"Rights talk" about privacy in state courts.

• Author: Lenz, Timothy O.
• Position: State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

1. Introduction

   The constitutional right to privacy remains one of the most controversial areas of civil liberties. There are procedural objections to the way privacy was "read into" the United States (U.S.) Constitution by liberal activists such as Justice William O. Douglas, who wrote in Griswold v. Connecticut(1) that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees," which "create zones of privacy" in the First, Third, Fourth, Fifth, and Ninth Amendments.(2) Others have substantive objections to specific conceptions of privacy rights that have restricted traditional government powers to regulate individual behavior in areas such as obscenity and indecency, sexual behavior, abortion, drug usage, family law, and the right to die.(3)

   It is feared that privacy, which Justice Brandeis called "the most comprehensive of rights,"(4) will prove to be a "greedy legal concept," not easily defined or limited once it is recognized as a constitutional right.(5) This fear has increased across the ideological spectrum in a post-individual rights era where legalism and "rights talk" are blamed for a diminished sense of civic responsibility, an impoverished political discourse,(6) and a national disease called "hyperlexis."(7)

   This Article began as a research project designed to describe state constitutional rights to privacy. However, after reading judicial opinions interpreting state constitutions, the project became an argument against some of the familiar criticisms of "rights talk" and the judiciary's role in defining, articulating, and developing individual liberties. Examining how judges actually decide privacy cases demonstrates that, contrary to many popular perceptions and some scholarly analyses, judicial reasoning resembles, in important ways, legislative, executive, and administrative decision-making on civil liberties policy.

   Public law research includes a scholarly tradition that describes courts as unique institutions.(8) For example, in 1977, Donald L. Horowitz published The Courts and Social Policy,(9) an influential book that has become part of a scholarly research tradition describing adjudication as well-designed for dispute resolution but poorly-designed for social policymaking.(10) The institutional argument that social policymaking exposes the limits of the judicial process is consistent with more recent attitudinal arguments against legalism, which is usually defined as excessive reliance upon rights and law.

   However, the argument that legal discourse has stunted political discourse about controversial issues is not supported by judicial language, logic, or decisions in privacy cases.(11) Privacy has not proven to be a greedy concept partly because judicial conceptions of privacy rights fit well within established frameworks for analyzing civil liberties issues. Nevertheless, much of the political discourse about privacy rights and media reporting on privacy cases depict rights claims as absolutes, thereby contributing to the perception that civil liberties claims jeopardize community, society, or majoritarian values.(12)

2. The State of the Law

   The conclusions in Part I of this Article are based upon an examination of state court interpretations of privacy rights in three states -- Florida, Louisiana, and Alabama -- whose constitutions represent three very different types of privacy rights. Florida has an explicit, unqualified, and general right that was adopted in 1980 when Florida voters approved a constitutional amendment declaring that "[e]very natural person has the right to be let alone and free from governmental intrusion into his private life."(13) In terms of democratic theory, this clear and strong language is desirable because it minimizes the opportunity for judges to "read" rights into constitutional provisions that have been approved by voters.

   Louisiana has an explicit right to privacy, but it is a qualified and specific right.(14) Article I, section 5 of the 1974 Louisiana Constitution declares that "[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy."(15) Thus, the privacy right is qualified by the word "unreasonable" and it is specific because the clause refers only to searches and seizures rather than simply declaring a general right to privacy, which would include other contexts where privacy rights might be asserted.(16) However, the Louisiana right is not limited to government invasions of privacy. Therefore, it is arguably broader than the Florida right, which refers specifically to government intrusions.(17) Consequently, Louisiana cases involve tort actions where claimants assert that individuals, not necessarily government officials, have violated their right to privacy.(18)

   Alabama has a third type of privacy right, which is an implied right.(19) The Alabama Constitution guarantees individual rights and liberties,(20) but it does not explicitly mention privacy. As such, privacy rights are based upon case law interpretations of general references to rights and liberties.(21) Judges use due process and liberty provisions of the constitution to decide cases where individuals claim privacy rights protect them from government power.(22) For example, an Alabama appellate court held that "[t]he right to maintain family integrity is a fundamental right, protected by due process requirements of the Constitution," which "affords a parent a prima facie right to custody of its child."(23)

   This judicial reference to family integrity as a fundamental right is important because contemporary civil liberties doctrines distinguish between fundamental rights and other rights or mere interests.(24) Fundamental rights have more judicial protection.(25) Furthermore, some conservatives use fundamental rights analysis to challenge the foundations of contemporary family law, particularly the interventionist child welfare policies that liberals supported in order to protect children from parents whose authority was clearly established under traditional family law relationships.(26)

   Conservatives find fundamental rights analysis useful because it frequently provides the rationale for state court rulings in family law cases.(27) It is, for example, the basis for the Alabama appeals court declaration that family integrity is a fundamental right(28) and a Louisiana appeals court ruling that "traditional Louisiana Family Law" promoted and protected the family unit by establishing a family privacy right based upon a liberty right and a constitutional due process right of privacy.(29) These rulings illustrate how both traditional jurisprudence and explicit declarations of rights and liberties provide a substantive due process conception of privacy rights, based on common law understandings of family law, which conservatives use to limit state power.

   A very important distinction exists between the common law traditions of privacy rights and the modern, civil libertarian privacy jurisprudence developed by the U.S. Supreme Court and applied in state court opinions.(30) The contemporary jurisprudence is individualist while the common law tradition is not.(31) This difference explains why there is within legal conservatism a common law movement which relies upon traditional or common law rights to limit the powers of both federal and state governments.

   Even a cursory reading of state court opinions reveals that privacy rights vary a great deal depending upon whether the claims involve criminal justice (primarily search and seizure), disclosure of personal information (including financial or medical records), or personal autonomy (the right to decide matters related to obscenity, the right to life, the right to die, sexual behavior, or drug usage).(32) Privacy rights provide stronger protection against forced disclosure of personal information than protection against criminal investigations.(33)

   This variation in substance suggests that something other than constitutional language determines the meaning of privacy. The inclusion of explicit Privacy rights in the Florida and Louisiana Constitutions has not eliminated judicial interpretation because conventional methods of deciding cases, such as relying on the meaning of the words and the intentions of the framers, leave considerable room for balancing individual rights against government power by attaching weight to the competing claims and then deciding which prevails. According to the collision or auto body theory of constitutional interpretation, when rights collide, judges are expected to fill the dents in the body of law.(34)

   Most State constitutions include declarations of fundamental rights and liberties but not a general right of privacy.(35) There are, however, strong conceptual links between individual freedoms and privacy rights. For instance, when the Georgia Supreme Court first recognized a state constitutional right to privacy in 1904, it used an evocative phrase, "the liberty of privacy," to describe a right that required balancing the individual's right to be let alone against liberties and claims of other persons Properly interested in the matters claimed to be private.(36) This traditional conception of privacy rights places privacy within the complex web of individual rights, individual responsibilities, and government powers.

   Even in states with self-standing (i.e., explicit and general) provisions in their constitutions, privacy rights are contingent upon conventional civil liberties doctrines and analyses.(37) The Florida Supreme Court explains that the state constitutional right to privacy is broader and weightier than the federal right because the Florida Constitution provides "an explicit textual foundation for those privacy interests inherent in the concept of liberty which may not otherwise be protected by specific constitutional provisions."(38)...