59 RI Bar J., No. 4, Pg. 33. Sometimes, What is Public is Private.

Author:Robert Ellis Smith, Esq. Publisher of the Providence-based, Privacy Journal newsletter.

Rhode Island Bar Journal

Volume 59.

59 RI Bar J., No. 4, Pg. 33.

Sometimes, What is Public is Private

Rhode Island Bar Journal59 RI Bar J., No. 4, Pg. 33January / February 2011Sometimes, What is Public is Private Robert Ellis Smith, Esq. Publisher of the Providence-based, Privacy Journal newsletter. Conventional wisdom notes that nothing can be done legally about ubiquitous camera surveillance in our communities, that it does not violate any law or constitutional principle. Part of that acceptance, is the mistaken idea that because an activity takes place in public view, it is not protected by any expectation of privacy.

In fact, according to the clear implications of previous federal court holdings in the U.S., many activities in public are entitled to privacy protection. These include: going to and from a house of worship, an abortion clinic, or a medical facility; holding hands or embracing affectionately in public; participating in a political demonstration or wearing political symbols; reading a book or a magazine; mediating or praying, and perhaps chatting on a cell phone in a way that is audible nearby. The right to vote in the U.S. and Canada may be interpreted to prohibit videotaping citizens as they visit a polling place.

"The Fourth Amendment protects people, not places," said the U.S. Supreme Court 1967, in an opinion that restricted law enforcement's use of audio evidence from a public phone booth.(fn1) And, the Fourth Amendment to the U.S. Constitution protects not merely homes, but also citizens' "persons, houses, papers, and effects."

In 1972, the U.S. Supreme Court recognized that certain activities in public "are historically part of the amenities of life as we have known them. They are not mentioned in the Bill of Rights (the first ten amendments to the U.S. Constitution guaranteeing individual rights). These unwritten amenities have been in part responsible for giving our people the feeling of independence and self confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence."(fn2) The Court said that a state or city may not punish persons engaging in these amenities or "wandering or strolling around from place to place without any lawful purpose or object." In 1983, the court cited this case, Papachristou v. City of Jacksonville, approvingly.

Would the 2010 Court allow a city or state to keep a permanent video record of these wanderings? Court members have changed significantly (and to the right) over the years, and there may not be a current Court member who would endorse the opinion in the Papachristou case. Still, the case represents the kind of precedent building blocks innovative lawyers must use to protect rights in the high-tech age.

What Kind of Transactions in Public Are Private?

An example of the kind of in-public activities that is entitled to privacy protection is affectionate hand-holding. "A Day In Hand," a new equal-rights initiative in London, England, aiming to inspire same-sex couples to hold hands in public, is calling on gay people, worldwide, to hold hands in public on the last Saturday of each month so the public will get used to the idea. The first international "Sshh!" (same-sex hand-holding) Saturday was held September 26, 2009. David Watkins, the founder of the movement, acknowledged this simple act of autonomy - and perhaps defiance - may be dangerous. In an age of pervasive video monitoring, it is increasingly dangerous. Would anyone argue that such a simple public display of affection is any business of law enforcement? Would anyone argue that it is right to keep a permanent video record of this practice? Would anyone argue that the right to privacy, as we understand it in American law, does not protect this activity?

President Obama, in a speech October 10, 2009, said, "Together we can look forward to that day when no one has to fear walking down the street holding the hand of the person they love." Of course, with state-run video cameras in place, there is every reason to believe that there will be people who fear this for many years to come.

What about videotaping a woman's comings and goings at a clinic that administers abortions? The law of the land in the United States protects the right of a woman to have an abortion without governmental intervention, based on the constitutional right to privacy. Wouldn't the same right protect the right of a woman not to be photographed by state agents as she seeks the procedure? Would it protect against having a non-governmental group, like a group adamantly opposed to abortion, capture images outside a clinic and post them on the World Wide Web?

Legal scholars in the U.S. disagree on the answers to these questions. Eugene Volokh, law professor at the University of California at Los Angeles, presumably referring to photography by private parties, not governmental agents, concludes that posting the photos is constitutionally protected free expression. But Laura Hodes, a frequent guest columnist...

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