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The citizens of the United States expect to enjoy their privacy. Indeed, few rights are as commonly taken for granted as that of privacy in this highly individualistic society. Yet the recognition of a constitutional right to privacy is fairly recent. Only since the late twentieth century has it been explicitly recognized, protected, and ultimately expanded. This may seem ironic in light of the many freedoms guaranteed by the Bill of Rights, but the Constitution makes no mention of privacy. In fact, the right had to be identified by the U.S. Supreme Court in a series of controversial, groundbreaking decisions. Its existence is due to the continual interpretation of the law, which in turn reflects sweeping changes in modern life. Today, federal and state privacy laws protect individuals from the intrusion of government, business, and other citizens.

Until the late nineteenth century, few people spoke of privacy rights. No court or law had expressly mentioned the idea. A new view began to emerge with the publication of "The Right to Privacy," a Harvard Law Review article written in 1890 by the scholars Samuel D. Warren and Louis D. Brandeis. They argued that privacy should exist as a common law right, particularly to protect the average person from public humiliation in newspapers. One of history's great champions of civil liberties, Brandeis became a Supreme Court justice, and later wrote a famous dissenting opinion that placed privacy at the very heart of the Constitution. "The makers of our Constitution...sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations," he stated in Olmstead v. United States (1928). "They conferred as against the Government, the right to be let alone -- the most comprehensive of the rights of man and the right most valued by civilized men."

Almost four decades passed before this idea took hold. The period between the 1930s and 1960s showed a relentless official disregard for privacy, as wartime and Cold War passions led the government on crusades that involved spying on unpopular groups and hauling witnesses before congressional panels. During the 1950s, the refusal to answer questions of the House Committee on Un-American Activities (HUAC), for instance, often resulted in prosecution for contempt of Congress. In Watkins v. United States (1957), an important early step in limiting government intrusion into privacy, the Supreme Court overturned the conviction of a man who had refused to answer some questions about his past political views and associations. Congress, it held, has no general authority to expose the private affairs of individuals without justification, but instead must respect the freedoms of speech, press, religion, political belief, and association.

During the post-war years, government cared deeply about what people did in their bedrooms. States tightly restricted intimate personal choices with laws governing sexual practices, birth control, and abortion. Even as social values and mores began changing in the midst of the sexual revolution, legal progress toward privacy rights was slow. Echoes of Brandeis' call for privacy could be heard occasionally, as in Justice William O. Douglas' dissent in Public Utilities Commission v. Pollak (1952), opining, "The right to be let alone is indeed the beginning of all freedoms." And in Poe v. Ullman (1961), Justice John Marshall Harlan II dissented from a decision allowing a state to ban contraceptive sales, calling the law "an intolerable invasion of privacy."

By 1965, privacy's time had come. In Griswold v. Connecticut (1965), the Supreme Court struck down a state law that forbade married couples from using contraceptives. Writing the majority opinion now, rather than a mere dissent, Justice Douglas acknowledged that the Constitution made no mention of privacy. But he located such a right in the combination of liberties guaranteed by the Bill of Rights. Together, he wrote, the First, Third, Fourth, Fifth and Fourteenth Amendments have penumbras --a term from astronomy meaning partial illumination around a shadow. These penumbras were "formed by emanations from those guarantees that help give them life and substance." Metaphorically, Douglas meant that the right to privacy could be inferred from the amendments even if they did not explicitly state it.

In a quick succession of cases, the scope of the new constitutional right became clear. It was even broader than the Griswold decision had suggested. Family planning issues again provided the focus. In Eisenstadt v. Baird (1972), the Supreme Court threw out a state law that prohibited selling contraceptives to unmarried persons. Intimate personal decisions, the opinion stressed, could not be dictated by the government. "If the right of privacy means anything," wrote the Court, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person." Within two years, the development of this idea produced the decision in Roe v. Wade (1973), establishing the right of a woman to abortion. While noting that the right to privacy is not absolute, the Roe decision found that it is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The privacy decisions ignited controversies that still burn today. Apart from moral objections to contraception and abortion, there has been ongoing legal debate over constitutional interpretation. The debate hinges upon whether the Constitution should be interpreted flexibly or strictly in light of what the framers intended. Liberal legal scholars and proponents of civil liberties hail the privacy decisions, seeing them as reflecting the robust ability of constitutional law to adapt to modern life. Conservative critics, who have often sneered at the privacy decisions, demand that interpretation closely follow the text of the Constitution. In one critical essay in 1986, Supreme Court nominee Robert H. Bork blasted the Court for dictating, "without guidance from the Constitution, which liberties or gratifications may be infringed by majorities and which may not." The debate is far from academic, as it informs the future course of the Court on issues such as abortion rights, often challenged in the 1980s and 1990s.

Although privacy rights grew out of decisions on family planning issues, the right to privacy in sexual matters is far from universal. Several states retain age-old laws that criminalize consensual sex between unmarried adults, though these are seldom enforced. However, states have long prosecuted gay men under sodomy statutes that ban anal and oral sex. Once commonplace, these laws remain on the books in 19 states. Between the 1960s and 1990s, many legislatures repealed them, and four courts ruled that their laws violated state constitutions. However, this trend was not followed by the Supreme Court in Bowers v. Hardwick (1986). In Bowers, a gay man challenged his conviction under a Georgia statute outlawing sodomy, which occurred after a policeman entered a private home and found him engaged in consensual sex with another man. Allowing the law to stand, the Court held that there was no constitutional right for homosexuals to engage in sodomy.

Another critical area for the privacy of gays and lesbians is military service. In the 1990s, the federal government addressed the military's long-standing refusal to allow them in its ranks. Instead of mandating that the armed services change their rules entirely, the Clinton administration attempted to safeguard sexual preference by keeping it private. Its so-called "Don't Ask, Don't Tell" policy, calling for servicepeople to hide their sexuality and for officials not to try to expose it, came under attack from all sides. Neither gays and lesbians nor the military considered the policy workable.

The ownership of pornography has enjoyed more constitutional protection than sex itself. Legal battles over pornography, which depicts sexual acts, have stretched across U.S. history. Generally, pornography is protected under the First Amendment, although the sale and distribution of obscene materials can be prosecuted under a community standards test. Even so, individuals can possess obscene materials in their own home, a right recognized in Stanley v. Georgia (1969). In a ringing defense of free thought as a fundamental form of privacy, Stanley struck down a Georgia statute punishing the mere possession of obscenity. Government, the Court determined, "has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." There are limits, however, involving privacy and pornography. The right outlined in Stanley does not translate into the right to receive, transport or distribute obscene materials in interstate commerce. Nor does it extend at all to child pornography, which has no constitutional protection.

In criminal law, the Fourth Amendment protects citizens against violations of their privacy by the police and prosecutors. Its ban on "unreasonable searches and seizures" has roots in the experience of colonial America prior to the Revolution, when British authorities were wont to suddenly break down the door in making arrests. In the twentieth century, the amendment has restricted how and when the police may stop, arrest, search, or take the property of an individual or business, thus, in theory, preventing arbitrary actions by the government. Police generally need a search warrant, issued by a court, before they can enter a private residence. To deter police heavy-handedness, violations of the Fourth Amendment can result in evidence being thrown out of court under the so-called "exclusionary rule," a safeguard that has applied to the states since Mapp v. Ohio (1961). The rule is extremely controversial, as it often leads to criminal cases being dismissed. Limits on the rule appeared in United States v. Leon (1984), which allows for a good faith exception when police make reasonable mistakes. Indeed, in the 1980s, the trend of Supreme Court decisions was to constrain Fourth Amendment protections by allowing greater latitude to police to conduct searches without warrants, whether on buses, through aerial surveillance, or in people's garbage.

Testimony in court comes under a specific protection of privacy. The Fifth Amendment allows criminal defendants to keep secret any information that might help lead to their conviction, known as the right to avoid self-incrimination. Thus a person is protected from having to testify against him or herself and the government must, as the Court held in Tehan v. United States (1966), "shoulder the load." Testimony against others is mandatory once a witness is called, but certain notable exceptions exist that safeguard privacy. Known as privileges, these include confidential communications between a husband and wife, an attorney and a client, a doctor and a patient, and a priest and penitent.

Civil litigation often involves privacy claims. Under the common law of torts, five discrete rights of privacy are recognized. Individuals may sue when their solitude is intruded upon in an offensive manner, when private information is made public in an objectionable fashion, when information is made public that places them in a false light, when their name or likeness is appropriated without consent, and, in the case of businesses, when competitors steal trade secrets. Many of these claims arise in lawsuits against the media. Notably, public officials and celebrities have less likelihood than private citizens of recovering in such cases, unless they can prove that information was published with knowledge of its falsity or in reckless disregard for its truth, as in the case Time, Inc. v. Hill (1967). And in litigation between private citizens, not all invasions of privacy hold up in court, but generally only those in which the intrusion is highly unreasonable and offensive.

State and federal legislation protecting privacy has existed since the late 1960s. Numerous laws forbid snooping and dissemination of personal information. Electronic surveillance by individuals and the police is regulated by the federal Omnibus Crime Control and Safe Streets Act of 1968, which requires police to obtain search warrants before conducting wiretapping and forbids private parties from using information obtained without another person's consent. The Privacy Protection Act of 1974 and the Freedom of Information Act limit the government to using fair practices in the collection, use, and disclosure of data about its citizens, while also allowing people to see what the government knows about them, correct mistakes, and add details. A similar right is found in the Family Educational Rights and Privacy Act of 1974, which permits parents access to their children's scholastic records. Under the Fair Credit Reporting Act of 1970, credit records can only be given out to third parties for legitimate business purposes, and credit bureaus must maintain accurate reports, allow consumers to challenge inaccuracies, and make no use of their records for marketing.

Further Readings

  • ACLU. "The Year in Civil Liberties, 1997." Unsigned article. www.aclu.org, 1998
  • ACLU. "Briefing Paper No. 18: Lesbian and Gay Rights." Unsigned article. www.aclu.org, 1998
  • ACLU. "Do You Know Where Your Data Is?" Unsigned article. www.aclu.org, 1998
  • Beattie, James R. Jr. "Privacy in the First Amendment: Private Facts and the Zone of Deliberation." Vanderbilt Law Review, May 1991
  • Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992
  • Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993
  • West's Encyclopedia of American Law. St. Paul: West Group, 1998
  • Zimmerman, Diane L. "Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort." Cornell Law Review, March 1983

Additional topics

Law Library - American Law and Legal InformationGreat American Court Cases