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Privacy Rights in the Digital Age, 2nd Edition

Private sphere

Identification: As opposed to the public sphere, that is, the part of social life in which the individual may exercise a great deal of authority and autonomy, and is able to exercise a significant amount of freedom from the intrusions of government and other institutions. The most common and most traditional examples of the private sphere are family and home.

The dichotomy of private and public is never absolute because any area in or upon which the law operates becomes public to some extent. In this sense, the public defines the private as that part of society with which it declines to deal. However, some areas of life, such as regulating family and private life, are areas where modern American law does not venture. Drawing a definitive line between the two is difficult. There are definitional ambiguities associated with the public–private dichotomy. Many believe that the dichotomy’s existence depends on societal choice. There are, perhaps, many credible ways to distinguish the two. One of the most persuasive arguments is that the private sphere should be those aspects of a person’s life and activities that any person has a right to exclude others from. Thus, the private means what the individual chooses to withdraw from public view.

The factors separating public and private spheres have varied greatly in culture and history. The ancient Greeks understood the distinction to indicate a clear demarcation in society. The public sphere (polis) and the private sphere (oikos) were completely separate: The former described a public sphere based on open interactions between free citizens in the political realm, and the latter designated a private sphere based on hidden interactions between free individuals in the domestic realm.

Traditionally, only matters that could not be dealt with by the household alone entered the public realm of the polis. In contemporary society the public sphere, especially because of the use of advanced technology, permeates the life of the home and family. The distinction between private and public spheres has traditionally been described in gendered terms. Traditionally, the feminine world is considered to be that of the private sphere, that is, household, family, and unpaid domestic work. The public sphere has often been traditionally described in terms of the masculine world of politics and paid employment.

Some feminists have argued that women’s historical association with the private sphere undermines and limits them in contemporary society, based on how they view that law as reinforcing that association. They have also observed that men have historically been represented in the public sphere, that is, the workplace and the halls of political power, in far greater numbers than women. Thus, the argument goes, women continue to be politically underrepresented because of their long-time role in the private sphere.

In antiquity, crime and punishment were the concern of kinship groups, a concept challenged only slowly by ideas of public justice. Similarly in medieval Europe, the blood feud was replaced only slowly by legal control. During the medieval era, there existed no separation or distinction between the private and public spheres under the feudal system. In early modern Europe, religion was an important public issue, viewed as essential to the maintenance of the state, so religious matters were controversial and intensely debated in the public sphere. Sexual behavior was also subject to a generally agreed code publicly enforced by both formal and informal social control. In our current postmodern society, both religion and sexual behavior are most often left to individual choice.

By the late eighteenth century, feudal institutions and ecclesiastical rule were eroding. They were giving way to public power, in which the people received greater autonomy. Rulers become public entities. This was also a time when bourgeois became autonomous vis-à-vis the government.

In nineteenth-century American society, the public and private spheres were strictly divided. The private household was considered a refuge from the commercial world and the world of work. In the home, the domain of the private sphere, the individual was able to cultivate close relationships and to express intense and spontaneous feelings, behavior that was disapproved of in the formal, judgmental public sphere. Society was segmented, and so was the individual self. Both the public self and a private self were both subject to the demands of its respective sphere. Only in the private sphere was one permitted to display one’s emotions and “true self.” As the philosopher Martin Heidegger said, the private sphere is the only place where one can be authentically him- or herself, as opposed to the impersonal world of the public realm.

By the late nineteenth-century, many popular newspapers invaded what had long been considered the private sphere by publishing sensationalist articles, particularly about the personal behavior of prominent individuals While the low-brow press steadily broadened the concept of what was found to be newsworthy, they also generated a backlash in which many sought to protect personal privacy. By the late nineteenth century, the “right to privacy” was being widely discussed in legal and academic circles. The concept of privacy, then as now, has a wide variety of diverse meanings and connotations. It was also closely connected to intensifying social pressures for public self-presentation.

When the right to privacy began being discussed as a legal concept, it was largely understood as a right to protect one’s public image by concealing embarrassing, personal, or private matters from public scrutiny. The private sphere encompassed not only one’s home and family life, but also issues involving one’s body, physical functions, and emotions. Those who wished to present themselves to society as dignified and respectable thus steadfastly objected to publicity of his or her private life.

Louis Brandeis, the future Supreme Court justice, and his colleague Samuel Warren, a prominent Boston attorney, responded to these concerns by publishing what would become the modern American view of privacy with their article, “The Right to Privacy,” which was printed in the Harvard Law Review. This article formed the impetus for subsequent statutes, case law, and regulations that sought to limit the intrusion into the private sphere by either government or private actors. Brandeis explained that protecting individual privacy was essential for people being able to function in the public sphere without every private aspect of their lives being subject to scrutiny.

The dichotomy between the public and private spheres is particularly relevant in many legal contexts, and its connotations vary. One of these contexts relates to the free speech doctrine that distinguishes between public discourse and private discourse. Another related context is the privacy torts, with their overarching concern with protecting from public disclosure or exploitation that which invades the individual’s personality or psychic space. The third legal context deals with Fourth Amendment search and seizure issues. Warren and Brandeis did not see the public–private dichotomy as entirely incompatible. In their article, they wrote that the right to privacy did not prohibit publication of matters of “public interest” because the latter concept was central to First Amendment philosophy. This compatibility is also similarly reflected in the contemporary law of invasion of privacy. With respect to the publication of private facts, the publication of so-called newsworthy items is considered exempt from liability.

Privacy torts developed in U.S. law to protect the integrity and inviolability of inherently private spheres that a person restricts from “uninvited, unwelcomed, prying persons” (Cummings v. Walsh Constr. Co., 561 F. Supp. 872, 884 (S.D. Ga. 1983)). “Intrusion upon seclusion” has long been a particularly difficult area for the courts to define and apply. Since Prosser articulated the tort in 1960, courts have struggled to strike a judicious balance between protecting an individual’s seclusion and protecting “the freedom of action and expression of those who threaten the seclusion of others.” Thus, the courts have limited the protection of privacy interests by requiring that a plaintiff prove that (1) he or she had an actual expectation of privacy and that such expectation was objectively reasonable. and (2) the intrusion into this private sphere was highly offensive. Modern technology, however, is making this tort increasingly difficult to establish in several ways.

Another major venue where the issue of the private and public spheres is particularly salient are the Fourth Amendment issues regarding “unreasonable searches and seizures.” Defining when a search has occurred is crucial because, in many cases, it distinguishes between when the government may engage in potentially warrantless and suspicionless intrusions into the private sphere and when it must first appear before a neutral and detached magistrate to obtain a warrant issued on probable cause. Accordingly, the Supreme Court has had to strike repeatedly the appropriate balance between individual liberty and law enforcement through its “search” jurisprudence.

On the one hand, the Fourth Amendment is an important check on the government’s power, and the Founding Fathers included the provision after the American colonialists felt oppressed by their British rulers’ abuse “of general warrants.” The Fourth Amendment must also be interpreted so that effective law enforcement, which is an essential function of any government, is not unduly stifled.

Privacy is at the core of American democratic values. Preserving privacy fosters individual autonomy, dignity, and self-determination, and ultimately promotes a more robust, participatory citizenry. A society that is constantly under surveillance is a conformist society. In other words, when people fear unwanted exposure, they censor themselves or withdraw out of concern that full engagement in society will lead to a loss of control over the most intimate details of their lives. People fear that unwanted exposure will result in discrimination, loss of benefits, stigma, and embarrassment. But not only are individuals at risk of harm, but our communities also suffer when people either withdraw from the essential activities of life or are harmed by privacy intrusions.

Another aspect of the dichotomy of the public and private spheres must be stressed. While the spheres have not disappeared in modern society, they have dramatically changed. They no longer denoted as completely independent spheres, one—the public—of coercion, and the other—the private—of mutual exchange. Today, there is a blurring of the traditional boundaries between the two spheres of action, as indicated by the exercise of public power by private interests and concern over what were previously considered private economic circumstances by the state. For example, the privacy of the family has become subject to regulation by child welfare services, and corporations have come to employ market power as a means of dictating public policy.

Further Reading

1 

Alldridge, Peter. Personal Autonomy, the Private Sphere, and the Criminal Law: A Comparative Study. Oxford, England: Hart Pubisher, 2001.

2 

Calhoun, Craig J. Habermas and the Public Sphere. Cambridge, MA: MIT Press, 1992.

3 

Clapham, Andrew. Human Rights in the Private Sphere. Oxford, England: Clarendon Press, 1993.

4 

Emden, Christian. Changing Perceptions of the Public Sphere. Oxford, England: Berghahn Books, 2012.

5 

Goode, Luke. Jürgen Habermas Democracy and the Public Sphere. London: Pluto Press, 2005.

6 

Gripsrud, Jostein. The Public Sphere. Los Angeles, CA: Sage, 2011.

7 

Habermas, Jurgen. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Cambridge, MA: MIT Press, 1989.

8 

Keen, Paul. The Crisis of Literature in the 1790s: Print Culture and the Public Sphere. New York: Cambridge University Press, 1999.

9 

Machan, Tibor R. Private Rights and Public Illusions. New Brunswick, NJ: Transaction Publishers, 1995.

10 

Oliver, Dawn. Human Rights and the Private Sphere: A Comparative Study. Abingdon, United Kingdom: Routledge-Cavendish, 2007.

11 

Rosner, Victoria. Modernism and the Architecture of Private Life. New York: Columbia University Press, 2005.

12 

Volkmer, Ingrid. The Global Public Sphere: Public Communication in the Age of Reflective Interdependence.

See also: Brandeis, Louis Dembitz; Fourth Amendment to the U.S. Constitution; Legal Evolution of Privacy Rights; Philosophical basis of privacy; Privacy torts; The Right to Privacy

Citation Types

MLA 9th
"Private Sphere." Privacy Rights in the Digital Age, 2nd Edition, edited by Jane E. Kirtley & Michael Shally-Jensen, Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0185.
APA 7th
Private sphere. Privacy Rights in the Digital Age, 2nd Edition, In J. E. Kirtley & M. Shally-Jensen (Eds.), Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0185.
CMOS 17th
"Private Sphere." Privacy Rights in the Digital Age, 2nd Edition, Edited by Jane E. Kirtley & Michael Shally-Jensen. Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0185.