Right of Privacy

Author:Kenneth L. Karst

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Long before anyone spoke of privacy as a constitutional right, American law had developed a "right of privacy," invasion of which was a tort, justifying the award of money damages. One such invasion would be a newspaper's embarrassing publication of intimate facts about a person, or a statement placing someone in a "false light," when the story was not newsworthy. Other invasions of this right were found in various forms of physical intrusion, or surveillance, or interception of private communications. The Constitution, too, protected some interests in privacy: the FOURTH AMENDMENT forbade unreasonable SEARCHES AND SEIZURES; the Fifth Amendment offered a RIGHT AGAINST SELF-INCRIMINATION; the THIRD AMENDMENT, a relic of the Revolutionary War, forbade the government to quarter troops in a private house in peacetime without the owner's consent. Even so, despite Justice LOUIS D. BRANDEIS'S famous statement in the WIRETAPPING case of OLMSTEAD V. UNITED STATES (1928), there was no general constitutional

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"right to be let alone." Nor does any such sweeping constitutional right exist today. Beginning with GRISWOLD V. CONNECTICUT (1965), the Supreme Court has recognized a constitutional right of privacy, but the potentially broad scope of that right remains constricted by the Court's current interpretations of it.

Griswold held invalid a Connecticut law forbidding the use of contraceptives, in application to the operators of a BIRTH CONTROL clinic who were aiding married couples to violate the law, offering them advice and contraceptive devices. Justice WILLIAM O. DOUGLAS, writing for the Court, disavowed any reliance on SUBSTANTIVE DUE PROCESS to support the decision. Although the statute did not violate the terms of any specific guarantee of the BILL OF RIGHTS, said Douglas, the Court's decisions had recognized that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." The FREEDOM OF ASSOCIATION, although not mentioned in the FIRST AMENDMENT, had been protected against intrusions on the privacy of political association. The Third, Fourth, and Fifth Amendments also created "zones of privacy." The Griswold case concerned "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Furthermore, the idea of allowing police to enforce a ban on contraceptives by searching the marital bedroom was "repulsive to the notions of privacy surrounding the marriage relationship."

Connecticut had not been enforcing its law even against drugstore sales of contraceptives; the governmental prying conjured up in the Griswold opinion was not really threatened. What Griswold was protecting was not so much the privacy of the marital bedroom as a married couple's control over the intimacies of their relationship. This point emerged clearly in EISENSTADT V. BAIRD (1972), which extended the right to practice contraception to unmarried persons, and in CAREY V. POPULATION SERVICES INTERNATIONAL (1977), which struck down three laws restricting the sale and advertisement of contraceptives.

In Eisenstadt the Court characterized the right of privacy as the right of an individual "to be free from unwarranted intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." The prophecy in those words came true the following year when the Court, in ROE V. WADE (1973), held that the constitutional right of privacy recognized in Griswold was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This right to decide whether to have an abortion was qualified only in the later stages of pregnancy; during the first trimester of pregnancy it was absolute. Abandoning Griswold 's PENUMBRA THEORY, the Court placed the right of privacy within the liberty protected by the DUE PROCESS clause of the FOURTEENTH AMENDMENT. (See ABORTION AND THE CONSTITUTION.)

As the Roe dissenters pointed out, an abortion operation "is not "private' in the ordinary usage of that word." Liberty, not privacy, was the chief constitutional value at stake in Roe. In later years various Justices have echoed the words of Justice POTTER STEWART, concurring in Roe, that "freedom of personal choice in matters of marriage and family life" is a due process liberty. Indeed, Justice Stewart's formulation was too narrow; the Court's decisions have gone well beyond formal marriage and the traditional family to protect a much broader FREEDOM OF INTIMATE ASSOCIATION. Yet that freedom is often defended in the name of the constitutional right of privacy.

From the time of the Griswold decision forward, privacy became the subject of a body of legal and philosophical literature notable for both analytical quality and rapid growth. The term "privacy" cried out for definition?not merely as a feature of constitutional law, where the Supreme Court had offered no more than doctrinal impressionism, but more fundamentally as a category of thought. Is privacy a situation, or a value, or a claim of right? Is privacy itself the subject of our moral and legal claims, or is it a code word that always stands for some other interest? However these initial questions be answered, what are the functions of privacy in our society? These are not merely philosophers' inquiries; in deciding "right of privacy" cases judges also answer them, even if the answers are buried in assumptions never articulated.

Not until 1977 did the Supreme Court begin to map out the territory occupied by the constitutional right of privacy. In WHALEN V. ROE the Court upheld a state law requiring the maintenance of computerized records of persons who obtained various drugs by medical prescription. "The...

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