Legal Foundations of the Right to Privacy

This year’s NCFCA Lincoln-Douglas resolution–In democratic elections, the public’s right to know ought to be valued above a candidate’s right to privacy–is fascinating because it deals with two rights that are not explicitly guaranteed by the Constitution, but which are both established in American jurisprudence: the right to privacy, and the right to know. As you begin crafting your cases, it is important to understand the legal foundations of the issues at play, because unlike the freedom of religion or freedom of the press, this resolution deals with unenumerated rights–rights that are implied, rather than stated, in the Constitution. This article is part one of a two-part series on the subject–the first examining the right to privacy, and the second doing the same for the right to know. I hope to hit the highlights of American legal thought on the subject and provide the basic attributes and key case law behind each concept. However, my analysis comes with the caveat that none of this is set in stone. For every article, there is a rebuttal out there, and for every case, there is a dissenting opinion. Your arguments will be informed by your research, not mine–but I hope this can serve as a springboard to help get you started.

The Development of the Right to Privacy

The right to privacy in the United States is a relatively new idea; it was first articulated in 1890, over 100 years after the ratification of the Constitution, when the Harvard Law Review published the aptly-titled The Right to Privacy, by lawyers Samuel Warren and Louis Brandeis. Though written almost 150 years ago, Warren and Brandeis’ concerns about privacy sound like they could have been written yesterday: 

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops’ (Warren and Brandeis).

Warren and Brandeis were concerned that new technologies and an increasingly-invasive press corps required new protections for the right to individual privacy. They went looking for a justification for the right to privacy in existing law, and they found it in common law protections for intellectual property. In their words, “the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone.” Essentially, they argued that the right to privacy was an extension of free expression–the right to share your thoughts and opinions includes the right to determine in what manner and with whom you share them. With this articulation, the right to privacy, or the right “to be let alone,” was born.  

In 1960, another scholar emerged who would prove highly influential in the development of privacy law: Dean William Prosser of UC Berkeley School of Law. Prosser took the “right to be let alone” articulated by Warren and Brandeis and identified four separate torts that constitute infringements on the right to privacy. According to Prosser, 

The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff… ‘to be let alone.’… 

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. 

2. Public disclosure of embarrassing private facts about the plaintiff. 

3. Publicity which places the plaintiff in a false light in the public eye. 

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness (Prosser).

The space of this article is insufficient to unpack all four of Prosser’s torts, but suffice it to say that Prosser’s major contribution was to take the vague right articulated by Warren and Brandeis and specify four categories that constitute infringements on that right. Prosser’s torts, though distinct from one another, largely center around the ability of persons to determine which personal information they wish to share and when, without interference from outside parties.

Prosser’s torts, though helpful in determining what constitutes an infringement on privacy, still fail to provide a comprehensive positive definition of the right to privacy. Thankfully, such a definition came just five years later, in 1965, in a Columbia Law Review article authored by lawyer Oscar Ruebhausen and social psychologist Orville Brim in their article Privacy and Behavioral Research. Ruebhausen and Brim argued that Warren and Brandeis’ “right to be let alone,” represented just one aspect of privacy. According to them, privacy also included communication–the right to share and withhold. They argued that “privacy is a two-way street consisting not only of what we need to exclude from or admit into our own thoughts or behavior, but also of what we need to communicate to, or keep from, others” (Brim and Ruebhausen). With that in mind, they formulated the following definition of the right to privacy: “The essence of privacy is no more, and certainly no less, than the freedom of the individual to pick and choose for himself the time and circumstances under which, and most importantly, the extent to which, his attitudes, beliefs, behavior and opinions are to be shared with or withheld from others” (Brim and Ruebhausen). Put plainly, the right to privacy is the idea that you should be able to decide the time, place, and manner in which you share or withhold your thoughts, words, and actions from others.

The Limits of the Right to Privacy

Like any right, the right to privacy has limits, and those limits were well-defined by Warren and Brandeis in their 1890 article. Warren and Brandeis identified six limitations on the right to privacy. For the purposes of this article, I will describe the three that are most relevant to the current resolution. First, “The right to privacy does not prohibit any publication of matter which is of public or general interest… There are [those] who, in varying degrees, have renounced the right to live their lives screened from public observation… Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for public office” (Brandeis and Warren). This is the most significant of Brandeis and Warren’s limits, because it shows that as far back as 1890, privacy scholars held that those running for office do not have the same privacy protections as an ordinary individual. Warren and Brandeis say that it would be an infringement on the rights of an ordinary individual to say that “he cannot spell correctly,” but saying the same about a candidate for Congress would not be an infringement. They argue that those running for office forfeit some measure of personal privacy, though they do not specify to what degree. Second, the right to privacy does not extend to proclamations or proceedings of public institutions, such as courts or legislative bodies. This is similar to the first, but it specifies that information from government institutions ought to be, in most cases, publicly available. Finally, the right to privacy is not concerned with the truth or falsehood of the claims in question. Laws concerning slander and libel provide protection from the publication of false information, but the right to privacy “implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.” This is significant because one might not typically think of the publication of false information as a privacy issue, but Warren and Brandeis argue that even false depictions of oneself constitute depictions that infringe upon the right to privacy.

The Right to Privacy: Key Case Law

Olmstead v. United States (1928)

In this case, federal agents wiretapped the office of suspected-bootlegger Roy Olmstead without a warrant to do so, and SCOTUS was tasked with deciding whether the illegal wiretaps constituted a violation of the defendant’s Fourth and Fifth Amendment rights against illegal search and seizure. In the dissenting opinion, Justice Louis Brandeis, co-author of “The Right to Privacy,” wrote that

The makers of our Constitution…  sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Olmstead was decided in a 5-4 vote with Brandeis in the minority, but the decision was reversed (and his dissent vindicated) by a 7-1 decision in Katz v. US (1967). The Brandeis dissent rooted the protections of the right to privacy in the Fourth Amendment to the US Constitution, which protects against unwarranted searches and seizures. 

Griswold v. Connecticut (1965)

In this case, C. Lee Buxton and Estelle Griswold opened a birth control clinic in order to challenge Connecticut’s 1879 law prohibiting contraception. The two were arrested and went to court arguing that the anti-contraception law was unconstitutional. In a 7-2 decision, the Supreme Court sided with Griswold, and provided its most robust defense of the right to privacy to that point. In the majority opinion, Justice Douglas held that the Constitution creates “penumbras” or “zones” of privacy. For instance, the right to associate with a specific group is a “zone of privacy” that is implicitly protected by the First Amendment. Douglas holds that similar zones can be found in the Third, Fourth, Fifth, and Ninth Amendments. Justice Goldberg expanded upon Douglas’ argument in his concurring opinion, in which he was joined by Justices Warren and Brennan. Goldberg held that “the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments, and an intent that the list of rights included there not be deemed exhaustive.” In other words, Justice Goldberg argued that the right to privacy exists as a fundamental right, even though it is not specifically enumerated in the Constitution. The concept of “penumbras” is a tricky one to wrap one’s head around, but in the simplest terms, it just has to do with the implied rights that are not specifically enumerated in the Constitution, the right to privacy being one such right.

Lawrence v. Texas (2003)

In this case, John Lawrence and Tyron Garner were arrested for violation of a Texas law prohibiting “homosexual conduct.” The Court struck down the law and overturned Lawrence and Garner’s convictions in a 6-3 decision, with conservative Justices O’Conner and Kennedy joining the Court’s four liberals. Justice Kennedy, delivering the opinion of the court, wrote that  

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct…. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Here, we see a very clear articulation of what Warren and Brandeis first defined as “the right to be left alone.” According to Kennedy, the right to privacy entails the protection from undue interference by the state, particularly in intimate and personal matters. The state has no business attempting to control, or even know, what goes on in someone’s private dwelling.

One more thing…

I have intentionally omitted one major case in the development of privacy law from this article, that case being Roe v. Wade (1972), which struck down state laws prohibiting abortion. The court ruled in a 7-2 decision that the Due Process clause of the Fourteenth Amendment protects the right to privacy, and that the choice to have an abortion falls within the boundaries of that right. Though significant in its interpretation of the Due Process clause, Roe remains one of the court’s most controversial decisions, and as such, it is important to treat it with extreme care in a debate round, no matter which side you are arguing. That said, the case is still worth reading and understanding in order to gain the fullest possible picture of the right to privacy in American legal thought. 

In conclusion… 

The right to privacy is multi-faceted and ever-changing. Today, questions about data privacy and internet freedom continue to open new areas of scholarship and legal thought. This article is only sufficient to scratch the surface of the issue, but it is still only the beginning of what will undoubtedly be a fruitful and exciting NCFCA season. Stay tuned for part 2 of this article, where I’ll unpack the legal foundations of the right to know, and if you have any questions, comments, or ideas for future articles, please shoot me an email: dmjordan1229 (at) gmail (dot) com. I’ll be around all year to talk about all things Lincoln-Douglas, and I appreciate your feedback!

References

Brandeis, Lous and Samuel Warren. “The Right to Privacy.” Harvard Law Review. 15 December 1890. https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html 

Brim, Orville and Oscar Ruebhausen. “Privacy and Behavioral Research.” Columbia Law Review. November 1965. https://www.jstor.org/stable/pdf/1120683.pdf?refreqid=excelsior%3Aa7e3cc77914e9d07e35cf6c8c17c49ba 

Griswold v. Connecticut, 381 U.S. 479 (1965). https://supreme.justia.com/cases/federal/us/381/479/#tab-opinion-1945663 

Lawrence v. Texas, 539 U.S. 558 (2003). https://supreme.justia.com/cases/federal/us/539/558/#tab-opinion-1961305

Olmstead v. United States, 277 U.S. 438 (1928). https://supreme.justia.com/cases/federal/us/277/438/#tab-opinion-1932307 
Prosser, William. “Privacy.” California Law Review. August 1960. https://www.jstor.org/stable/pdf/3478805.pdf