PRIVACY AND PRIVACY RIGHTS

In the 1600s, English common law recognized the importance of privacy rights in cases that threatened the sanctity of the home. In the United States in 1791, this privacy principle was highlighted in the U.S. Constitution's Fourth Amendment, which prohibited unreasonable searches and seizures. In 1890, Samuel Warren and Louis Brandeis published in the Harvard Law Review an article entitled "The Right to Privacy," which argued for the recognition of a tort claim for the invasion of privacy. They described the core of this tort concept as "the right to be let alone."

In 1928, Brandeis, by then an associate justice of the Supreme Court, extended the private law tort concept to include recognition of a constitutional right to privacy. Dissenting in Olmstead v. United States, a wiretapping case in which he thought privacy principles embedded in the Fourth Amendment should apply, he claimed "the makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and his intellect…. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men."

Finally, in the 1960s, the Supreme Court began recognizing a constitutional right to privacy akin to the Warren and Brandeis notion of the "right to be let alone." And, more recently, public concerns about invasions of individual rights to informational privacy have led to legislation at both the federal and state levels that seeks to protect these rights.

Tort Law and Privacy

By the 1960s, tort law had begun to recognize four distinct forms of privacy rights. Concerned about privacy invasions related to sexual identity and sexual conduct, members of the queer community were particularly interested in the tort of "intrusion upon the plaintiff's seclusion" and the tort of "public disclosure of private facts." According to the Restatement [Second] of Torts (1977), intrusion upon seclusion occurs whenever anyone "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another" provided the "intrusion would be highly offensive to a reasonable person" (§652B). As a general rule, people reasonably expect privacy in their bedrooms, especially when engaging in intimate acts. Tort law should protect this expectation. For example, videotaping someone during sex, without the person's permission, should in most instances qualify as a tort of intrusion. Yet, in 1999, the Mississippi Supreme Court, with four judges dissenting, held in Plaxico v. Michael that no invasion occurred when, in the context of a pending divorce, the husband surreptitiously took photographs of his wife and her lesbian lover engaging in sex. The husband's concern over custody of his minor child was sufficient in the court's mind to make the invasion nonoffensive to a reasonable person.

To bring a successful claim for an invasion of privacy involving the public disclosure of private facts, the claimant must show that the matter publicized "would be highly offensive to a reasonable person" (§652E). Disclosing the details of someone's intimate sexual relations usually meets this standard. The claimant must also show that the matter disclosed is "not of legitimate concern to the public" (§652D). This tort action covers only public disclosure of facts that are true. If the disclosure is false, then alternative tort actions are available, including libel and slander (which require proof of harm to reputation) and another privacy tort, public disclosure of false private facts, also known as the tort of "false light," which is actionable even without proof of harm to reputation.

"Outing"

"Outing" (making public someone's sexual orientation) became a major issue in lesbian and gay communities in the 1980s. Some activists believed outings were justified when gay or lesbian celebrities or politicians took a public antigay or antilesbian position or took a stand against support for persons with AIDS. Others believed that privacy principles trumped and that no one had the right to "out" another human being. "Outings" of public figures at least raise the possibility of a tort privacy claim. In most such cases, however, the sexual orientation of a politician or celebrity, especially if that person has taken a public stand against gay or lesbian rights, is of sufficient public interest to defeat the claim. Also, since most of these "outings" occur in the press, they are additionally protected by the First Amendment's guarantee of freedom of the press. As that guarantee is interpreted by the Supreme Court, free speech is usually the winner when the interests in a free press are balanced against the privacy claims of public figures. As a result it is practically impossible for a celebrity or politician to make a successful invasion of privacy claim when the press has revealed his or her sexual orientation.

In 1975 an ex-marine pushed a gun out of the hands of Sara Jane Moore. She had been aiming at U.S. President Gerald Ford. Thwarting an apparent assassination attack, the ex-marine became an instant hero. The San Francisco Chronicle identified him as an active member of San Francisco's gay community. He sued, claiming an invasion of privacy. The Chronicle explained that they had revealed his sexual orientation in large part to challenge the standard stereotype of gay men as effeminate. In addition, the fact of his sexual orientation was well-known in the local community. In Sipple v. Chronicle Publishing Co. the California court upheld the right of the press to disclose the man's sexual orientation primarily because he was not closeted and thus the facts disclosed were not private. Closeted gay men and lesbians have been more successful in bringing privacy claims when they have been outed. Disclosure of one's sexual orientation to an employer by a jilted lover seeking revenge has been found actionable. Successful cases have been brought against coworkers who have outed a colleague, hoping to use the employer's homophobia to gain a competitive edge. Disclosures about HIV status and transsexuality have also been found actionable under tort law.

Constitutional Right to Privacy

Tort law protects individuals from being harmed by other individuals. Constitutional law protects individuals from being harmed by the government. The U.S. federal Constitution does not specifically mention the right to privacy. Nonetheless in a watershed 1965 opinion, Griswoldv. Connecticut, the court proclaimed that government could not deny married couples the right to use contraceptive devices by outlawing their use. The decision was based on the fundamental constitutional right to privacy. Justice Douglas, writing for the Court, explained that this privacy right was derived from the penumbras of several explicit rights, described in the first nine amendments to the Constitution.

In 1972, the constitutional privacy doctrine was expanded in Eisenstadt v. Baird to include the right of unmarried heterosexual couples to use contraception. Justice Brennan, writing for the Court, appeared to rely primarily on equal protection arguments, concluding that there was no rational reason to treat married and unmarried individuals differently with respect to access to contraception. As to the right of privacy, he wrote,"[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Two years later, the right was expanded in Roe v. Wade (1973) to include the right of a pregnant woman to decide whether or not to have a child. Another case, Stanley v. Georgia (1969), expanded the privacy notion further, by holding that the possession of illegal obscene material solely for personal use within the home was constitutionally protected.

Griswold, Eisenstadt, and Roe dealt with intimate decisions about sexual activity. Stanley suggested that an otherwise illegal activity could not be criminalized so long as it was confined to personal acts in the privacy of the home. Based on these decisions, gay and lesbian rights activists began to craft privacy arguments to attack the application of sodomy statutes to consenting adult sex in private. The first test case challenged the Virginia sodomy statute. In Doe v. Commonwealth's Attorney (1975), a three-judge court ruled two to one against the plaintiffs' challenge. The case went directly to the U.S. Supreme Court by right of appeal and the Court summarily affirmed. No reason was given for the decision.

Despite this decision, other sodomy challenges, based on privacy grounds, succeeded in the state courts of Iowa, Pennsylvania, and New York. A petition for discretionary review (known as a petition for certiorari) was filed by the state of New York in the New York challenge, arguing that the state's sodomy statute did not violate the privacy rights guaranteed by the U.S. Constitution. The court denied review, which in effect supported the striking down of New York's sodomy statute. Commentators claimed that the Supreme Court's action in the New York case conflicted with its earlier action in the Virginia case. The Court's message was at best ambiguous. Many activists hoped that the denial of certiorari in the more recent case suggested that the Court agreed with gay rights litigators on the merits—that privacy rights included protection for consensual same-sex sodomy.

In 1986, the Supreme Court spoke clearly on the matter. Michael Hardwick, who had been arrested for the crime of consensual sodomy in his own bedroom in Atlanta, challenged the Georgia statute. He claimed that his fundamental right to privacy had been invaded. Following a favorable ruling by the Court of Appeals for the Eleventh Circuit, the State of Georgia asked the Supreme Court to review the decision. On 30 June 1986, in Bowers v. Hardwick the Court held that the constitutional right of privacy did not include the right to engage in homosexual sodomy.

Right to Privacy in State Constitutions

Litigators then turned to state constitutions to make privacy arguments that would support striking down sodomy statutes. Ten states have specific references to privacy rights in their constitutions. Other states have a history of strong protections for privacy under their constitutions, even though privacy is not an enumerated right. Since 1986, the top courts in Montana, Kentucky, Tennessee, Arkansas, and Georgia have all struck down sodomy statutes as violating the right to privacy guaranteed under the state constitution. However, the top courts in Louisiana and Texas have upheld the sodomy statutes in their states.

Of particular interest is the Texas sodomy case, Lawrence v. Texas. The case began much like the Hardwick case. In 1997, two men were arrested for committing sodomy in the privacy of their Houston bedroom. The police had entered legally in response to an anonymous (and false) burglary report. The two men, Lawrence and Garner, were convicted and fined. They appealed their convictions, claiming that the sodomy statute violated the equal protection and privacy provisions of both the state and federal constitutions. The intermediate appellate court in Houston, in an en banc (full court) decision, upheld both the convictions and the constitutionality of the Texas sodomy statute. When the Texas Court of Criminal Appeals refused to review the case, the Lambda Legal Defense attorneys representing the defendants petitioned the United States Supreme Court. On 2 December 2002 the Supreme Court granted certiorari.

On 26 June 2003 the Supreme Court handed down its decision in Lawrence v. Texas. While the case does not explicitly recognize a fundamental right of privacy, the majority opinion does explicitly overrule Bowers v. Hardwick, saying "Bowers was not correct when it was decided and it is not correct today." Justice Kennedy, writing for the court, based the decision on the liberty interest in the due process clause of the Fourteenth Amendment without ever defining that liberty interest as a right of privacy. Instead he focused on the right to make personal decisions, explaining that "liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

Bibliography

Cain, Patricia A. Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement. Boulder, Colo.: Westview Press, 2000.

Bowers v. Hardwick. 478 U.S. 186 (1986).

Doe v. Commonwealth's Attorney. 403 F. Supp. 1199 (E.D. Va. 1975).

Eisenstadt v. Baird. 405 U.S. 438 (1972).

Griswold v. Connecticut. 381 U.S. 479 (1965).

Lawrence v. Texas. 539 US——, 123 S. Ct. 2472 (2003).

Olmstead v. United States. 277 U.S. 438 (1928).

Plaxico v. Michael. 735 So.2d 1036 (Miss. 1999).

Roe v. Wade. 410 U.S. 113 (1973).

Samar, Vincent J. The Right to Privacy: Gays, Lesbians, and the Constitution. Philadelphia: Temple University Press, 1991.

Sipple v. Chronicle Publishing Co. 201 Cal. Rptr. 665 (Cal. App. 1984).

Stanley v. Georgia. 394 U.S. 557 (1969).

Warren, Samuel D., and Brandeis, Louis D. "The Right to Privacy." Harvard Law Review 4 (1890): 193.

Patricia A. Cain

see alsoamerican civil liberties union (aclu); coming out and outing; federal law and policy; policing and police; rights of association and assembly; sodomy, buggery, crimes against nature, disorderly conduct, and lewd and lascivious law and policy.