The private sphere

in which Lord Cornwallis enjoys colonising his private sphere

Long ago the world was divided into two spheres, public and private. There was a concept known as 'privacy' which sprung many offshoots such as a private life, private space, private correspondence, private shenanigans, and a place called 'home' where you could install a dinner table and say anything you wanted without running the risk of committing a public order offence. 

In modern times, where we are all civilised, the two reigning spheres are 'public' and 'quasi-public'. There is no private sphere, because if we allow privacy people might say rude things about other races and religions and genders in the privacy of their own homes, and then what. Disaster. Calamity. We'd be back in the simplistic Dark Ages where everyone hated everyone else, and nobody wants that. Modern life is too complex for privacy. The quasi-public sphere recognises that complexity, the reality that you can no longer claim any space as private in case it causes offence for example by excluding other people. We want to live in social peace and harmony like good little Wokies. It's therefore best to abolish privacy, for your own safety and to protect all those around you.

You should not worry about 'public order' criminal laws extending into your quasi-public home. Just don't say anything rude about other people, ok? It's not difficult. You'll be fine. If you have nothing to hide, you have nothing to fear. Our police have better things to do than going around eavesdropping at dinner tables, and will only come knocking at your door if you've been saying rude things about others. Most of us are careful always to be polite, so we have no reason to be concerned.

The old-fashioned private sphere has been under consistent erosion since the civil rights era of the 1960s, when it became clear that in order to equalise all the wealth and make a fairer world we would need to prevent rich people from stashing money in their private spaces. Abolishing wealth creation is tricky, but abolishing private spaces is easy because where there's a political will, there is a legal way. Ultimately the question whether the law recognises private autonomy is a political rather than conceptual question.

The cause, however, plainly is not conceptual; it must rather be political: the greater or lesser prevalence in a society's decisive quarters of some combination of 
(1) a special commitment to freedom of choice of aims and activities by persons and groups in society, 
(2) a correlative reluctance to extend throughout society the same set of restraints we devise for the state viewed as the monopolist of lawful force, the sole power from the reach of whose command there is virtually no exit; and perhaps, along with those, 
(3) a belief in the superior ability of on-the-spot parliaments—as compared with rarely assembled constitutional framers—to work out contextually responsive, aptly fair, and freedom-optimizing solutions to societal conflicts, at least as long as the parliament acts under the effective control of good basic laws (a bill of rights). 

​Frank I. Michelman, Constitutions and the Public/Private Divide  

Applying this test, the less committed we are to freedom of choice, the more we want to replace the ordinary private law with constitutional law. We are all public bodies now, governed by Woke Marshalls, and we all owe each other constitutional public sector equality duties.

How was the private sphere abolished, and where were the lovers of free choice when this was happening?

The first step in abolishing private spaces was to stipulate that any institution in receipt of public funds is public. So a charitable, religious or educational foundation in receipt of public grants is transformed into a public body owing public sector equality duties. 

That proved easy to sidestep by the simple expedient of never accepting public funds. Some private educational institutions, especially those with religious foundations, adopted this approach. Oh dear. A giant loophole!

The next step provided that any space open to members of the public is a public space. So a restaurant or shop or college may be privately owned and funded, but by welcoming customers it automatically transforms itself into a public space. Anybody who welcomes members of the public to visit their home, by the same reasoning, transforms their private home into a public space. Don't let your children set up a lemonade stand on your driveway. That transforms your home into a public space and you probably need a licence for that, health and safety inspections, plus of course doing all the public sector equality duties.

Still a considerable loophole, because many people work outside the home and interact only through social media. They can easily lock everyone out of their home and still make their voice heard. Loophole!

The next step in cracking down on privacy therefore focused on the platform. If you speak on a public platform like social media it is no defence to say that your settings were 'private' - it is a forum accessible to anybody and that makes it public.

Unfortunately this still leaves a lot of wiggle room for those with something to hide. They might instal a front door to their home and put up a sign 'Trespassers will be shot!' which signifies that members of the general public are not welcome and it is therefore not a public space. Sometimes they even keep a vicious dog and set it on anyone who walks up their garden path without an invitation. In these conditions if they stay off social media it's very difficult to see how public order legislation can be extended to their private space.

Finding themselves at the utmost end of need, our lawmakers have therefore abandoned all pretence that they respect the private space. They now blatantly apply the public law to your home without attempting to offer any justification, and put YOU to the proof to offer your excuses and reasons if you feel that your home should be exempt.

Rather than setting up tests for the creation of a public space, the law now requires YOU to establish why public duties should NOT apply to your private dwelling. Good luck! The people of Scotland did not succeed in coming up with a convincing rationale, and now they will have to mind what they say at the dinner table in case their children grass them up for hate speech.

In Scotland, speaking hateful words is a public order offence so why should it NOT be an offence in the home?

​Are we saying that, as a society, we are comfortable with no criminal sanction being applied to people because [the public order offence] is being done within the confines of their dwelling whereas if they stepped out into the street outside of their house then that would be an offence?

Justice Secretary

Um, yes, Mr Secretary, exactly so. That is precisely what we are saying. That's the meaning of privacy. The private sphere is a space in which you can do or say things that would offend public morals if you did or said them in public. People do not need permission to say hateful things in their homes, if that's what they want to do. Their home is a space where they have absolute autonomy, and this is not dependent on promising only ever to say nice things at home.

What next? What if people who live alone say hateful things at the dinner table? Surely they'll get away with it because they have no family members to grass them up. That's a giant loophole in the law! Maybe the government should put recording devices in everybody's home so nobody can commit hate-speech crimes with impunity. The only people who would object to this are those with immoral motives, who have something to hide. If you are not uttering hateful speech then you won't mind being monitored. It's to protect everyone, and to keep all our communities safe.