Speech, Privacy and Social Platforms: A Crisis of Legitimation?

Freedom of speech and the right to privacy appear to clash. However, as this paper shows, speech and privacy share key structural foundations, upon which legitimacy claims rest. Scholars such as Habermas, Meicklejohn and Post, underlie the centrality of public discourse as a pre-condition for legitimating political values. While these procedural approaches have been criticized, they nonetheless still play an important role in explaining segments of free-speech jurisprudence. But legitimation is threatened by the emerging digitally-supported echo-chambers, which, it appears, undermine the deliberative dimension assumed by discourse theories. Building on, yet diverting from, the work of Julie Cohen on decisional autonomy, the paper argues for reconfiguring the right of privacy to empower individuals to migrate and navigate between such eco-chambers, thereby seeking to minimize the legitimacy deficit associated with the contemporary architecture of political discourse.