Right to Privacy
The Right to Privacy is a Constitutional right in the United States that prevents federal and state government officials from violating rights possessed by individuals. The growth of the Internet and of very large databases containing detailed personal information has made privacy a major issue in the information age.
Louis Brandeis, later a justice of the Supreme Court, defined modern notions of the individual right to privacy in a path-breaking article he published with his partner, Samuel Warren, in the Harvard Law Review (1890), on "The Right to Privacy." Stimulated by anger at offensive publicity concerning the social activities of Warren's family, it adumbrated a new legal concept that has had lasting influence. Building on diverse analogies in the law of defamation, of literary property, and of eavesdropping, Brandeis argued that the central, if unarticulated, interest protected in these fields was an interest in personal integrity, "the right to be let alone," that ought to be secured against invasion except for some compelling reason of public welfare.
Before Brandeis, classical liberalism protected privacy as a repository for human passions in order to prevent them from corrupting rational public discourse. Brandeis saw emotions as a positive expression of human nature, and so desired privacy protection for them as protection against repression of the human spirit. Contemporary constitutional theory rejects the restriction of personal passions to private forums and protects the right to personal expression in public.
In tort law privacy relates to 1) intrusion on a person's solitude; 2) public disclosure of private facts about a person; 3) publicity that places a person in a false light; and 4) taking a person's name or likeness for the advantage of someone else (as in an advertisement).
Until 1965, some US states criminalized the distribution of contraceptives. In 1965 the Supreme Court in Griswold v. Connecticut, ruled the laws unconstitutional because they violated the right of privacy. John Roberts upheld "Griswold" at his 2005 confirmation hearings to be Chief Justice, and indicated the issue was closed.
- asked, "Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?" Roberts responded:
- "I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well."
- "I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause."
- "I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again."
In his confirmation testimony, Roberts summarized the right of privacy. Asked "Do you believe today that the right to privacy does exist in the Constitution?", Roberts answered:
- "Senator, I do. The right to privacy is protected under the Constitution in various ways. It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise. It protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops. And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well. And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution."
Posner (1981), a leading conservative, presents an influential economic interpretation of privacy. He deals with the release of true but embarrassing information about yourself. He argues there should be no property right in hiding discreditable information about yourself and likens hiding information to fraud. Thus he supports publicity regarding the addresses of child molesters. On the other hand he agrees there is a property right to privacy regarding ordinary (non-guilty) information. For example, society protects the privacy of not being seen naked. Posner treats trade secrets owned by a corporation as a form of privacy,
Conservative Robert Bork argued that Griswold did not derive the right to privacy from some pre-existing right or from natural law, but merely created a new right to privacy with no foundation in the Constitution or Bill of Rights. Roberts reply is that the right is indeed grounded in the Fourteenth Amendment.
- DeCew, Judith. "Privacy" Stanford Encyclopedia of Philosophy (2006) online edition
- Johnson, John W. Griswold V. Connecticut: Birth Control And The Constitutional Right Of Privacy (2005) excerpt and text search
- Posner, Richard The Economics of Justice (1981), part 3 pp 231-50 on privacy. excerpt and text search
- Scheppele, Kim Lane. Legal Secrets: Equality and Efficiency in the Common Law (1988)
- Smith, Janet E. The Right to Privacy (Bioethics & Culture) (2008), 105pp; introduction by Robert H. Bork; conservative analysis
- Turkington, R., Trubow, G., and Allen, A., eds. Privacy: Cases and Materials (1992), reprints major court cases
- Warren, Samuel, and Louis Brandeis. "The Right to Privacy," Harvard Law Review (1890) 4: 193-220.