Rethinking Seedbed & The Right to Privacy

Just read Dan Savage's op-ed "Can I Get A Little Privacy?" in the Times this morning. Always the historian, he places the implication of the Alito nomination in the context of the case of Estelle Griswold, who was arrested in 1961 for selling birth control to a married couple. Her case was won, Savage tells us, by invoking the right to privacy, and that right has also been invoked in contemporary arguments over "gay and straight" sodomy and abortion. The problem is that the right to privacy is not guaranteed by the Constitution. He writes:

If the Republicans can propose a constitutional amendment banning gay marriage, why can't the Democrats propose a right to privacy amendment? Making this implicit right explicit would forever end the debate about whether there is a right to privacy. And the debate over the bill would force Republicans who opposed it to explain why they don't think Americans deserve a right to privacy.

That sounds good to me. We should all be thinking more (and better) about where we stand on privacy. I suppose I could stop there if all I wanted to do is tell you Dan's Plan for the Democrats, but because I'm writing to rethink Seedbed (and specifically Marina Abramovic's staging of it) I've got more to say. In the process of writing about the debates that invoke the right to privacy, Savage mentions masturbation as one of the private behaviors social conservatives desire to regulate, citing Scalia's dissent in Lawrence v. Texas.

This issue has me thinking about hearing Marina Abramovic masturbate in public the other night. I think, first of all, about the fact that it was a public act that is usually private. I think about the privacy within the public act. We couldn't see her and often couldn't hear much. I'm drawn to question whether something you can't see is private if you can hear it. Now here is where the acousmatic sound of Seedbed and of Abramovic's version -- the only version I've 'witnessed' in person -- makes me think in a new way about what it means to be in a space with another person. Now I begin to think maybe it does mean something, maybe there is something to learn or reconsider from the way Marina Abramovic performed Seedbed. But after the brief thoughts I've had about what is private and what is public, I end up feeling that it's not a given that we will still be able to listen to a woman giving herself pleasure in public even though it's an old, mostly boring performance. So this morning, anyway, I feel that I've witnessed something, if only a possibility in this moment that could be quickly eroding.