Article Title

The Polysemy of Privacy

Document Type


Publication Date

Summer 2013

Publication Citation

88 Indiana Law Journal 881 (2013)


“The Polysemy of Privacy” considers the highly protean nature of the concept of “privacy,” which extends to myriad disparate legal interests, including nondisclosure, generalized autonomy interests, and even human dignity. For a concept of such central importance to many systems of protecting fundamental rights, its precise contours are surprisingly ill defined. This lack of determinate meaning is not limited to the concept of privacy in the United States; virtually all legal systems that utilize privacy (or its first cousin, “dignity”) have difficulty reducing the concept into specific, carefully delineated legal interests. In some respects, privacy means everything—and nothing—at the same time. Moreover, even in those contexts where one can identify privacy at a relatively choate, rather than highly abstract, level of jurisprudential analysis, the right of privacy often comes into direct conflict with other fundamental rights. For example, commitments to freedom of speech and to a free press often conflict with privacy interests; these conflicts, in turn, force courts to secure one interest only at the price of undermining another. In the United States, unlike in the wider world, protecting privacy interests through tort law generally will give way to advancing concerns associated with securing expressive freedoms. This Article considers some of the causes and effects of the privileging of expressive freedom over privacy/dignity in U.S. constitutional law and suggests that comparative legal analysis of the concept of privacy might help us to better understand both what privacy does mean and also what it should mean.

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