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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.<ref>Grant B. Mindle, "Liberalism, Privacy, and Autonomy" ''Journal of Politics'' 1989 51(3): 575-598 24p.</ref>
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.<ref>Grant B. Mindle, "Liberalism, Privacy, and Autonomy" ''Journal of Politics'' 1989 51(3): 575-598 24p.</ref>
==Tort law==
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).
==Griswold==
==Griswold==
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.<ref> See [http://privacy-law.blogspot.com/2005/09/john-roberts-right-to-privacy-part-5.html quotations]</ref>
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.<ref> See [http://privacy-law.blogspot.com/2005/09/john-roberts-right-to-privacy-part-5.html quotations]</ref>
:"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."
:"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==
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,
==Criticism==
==Criticism==
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.<ref> See Robert Bork, ''The Tempting of America: The Political Seduction of the Law'' (1990)</ref> Roberts reply is that the right is indeed grounded in the [[Fourteenth Amendment]].
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.<ref> See Robert Bork, ''The Tempting of America: The Political Seduction of the Law'' (1990)</ref> Roberts reply is that the right is indeed grounded in the [[Fourteenth Amendment]].
==Further reading==
==Further reading==
* Johnson, John W. ''Griswold V. Connecticut: Birth Control And The Constitutional Right Of Privacy'' (2005) [http://www.amazon.com/Griswold-V-Connecticut-Constitutional-Landmark/dp/0700613781 excerpt and text search]
* Johnson, John W. ''Griswold V. Connecticut: Birth Control And The Constitutional Right Of Privacy'' (2005) [http://www.amazon.com/Griswold-V-Connecticut-Constitutional-Landmark/dp/0700613781 excerpt and text search]
* Smith, Janet E. ''The Right to Privacy'' (Bioethics & Culture) (2008), 105pp; introduction by [[Robert H. Bork]]
* Posner, Richard ''The Economics of Justice'' (1981), part 3 pp 231-50 on privacy. [http://www.amazon.com/Economics-Justice-Honorable-Richard-Posner/dp/0674235266/ref=sr_1_1?ie=UTF8&s=books&qid=1250122931&sr=1-1 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.
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[[Category:Law]]
[[Category:Law]]
[[Category:First Amendment]]
[[Category:First Amendment]]