THE RIGHT OF PRIVACY

"Every man's home is his castle" (William Pitt)

HISTORICAL DEFINITIONS

FREEDOM FROM PRESS COVERAGE

Historically, the concept (right of privacy) first appeared in 1890 in a Harvard Law Review article by Samuel Warren and Louis Brandeis. They used the term in proposing a new tort -- the invasion of privacy -- in their complaint about how the PRESS was printing lurid accounts of the social activities of the Warrens, a prominent Boston family. They distinguished it from injury to reputation on grounds that invasion of privacy was a deeper harm, one that damaged a person's sense of their own uniqueness, independence, integrity, and dignity, making the astonishing claim (for 1890) that privacy was a personal, not a property, right.

FREEDOM FROM WIRETAPPING

Forty years later, Louis Brandeis, as a Supreme Court justice, expressed opinions that reflected the ideas in his 1890 article with Samuel Warren. For example, Justice Brandeis wrote a vigorous dissent in the case of Olmstead v. U.S. 277 U.S. 438 (1928) which upheld the right of Elliot Ness and his untouchables to wiretap the telephone lines of bootleggers as long as it was done at a point between the defendant's homes and their offices. Let's take a look at some of the passages (paraphrased) in this famous dissent:

• "The makers of our Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality -- the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men. The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings, and his intellect. Every violation of the right to privacy must be deemed a violation of the Fourth Amendment. Now, as time works, subtler and more far-reaching means of invading privacy will become available to the government. The progress of science in furnishing the government with the means of espionage is not likely to stop with wiretapping. Advances in the psychic and related sciences may bring means of exploring beliefs, thoughts and emotions. It does not matter if the target of government intrusion is a confirmed criminal. If the government becomes a lawbreaker, it breeds contempt for law. It is also immaterial where the physical connection of the wiretap takes place. No federal official is authorized to commit a crime on behalf of the government." (Justices HOLMES and STONE also dissenting, agreeing with Justice BRANDEIS)

(Discussion: Where is Justice Brandeis extracting the right to privacies of life from?)

FREEDOM OF REPRODUCTIVE RIGHTS

The above example involved WIRETAPPING, of course, but did you know that the right to privacy also has a historical linkage to the notion of REPRODUCTIVE RIGHTS? Long before Roe v. Wade (1973) which established a mother's right to privacy, there were some interesting attempts to articulate the right to privacy in cases during America's short-lived Eugenics Movement. The most famous of these cases was Buck v. Bell 274 U.S. 200 (1927), and most people are familiar with Justice Holmes' statement that:

• "Three generations of imbeciles are enough. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, to prevent those who are manifestly unfit from continuing their kind."

For about fifteen years (1923-1939), it was constitutional to sterilize people against their will. Numerous states had procedures for declaring people imbeciles, morons, or unfit. These people would then be carted off to a doctor's office and sterilized so they could not reproduce. Oklahoma, in fact, made sterilization a mandatory punishment for anyone convicted of a crime of "moral turpitude". Various other habitual offender or sexual psychopath statutes mandated sterilization -- the ultimate invasion of the human body.

Let's look at a conception of the right to privacy at this time. The case is Meyer v. Nebraska 262 U.S. 390 (1923):

• "The Court has never attempted with much exactness to define liberty. Without doubt, it denotes not merely the freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to worship according to the dictates of their own conscience, to marry, establish a home, bring up children, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness." (Justice MCREYNOLDS, writing for the majority)

FREEDOM TO CHOOSE SEXUAL LIFESTYLE

There are other issues involving the right to privacy. Take SEXUAL FREEDOM, for example, and the right to be a practicing homosexual. Currently, 19 states (including North Carolina) still severely punish sexual activities between consenting adults of the same sex. In these cases, privacy is conceptualized as a LIFESTYLE issue. Let's look at some of these conceptions by paraphrasing the dissents in Bowers v. Hardwick 478 U.S. 186 (1986):

• "This case is no more about the right to engage in sodomy than about a fundamental right to watch an obscene movie or place a bet from a telephone booth. It is instead about the most comprehensive of rights -- the right to be left alone. How a person engages in sex should be irrelevant as a matter of state law. Sexual intimacy is a sensitive, key relationship of human existence and the development of human personality. In a diverse nation such as ours, we must preserve the individual freedom to choose, and not imply that there are any "right" ways of conducting relationships" (Justice BLACKMUN with whom BRENNAN, MARSHALL, & STEVENS join in dissent)

FREEDOM TO DIE

The right to die is also a matter of individual autonomy. Suppose someone wants to terminate life support where he or she, because of accident or illness, survives only in a vegetative state. In cases where the victim is comatose, the matter is more a procedural issue in determining the level of proof (via clear and convincing evidence) in the expression of the patient's wishes than it is about the right to die. Let's look at a couple of cases:

• Matter of Quinlan 70 N.J. 10, 355 (1976) - Should a family member or court-appointed guardian make the decision for someone?

• Cruzan v. Missouri Dept. of Public Health 497 U.S. 261 (1990) - There is always a right to be free from unwanted medical attention just as there is a right to personally evaluate the possible consequences of treatment and decide on the basis of personal values whether to subject oneself to the intrusion.

CONTEMPORARY DEFINITIONS

PENUMBRA RIGHT

It is generally agreed that the Court recognized a "Constitutional" right of privacy for the first time in Griswold v. Connecticut 381 U.S. 479 (1965). The Court decided that Connecticut's birth-control law (making it a crime for anyone to give out information or instructions on the use of birth control devices) intruded upon notions of privacy surrounding the ideas of marital privilege and reproductive rights. This is the famous case in which Justice William O. Douglas announced the "penumbra" right to privacy.

Let's look at a paraphrasing of this penumbra right to privacy:

• "Previous cases suggest that the specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that give them substance. Various guarantees create zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one's person, house, papers, and effects, the Fifth Amendment right to not surrender anything to one's detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people. These cases press for recognition of the penumbral rights of privacy and repose." (Justice DOUGLAS, for the majority with GOLDBERG, WARREN, & BRENNAN also concurring)

(Discussion: What does "repose" mean? Why would it be a right?)

The Douglas definition of "penumbra right to privacy" has been criticized on many grounds. Some experts say it's a poor example of legal reasoning. The only thing that even comes close to a sufficient beachhead for the right would be the Ninth Amendment, but by mutual agreement, it has largely been ignored because nobody's sure what it means with the exception of motorcycle groups who oppose helmet laws, seatbelts, and other government intrusions on the basis of a penumbra right to privacy (the right to be left alone).  A common criticism of the Douglas definition is that it may be confined to issues surrounding marital, sexual, or reproductive behavior. This led the Court to some interesting conclusions in Roe v. Wade, eight years later.

FUNDAMENTAL RIGHT

We need not go into Roe v. Wade (1973) in any detail. Most people know it was the case that legalized Abortion, striking down a Texas anti-abortion law, and that there have been several cases since then significantly affecting the law's position on abortion, most notably the Freedom of Access to Clinic Entrances Act of 1993 where it was made a federal crime to intimidate women seeking abortions, not so much to cut down on antiabortion demonstrations but in response to shootings, bombings, and massive blockades. We are concerned, however, with the Privacy issues, and the significance of Roe v. Wade in this regard is as follows:

• It extended the rights of marital privacy to unmarried people (Griswold involved the crime of discussing birth control with married couples; Roe was an unmarried woman)
• It established the right of privacy to be fundamental, thus triggering a strict scrutiny test for any government regulation (This was accomplished by the Court's skillful use of the pregnancy trimester concept in reasoning that life does not begin at conception, therefore no separate human being exists in the form of a fetus, and the right to life, liberty, and pursuit of happiness adheres to the mother for at least the first trimester -- a controversial ruling)
• It shifted the definition of privacy from an associational conception to a person-based conception (Previous conceptions of privacy were driven implicitly by the understanding that a good part of its grounding was based on the precedent of sacrosanct "privileges"; husband-wife, doctor-patient, lawyer-client, etc.)

REASONABLE EXPECTATION TEST

By far, the most significant case in the history of the right of privacy is Katz v. U.S. 389 U.S. 347 (1967). It is a complex case (a nightmare for instructors who require students to brief it), and in many ways has more to do with good faith (U.S. v. Leon) than privacy. However, it is regarded as the most fundamental shift in this area (a landmark case). Here are some of the things that make it significant:

• It shifted the definition of privacy from being place-based to being person-based (Previous conceptions of privacy were derived mainly from the "property" concept in life, liberty, and property; and of course from the Common Law trespass doctrine that "Every Man's Home is His Castle")
• It balanced the interest in protecting individuals from government intrusion with the interest in protecting society from criminals (It created a two-prong test for "reasonable expectation" based on this balance)

The "reasonable expectation" test is a two-prong test based on:
(1) the first prong -- subjective privacy -- is whether the person exhibited a personal expectation to be left alone from government intrusion
(2) the second prong -- objective privacy -- is whether the personal expectation is one that society is prepared to recognize as reasonable and several areas have already been determined to be beyond what society is willing to recognize ("exceptions" to what constitutes a search or requires a warrant to seize):

• items open to plain view, hearing, smell, and touch
• open fields
• public places
• abandoned property

SEARCH & SEIZURE CONSIDERATIONS

Contemporary Fourth Amendment interpretation defines a "search" as any invasion of privacy by a government official where there is a reasonable expectation of privacy. A "seizure" is any deprivation of liberty or property. Both searches and seizures are governed by the unreasonable search and seizure clause before any other standard is applied. That's why the "exceptions" (to what constitutes a search or requires a warrant for seizure) have conditional elements within themselves.

Plain View, hearing, smell, and touch, for example, require 3 elements:

• officers are lawfully present
• detection occurs without advanced technology (flashlight & binoculars OK)
• detection is inadvertent or immediately apparent

A search under this exception might unreasonably intrude on someone's reasonable expectation of privacy if (a) hidden vantage points were used; (b) a pretext was used; (c) probable cause was not present to accompany a seizure; (d) position was shifted to afford a closer examination of items; (e) any containers are opened that have not already had their seal compromised by a private party.

Open fields, for example, require calculation of the curtilage, based on:

• distance from house
• presence or absence of fence
• use or purpose of area
• measures taken to prevent public view

A search under this exception might unreasonably intrude on someone's reasonable expectation of privacy if (a) "No trespassing" signs were present; (b) probable cause was not present to accompany a seizure; (c) the area had a history of refusing access to the police; (d) telescopic aids were used - binoculars not OK; (e) low-flying helicopters were used.

Public places, for example, often requires calculation of whether:

• area is open to public or not
• area is enclosed or partitioned
• area can be seen over and under partitions or through cracks or gaps

Abandoned property, for example, requires proving the elements of:

• intent to throw away property
• acts that infer that intent

A search under this exception might unreasonably intrude on someone's reasonable expectation of privacy if (a) it's too quickly assumed that someone abandoned something (a motel room, e.g.) when in fact they planned to return; (b) mere absence of a person is the sole basis for determining abandonment; (c) a person is living (squatting) out of something abandoned (a junk car, e.g.); (d) the intrusion takes place after a fire, flood, or other natural disaster; (e) the item searched is still within the curtilage.

Practicum for JUS 325 students only:

INTERNET RESOURCES:
EPIC (Electronic Privacy Information Center)
Internet Resource Links for JUS 325
Privacy Rights Clearinghouse
The Right to Privacy Website forum
Yahoo's List of Privacy Links

PRINTED RESOURCES:
Del Carmen, R. (1998) Criminal Procedure: Law and Practice. Belmont, CA: Wadsworth.
Ferdico, J. (1996) Criminal Procedure for the Criminal Justice Professional. Minneapolis: West.
Samaha, J. (1999) Criminal Procedure. Belmont, CA: Wadsworth.

Last updated: 06/25/03
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