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Freedom of Speech and Segmenting the Citizens
Unformatted Document Text:  ICA-10-10582 5 Authority of Consent. This approach tries to figure out the intent of the Constitution’s framers (p.28). However, Post claims that neither the doctrinal precedent approach nor the authority of consent is able to incorporate the full meaning of the constitution as a living entity (p.29). Surely, this was what the framers had in mind when they proposed in the 9 th Amendment that “the enumeration in the constitution, of certain rights, shall not be construed to deny…others maintained by the people.” Surely, privacy should be considered as such a right. Taking all these into consideration, the framework that suits the purposes of this paper is what Post identifies as the “Authority of Ethos” (p.35). This approach argues that the Constitution would lose its special valve if it were to be perceived as a fixed document (p.36). However, it is important to acknowledge that using the Authority of Ethos would mean little, unless there is a coherent and generally acceptable understanding of privacy’s constitutional functions. As Ruth Gavison (1980) indicates, the rationale for establishing privacy rights is contingent upon our ability to relate it to other instrumental goals; and more importantly it depends on the extent to which these instrumental goals are also goals that are deemed to be crucial to society (p.359). These instrumental goals, or functions, enable us to attach a public value to privacy by establishing the fact that privacy is essential to democracy (Regan, 1995, p.226). The rest of this paper will examine the First Amendment functions of privacy and how surveillance of individuals threatens these First Amendment functions. IV) Freedom of Speech: The Constitutional Tension Approach and Chilling Effect Human liberty requires a liberty of conscience and liberty of opinion on all subjects, regardless of whether these opinions are practical or speculative (Mill, 1859/1989; p.15). Moreover, as long as the purpose is not to harm others, human liberty requires that the individuals should be free to form their associations with others without being forced or deceived into doing so (p.16). It is likely that in an environment of extensive surveillance individuals will refrain from exercising such liberties out of fear of being watched. For

Authors: Popescu, Mihaela. and Baruh, Lemi.
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ICA-10-10582
5
Authority of Consent. This approach tries to figure out the intent of the Constitution’s
framers (p.28). However, Post claims that neither the doctrinal precedent approach nor the
authority of consent is able to incorporate the full meaning of the constitution as a living
entity (p.29). Surely, this was what the framers had in mind when they proposed in the 9
th
Amendment that “the enumeration in the constitution, of certain rights, shall not be construed
to deny…others maintained by the people.” Surely, privacy should be considered as such a
right. Taking all these into consideration, the framework that suits the purposes of this paper
is what Post identifies as the “Authority of Ethos” (p.35). This approach argues that the
Constitution would lose its special valve if it were to be perceived as a fixed document (p.36).
However, it is important to acknowledge that using the Authority of Ethos would mean little,
unless there is a coherent and generally acceptable understanding of privacy’s constitutional
functions. As Ruth Gavison (1980) indicates, the rationale for establishing privacy rights is
contingent upon our ability to relate it to other instrumental goals; and more importantly it
depends on the extent to which these instrumental goals are also goals that are deemed to be
crucial to society (p.359). These instrumental goals, or functions, enable us to attach a public
value to privacy by establishing the fact that privacy is essential to democracy (Regan, 1995,
p.226). The rest of this paper will examine the First Amendment functions of privacy and
how surveillance of individuals threatens these First Amendment functions.
IV) Freedom of Speech: The Constitutional Tension Approach and Chilling Effect
Human liberty requires a liberty of conscience and liberty of opinion on all subjects,
regardless of whether these opinions are practical or speculative (Mill, 1859/1989; p.15).
Moreover, as long as the purpose is not to harm others, human liberty requires that the
individuals should be free to form their associations with others without being forced or
deceived into doing so (p.16). It is likely that in an environment of extensive surveillance
individuals will refrain from exercising such liberties out of fear of being watched. For


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