Right to Privacy

Defining Privacy

  • Privacy is an elusive concept with no single accepted definition.
  • Rubenfeld: privacy is like obscenity—you know it when you see it.
  • Various meanings: right to be apart, right to control life’s intimacies, right to secrecy about personal information.
  • Cooley: privacy as a right of complete immunity: to be let alone.
  • Question: is this definition sufficient?

The Value of Privacy

  • From negation to value: isolation gains importance as society changes.
  • Personal autonomy: respect for the individual, protection from manipulation.
  • Dignity and emotional release: a space to be unmasked.
  • Protects permissible deviations from social norms.
  • Westin: privacy lets us lay our masks aside.
  • Rossiter & Konvitz: the free/private person keeps some thoughts to himself.
  • Brandeis: the right to be let alone is the most comprehensive and valued right.

Philosophical Origins

  • Roots in natural law/natural rights and social contract theory.
  • Konvitz: privacy hinted in old legal codes and philosophical writings.
  • Natural law: Principles binding across nations and time (Aristotle).
  • Cicero: natural law as sacred obligation.
  • Aquinas: natural rights integrated with Christian thought.

Social Contract Thinkers and Foundations

  • Hobbes: life is nasty, but government protection requires some liberty relinquishment.
  • Locke: government preserves life, liberty, property; misbehavior warrants overthrow.
  • Mill: limits on collective power; self-preservation; leave most matters to individuals.
  • US framers: natural rights, sanctity of the individual, limited government; early foundations for privacy.
  • Privacy foundations precede the US founding.

Constitutional Foundations

  • Question: Does the Constitution enumerate privacy?
  • Griswold v. Connecticut (1965): privacy is broad/abstract; not named; several amendments embody privacy.
  • 1st Amendment: private sentiment/association.
  • 3rd Amendment: private life in the home; home is one’s castle.
  • 4th Amendment: security against unreasonable searches and seizures.
  • 5th Amendment: protection against compulsory self-incrimination.
  • 9th Amendment: acknowledges unenumerated rights; debate on whether it includes privacy.

19th Century Privacy

  • Privacy protections were primarily common-law/tort-based, not constitutional yet.
  • Massachusetts (1816): intrusion upon the repose of families in the home.
  • North Carolina (1822): right of shutting one’s own door.
  • New York (1851): compensation for invasion of privacy and interference with family comfort.

Privacy and the Family

  • Common-law view: male head of household authority; family interests seen as inseparable from patriarchal authority.
  • State powers limited to public-interest matters.
  • Laws regulated adultery, sodomy, fornication, contraception, incest, abortion, etc.

The Right to Privacy (1890)

  • Harvard Law Review: invasion of privacy by the press; call for recognizing a right to privacy as inviolable personality.
  • Derived from common law; not tied to tort or property; advocated courts recognize a privacy right.

Privacy in the 20th Century

  • Pavesich v. New England Life Insurance Co. (1905, Georgia): first to recognize privacy as an independent right; natural-law basis.
  • Griswold (1965): federal constitutional privacy recognized.

The Two Prongs of Privacy

  • Informational privacy: freedom from government intrusion; protection of personal information; linked to the 4th Amendment.
  • Decisional privacy: freedom to make intimate life decisions; several privacy rights carved by the Supreme Court.
  • Constitutional privacy is not the same as the 4th Amendment’s expectations of privacy; constitutional privacy protects rights from government proscription.

The Domain of Intimacy

  • The decisions that fall under decisional privacy include reproductive rights, sexual behavior, marriage, and family life.

Decisional Privacy and the Domain of Intimacy

  • Key questions: which intimate decisions are protected today? (reproductive rights, sexual behavior, marriage, family life)

Government Interests in This Domain

  • Historically invoked interests: public health, morality.
  • Courts as mediators between state and family; governing the hearth (Grossberg).

Why the Supreme Court is the Final Arbiter

  • Judicial review (Marbury v. Madison, 1803): it is the province/duty of the judiciary to say what the law is.
  • Federal judiciary can review constitutionality of acts and government actions.

The Controversy of the Right to Privacy

  • Rubenfeld (1989): privacy analysis protects decisions that substantially shape life; not absolute.
  • Some decisions are fundamental; judges rely on traditions and collective conscience to determine fundamentality.
  • Risk: subjective grounding and potential overreach.

Semester Overview

  • Topics: philosophical, political, legal debates on privacy rights, equality, and regulation of intimacy.
  • Central question (Rubenfeld): does the judiciary truly free individuals from overreaching state power?