Constitutional right to privacy

Description: The right of individuals to be free from unwarranted publicity or uninvited intrusions into their personal affairs

Relevant amendments: First, Third, Fourth, Fifth, Ninth, Fourteenth

Significance: Although the US Constitution does not use the word “privacy,” the Bill of Rights secures specific kinds of privacy interests, and the Supreme Court has interpreted the Constitution to protect a general right to privacy which includes personal autonomy and intimate relationships

Many of the provisions of the US Constitution protect values which people commonly include under the multifaceted label “privacy.” The First Amendment means that people should be allowed privacy in their beliefs and expressions of beliefs. The Third Amendment permits individuals to refuse to take soldiers into their homes in peacetime. The Fourth Amendment protects against unreasonable searches of persons, homes, and property. The Ninth Amendment recognizes that rights exist that are not enumerated in the Constitution. Both the Fifth and Fourteenth Amendments appear to give some substantive rights to liberty and property, concepts at the core of an individual’s private interests.

Publicity and Invasions of Privacy

The modern notion of a legal, expansive right to general privacy really began in 1890, when lawyers Louis Brandeis and Charles Warren published a famous article in the Harvard Law Review entitled “The Right to Privacy,” arguing that “the right to be let alone” was “the most comprehensive of rights and the right most valued by civilized man.” Brandeis and Warren advocated the use of tort law to deter invasions of privacy by the press and others. Beginning with New York in 1903, most states gradually allowed civil suits for the unauthorized use of one’s name, the public disclosure of private affairs, and publicity presenting one in a false light.

Any legal restraint on publicity eventually comes in conflict with the First Amendment guarantee of a free press. For this reason, in Time, Inc. v. Hill (1967), the Supreme Court applied its standards for libel of public persons to unwanted publicity about private individuals if the publicity relates to a “newsworthy” story. Thus, a private individual described in a story of public interest is able to collect damages only if the writer or publisher resorts to “deliberate falsity or a reckless disregard for the truth.”

The Court extended this test in Cox Broadcasting Corporation v. Cohn (1975), in which it overturned a civil award arising under a Georgia privacy statute that made it illegal to publicize the name of a rape victim. The Court declared it unconstitutional to punish the news media for providing “truthful information available in the public record.” If the state wished to protect the privacy of victims, it could delete the relevant information from public court documents. In a subsequent case, Florida Star v. B.J.F. (1989), the Court again emphasized press freedom over privacy when it overturned a civil award against a newspaper for illegally reporting the full name of a rape victim, the name coming from police records. A minority of three justices argued that more weight should be given to the privacy of innocent victims.

Privacy and the Fourth Amendment

Because of the British colonial experience, the framers of the Fourth Amendment wanted to deny the government the power to conduct general searches of buildings with writs of assistance. In the famous Massachusetts trial of 1761, Paxton’s Case, James Otis had argued against the use of general writs, declaring that an individual in his house should be “as secure as a prince in his castle.”

The Supreme Court only gradually tried to prevent the police from violating the Fourth Amendment. In one of the first important cases, Boyd v. United States (1886), Justice Joseph Bradley insisted that the courts had the duty to uphold the spirit of the amendment, writing that it applied “to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.” In Weeks v. United States (1914), the Court began a rigorous assault on unreasonable searches by mandating the “exclusionary rule,” which disallows any use of illegally obtained evidence in criminal trials.

In his famous dissent in Olmstead v. United States (1928), Justice Brandeis interpreted the Fourth Amendment broadly to prohibit “every unjustifiable intrusion on the privacy of the individual.” Most of Brandeis’s ideas were accepted in Katz v. United States (1967), a case in which the Court interpreted the amendment to require a valid search warrant whenever the police enter into a zone in which a person has a “reasonable expectation of privacy.” The Court has reaffirmed the Katz principle on numerous occasions. In Terry v. Ohio (1968), for example, the Court allowed the police to stop and frisk based on reasonable suspicion but insisted that whenever individuals harbor a reasonable expectation of privacy they are “entitled to be free from unreasonable governmental intrusion.”

One controversial question is whether mandatory drug testing is contrary to Fourth Amendment rights, especially when there is no basis for individualized suspicion. When the U.S. Customs Service began to require drug tests of employees entering sensitive positions in the service, the Court in National Treasury Employees Union v. Van Raab (1989) voted 5 to 4 that the government’s compelling interest in law enforcement outweighs the “privacy interests” of the employees. The Court, however, insisted that only the special demands of the positions justified this “diminished expectation of privacy.”

Privacy of Association

The Constitution does not explicitly mention a freedom of association, but First Amendment rights for free expression and peaceful assembly logically imply the privilege to meet with others to establish organizations for the advancement of ideas and opinions. The Supreme Court recognized this expansive view in National Association for the Advancement of Colored People v. Alabama (1958), with Justice John Harlan speaking of constitutional protection for “privacy in group association.”

In general, private associations may decide to include or exclude people for any reason, even prejudices based on race or gender. In Rotary International v. Rotary Club of Duarte (1987), however, the Court upheld a California statute that required large business clubs to include women. Insisting that the club was not a small, intimate organization and that its mission would not be changed by admitting women, the Court was careful to acknowledge that “the freedom to enter into and to carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights.”

Substantive Due Process and Privacy

The period from 1897 to 1937 is often called the “Lochner age.” During these years the Supreme Court insisted that the due process clauses of the Fifth and Fourteenth Amendments protected substantive rights to liberty and property. This approach meant that any restraint on these substantive rights would be judged unconstitutional unless justified by a legitimate objective of law enforcement. The conservative Court emphasized the right of persons to make private contracts without governmental interference; this “liberty of contract” almost invariably supported laissez-faire economic policies, as in Lochner v. New York (1905).

During the Lochner age, however, there were at least two substantive due process decisions recognizing liberties which would later be incorporated into a generic right to privacy. In the first case, Meyer v. Nebraska (1923), the Court struck down a state law making it illegal to teach non-English languages in all schools. The rationale was a broad conception of liberty which included family relationships, education, and the “orderly pursuits of happiness by free men.” Second, the Court in Pierce v. Society of Sisters (1925) overturned a state law which prohibited parents from sending their children to private schools. The ruling affirmed “the liberty of parents and guardians to direct the upbringing and education of children under their control.” Although the Court in 1937 stopped striking down economic regulations based on the application of substantive due process, it never overturned the Meyer and Pierce precedents, and years later these cases would often be quoted to defend the libertarian notion that government may not intrude into a zone of private family life and personal autonomy.

Privacy and Reproductive Freedom

In gradually developing an explicit right of general privacy, the Supreme Court dealt with issues of sexuality and reproduction. In the watershed case Skinner v. Oklahoma (1942), the Court unanimously overturned Oklahoma’s Habitual Criminal Sterilization Act, which allowed the sterilization of “habitual criminals.” Justice William O. Douglas, a partisan of Brandeis’s views on privacy, utilized the argument that the individual’s right to procreate was “a basic liberty.” Later, in Loving v. Virginia (1967), the Court declared that a state miscegenation law was unconstitutional because it violated the right of individuals to choose their own marriage partners.

The most influential case that specifically proclaimed reproductive privacy rights was Griswold v. Connecticut (1965). Overturning a state statute that prohibited the use of contraceptives, Justice Douglas argued for the majority that there were penumbras (partial shadows) to the Bill of Rights that created “zones of privacy” not specifically mentioned in the Constitution and that one such zone was the right of a married couple to practice family planning. Marriage and procreation, he wrote, were associated with “a right to privacy older than the Bill of Rights—older than our political parties, older than our school system.” While six other justices agreed with the outcome in Griswold, at least one justice wanted to find the right of privacy in the Ninth Amendment, and others wanted to find it in a substantive due process reading of the due process clause.

A few years later, the Court in Eisenstadt v. Baird (1972) expanded the right of privacy somewhat by overturning a Massachusetts law which prohibited the distribution of contraceptives to unmarried people. The Eisenstadt decision recognized that the right of privacy inhered in the individual rather than the marital relationship, and it explicitly declared that the right included freedom from governmental intrusion into one’s personal choice about whether to give birth to a child.

Privacy and Abortion Rights

The Court’s decisions proclaiming the right to use birth control were in the background to Roe v. Wade (1973), the controversial case in which the Court ruled that laws outlawing abortion violated a woman’s right to privacy. Justice Harry Blackmun, writing for the majority, found the right of privacy primarily in the “concept of personal liberty” guaranteed by the Fourteenth Amendment. He declared that this right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Whatever the rights of a fetus, he argued, they are secondary to the woman’s right of privacy, at least until the fetus becomes viable.

During the subsequent two decades, the Court approved of many restrictions on a woman’s right to have an abortion, but it continued to guarantee the basic right. In these later cases, the Court increasingly emphasized that the underlying right to privacy was an aspect of liberty based on a substantive due process reading of the Fourteenth Amendment. Thus the term “liberty interest” tended to replace the term “right to privacy.”

In June 2022, with its majority decision in Dobbs v. Jackson, the Court refuted the concept of abortion as a constitutionally protected right. The author of the majority opinion, Justice Samuel Alito, asserted that the Constitution made no specific mention of abortion nor that it was protected in any amendment. Without constitutional protection, states were left to determine whether abortion was a legal right.

Privacy and Personal Autonomy

One problem with building privacy rights on the concept of substantive due process is that subjective judgments inevitably determine which rights are protected and which are not. Thus, in Kelly v. Johnson (1976), the Court upheld a regulation which limited the length of policemen’s hair, but in Moore v. East Cleveland (1977) the Court overturned a city ordinance limiting the occupancy of any dwelling to a narrow definition of a family, prohibiting a grandmother from living with her grandchildren. In Moore, Justice Lewis Powell referred to the string of privacy cases and concluded that “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause.” The most controversial aspect of Powell’s opinion was his suggestion that protections of substantive due process should be limited to institutions and practices “deeply rooted in this Nation’s history and tradition.”

In the controversial case Bowers v. Hardwick (1986), the Court considered the nation’s history and tradition when it concluded that the right of privacy gave no protection for the right to engage in homosexual practices, even in a private bedroom. Writing for the majority, Justice Byron White accepted that the due process clause protected many substantive liberties, but he insisted that the Court should show “great resistance to expand the substantive reach of those Clauses.” In Cruzan v. Director, Missouri Department of Health (1990), on the other hand, the Court found enough history and tradition to conclude that competent adults possess the constitutional right to refuse unwanted medical intervention, even when death is the result of such a refusal.

Informational Privacy

In contrast to the Court’s recognition of claims for personal autonomy in regard to one’s body and relationships in the traditional family, it has found little occasion to expand protection for “informational privacy.” In its major decision dealing with the issue, Whalen v. Roe (1977), the Court upheld a state law which required the keeping of computer files on all patients obtaining dangerous but legal drugs. While acknowledging an individual’s interest in maintaining autonomy over some personal information, the Court considered that the law did not “pose a sufficiently grievous threat” to establish a constitutional violation. As Whalen illustrates, courts have generally allowed legislative bodies to decide on appropriate means to safeguard interests in informational privacy. Congress has recognized the public’s concern for the issue, as seen in the Privacy Act of 1974, which allows individuals to have access to personal information in files of federal agencies, except for law enforcement and national security files.

Bibliography

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