Privacy And Publicity In Criminal Procedure: Ancient Mysteries Crying Out For Understanding

• Author: Dean J. Spader
• DOI: 10.1177/088740349000400303
• Published date: 01 October 1990
• Date: 01 October 1990
• Published By: Sage Publications, Inc.

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Privacy And Publicity In Criminal Procedure:
Ancient Mysteries Crying Out For Understanding
Dean J. Spader
University of South Dakota
Abstract
Conflict between fundamental values is inevitable, necessary, and healthy
for any complex, developing society. Most analysts decry conflict; this article
sings its praises and argues its functions. The privacy-publicity debate il-
lustrates the clash of one set of fundamental values; there are many others.
This article lists the values and disvalues underlying the demands for privacy
and publicity, explains how they are manipulated in public policy debates,
and then illustrates how the private-public dichotomy and values permeate
the Supreme Court’s analyses of Fourth Amendment cases at the same time
that the Court is expressly, and rather adamantly, trying to eliminate the
private-public analyses from Fifth Amendment cases. The article ends with
1) a summary of the thesis that conflict between fundamentally opposite
values can be constructive, 2) a list of methods to follow when faced with
these polarities, and 3) a call for a more philosophical recognition that
dichotomous words are mere symbols which we use, often rhetorically and
with undue sophistry, to polarize rather than unify.
&dquo;No real understanding is possible without awareness of these pairs of opposites
which permeate everything man does.&dquo; E.F. Schumacher (1977: 127)
&dquo;If life feels the tug of these opposing tendencies, so also must the law which is
to prescribe the rule of life.&dquo; Benjamin Cardozo (1928: 7)
&dquo;These dualities, if not eternal, have long appeared in Anglo-American law.&dquo; Daniel
Meador (1980: 122)
Introduction: The Tug of Opposites
Philosophers synthesize, judges balance, politicians compromise, and ad-
ministrators mediate. In ethics, law, politics and administration, conflicts
between thesis and antithesis, individual rights and public security, and com-
peting interest groups create the need for resolution of divergent perspectives
(Bodenheimer, 1979; Williams, 1979; Rawls, 1971; Pittman, 1960). This
article: 1) isolates privacy and publicity as one of the many conflicting sets

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of fundamental values, 2) diagrams the polar opposites of privacy and publicity
(Figure 1), 3) outlines the positive and negative values underlying the conflict
between privacy and publicity (Figure 2), 4) analyzes the logical conflict
between these value sets by showing the horizontal, vertical, and crisscrossing
relationships used in most public policy debates (Figures 3, 4, and 5 respec-
tively), 5) applies the analyses of these value conflicts to Supreme Court
decisions interpreting the Fourth and Fifth Amendment, and 6) concludes
with the argument that value conflicts are inevitable, necessary, and produc-
tive. These conflicts create valuable tensions which criminal justice personnel
ought to use, rather than avoid, to enlighten decision making.
The concluding argument states that the freedom unique to humans is
mental freedom. This mental freedom, when faced with human problems,
creates a whole spectrum of solutions. Over time, these solutions coalesce
into opposites at each end of the spectrum, and into various &dquo;schools of
thought&dquo; along the continuum between opposites. Those options along the
continuum provide the many varying degrees of synthesis between the thesis
and antithesis of the opposites. &dquo;For every tendency, one seems to see a
counter-tendency; for every rule, its antinomy....In this perpetual flux, the
problem is... to determine the path or direction along which the principle
is to move and develop, if it is not to wither and die&dquo; (Cardozo, 1921: 28).
There are no final answers to questions involving these fundamental op-
posites ; there are only temporary solutions. Opposing fundamental values
require constant vigilance and seem constantly to demand new balancing.
These opposite values &dquo;coexist, sometimes in harmony, often in competition,
and occasionally in conflict&dquo; (Murphy, et al.,1986: 23). They provide options,
not answers, and the options balance the opposing demands of these opposing
values. &dquo;The ultimate balancing of these [values] calls for the exercise of
considerable judgment and sensitivity. The task is not easy but is well worth
the effort&dquo; (Stone, 1976: 1220).
Definitions of the Opposites: Privacy and Publicity
John Stuart Mill (1959:465) noted our tendency to define something &dquo;by
its opposite.&dquo; In this sense, privacy is the absence of publicity and what is
public is no longer private. Each is the absence of its opposite. For example,
claims of privacy limit &dquo;the public’s right to know&dquo; and limit the access to
information that may be held in a privately protected sphere. A private fact
is not known to the public, and a public fact is no longer private. These are
in-kind opposites because under certain circumstances what is private is not
public and what is public is not private. (See Figure 1.)
Between these dichotomous extremes, however, is the continuum of degrees
on which lie conflicts between privacy and publicity. A
fact may be partially
private and partially public; the boundary line between the private sphere
and public sphere may fluctuate continuously. For example, the boundary
of privacy may be one’s own person, or may extend to numerous third
persons (to one’s spouse, family, friends; to attorneys, doctors and nurses,

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clergy, government employers who keep private files, and so on). The bounds
of privacy may encompass a definite space (one’s person, papers, room,
house, curtilage, land) and may even be so nebulous as to include whole
institutions (private and public schools, the private sector and public sector,
private law and public law). Clearly, the distinction between private and
public is fundamental to many areas of human life; yet, in reality, there are
many fluctuating borders between many spheres of human life. Though the
basic distinction between private and public spheres is simple, drawing the
line between them is an exercise in complexity (Walser, 1983; Schoeman,
1983).
Figure 1 illustrates the concept of in-kind opposites and a continuum of
degrees between them.
Figure 1
Thus far, no concrete definition has been provided of the in-kind opposites
of privacy and publicity, except to note that at times they are complete
opposites and at times they are at varying degrees on the continuum between
the opposites. If there are numerous degrees of privacy and publicity, then
any definition of either concept would simply apply to one of these degrees.
Like an accordion, which contracts and expands, bends and folds in constant
tension to create the sound sought by its user, the flexible concepts of privacy
and publicity play against each other in the hands of various authors. The
&dquo;limits {of privacy} are necessarily fluid. In a real sense, we do not know
where we want to put them until they are tested by the effort to invade&dquo;
(Kaiser, 1976: 44). In this article, there is neither the need nor the space to
argue extensively for a specific definition. O’Brien (1979: 3-31; 1981: 1-27)
provides an excellent discussion of privacy and publicity respectively.

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Hornby’s (1975: 198-9) short definitions are sufficient starters: &dquo;Publicity
simply means the freedom of the press in its broadest interpretation. Privacy,
of course, is the right of the individual to be left alone, to enjoy solitude,
intimacy, reasonable anonymity, and to reserve personal information....
Each of these is necessary to some degree, but what is the balance between
them?&dquo; In this article, the term &dquo;publicity&dquo; refers to the realm of facts beyond
the privacy boundary, wherever that boundary is drawn in any social setting.
Competing Values Underlying Privacy and Publicity
The conflict between privacy and publicity suggests that both sides protect
fundamental values while simultaneously possessing fundamental weak-
nesses. The strengths of each side are labeled as &dquo;positive values&dquo; and the
weaknesses as &dquo;negative values.&dquo; Figure 2 outlines some of the dichotomous
positive and negative values often associated with privacy and publicity in-
terests. Figure 2 lists the most common rationales given for expanding or
contracting the right of privacy and the public’s right to know.
The purpose of Figure 2 is to illustrate why there is an ongoing tension
between opposite values. Each side of the privacy/publicity debate promotes
opposite fundamental values and each side carries the baggage of opposite
negative values. Point for point, the two perspectives create opposite argu-
ments. One purpose of this article is to suggest that this conflict of opposites
is necessary, healthy, and potentially productive. Human ears cannot hear
the sound of one hand clapping: human minds cannot understand a concept
without its opposite. Freund (1977: 159) stated the need for opposites and
their synthesis:
Our neural systems seem better adapted to the binary program of yes-no responses
than to the responses of yes/but or no/but....Learning the law is not merely
learning principles. In fact, we do not really &dquo;know&dquo; a principle until we know its
opposing principles....Legal thinking requires a resolution in the individual mind
and encourages the finding of solutions that transcend, as by synthesis, the polar
opposites of a debate. This process is not easy, but on its cultivation may depend
the pursuit of justice in society.
The quest for justice,...