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?