a guarantee for instant equality, participants will have an easier time communicating, and legitimating their communication, and interests have a better chance of not being instantly muddled in al ien but only purportedly common concerns. The question of what is needful will be answered from a particular speaker's situation, but in a unified context this situated position risks being veiled. The signature maintains a link between the utterance an d the subjective value of that utterance arising from the speaker's social location. In revealing multiple, smaller sites of deliberation, participants have more of a signifying voice, a firmer grasp on language's capacity to establish their own account; in short, they are recognized to have an authorized and authorizing signature. Met with peers enacting similar oppositional criteria, multiple counterpublics could allow for an overall better understanding of individual concerns that can inform the decisi on about common concerns. 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. These still vague assump tions warrant further exploration.
! (# Derrida, Butler, and Fraser all contributed to a portrayal of the ways that communication in the public sphere is contaminated by a homogeneity that arises out of and reinforces power and domination. As Fraser remi nds us, deliberation itself can serve as a "mask for domination," veiling "subtle forms of control" as a desired consensus (64). Even those who are fortunate enough to participate and attempt to bring their issues to the table are not guaranteed the benef its claimed by the practice. Sure to confirm Fraser's anxieties, Judith Butler describes what is no doubt a result of a bracketing of inequalities and other attempted preventions: to "purify the sphere of public discourse by institutionalizing the norms t hat establish what ought properly to be included there operates as a preemptive censor" (129). Butler's analysis reaches beyond the issue of what topics are and are not welcome to the discussion and recognizes the limits imposed before it even begins. Th is was explored through the productive measures of the state within speech via hate speech, which threatens to produce subjects according to implicitly and explicitly regulated norms of speech: "The subject's production takes place not only through the reg ulation of that subject's speech, but through the regulation of the social domain of speakable discourse" (133). She continues: The question is not what it is I will be able to say, but what will constitute the domain of the sayable within which I begin to speak at allHere the question is not whether certain kinds of speech uttered by a subject are censored, but how a certain operation of censorship determines who will be a subject depending on whether the speech of such a candidate for subjecthood obeys certain norms governing what is speakable and what is not (133).
! ($ Not only are the participants in a monolithic public sphere not in full control of their discursive activities, but all communication is susceptible to that vulnerability. However, we are suggesting that this need not be a dead end for the discussion. The regulation of the social domain of speakable discourse results in and from a hierarchizing of language use according to perceived divergences that benefit the already powerful groups, and require a "semantic clarity [that] can only be forced on the sign by arbitrary social power'" (Gardiner 37). That is, in a stunted space of discursive possibility, regulations are constructed to economize the efforts needed to disseminate necessary info rmation, and in doing so, limit the acceptance to what these regulations deem as "saying something." Butler follows the previous passages with an aside that gives an account of "impossible speech," or that which is deemed to not be saying anything properl y. Impossible speech is that which does not fit the state's narrative of normativity. Butler says impossible speech "would be precisely the ramblings of the asocial, the rantings of the psychotic' that the rules that govern the domain of speakability pr oduce, and by which they are continually haunted" (133). This is an opportunity to reemphasize the simultaneous governance and production by rules' of this domain as depicted through hate speech, and a time to question the placement of the perspective of those who are not awarded equal consideration in the public sphere, who may not be classified as the asocial' or psychotic' per se, but whose assertions nevertheless are placed outside the domain of authorized discourse. Butler says these rules produc e the ranting. Certain rules produce the kind of communication that they forbid by asserting that there is an ideal speech. Thus, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! !!,-19!E:9!/0.815794J!352347D.D!12!<-.!G7:91 I /7F413 !3-:0:3<.01;:<152!56!:44! 35CC7213:<152K
! (% producers of speech that is less than ideal are not only excluded from the social domain of speakable discourse,' but this exclusion is justified through claims about their subjectivity: they are asocial,' psychotic,' hyperbolic, and common concern loses nothing without their input because it is tantamount to nonsense, warranting no further consideration and are henceforward considered private. We already said that communication reflects the social location of those communicating, but we also said that reiterations can result in both reinforcement or redefinition, difference. Might not certain social locations work to enact this difference against a homogenous, regulated domain better than others? In a monolithic public sphere that claims to be open and accessible to all, many of those who are formally included are not in practice authorized to speak insofar as they would re define rather than repeat these authorizations. T he division of sites of deliberation occurring in multiple publics increases the scope of authorization by possibilizing the signature, which can also work against the regulation of the social domain of spe akable discourse. This outcome hinges on further interrogations of authority and power. Continuing to interrogate the social forces borne on communication, Butler offers her interpretation of Bourdieu's account of performative speech acts for its "equiv alence posited between being authorized to speak' and speaking with authority,' because for her, it is clearly possible to speak with authority without being authorized to speak" (Butler 157). As we have been trying to say, authorization is largely the result of social positioning, of social positions occupied through being addressed or interpellated, reinforcing possible and impossible speech. Fraser says that actual participation requires being able "to speak in one's voice," but in a monolithic unifi ed public sphere only some
! (& expressive modes can be accommodated (69). The tension involved in maintaining the "signature" and according to certain modes of speakability results in the condition of "discursive assimilation" for an individual to be incorpor ated into the established participation (Fraser 69). Resisting this compromise, Butler questions what happens "when those who have been denied the social power to claim freedom' or democracy' appropriate those terms from the dominant discourse and rewor k or resignify those highly cathected terms to rally a political movement" (158)? What happens, she asks, when those who are not authorized to use those words nevertheless use them authoritatively? Habermas' thesis of the co originality of public and priv ate autonomy enables a reasonable will formation in private that qualifies appropriate exercises of public autonomy, which can be utilized to reinforce the basic rights of private autonomy in the creation of new laws through a deliberative process. For Ha bermas, intrusions into the private sphere can occur only if the intrusion is an expansion or enhancement of private autonomy. This position relies on normative notions of what protects one's private autonomy and deauthorizes contrary accounts from surfac ing in public deliberation, which stands to empower just as many as it disempowers. Multiple publics can expand the source of authorization to even the most marginalized accounts by authenticating their signature and recognizing their accounts. The signa ture provides the situated locations of these marginalized speakers. These counterpublics do not "endow" certain locations with an authorization proper, but allow those who were previously not authorized to speak, to now speak with authority. Exposing th e accounts of experiences that are contrary to the claims of basic, equal assumptions of private autonomy will work to make the latter nonexistent in a truly inclusive deliberative process. The signature allows for the
! (' difference experienced in private au tonomy to be carried over into public autonomy as a possibly harmful difference. Possible inequalities will have to be acknowledged if the deliberative process is to remain a legitimate source for laws. Such authorization is not a mere redistribution of existing authority, a spontaneous gifting of authority, but a concerted effort of unveiling the mask of domination and recognizing new forms of authority, displacing the concept itself and reclaiming the term for new purposes. The regulation of the doma in of speakable discourse results from a hierarchizing of communicative actions according to a dominant mode of discourse. These discursive hierarchies can be disrupted only if the voices that are silenced are recognized and permitted to speak for themsel ves. Speaking with authority when not authorized to speak becomes an actual authorization to speak so long as one is not deauthorized to speak through implicit exclusions. When signatures are recognized and those speakers and the conversation expanded, t he power of normative claims to marginalize these perspectives is weakened. Through multiple publics, we move beyond and away from the public as a structure setting of advantage and disadvantage' by establishing multiple sites of speaking with authority .' By acknowledging the presence and activity of a variety of publics, we can work away from discursive assimilation and toward discursive recognition. In doing so, we allow the public and private to flourish in diverse communities.
! (( Conclusion Habermas' private autonomy had more to do with limiting governmental power than with actual privacy. After all, private autonomy is exactly that: the freedom to act without constraint within the bounds of law. But if we are to continue along the line of the critiques offered, privacy is actually more meaningful than that: it is also a site for the differential development of dialogical subjectivities in the interstices of institutional constraints. Honig took seriously Habermas' deliberative resolution f or legitimating laws, but condemned it for exactly this standard, that it required political participants who sought to limit government power rather than assert their own meaningful, productive accounts of their experience under a set of rights. Spontane ous political action arising from these moments of alienation is susceptible to a mere translation into existing positive and negative rights, a result of the limited or proscribed atmosphere of political deliberation. Privacy conceived as the reflection of the limit of governmental power does not engage the full story or stories, but establishes only one narrative for privacy and private rights to exist in, excluding myriad accounts of what governmental limits actually limit and what that experience is li ke. Butler exposed why claiming agency within existing deliberative practices often falls short of serious inclusion when some of our concerns are translated to a political process proper. Deliberation occurs in a regulated domain of speakable discourse, establishing and reinforcing social locations of speakability and impossible speech. Superficial inclusion into the already ongoing debates does not actually work if as Derrida says, such activity occurs in a homogeneous public sphere privileging
! () conventi onal context. Fraser suggested that this homogeneous sphere could be countered by the exposure and authorization of discourses already occurring in multiple publics, which for Habermas were mere "wild" or peripheral discourses and thus illegitimate conver sations for the goal of legitimating legislation. The space for deliberation conceived by Habermas is occupied by a majority of addressees. Multiple publics can establish channels for more citizens to attach their "private" signature to the public law as both the authors and addressees. Toward a positive conception of privacy The public and private spheres co exist through a communication, which prioritizes not only sources of co originality, but also how they continually engage and produce effects withi n one another: what I called co implication. Their borders have proven to be permeable, which posed a troubling paradox from the beginning. The fact of this paradox makes the issue of privacy, how ever fluid or dynamic in content, a still fragile structur e. Nevertheless, the opportunity to revitalize a positive conception of privacy is not lost. Habermas sought to empower political participants in and through limitations. Without the basic rights of private autonomy, legitimate law as he conceives it ca nnot exist; these rights establish the citizen as a possible political participant in the process of deliberation, reinforcing the basic rights of private autonomy by establishing them as the framework for new laws. Multiple publics sought a more rigorous inclusion of perspectives by acknowledging privacy as the contentious issue that it is. The concept
! (* currently vacillates between these two options: privacy as total limitation, a claim that establishes the border of the law (according to exclusive normat ive claims), and the cursory limitlessness between public and private in multiple publics in which a preset distinction between public and private is eschewed and nothing is excluded from the deliberation as improper for public consideration this too seems to leave unestablished a framework for privacy. Reconceptualizing the right to privacy according to a meaningful critique must move beyond this vacillation and establish actually inclusive limits that gives both individuals and laws their due. The indiv iduals and the law are not "balanced" or put on a scale in order to place a check on one another, but taking seriously both individual rights and a limitation to law without compromising either requires a rigorous examination of the relation between the tw o in citizen's particular claims of privacy. By referencing an abstract private sphere, we have already assented to its existence. But this only references its basic structure: private autonomy is the exercise of certain rights in a particular space, i n which 'private space' is not yet a concretized, particular location for privacy, but instead a spatial relation to the law, i.e. within the bounds of the law. Such abstract recognition of privacy is the counterpart to the public sphere, the basis for co nceptual delineation, establishing for its purposes the expectation that individuals will be free from any obligation beyond acting in accordance with the law. This formulation, established within basic rights in the rule of law, structures the particular content of privacy. Basic rights and the right to privacy are formalities, and as structures or orientations, are emptied and must be recognized as so. Attempts at entering particular content to the structure as "basic" are at this point invalid.
! )+ The most succinct way to characterize privacy, and also the most basic, most traditional way, is to understand it as the right to be left alone. But it is this seemingly generic presupposition that is itself the source of the paradox. One side of the parado x enables private autonomy by establishing these bounds of being left alone as the limits of the law. The other side, however, accepts an overstep by the law of its own limitation in the name of protecting private autonomy. This seems acceptable, for who would want to be left alone during rape or during domestic disputes? But what if some individuals contend the normative assumptions that claim to protect private autonomy? The question becomes, what claims are the laws making when legislating, e.g. aga inst women's bodily autonomy? This is the paradox that began this interrogation: how can we designate something as private while we are aware that in some cases, the law will exceed its limits? The answer to these questions are one and the same: citizen s should to be able to deliberate about the nuance of private autonomy occurring in these paradoxical instances, and in doing so, make more clear how rehabilitation of private autonomy through this public recourse will operate. To state the obvious with t he intention of magnifying its importance, privacy is not an inherent characteristic, but a characteristic endowed by a confluence of historical, philosophical, political, cultural and practical presuppositions, whose ultimate benefactor is the law. Nothi ng is irrevocably private, because privacy does not exist unless certain institutions say it does: "The point is that there are no naturally given, a priori boundaries here" (Fraser 71).
! )" Nevertheless, as has already been claimed, motivations for renewing and reinforcing privacy are undoubtedly important. Habermas' portrayal imagined an individual who was provided with the opportunity of 'inward reflection,' Butler, an individual permitted to act, declare, and self identify equally and openly, and Fraser, an individual who could finally expect others to listen to what she has to say. Additionally, the private sphere can establish space for things simply not to be public not because they are shameful or conciliatory to that concealment, but because some thi ngs plainly do not require the intervention of the law, and therefore, ought not to be intervened with. This we can consider to structure claims of privacy. Such structure of privacy may, for now, confidently retain its traditional and generalized premise s of body, home, and personal information. These three categories are intentionally vague, though, because the actual content of privacy will determine the nuanced ways these areas may be interpreted. Therefore, the content of privacy as related to its g eneral structure, is to be established by citizens through public communications. Citizens ought to be empowered to have an influential say about the laws that bind them, which makes the right to privacy a public concern. Therefore the turn is necessarily toward public recourse through public discourse in conferring privacy. As content that is established in public, it is necessarily dynamic. The right to privacy is supposed to be the equal allowance to be left alone by the law; it is a positive endowmen t, not a negation, nor is it concealed, made invisible. Assumptions of privacy as basically body, home, and personal information makes these categories liminal: they ought to be private, but if they are not treated as such, the revision can only begin in public. The body, home, and personal information do not themselves thereby
! )# become public, but their more specific content, for example, reproductive rights, expressions of sexuality, medical data or personal correspondence, can become the subject of publi c communications that decide whether specifics ought to be protected as private. "+ It is also decided in public whether or not certain subjects are permitted to be left alone within the current set of rights. For example, there are laws that say sexual in tercourse ought to be based on consent by all participants and that if consent is missing, that instance of coerced sexual intercourse, with its complete cast of characters and setting (although not the body, nor sex in general), becomes a public problem r equiring legal mediation according to the way rape laws have been established to protect private rights. The paradox is resolved when the law is established to protect the specific terms, as legal limits, of private sexual intercourse; once those limits a re overstepped, these illegal actions are no longer considered to be within the realm of private autonomy. Unfortunately, the law is not always assuming the role of protector, and it is at this point when the content of privacy becomes determined, and re determined by participants in public spaces against legitimated laws. In order for reparations to privacy to actually be made, deliberation must be open to excluded accounts. We've seen that this is not always the way things go. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!!!!!!!!!!!!!!!!!!!!!!!! "+ Basic rights and the structure of privacy exist as placeholders, formalities. Previous criticisms of Habermas argued for more recognition of this emptiness and its ensuing possibilities. If the claim is that the body, home, and personal information were never treated privately, the response should assert that privacy is necessarily positive, donated, conferred, conceptually and practically; privacy is not the darkness in the corner of a room, the concealment of a bare body behind a door, for these are all superficial, and possibly detrimental. After all, is not the pride in one's body as something that does not demand to be concealed, but is also recognized as yours to be left alone, crucial to some versions of feminist empowerment?
! )$ For example, if the body in general structures the right to be left alone, measures for and against reproduction, and overall health, are private issues meaning that laws cannot regulate or proscribe any of those concerns. As the current tide of laws proves, this is not act ually the case; these bodies become public domain, organs and would be private activities become objects of the law. What is the case, however, is that only particular bodies experience this regulation; law has overstepped its own boundaries and into the private autonomy of only a particular group of citizens. Reflecting on the tenets of multiple publics allows us to imagine a possible solution to regulations that are arbitrary in their unequal treatment of some citizens. A plurality of arenas could e stablish a series of responses to this situation that were otherwise absent during previous deliberations that resulted in an exclusive mandate on women's bodies. If the goal is to (re)establish women's bodies as private, might the inclusion of all issues to the debate recognize that the generalized privacy of the body is breached in the specific regulation of reproduction, and that the regulation has damaging results? Might the authorization of those not typically authorized to speak bring a voice to the difficulties and experiences of living with these bodies and their activities that is only exacerbated by the regulations? And might the recognition of the signature, which can locate social inequalities of contributors, reveal that not all locations are prepared or capable to handle all situations equally? Abortion is one claim to privacy not just because it is an exercise of bodily autonomy, but also because the same standards cannot be imposed on unique bodies. When this choice is not guaranteed the right to privacy, the possibility that not everyone is privileged financially or emotionally to handle the situation is ignored, and the position on abortion and privacy is made according to one
! )% position's normative account. There are those perspectives t hat desire to have a say on what occurs within their own body without having to affirm their current situation. When this position is deauthorized, it arbitrarily places regulation on some bodies and not others, making the active choice of pregnancy an un available option for the already pregnant person. A reinvigoration of the concept of a private sphere can only occur after our own attempts at cleansing the public sphere of its exclusive measures; that is, reconceptualizing its terms by offering all is sues a place on the table; authorizing and listening to those who are now speaking with authority; blurring the clear lines previously set for public and private. While deeming issues irrelevant to discussions in the public sphere accrued a superficial un derstanding of privacy, public sites of discourse can be used to establish the what and how of privacy through confronting these issues head on and addressing them during deliberation. To distance communication from the conceptual monolithic public sphere is to unveil the already flourishing multiple sites of discourse. This opening up merely turns up the volume to channels that were previously muted. Speakers can create themselves in public through words, and limiting this representation according to a re gulated domain of speakable discourse produces speakers according to this category. To move outside of this domain of speakability is to risk one's status as a citizen participating in deliberation. In this way, multiple publics are the "wild" areas of c ommunication that Habermas acknowledged and excluded, and on which constitutional democracies nevertheless depend. While the wild communications remains on the periphery of constitutional democracy for Habermas, the practice enabled in multiple publics ma y allow for the eventual overtaking of his guarded center by
! )& peripheral wild' activity. New authorizations in multiple publics can only work themselves out in practice, but the possibility finally makes possible the politics of world building. Maintain ing the signature makes it possible for the different experiences of private autonomy to be recognized, and 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 regulation of what is and what is not legitimate. And they also attempt to overcome subtle forms of power occurring in deliberation that can result from the translation of "I" int o "we." The right to privacy is a right in common, and public deliberation is an activity in common. Reconceptualizing public communication can lead to a situated understanding of privacy in ways that no literature on the topic can. We cannot say what i s private without also saying what is public, and in public, many of us cannot say anything at all. Multiple publics are the places in which participants come as they are, poised to speak from a perspective that is fully situated in their embodied, everyd ay experience that is their social location, and willing to listen to the diversity that arises from others sharing in this knowledge.
! )' Works Cited Austin, J.L. How To Do Things With Words Cambridge: Harvard, 1978. Butler, Judith. Excitable Speech: A Politics of the Performative New York: Routledge, 1997. Cohan, A.S. "The State in the Bedroom: What Some Adults May Not Do Privately After Hardwick v. Bowers.'" Journal of American Studies 23.1 (1989): 41 62. Derrida, Jacques. "Signature, Event, Con text." Limited Inc Ed. Gerald Graff. Evanston: Northwestern, 1988. 1 23. Fraser, Nancy. "Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy." Social Text 25/26. (1990): 56 80. Gardiner, Michael E. "Wild Publics a nd Grotesque Symposiums: Habermas and Bakhtin on Dialogue, Everyday Life, and the Public Sphere." After Habermas: New Perspectives on the Public Sphere Eds. Nick Crossley and John Michael Roberts. Oxford: Blackwell, 2004. 28 48. Habermas, Jrgen. The Inc lusion of the Other Eds. Ciaran Cronin and Pablo De Greiff. Cambridge: MIT, 1998. Habermas, Jrgen. "Constitutional Democracy: A Paradoxical Union of Contradictory Principles?" Political Theory 29.6 (2001): 766 781. Honig, Bonnie. "Dead Rights, Live Fu tures: A Reply to Habermas' Constitutional Democracy." Political Theory 29:6 (2001): 792 805. Prosser, William L. "Privacy: A Legal Analysis." Philosophical Dimension of Privacy Ed. Ferdinand David Schoeman. Cambridge: Cambridge, 1984. 104 153. Rubenf eld, Jed. "The Right of Privacy." Harvard Law Review 102:4 (1989): 737 807.