Right of Privacy

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RIGHT OF PRIVACY

Long before anyone spoke of privacy as a constitutional right, American law had developed a "right of privacy," invasion of which was a tort, justifying the award of money damages. One such invasion would be a newspaper's embarrassing publication of intimate facts about a person, or a statement placing someone in a "false light," when the story was not newsworthy. Other invasions of this right were found in various forms of physical intrusion, or surveillance, or interception of private communications. The Constitution, too, protected some interests in privacy: the fourth amendment forbade unreasonable searches and seizures; the Fifth Amendment offered a right against self-incrimination; the third amendment, a relic of the Revolutionary War, forbade the government to quarter troops in a private house in peacetime without the owner's consent. Even so, despite Justice louis d. brandeis's famous statement in the wiretapping case of olmstead v. united states (1928), there was no general constitutional "right to be let alone." Nor does any such sweeping constitutional right exist today. Beginning with griswold v. connecticut (1965), the Supreme Court has recognized a constitutional right of privacy, but the potentially broad scope of that right remains constricted by the Court's current interpretations of it.

Griswold held invalid a Connecticut law forbidding the use of contraceptives, in application to the operators of a birth control clinic who were aiding married couples to violate the law, offering them advice and contraceptive devices. Justice william o. douglas, writing for the Court, disavowed any reliance on substantive due process to support the decision. Although the statute did not violate the terms of any specific guarantee of the bill of rights, said Douglas, the Court's decisions had recognized that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." The freedom of association, although not mentioned in the first amendment, had been protected against intrusions on the privacy of political association. The Third, Fourth, and Fifth Amendments also created "zones of privacy." The Griswold case concerned "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Furthermore, the idea of allowing police to enforce a ban on contraceptives by searching the marital bedroom was "repulsive to the notions of privacy surrounding the marriage relationship."

Connecticut had not been enforcing its law even against drugstore sales of contraceptives; the governmental prying conjured up in the Griswold opinion was not really threatened. What Griswold was protecting was not so much the privacy of the marital bedroom as a married couple's control over the intimacies of their relationship. This point emerged clearly in eisenstadt v. baird (1972), which extended the right to practice contraception to unmarried persons, and in carey v. population services international (1977), which struck down three laws restricting the sale and advertisement of contraceptives.

In Eisenstadt the Court characterized the right of privacy as the right of an individual "to be free from unwarranted intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." The prophecy in those words came true the following year when the Court, in roe v. wade (1973), held that the constitutional right of privacy recognized in Griswold was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This right to decide whether to have an abortion was qualified only in the later stages of pregnancy; during the first trimester of pregnancy it was absolute. Abandoning Griswold 's penumbra theory, the Court placed the right of privacy within the liberty protected by the due process clause of the fourteenth amendment. (See abortion and the constitution.)

As the Roe dissenters pointed out, an abortion operation "is not "private' in the ordinary usage of that word." Liberty, not privacy, was the chief constitutional value at stake in Roe. In later years various Justices have echoed the words of Justice potter stewart, concurring in Roe, that "freedom of personal choice in matters of marriage and family life" is a due process liberty. Indeed, Justice Stewart's formulation was too narrow; the Court's decisions have gone well beyond formal marriage and the traditional family to protect a much broader freedom of intimate association. Yet that freedom is often defended in the name of the constitutional right of privacy.

From the time of the Griswold decision forward, privacy became the subject of a body of legal and philosophical literature notable for both analytical quality and rapid growth. The term "privacy" cried out for definition—not merely as a feature of constitutional law, where the Supreme Court had offered no more than doctrinal impressionism, but more fundamentally as a category of thought. Is privacy a situation, or a value, or a claim of right? Is privacy itself the subject of our moral and legal claims, or is it a code word that always stands for some other interest? However these initial questions be answered, what are the functions of privacy in our society? These are not merely philosophers' inquiries; in deciding "right of privacy" cases judges also answer them, even if the answers are buried in assumptions never articulated.

Not until 1977 did the Supreme Court begin to map out the territory occupied by the constitutional right of privacy. In whalen v. roe the Court upheld a state law requiring the maintenance of computerized records of persons who obtained various drugs by medical prescription. "The cases sometimes characterized as protecting "privacy," said the Court, "have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." This passage is noteworthy in two respects: first, its opening words suggest a new awareness that "privacy" may not be the most informative label for an interest in freedom of choice whether to marry, or procreate, or have an abortion, or send one's child to a private school. Second, the passage strongly hints that some interests in informational privacy—freedom from disclosure—are constitutionally protected not only by the First, Fourth, and Fifth Amendments but also by a more general right of privacy.

The Whalen opinion was written by Justice john paul stevens, who has consistently urged an expansive reading of the "liberty" protected by the due process clauses. As if to emphasize that the right of privacy is merely one aspect of a broadly defined right of substantive due process, Justice Stevens cited, to support his reference to the interest in independence in making important decisions, allgeyer v. louisiana (1897), which established the freedom of contract as a due process right. If the "important decisions" part of the right of privacy is to be absorbed back into the body of substantive due process, and if informational privacy is to become part of a redefined constitutional right of privacy, the contours of this new right will for the first time approach the meanings of "privacy" in common speech. Before Whalen, it was possible to say that the one interest most conspicuously left unprotected by the constitutional right of privacy was privacy itself. In any event, even after Whalen 's suggestive analysis, the Supreme Court has continued to speak of "the" constitutional right of privacy.

There is a sense in which personal decisions about sex and marriage and procreation are private decisions. Indeed, the word "private" serves better than "privacy" to indicate the interests in personal autonomy at stake in such cases. Both words can refer to such forms of privacy as seclusion and secrecy; to do something in private is to do it free from public or general observance, and private information consists of facts not publicly or generally known. But "private" has another meaning that lacks any similar analogue in the idea of privacy. Private property, for example, is property that is one's own, subject to one's control, from which one has the right to exclude others if one chooses to do so. It makes perfect sense to speak of a power of decision as private in this sense. From this perspective the line of "privacy" opinions from Griswold to Roe and beyond can be seen as seeking to identify the circumstances in which the decision "to bear or beget a child" is one that "belongs" to the individual, one from which the public—even the state—can be excluded. Calling such an interest "privacy," however, is a play on words; any freedom from governmental regulation might just as easily be called "privacy." Perhaps Justice Stevens was making this point in his Whalen opinion when he cited Allgeyer, a case in which the liberty at stake was freedom to buy insurance from an out-of-state company.

Much of what government does in the way of regulating behavior intrudes on privacy in its commonly understood senses of solitude and nondisclosure. Yet even when these forms of privacy are assimilated to the constitutional right of privacy, the result is not wholesale invalidation of governmental action. The Whalen decision itself is illustrative. Recognizing that the drug records law threatened some impairment of both the interest in nondisclosure and the interest in making personal decisions, the Court nonetheless concluded that the law's informational security safeguards minimized the chances of serious harm to those interests and that the law was a reasonable means of minimizing drug abuse. More serious threats of disclosure of accumulated personal information, the Court said, might exceed constitutional limitations. The clear implication is that future claims to a constitutional right of privacy in the form of nondisclosure will be evaluated through a process of judicial interest balancing.

Even a judge who regards privacy as a constitutional value in itself, something more than a label for other interests, will be pressed to consider why privacy is important, in order to place the proper weights in a given case's decisional balance. The commentary on privacy regularly identifies several overlapping values. If governmental "brainwashing" would be unconstitutional, as all observers assume, the reason surely lies in the widely shared sense that the essentials of due process "liberty" include a healthy measure of control over the development of one's own individuality. That control undoubtedly requires some amount of privacy in the form of nondisclosure and seclusion. To have the sense of being a person, an individual needs some degree of control over the roles she may play in various social settings; control over the disclosure of personal information contributes to this process. Similarly, both learning and creative activity require a measure of relaxation and refuge from the world's intrusions.

A closely related function of informational privacy is its value as a foundation for friendship and intimacy. Although a cynic might say that the most effective way for an individual to preserve the privacy of his thoughts and feelings would be never to disclose them, that course would sacrifice the sort of sharing that constitutes a central value of intimate association—which, in turn, is crucial to the development of individuality. It is here that we can see clearly the overlap between privacy as selective nondisclosure and "privacy" as autonomy in intimate personal decisions. Justice Douglas's Griswold opinion spoke to both concerns: he sought to defend the privacy of the marital bedroom against hypothetical government snooping and to defend a married couple's autonomy over the intimacies of their relationship. The special constitutional status of the home, recognized in decisions ranging from search and seizure doctrines to the "private" possession of obscenity protected in stanley v. illinois (1969), draws not only on the notion of the home as a sanctuary and place of repose but also on the home's status as the main locus of intimate associations.

Finally, privacy in the sense of seclusion or nondisclosure serves to encourage freedom, both in the sense of political liberty and in the sense of moral autonomy. The political privacy cases from naacp v. alabama (1958) to gibson v. florida legislative investigation committee (1963) and beyond rest on the premise that disclosure of political associations is especially harmful to members of political groups that are unpopular or unorthodox. When the Army engaged in the domestic political surveillance that produced the Supreme Court's 5–4 nondecision in laird v. tatum (1972), its files were filled with the names of those who "were thought to have at least some potential for civil disorder," not with the names of Rotarians and Job's Daughters. A similar threat is posed by disclosure of one's homosexual associations or other intimate associations outside the mainstream of conventional morality. Such a case, like Griswold, implicates both privacy as nondisclosure or seclusion and "privacy" as associational autonomy.

On the other side of the constitutional balance, opposed to the interest in informational privacy, may be ranged any of the interests commonly advanced to support the free exchange of information. To further many of those interests, the common law of defamation erected an elaborate structure of "privileges," designed to protect from liability persons who made defamatory statements in the course of exchanging information for legitimate purposes: a former employer might give a servant a bad reference; a newspaper might criticize the town mayor. As these examples show, informational privacy is by no means the only constitutional interest that may be raised in such cases. Not only has the law of defamation been hedged in with First Amendment limitations; liability for the tort of invasion of privacy must also pass judicial scrutiny aimed at avoiding violations of the freedom of the press. Although the Supreme Court has not ruled on the matter, undoubtedly the First Amendment will be read to include a "newsworthiness" defense to an action for damages for invasion of privacy by publication of intimate facts. Even where the First Amendment is not involved directly as a constitutional limit on the award of damages or the imposition of punishment under state law, that amendment's values must be taken into account in evaluating any claim that a state has violated an individual's constitutional right of informational privacy. (See government speech.) Perhaps for this reason, most lower federal courts have been reluctant to find in Justice Stevens's Whalen opinion a general invitation to expand the constitutional right of privacy's protections against disclosure of information.

Nor has the Supreme Court been ready, in the years since roe v. wade, to extend either branch of the constitutional right of privacy. The Court's best-known opportunities for widening the scope of the right have come in "important decisions" cases involving nonmarital intimate relationships (including homosexual ones; see sexual preference and the constitution) and the asserted right to control one's own personal appearance (including dress and hair length). In some of these cases the Court has avoided deciding cases on their constitutional merits; in no case has the Court validated the claim of a right of privacy. On principle, the intimate association cases seem clearly enough to be governed by Griswold and its successor decisions. Yet the Court has temporized, displaying what alexander bickel once called "the passive virtues," evidently awaiting the formation of a sufficient political consensus before extending constitutional protection to unconventional intimate associations.

One factual context in which the Court seems likely to continue its hospitality to "privacy" claims touching intimate personal decisions is that of governmental intrusions into the body. The abortion decisions, of course, are the modern starting point. Compulsory smallpox vaccination, once upheld as a health measure, stands on shakier constitutional ground now that smallpox has been virtually eradicated. Compulsory sterilization, too, is unconstitutional in the absence of justification by some compelling state interest. The Supreme Court has explicitly redescribed skinner v. oklahoma (1942) as a "privacy" case. By analogy, the right of a competent adult to refuse medical treatment seems secure, even when that choice will probably lead to death. (See euthanasia.)

If the Supreme Court comes to accept Justice Stevens's broad reading of due process "liberty," it makes little difference whether the bodily intrusion cases be seen as raising "privacy" issues. There are occasions, however, when governmental invasions of the body implicate not only the interest in autonomy over one's own body but also privacy in its true sense of nondisclosure and seclusion. An appalling case in point is Bell v. Wolfish (1979). Inmates of a federal detention center, held in custody before being tried on criminal charges, sued to challenge the constitutionality of various conditions of their confinement. One challenged practice was the systematic subjection of every inmate to visual inspection of his or her body cavities after every "contact visit" with a person from outside the center, whether or not anyone had any suspicion that contraband was being smuggled into the center. A 5–4 Supreme Court held that the searches were not unreasonable and thus presented no Fourth Amendment problem; the majority did not separately consider any constitutional right of privacy founded on due process. The two main dissenting opinions, emphasizing substantive due process, insisted that the government must offer substantial justification for such a degrading invasion of privacy. (See rochin v. california.) Justification was lacking: the lower court had found that the searches were ineffective in detecting smuggled goods, and the government's argument that the searches deterred smuggling was an obvious makeweight.

There was no significant physical invasion of the body in the Wolfish case. Yet the privacy interests of the individuals searched were not far removed from those involved in the abortion and sterilization cases. The detainees sought vindication of their right to be afforded the dignity of respect, not just for their bodies but for their persons. The very pointlessness of the searches in cases where suspicion was lacking heightened the humiliation, to the point that many inmates had given up visits by family members. The case illustrates perfectly the convergence of the interests in personal autonomy and informational privacy in an individual's control over his own personality. When government seriously invades that sphere, due process demands important justification.

Several states guarantee a right of privacy in their state constitutions. The various state supreme courts have relied on these provisions to hold unconstitutional not only invasions of informational privacy, such as police surveillance, but also invasions of personal autonomy, such as laws limiting the occupancy of a house to members of a family, or forbidding the possession of marijuana for personal use. If the Supreme Court were to follow the doctrinal leadership of these courts, it would not be the first time. (See incorporation doctrine.)

Both types of interests protected by the federal constitutional right of privacy are susceptible to either broad or narrow interpretation. A generalized "privacy" right to make important decisions, like a generalized right of informational privacy, resists clear-cut definition. Every extension of a constitutional right of personal autonomy detracts from the power of government to regulate behavior in the public interest (as government defines that interest); and every extension of a constitutional right of informational privacy detracts from the free flow of communication. The problem for the courts, here as in equal protection and other areas of constitutional growth, is the stopping-place problem. It is no accident that most discussions of the newer constitutional right of privacy turn to questions about the proper role of the judiciary—a theme that has dominated discussion of substantive due process since it appeared on the constitutional scene a century ago. The problem of defining a constitutional right and the problem of establishing the courts' proper constitutional role are two faces of the same inquiry. A constitutional right that defies description not only fails to protect its intended beneficiaries but also undermines the position of the courts in the governmental system.

Justice Stevens's opinion in whalen v. roe begins to point the way toward the resolution of the uncertainties that have surrounded the constitutional right of privacy ever since the Griswold decision. It does aid constitutional analysis to separate the right into the two strands of personal autonomy and informational privacy. Yet it remains useful to recognize, as Justice Stevens has continued to remind us, that both strands remain part of a single substantive due process principle: significant governmental invasions of individual liberty require justification, scaled in importance according to the severity of the invasions. The right of privacy, then, is no more susceptible to precise definition than are such rights as due process or equal protection. What can be identified are the substantive values that inform the right of privacy. These values, as the Supreme Court's decisions show, are centered in the respect owed by the organized society to each individual as a person and as a member of a community. When governmental officers invade a person's control over her own body, or development of individual identity, or intimate associations—either by restricting decisional autonomy or by intruding on privacy in the sense of nondisclosure or solitude—then the Constitution demands that they be called to account and made to justify their actions.

For the future, the fate of the right of privacy, like that of all constitutional rights, will depend on the courts only secondarily. In the long run, the crucial questions will be how much privacy and what kinds of privacy we value. Total privacy—that is, isolation from others—is not merely unattainable; hardly anyone could stand it for long. In some societies people neither have nor want much of what we call privacy. Yet even among Australian aborigines who eke out their precarious living in a desert that often fails to provide walls, there are rules of restraint and social distance, and, when all else fails, the magic of secret names. Our own constitutional right of privacy will grow or wither as our own society's rules of restraint and social distance form and dissolve.

Kenneth L. Karst
(1986)