William & Mary Law Review


In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper’s interest in publishing the photograph and the subject’s interest in privacy. Although generalizations often oversimplify complex legal, cultural, and moral understandings, it nevertheless remains true that European courts tend to place greater relative emphasis on safeguarding privacy than do courts in the United States. Thus, the standard narrative posits that the United States gives an absolute priority to speech, over vindication of privacy interests, whereas European law tends to discount the importance of expressive freedom in favor of more reliably safeguarding privacy. At one level of analysis, this standard account gets things right—protected speech is both wider and deeper on this side of the Atlantic than in contemporary Europe. This standard account, however, underestimates the European commitment to protecting expressive freedom; the European commitment to safeguarding privacy does not, and will not, invariably override free speech. A comparative legal analysis also demonstrates that privacy is far from dead in the United States. Going forward, the challenges presented by the advent of “Big Data” and society-wide government surveillance programs increasingly will require both the United States and Europe to see privacy as an essential condition for safeguarding speech. Democratic self-government presupposes an ongoing dialogue among citizens, but an open dialogue about government simply cannot exist in a surveillance state. In the brave new world of PRISM and secret government manipulation of metadata, we must recognize that privacy and speech are fundamentally complementary, rather than competing, human rights. Moreover, this is a lesson that comparative legal analysis can teach.