LD Nov/Dec 2018 - Public Right to Know vs Candidate Privacy - Negative Position

Resolved: In a democracy, the public’s right to know ought to be valued above the right to privacy of candidates for public office.


For Intro and Aff and other LD topics click here.

Negative Position

There are obvious benefits to promoting openness in governments for democratic societies. Especially, in a country like the U.S. which has a long history of unwillingness to allow excessive government power. Individuals want to be certain their government is truly taking actions which are in the best interests of the people and not a powerful elite. Obviously, a government does need to keep some secrets for security reasons. Nevertheless, there are disadvantages to transparency. The government collects a great deal of private information from its citizens. It knows the addresses, identification numbers, finances and voting history of millions of individuals and so there is a reasonable limitation on governmental openness which restricts them from exposing the private information of the citizens and so, the clash between the desire for openness and the need to protect private information results in complex laws and bureaucratic structures to manage the opposing requirements. This same conflict is apparent in the political campaigns of those who seek public office. Not only is the private information of the candidate at risk for exposure, so is the private information of supporters, donors, and others who wish to participate in the political process but are not necessarily willing to open themselves to high levels of public scrutiny.

I see no reason why Negative would want to argue that the "right to know" is not a "right". While not necessarily a natural right (and that is perhaps, debatable in some contexts), it is difficult in light of many legal rulings within the U.S. to claim there is no given "right to know". Nevertheless, we can claim given rights may be limited by other overriding public interests or necessities. Moreover, it would be very risky to argue that government transparency is altogether undesirable or more specifically, that every detail of a political candidate's activities should be private. There are compelling arguments for why campaign contributions should be open for examination, especially those which exceed a given threshold in value. So, if we concede these positions to the Affirmative it is clear Negative should focus on the comparative advantages.

Dror 1999:

As a norm, transparency and openness are part of the value systems of liberal democracy and of human rights, which provide for a right of citizens to know what is going on in governance and for a duty of government to be transparent and open. However, it should be noted that these are not unconditional or absolute rights and duties. Therefore, they have to be considered in relationship with other rights and duties. And, in case of conflict, value judgment is needed on the normatively correct "value-cost-benefit" evaluation and the resulting mix of rights and duties to be realized or to be realized.[63]

Perhaps it is not obvious, but if we concede the argument the "right to know" outweighs the "right to privacy" in any context, then the right to privacy is effectively nullified. This means, if both rights are to coexist in the same world, there must be contexts in which either right outweighs the other or both should be weighed equally. The resolution narrows that context to candidates of public office. It would seem by extending this idea broadly within the context of public office holders, there is no defacto right to privacy for candidates and this may be hard pill for any thinking judge to swallow. Conversely, we may be able to claim, if a candidate retains any right to privacy, then obviously the the right to know does NOT outweigh. Thus the Negative argues, in the context of candidates for public office, the right to privacy ALWAYS outweighs, but the candidate willingly makes some exceptions for the public good. That fact these exceptions are voluntarily made, does not devalue or nullify the intrinsic value of privacy with respect to the right to know.

On Transparency

As already stated there is a value to openness in government and indeed, the government itself recognizes that a degree of openness is vital to maintaining the public trust. The "public face" of government is that which is exposed in its official pronouncements, policies and laws. Calls for transparency, often seek to peek behind the public face, often for no reason other than for the sake of openness itself. Some experts advise caution.

Dror 1999:

Transparency and openness are serious norms. But they must not captivate thinking. They are what the Greek called a pharmacon, that is a material which, if taken in correct dosage, heals, but is poisonous if taken in too large quantities. If applied carefully, transparency and openness are valid recommendations, normatively as well as instrumentally. However, it is a gross error to think that the more transparency and openness the better.[62]

It is argued that too much openness can result in government officials checking themselves so as to avoid public criticism should their "back-room" discussions and advice be publicized. Political expediency becomes the overriding consideration.

Dror 1999:

But requirements of efficiency and effectiveness are not automatically served by more transparency and openness. There is a danger that governance may be swayed by too much transparency and openness to act more "by the book" and in ways which protect it from criticism, instead of serving the public in substance and weaving the future for the better. Also, transparency and openness may contradict some other requirements of high quality governance, such as frank advise to be given by advisers - which may be impossible if their papers are sure to reach the public and be used in political competition. Therefore a balance is needed between different norms and requirements in advancing transparency and openness.

When the product of political activity is shaped by public image, there is no guarantee the best interests of the citizens will be served. Therefore, transparency and the right to know should never be the default position in the context of governance. Moreover, I extend the same consideration to the context of political campaigns.

On Privacy

Privacy, as a "right" has its inception in the political philosophy of John Locke and was further clarified by the writings and expression of the U.S. founding fathers. John Locke famously declared life, liberty and property as natural rights. Locke's views on property were given a great deal of analysis.

Cloud 2018:

Locke employed both “narrow” and “broad” concepts of property. The narrow conception is consistent with the common understanding that a person’s property includes her “estates” and her “possessions” including land, goods, and chattels which she has a right to own. The broad theory incorporated concrete forms of property external to the person, but was not limited to them. This broad conception of property was a cornerstone of Locke’s complex theories about the nature of human beings, individual rights, society, and government. Locke wrote famously that a man’s property is “his life, liberty and estate.” This definition was not a mistake or merely a rhetorical flourish. It was central to his arguments justifying the creation of both private property and societies. Indeed, Locke argued that the ultimate reason people abandon the freedom of nature and accept the constraints inherent in living in society, is “for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.” [44-5]

The Whig party and James Madison, shaped the common view that property rights and privacy rights were basically expressions of the same concept; a valued domain held to the exclusion of all others and the idea that all people had a right to hold such domains.

Cloud 2018:

Once we are familiar with Locke’s theories of property, it is easy to recognize them in the literature of the Revolution and the Founding. One of the most interesting examples is an essay titled Property that James Madison published only three months after the ratification of the Bill of Rights. Madison’s definition of property is similar to Locke’s. If anything, Madison expresses the Lockean theories of property—both broad and narrow—more clearly than had Locke. Madison described the narrow theory of property as “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual,” and listed “land, or merchandize, or money” as examples. Madison also espoused a grander definition of property, which was more important than material possessions. “In its larger and juster meaning, it [property] embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.” [47-8]

We can debate whether privacy is, in and of itself, an intrinsic value but we can claim it is a product of our existence and work and thus a property to which we are entitled. Moreover, some claim privacy, however we classify it, is a gateway to realizing other desirable ends.

Freid 1968:

It is my thesis that privacy is not just one possible means among others to insure some other value, but that it is necessarily related to ends and relations of the most fundamental sort: respect, love, friendship and trust. Privacy is not merely a good technique for furthering these fundamental relations; rather without privacy they are simply inconceivable. They require a context of privacy or the possibility of privacy for their existence. To make clear the necessity of privacy as a context for respect, love, friendship and trust is to bring out also why a threat to privacy seems to threaten our very integrity as persons. To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, as oxygen is for combustion. [477-8]

The Clash of Rights

We are debating this resolution because the desire and demand of transparency expressed as the right to know inevitably comes into conflict with the right to privacy when individuals seek a public office. At issue is the difficulty in providing meaningful and effective legislation which gives clarity as to where to draw the lines between openness and privacy.

Emerson 1976:

There are several approaches available in seeking a reconciliation of the two constitutional rights. One is by the process of ad hoc balancing. Under this favorite constitutional formula, the interests in the public's right to know would be weighed against the interests of the individual in maintaining his privacy. While the courts are more disposed to employ this method of reconciliation than any other, it has the usual serious drawbacks of a balancing test. It is vague, amorphous, and unpredictable, allowing a court to reach any conclusion that it wishes. And it is difficult to apply because there is no common unit of measurement to place upon the opposing sides of the scales. While some element of balancing would probably be found in any test, the balancing formula seems to offer the least useful path to follow.[21]

As pointed out in the referenced paper, some scholars assume the First Amendment exists for the purpose of allowing citizens to have access the necessary information required to govern or provide a check on government's potential abuses. But, the great unanswered question is what information is actually "needed"? Moreover, attempts to define needed information potentially results in the government (through the law) classifying speech according to its utility or usefulness of its content and scholars can universally agree this is a bad idea. Emerson suggests another approach.

Emerson 1976:

This formulation is based upon the proposition that the constitutional right of privacy is intended to protect the autonomy of the individual by establishing a zone of privacy within which the individual is protected against intrusion by any rule, regulation, or practice of the society-in its collective capacity. The demands of the first amendment, like those of any other rule of the collective, would be subordinate to the requirements of the privacy right. Couched in these terms, the issue would then become one of defining privacy, rather than balancing interests or ascertaining the need to know. Such an approach suffers from the fact that no comprehensive or accepted definition of privacy exists today. But it has the advantage of avoiding balancing, eliminating the need for governmental judgments about the content of expression, and focusing on the real issues. A satisfactory understanding of the meaning of privacy must be developed in the course of time.[22]

The Big Chill

Too much exposure is chilling. From the broader perspective of governance, when the public has access to a private information, there is a strong temptation and perhaps need for the government to obfuscate and hide information so as to avoid public scrutiny. The effect is less true openness. As already stated above, much of the advice and information revealed in the back-rooms, halls and conference rooms may be altered or withheld if leaders believed it could be open to public or opponent criticism. Moreover, looking at a more personal level, for the ordinary citizen, privacy risks are increasing due to the use of modern technology, on-line databases, and tracking software. These risks extend to political participation.

La Raja 2011:

The reality today is that the Internet makes it possible to publicize information about political activity quite easily. Citizens can no longer assume that their actions are de facto private.  What makes this situation especially intriguing is that the legal system in the US and prevailing social norms have prompted two different approaches to political privacy depending on the nature of the activity. The secret ballot makes voting a private act, along with a strong social norm against asking strangers how they voted. On the other hand, making contributions and signing petitions has become more public, both because of changes to law and technology. Many states require information about donors – names, addresses, occupations, even for donations as little as $1 – and post them on the Internet (McGeveran 2003-2004). Social norms strongly support these sunlight policies and the donor who avoids divulging private information is seen as having something to hide (Briffault 2010). [2-3]

From a narrower perspective, studies are showing that individual participation in the political process is chilled when contributors, donors and advisers may be at risk of having private information exposed.

La Raja 2011:

To some observers, the social cost of publicity is a fact we must live with in a democracy. In judging the constitutionality of disclosure, the pugnacious Justice Scalia makes an important point in his concurrence in Doe v. Reed that democracy requires citizens to have “civic courage.” The willingness to stand behind a position publicly makes the citizen responsible and accountable to wider community. On the other hand, as this study suggests, the Internet changes the social context considerably when taking political positions. Citizens may desire more control than the Internet affords them over when and how they choose to exhibit civic courage. This is particularly so when the act has the potential to affect one’s ability to get work or create essential social ties with neighbors.  Individuals navigating diverse social landscapes attempt to play different roles for different audiences (Goffman 1959), but the Internet makes it that much harder to separate their politics from the other personal narratives of their life. Without the ability to separate politics for some, political activity may become even more dominated by those for whom politics is a highly salient feature of their personal lives .[22]

The Negative side of this debate advocates presumption in favor of privacy. The right to privacy should always outweigh the right to know on condition of an overarching greater good serving the public interest. Campaign financing is an obvious exception which serves the public interest as we have seen many historical examples of candidate abuse. Without such obvious potentials for violating the public trust, it remains a burden for the Affirmative debater to prove need. Until then, let the candidate choose which private information the public is allowed to share.

Sources:

Cloud, M (2018), Property is Privacy: Locke and Brandeis in the Twenty-First Century, Georgetown Law, American Criminal Law Review, Vol 55, Issue 1, 2018. https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2018/04/55-1-Property-is-Privacy-Locke-and-Brandeis-in-the-Twenty-First-Century.pdf


Dror, Y. (1999).  Transparency and Openness of Quality Democracy, in Openness and Transparency in Governance: Challenges and Opportunities . The Second NISPAcee Civil Service Forum. http://unpan1.un.org/intradoc/groups/public/documents/nispacee/unpan006507.pdf


Emerson, TI (1976) Legal Foundations of the Right to Know, 1976 Wash. U. L. Q. 1 (1976).
 https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2625&context=law_lawreview


Fried C (1968), Privacy, 77 Yale Law Journal, Vol. 77:475. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5894&context=ylj

La Raja, RJ (2011) Does Transparency of Political Activity Have a Chilling Effect on Participation? Prepared for Presentation at the 2011 Meetings of the Midwest Political Science Association, Chicago, IL, March 31 – April 3, 2011. https://cces.gov.harvard.edu/files/cces/files/la_raja-_transparency_of_political_activity.pdf