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P, Privacy.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023


As Justice Hugo *Black wrote, “‘Privacy’ is a broad, abstract and ambiguous concept” (Griswold v. Connecticut, 1965, p. 509). Any commentary on the approach taken by the Supreme Court in regard to the notion of “privacy” must begin by acknowledging the truth of Black’s insight. There is no simple grouping of cases that allows one to discern a particular doctrine of “privacy” that has been adopted by the justices or that can be easily conveyed. Instead, one discovers that “privacy” and associated words, such as “private,” refer to a variety of notions, only loosely linked together, that have proved to be an enduring source of controversy in regard to the degree of constitutional protection afforded them.

Definitional Dilemmas.

Perhaps the easiest way to demonstrate the protean qualities of the notion of privacy is through reference to some of the standard ways words like “private” and “privacy” are used in ordinary language. Contrast, for example, the quite different implications of the terms “private property” and “invasion of privacy.” To be sure, they are related to one another, but they nonetheless point in substantially different directions and have elicited quite different reactions from the Court.

Privacy and Political Liberalism.

Though the notion of private *property clearly goes back to ancient times, it is especially resonant in the liberal tradition out of which so much American political thought has developed, and it is appropriate to begin by looking at it more closely. The first thing one might notice is that “private” is an adjective. The word “property” is not always preceded by that adjective. The standard contrasting term to “private” is “public,” and we often use the term “public property” to refer to property owned by the state, such as roads, parks, and government buildings. The sharp division between “public” and “private” is central to the liberal political tradition, especially as represented in the thought of someone like John Locke, and the term “private property” is central to the maintenance of this division.

What is “public” is, almost by definition, within the realm of government regulation; one of the purposes of governments is to regulate the conditions of public life. Further, one of the central roles of the Constitution is to place limits on what the state can do in the name of the public. Thus the *First Amendment prevents the state from offering public property only to political groups whose views it supports, even though the owner of a private auditorium is free to use political criteria when renting the hall.

The point of terming something “private” is to suggest that it is, in important ways, protected against governmental interference. The strongest defense of government, especially in the more libertarian versions of the Lockean heritage, is to establish certain mechanisms, including police forces and courts for the enforcement of contracts, that will serve to safeguard the basic natural rights of “life, liberty, and property.” The basic value underlying the protection of such rights, according to most contemporary political theorists, especially those who come out of one or another version of the Kantian tradition, is autonomy, that is, individuals’ ability to choose for themselves how to live their lives.

According to those who emphasize individual autonomy, the state should, as much as possible, serve only to facilitate the choices made by private citizens, at least so long as those choices do not conflict with the rights of other individuals. Indeed, many contemporary theorists who reject any Lockean notion of a “natural right” to private property nonetheless support recognition of a legal right to private property on the grounds, as argued by Aristotle nearly twenty-five hundred years ago, that its possession is necessary in order to allow the practical realization of freedom and autonomous choice. Egalitarians might object to a particular distribution of property within which too many poor people are without property and thus without effective means to realize their autonomy, but this distributional critique does not in the least entail a rejection of the basic importance of a realm of “private” rights protected against state negation.

Defending Minorities.

Emphasis on a protected “private” realm can serve as a way of defending unpopular minorities against the power of a majority tempted to use the apparatus of the state to regulate those it dislikes. Examples are legion, and each probably generates a different emotional resonance in the reader. On the one hand, there are those parents who wish to send their children to a “private” school that teaches the tenets of their religion, against the effort by the state to outlaw (p. 779) such schooling and require every child to attend a “public” school that inculcates in the child the state-mandated way of looking at the world. (Just such an effort was made in the 1920s by the state of Oregon, then under the sway of the Ku Klux Klan, only to be rebuffed by the Supreme Court in *Pierce v. Society of Sisters, 1925.) Or one can think, for example, of a privately owned restaurant that chooses to serve only whites; although a traditional notion of “private property” included the right to exclude anyone from one’s property on whatever basis one wished, the Supreme Court had little trouble, in *Heart of Atlanta Motel v. U.S. (1964) and *Katzenbach v. McClung (1964), unanimously upholding the *Civil Rights Act of 1964 and its prohibition of such exclusionary practices (see segregation, de jure). At the very least, these two examples should illustrate not only the complexities attached to notions such as “minority rights” and “majority imposition” but also the varying reactions of the Supreme Court to such claims.

Privacy versus Secrecy.

One must recognize that there is nothing at all “secretive” about “private” property and many other autonomy-enhancing rights that have been judicially placed within a notion of “privacy.” Thus, a property owner often announces his or her status to the world. One can find similar examples in other realms. Most religious people, for example, are proud to proclaim their allegiance to their faiths’ tenets. No one reads the Free Exercise Clause of the *First Amendment as protecting only “out-of-sight” religious practices. To be sure, even such limited protection would be better than the totalitarian denial of all freedom of religion, but the basic cases in the constitutional canon treating freedom of religion all deal with “public” practices, such as handing out religious literature or even vigorously attacking the “false doctrines” of another church deemed to represent the forces of evil (see also religion).

In this context, it is useful to consider the institution of *marriage. Even though many might consider marriage to be the most obvious symbol of private life, most people who marry proclaim their status publicly. As shall be discussed further in this essay’s conclusion, problems arise when one tries to define notions such as property or marriage as “private” rather than “public,” but it should at least be clear that there is no necessary linkage between assigning a particular activity—whether it has to do with land development or love—to the realm of the “private” and viewing that activity as something to be kept out of the public eye.

This element of secrecy, however, is precisely what is important in the concept of “invasion of privacy.” To be sure, one cannot make sense even of this notion without recourse both to the value of autonomy and to some version of the public private distinction noted above. The “privacy” protected against invasion, however, relies for its force not so much on the formal distinction between the domains of the individual and of the state but rather on a widely shared perception that some aspects of life should be protected not only against public regulation but, far more importantly, against uninvited public observation. The definition of a secret suggests that one should be able to disclose it only to those one trusts. A standard example is the release of what is often termed “intimate” information about oneself. Thus the marital partners who invite the public to observe their exchange of vows certainly do not invite the guests to witness the sexual consummation of those vows.

These are not meant to be hard-and-fast distinctions. But they are intended to aid the understanding of the very different meanings attached to the overall concept of privacy and, as well, to the understanding of why the cases decided by the Supreme Court under that rubric often seem so confusing. The Court, over the last twenty years, has used the notion of privacy especially, but not exclusively, in cases involving *contraception, *abortion, and *homosexuality. If one realizes that such cases much more often invoice privacy-as-autonomy—a realm of conduct protected against invasive state regulation—rather than privacy-as-secrecy—a realm of life that should be protected against the intrusive observation of others—then at least some of the confusion can be dissolved. The remainder of this essay will therefore be organized by reference to these two quite different conceptions of privacy.

Autonomous Choice.

Although it is commonly argued that the Constitution lacks any specific textual reference to “privacy,” that argument overlooks the text of the *Fifth Amendment, which states that “private property [shall not] be taken for public use, without just compensation.” The text makes no sense unless the framers of the Constitution believed, first, that the institution of private property already existed and, second, that there was something important about this institution worth protecting. That is, private property had a purpose, the most plausible purpose being that possessing private property helps one to become the master of one’s own fate.

It is within this context that one should understand “The New Property,” an influential 1965 article by then-Yale professor Charles Reich, which argues that the same kinds of constitutional protections accorded “old property,” such as land, should be accorded “new property,” such as social security, because of the latter’s equally vital role in preserving individual autonomy. The deep paradox of Reich’s article, however, lies precisely (p. 780) in the fact that the Supreme Court, throughout the twentieth century but especially following the so-called constitutional revolution of 1937, has been increasingly disinclined to give strong protection to the “old property” against state regulation. Among the seminal cases in this regard is *Euclid v. Ambler Realty Co. (1926), in which the conservative Justice George *Sutherland, speaking for the Court, upheld a local *zoning ordinance that severely restricted the development opportunities available to landowners. Although such zoning significantly reduced the practical market value of the land in question, it was deemed not to be a *taking requiring compensation under the Fifth Amendment, which had been applied to the states through the *Fourteenth Amendment.

Regulation of Private Property.

Certainly one of the central characteristics of what has come to be called the modern regulatory, or *administrative, state is its propensity to regulate the use of “private” property. The post-1937 Court has expressed almost no concern about the constitutionality of such regulation. Only a few, exceptional cases have found regulations to constitute takings that require compensation (see regulatory taking). For better or worse, the protection of private property and the values attached to its ownership has increasingly been left to the vagaries of the ordinary political process, with judicial scrutiny limited to a bare minimum.

Post-1937 constitutional theorists, then, were left with the task of explaining the withdrawal of any strong judicial regard for private property. Did it result from a general notion that the Court, as an arguably undemocratic (or at least antimajoritarian) institution, should defer to legislative decisions? Or, on the other hand, was it the consequence of a more limited notion—that the protection of private property, far from enhancing individual autonomy, tended to lessen it insofar as it served to prevent the redistribution of economic resources from those who had a great deal (and thus maximum autonomy) to those who had too little (and thus little, if any, practical autonomy)? Post-New Deal constitutional theorists could be divided broadly into two camps, depending on which of these two rationales was emphasized to justify the diminution of protection given to traditional rights attached to the ownership of private property. These camps faced off when “privacy” reemerged as a major topic of litigation in the 1960s.


The modern debate about the constitutional protection accorded privacy derives from *Griswold v. Connecticut (1965). In Griswold the Court declared unconstitutional a Connecticut law that both prohibited the use of contraceptives and prevented anyone from encouraging the use of contraceptives through, for example, medical counseling. Connecticut prosecuted the executive director of the Planned Parenthood League for giving information to married persons about contraception. The Supreme Court, in an opinion by Justice William O. *Douglas, reversed Mrs. Griswold’s conviction on the basis that it violated her (and her clinic’s patients’) rights of privacy. Ignoring the Private Property Clause of the Fifth Amendment, Douglas noted that a general right of privacy is nowhere explicitly set out in the constitutional text, in contrast, say, to the right to free exercise of religion acknowledged in the First Amendment or the right against *self-incrimination set out in the Fifth Amendment. But, said Douglas, the real point of many of the “various guarantees” of the Constitution was precisely to “create zones of privacy” protected against state interference (p. 484).

Douglas pointed to cases interpreting the First Amendment, which had recognized the “freedom to associate and privacy in one’s association”; to the *Third Amendment, which prohibits the quartering of soldiers “in any house” in time of peace without the owner’s consent; to the *Fourth Amendment and its explicit affirmation of the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”; and to the Fifth Amendment’s Self-Incrimination Clause (p. 483). Douglas also took note of several cases from the 1920s involving private *education. In 1923 the Court, in *Meyer v. Nebraska, had invalidated a state ban (sparked by anti-German feeling during *World War I) on teaching German in private schools. Two years later, in Pierce v. Society of Sisters, the Court struck down Oregon’s Klan-inspired attempt to prohibit private schooling entirely.

Similarly, Douglas said, Connecticut’s law could not survive, for it “concern[ed] a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” (p. 485). In particular, it attempted to regulate one of the most intimate aspects of marriage—the circumstances under which the partners would relate to one another sexually. To prosecute someone for violating Connecticut’s “use” prohibition would require extraordinary state intrusiveness. “Would we allow the police,” Douglas asked rhetorically, “to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” He responded, “The very idea is repulsive to the notions of privacy surrounding the marriage relationship” (pp. 485–486).

Griswold was a surprisingly controversial decision, though not, certainly, because of any judicial sympathy with what one dissenter, Justice Potter *Stewart, called “an uncommonly silly law.” Instead, for the dissenters, Hugo *Black especially, (p. 781) the decision recalled an earlier era of the Court in which it used similar concepts, though denominated “freedom of *contract” rather than “privacy,” to carve out a protected realm of conduct against almost any regulation by the state. This earlier era was symbolized by the decision in *Lochner v. New York (1905), in which the Court interpreted the Due Process Clause of the Fourteenth Amendment to hold unconstitutional a New York state law that attempted to limit to sixty the hours that a baker could work each week. According to the five-justice majority in Lochner, this statute unconstitutionally interfered with the autonomy rights of the baker and his employee to negotiate as equals over the terms of employment.

Lochner occasioned perhaps the most-quoted dissenting opinion in American judicial history, by Justice Oliver Wendell *Holmes:

I think that the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. (p. 76)

An entire generation of scholars and lawyers used Holmes’s opinion almost as an anthem in behalf of judicial deference to majority rule and as a rejection of the doctrine of substantive *due process. To be sure, Justice Black, who dissented in Griswold, vigorously opposed state regulation of *speech, but he based this philosophy of judicial overruling of majority will on the specific text of the First Amendment, as applied to the states through the Fourteenth Amendment (see incorporation doctrine). “I like my privacy as well as the next one,” wrote Black, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision” (p. 510). Black was squarely in the camp of those who viewed the message of 1937 as counseling general deference to legislative enactments unless explicitly prohibited by the constitutional text. Griswold was in his judgment as pernicious a decision as Lochner.

That Griswold and successor cases were written using the language of “privacy” was due primarily to the desire to avoid direct comparison with Lochner. These cases could have been decided using a different rhetoric, one more self-consciously libertarian and focusing on the centrality of such decisions in achieving one’s own life plans. What prevented the use of such a neolibertarian rhetoric was much less its intellectual deficiency than its evocation of the earlier era of Lochner, based as that case was on a highly libertarian conception of the limits of government. Thus Holmes had reminded his colleagues that the “Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” (p. 75); Spencer’s book was one of the most libertarian tracts of the nineteenth century. Given the bad repute of such overtly libertarian rhetoric, the Court was attracted to the purportedly different rhetoric of privacy. Because of the way legal argument operates, “privacy” became the catchword for a host of cases that would be better understood had they been analyzed under a more frankly libertarian, autonomy-oriented theory.

Regardless of this rhetorical point, it is fair to say that if the “right to privacy” had been confined to the circumstances of the Connecticut contraceptive ban, it is unlikely that the notion would have become particularly important, except among specialists in constitutional law: Connecticut was in fact the last state to ban contraceptives. Moreover, Griswold could have been fit within what were termed above the “invasion of privacy” cases designed to protect certain conduct, in this instance the use of contraceptives, from public gaze. The issue in Griswold could have been confined either to the prohibition of the “use” of contraceptives or to use plus the giving of relevant medical advice, in order to protect institutions like Planned Parenthood. Moreover, one could have maintained the emphasis on the particular circumstances under which contraceptives are in fact used, thus accounting for the power of Douglas’s reference to the “sacred” marital bedroom.

It is worth noting, however, that no one seriously argues that the police are without power, assuming they have the *probable cause required by the Fourth Amendment to obtain a search warrant, to search “sacred” bedrooms for evidence of ordinary crime. A thief would not purchase immunity from search, for example, by hiding the loot under the sacred marital mattress! The fact that most of Douglas’s examples are open to this kind of attack has led many observers to criticize his opinion, at least insofar as he attempted to derive the “right of privacy” from what he called the “penumbras and emanations” of the text of the *Bill of Rights.

Although Douglas’s opinion was joined by a majority of the Court, two important separate concurring opinions, written by Justices Arthur *Goldberg and John M. *Harlan, attempted to sketch out other bases for the “right to privacy.” Harlan alluded to an opinion he had written in an earlier case, *Poe v. Ullman (1961), in which the Court had refused to address the legitimacy of the Connecticut law it struck down in Griswold. In Poe, Harlan had emphasized that the Due Process Clause of the Fourteenth Amendment legitimizes the Court’s attempt to discern “the balance which our Nation, built upon postulates of (p. 782) respect for the liberty of the individual, has struck between that liberty and the demands of organized society” (p. 542). Examining the American (and, indeed, English-speaking) past, Harlan concluded that the Connecticut law “involves what, by common understanding throughout the English-speaking world, must be granted to a most fundamental aspect of [liberty,] the privacy of the home in its most basic sense” (p. 548). Goldberg focused attention on the *Ninth Amendment, with its reminder that the specification of certain enumerated rights in the Bill of Rights should not be interpreted as “disparaging” the existence of additional, unenumerated rights. Privacy, Goldberg argued, was just such a right—one that should be understood as being protected by the Constitution even though unenumerated.

In any event, Griswold did not remain an isolated case, and its import soon extended far beyond Harlan’s “privacy of the home” or the particularity of the “sacred” marital relationship. The Court, in *Eisenstadt v. Baird (1972), struck down a variety of state prohibitions on the sale or distribution of contraceptives first to single adults and then, five years later, invalidated, in Carey v. Population Services International, a New York law prohibiting the sale of contraceptives to minors under sixteen and forbidding anyone not a licensed pharmacist from selling even nonprescription contraceptives to persons of any age. As suggested above in the discussion about “private property,” there is nothing secret about offering contraceptives for sale, much less advertising them. Once again, it is crucial that one separate the kind of privacy interest that is being protected in access-to-contraception cases—enhancement of individual autonomy—from the different aspect of privacy organized around the notion of secrecy. But even the liberation of contraceptives from state control would scarcely have caused significant public controversy, given the great changes that were taking place in sexual behavior and the use of contraceptives by a majority of the American public.


The case that brought “privacy” to the forefront of national consciousness was *Roe v. Wade (1973), which struck down laws in all fifty states that prohibited most (and in some cases all) abortions. “The right of privacy,” Justice Harry *Blackmun wrote in behalf of the Court, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty … or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (p. 153). To be sure, even this important “right of personal privacy” could be curbed by the state if it presented a “compelling interest,” but the import of Roe, with some exceptions, has been to limit such state power. Roe is surely on anyone’s list of most important opinions, both in terms of the changes it brought to American life and the controversy it stirred up. Although it did not, as Dred *Scott v. Sandford (1857) was alleged to have done, spark a civil war, it almost certainly contributed, because of the identification of the antiabortion position with right-wing politics, to the defeat of many Democratic senators in 1976 and 1978, the capture of the presidency and the Senate by the Republican Party two years later, and to the ultimate defeat of the Equal Rights Amendment.

Once again, it should be clear that abortion is centrally linked with autonomy concerning the conditions of one’s life—thus the adoption of the term “pro-choice” by its adherents. Many persons read the sequence of cases from Griswold to Roe as supporting, under the rubric of “privacy,” a general right to what might be termed “sexual autonomy,” that is, freedom of choice in regard to one’s sexual identity, including its reproductive aspects.


This claim of a right of sexual autonomy was most dramatically tested in the 1986 case *Bowers v. Hardwick, which involved an attack by a gay Georgia man upon a state law that criminalized sodomy. A bitterly divided Court upheld, by a 5-to-4 vote, the constitutionality of the law. Justice Byron *White, who wrote the majority opinion, declared that the right to privacy encompassed by the Constitution did not include a right to engage in “homosexual sodomy.” (His opinion ostentatiously refused to indicate whether the Constitution would tolerate the criminalization of heterosexual sodomy—with sodomy defined as including oral sex—which is apparently practiced by many Americans, including married couples.)

Although Bowers concerned bedroom conduct, what was ultimately at stake in the case was the integration of gays and lesbians into all aspects of American public life. Thus, had the decision gone the other way, it might have been increasingly difficult to maintain the prohibition of gay and lesbian marriage, for example, and other “public” acts that would signify the true emergence of gays and lesbians from the closets to which the American legal order has tended to condemn them. Justice Lewis *Powell, who provided the fifth vote upholding the Georgia law, declared after his retirement that he regarded the decision as a mistake. Issues of gay rights continued to percolate in a variety of contexts and issues, however. These included debate over the ban by the armed forces on service by openly gay and lesbian members (“don’t ask, don’t tell”), civil unions (in Vermont), and most recently gay marriage. Bowers itself was overruled in 2003 by (p. 783) *Lawrence v. Texas, when the Supreme Court held that government could not prohibit or punish private consensual sex engaged in by either same-sex or heterosexual persons.

Moreover, it is certainly not unthinkable that Roe itself will be overruled, though there appears to be no serious support for overruling Griswold. As has already been suggested, however, limiting the constitutionally protected right to privacy (as autonomy) to the use of contraceptives would scarcely be of any great significance so far as the general public is concerned. In any event, in the early 2000s it is hard to imagine that there will be any great extensions of this branch of the right to privacy in the foreseeable future.

Information Control.

In a highly influential 1968 article, Harvard professor (and later solicitor general) Charles Fried offered the definition of privacy as “the control we have over information about ourselves.” Fried related such control to central aspects of our lives as flourishing human beings, including “love and friendship.” Although a rich philosophical literature on privacy exists and not everyone accepts Fried’s specific views, there is certainly general agreement—and not only among philosophers—that a central component of privacy is precisely the capacity to maintain aspects of one’s life apart from public awareness.

Lack of Constitutional Foundation

Although there may be widespread agreement that a decent society is one in which individuals possess significant control over the release of information about themselves, it is difficult to find much protection for such a right in the Constitution, at least as it has been interpreted by the Supreme Court. As Lucas Powe has written, “Privacy has never done as well in the courts as in the legal journals.”

Consider in this context the constitutional tests most often cited by proponents of privacy, the Fourth and Fifth Amendments. Recall the Fourth Amendment’s protection of the “right of the people to be secure in their persons, houses, papers, and effects,” and the Fifth Amendment’s prohibition of any person’s being “compelled in any criminal case to be a witness against himself,” both of which were quoted by Douglas in his Griswold opinion. As suggested above, though, these texts can as easily cut against proponents of privacy as work in their favor.

The Fourth Amendment, for all its evocation of the privacy of the home, nonetheless clearly allows searches of the home and the seizure of private papers so long as a search warrant has been issued, based on probable cause to believe that the search will provide evidence relevant to a criminal investigation. And warrants can serve as the predicate not only for invasions of marital bedrooms but also for tapping telephones or emplacing other hearing devices that allow the investigator to overhear the most intimate of conversations.

Limits on Privacy.

In a series of cases during the mid-1960s, the most important of which, Hoffa v. United States (1966), involved a prosecution of Teamsters’ Union leader Jimmy Hoffa, the Court refused even to require a warrant for the infiltration of “private space” by undercover investigators (see search warrant rules, exceptions to). Thus it is perfectly constitutional for the state, without the slightest showing of probable cause, to use agents to insinuate themselves into the “private lives” of targets such as Hoffa. According to the Court, we are all at risk that those we choose to welcome into our private domain will later prove untrustworthy, and therefore we deserve no special protection against the possibility that a new “friend” might in fact be a member of the secret police. It should thus come as no surprise that the Court, in United States v. Miller (1976), refused to place any Fourth Amendment barriers in the way of state investigators who wished access to the “private” bank records of persons they were investigating.

Similarly, in *Ullman v. United States (1956) and *Kastigar v. United States (1972), the Court read the Fifth Amendment guarantee against self-incrimination as being limited to the prohibition of compelled testimony that could later be used as evidence in a prosecution of the witness being compelled to testify. The Court ruled that this did not limit the right of a state to confer an often unwanted “immunity” on a witness—an immunity that promises that nothing said by the witness will later be used against him or her. A beneficiary of such immunity will receive no judicial support for the claim that this violation of his or her ability to control the release of information constitutes a violation of whatever “privacy” rights are implied in the Fifth Amendment. Thus witnesses can be asked the most embarrassing and intrusive questions, so long as they are relevant to the case at hand, and can be punished for contempt of court if they refuse to answer. (The best-known examples of such immunity grants have arisen in congressional investigations, where refusal to testify has led to citation for contempt of Congress; see congressional power of investigation.)

Many critics of “immunity baths” adopt Douglas’s view that they violate the right to privacy ostensibly protected by the Fifth Amendment, but these critics have not prevailed. Instead, the Court has defined the purpose of the Fifth Amendment as safeguarding individual autonomy by limiting the state’s incentive to “solve” crimes not through independent investigation but through the far easier means of forcing, through torture (p. 784) or other mistreatment, accused defendants to confess to crimes that they may not have committed. Since, by definition, testimony given under immunity cannot lead to convictions, the state must still pursue its own investigations and gather independent evidence in order to convict those who have received immunity.

Close associates of criminal defendants, including, on occasion, close family members, are common sources of independent evidence. Although the state often recognizes certain “testimonial privileges” by which specific confidential communications can be protected against disclosure, it is highly debatable whether these privileges are constitutionally required or are instead simply granted by the state (perhaps in recognition of the moral claims articulated by Fried). Probably the most common examples of such privileges are those between lawyer and client and between spouses. In most contexts, a client does control the release of information and can prohibit his or her attorney from disclosing even information crucial to the interests of third parties. Similarly, many states still allow a defendant to prevent the introduction of testimony offered by even a willing spouse (or, often, ex-spouse) that refers to confidential communications made during the course of the marriage. But no such protection extends to close friends or other family members, although some judges have read Griswold as protecting a child who does not wish to testify against a parent, or vice versa.

News Media.

The examples above involve the state’s attempts to elicit information, but what about the equally common circumstance in which a private party investigates someone or discloses conduct that that other person would wish to keep secret? Does the Constitution allow strong protection against such invasions of privacy?

Given the complexities of the American legal system, it is hard to offer any summary answer, but it can be said that the Supreme Court has offered scant comfort to those who have brought suit claiming such “invasions.” The most common cases have involved newspapers that have published truthful, albeit highly intrusive, information about the suing party. (The publication of false information would constitute not invasion of privacy but “defamation” and would be handled through the law of *libel.)

Standard issues in cases involving claimed invasions of privacy include printing the names of victims of sexual assaults or of juvenile offenders who, some think, are more likely to reform if not publicly stigmatized as delinquents. No matter how much sympathy such claimants may elicit, they have consistently lost before the Supreme Court, which has repeatedly declared that the First Amendment prevents sanctioning newspapers who publish such information. Thus, in Florida Star v. B.J.F. (1989), the Court set aside an award of monetary damages for the publication of the name of a rape victim because the newspaper had obtained the information by looking at government records. (The Court has refused to accept the argument that there is a difference between making information available to members of the public who are able to travel to a specific locale—such as City Hall—and publishing identical information in a newspaper read by many thousands of readers.)

Newspapers have been awarded protection not simply because of the text of the First Amendment but, more importantly, because of the recognition that it is often impossible to draw any clear lines between those secrets that one should be entitled to keep and those that are of legitimate interest to the public. Consider in this context the Miami Herald’s trailing, in 1987, of then-presidential candidate Gary Hart, a married man who had recently denied that he was a “womanizer,” to his Georgetown townhouse in the company of Donna Rice, a woman who was not his wife. Though debate raged concerning the ethics of the Herald’s conduct in placing one of its reporters in the bushes outside Hart’s home, few people argued that the information gained thereby was irrelevant to the public interest, or that it spoke merely to the public’s prurient interest, or that the newspaper had no right to publish it.

It is clear that the Constitution protects newspapers that publish truthful information, however “private,” about “public figures”—including candidates for office. Whether or not such figures entirely surrender any “right to privacy” they might otherwise have, as a practical matter newspapers and other media need not worry that they will face legal sanctions if they reveal indelicate truths. No Supreme Court decision supports privacy claims of public figures seeking political office who object to the disclosure of information that some voter might find relevant to their fitness to serve in office. Recognition of any such privacy rights would disserve the democratic process itself by depriving the public of salient information. “[T]he candidate who vaunts his spotless record and sterling integrity,” Chief Justice William H. *Rehnquist has reiterated, “cannot convincingly cry ‘Foul’ when an opponent or an industrious reporter attempts to demonstrate the contrary,” even if the demonstration involves scrutiny of what might be regarded as one’s “private” life (*Hustler Magazine v. Falwell, 1988, pp. 46, 51, quoting from Monitor Patriot Co. v. Roy, 1971).

The practical loss of privacy rights by public officials turns out also to extend, by and large, to ordinary people, at least if one looks at most of the decided case law. A famous case (p. 785) from half a century ago is exemplary: The New Yorker profiled a former child prodigy in a manner described by a state court as “merciless in its dissection of intimate details of subject’s personal life” and a “ruthless exposure of a once public character who has since sought … the seclusion of private life” (Sidis v. F-R Publishing Co., 2d Circuit, 1940, pp. 806–807). It would be hard to imagine a more sympathetic setting for recognition of a right against invasion of privacy, but even here the magazine was protected because of the “newsworthiness” of the subject. “Newsworthiness” is largely a circular term, standing for public curiosity that may itself be provoked by the newspaper’s dredging up material from the past. (It is unlikely, for example, that any of The New Yorker’s readers had been curious about Mr. Sidis, the ex-prodigy, or had written demanding that the magazine find out what had happened to him.)

That there seems to be little constitutional protection of privacy-as-information-control does not, obviously, negate the force of Fried’s argument. It simply points out the Constitution’s limited scope. Privacy could be protected in many ways through legislative enactments (though such laws might run into constitutional problems if they attempted to limit the power of the press), but the point is that such privacy rights have come to be viewed as matters for legislative decision making rather than judicial determination.

Privacy as a Public Matter.

It is tempting to believe, and the discussion of property began by assuming, that there is a clear demarcation between the realms of “public” and “private.” But even the brief discussion of the constitutional revolution of 1937 should illustrate how much the two are intertwined. As pointed out by theorists identified with “legal realism” or “critical legal studies,” such as Morris R. Cohen and Robert Hale in the past or Gary Peller in the present, what is conceptualized as “private” is the result of an essentially public decision. Even to think of “private property,” for example, requires one to think at the same time of a completely public realm of law that recognizes (and some would say establishes) an assignment of legal rights, to be protected by public force if need be, to certain people who will be called the “owners” of private property. And one of the central meanings of “1937” as a crucial event in American constitutional law is that these assignments are subject to significant changes, as the owners of private businesses discover that they can legitimately be forced, under certain circumstances, to bargain with trade unions or to sell to customers they would prefer not to deal with. To put it mildly, contemporary expectations as to the meaning of private property differ radically from those likely to have been held by property owners a hundred years ago, and there is no reason to believe that private property will have the same social meaning a hundred years from now.

This point can perhaps be made most clearly by reference to a case that explicitly turns on the notion of “expectations.” In *Katz v. United States (1967), the Court extended the Fourth Amendment’s warrant requirement to wiretaps of telephone conversations; American citizens, the majority declared, had a “legitimate expectation” that their conversations would remain private, and violation of this expectation would require the demonstration of probable cause necessary to get a search warrant. As many commentators noted then and since, the Court was not entirely clear about the foundation of the “expectations” that were so important to its decision. Could the government, for example, defeat any such expectations by announcing that no one should, as a practical matter, expect a telephone conversation to be free of being overheard by third parties? Perhaps “expectation” refers instead to what most people believe ought to be the case about their privacy rights, so that the hypothetical government announcement could be defeated by showing that most people do have the expectation suggested and would be outraged if the government began promiscuously to listen to its citizen’s telephone conversations. But what if public opinion changes? Consider the widespread calls for drug tests and tests for the HIV (AIDS) virus, which many view as significant invasions of privacy and presumptively unconstitutional without some showing of specific probable cause. The Court, in two 1989 cases (*National Treasury Employees Union v. Von Raab, which dealt with customs agents, and *Skinner v. Railway Labor Executives Association, which involved railroad engineers), upheld drug tests even without such probable cause. In both cases the Court focused on specific reasons to be especially concerned about the use of drugs by persons in such occupations.

If, however, the public in general comes to believe that the “war on drugs” requires, say, the frequent submission of urine samples, by America’s more than fifteen million public employees, could one then speak of an “expectation” against such governmental intrusion? No one believes that an individual’s idiosyncratic expectation should automatically be recognized. Inevitably, one discovers that the individual’s right of privacy depends on a complex set of social interactions that defeat any easy separation of the public and the private. To the extent that “the public” continues to expect a strong recognition of a “private” realm cut off from ordinary public gaze, that realm will be protected; to the extent that, as with the (p. 786) “traditional” indices of private property, recognition of the claimed privacy right is thought to be too socially costly, then “privacy” will in all likelihood be redefined to exclude the too socially burdensome aspect.

American constitutional jurisprudence is deeply embedded in the liberal political tradition. This assures that the public-private distinction will continue to be a central part of our constitutional schema. There will always be a constitutional “right to privacy,” whoever the members of the Supreme Court might be or whateverthe particular intellectual trends of a given political moment. But its meaning and scope will always be in flux.

See also fundamental rights; natural law.

Ruth Gavison, “Privacy and the Limits of Law,” Yale Law Journal 89 (1980): 421–471. Jennifer Nedelsky, Private Property and American Constitutionalism (1990). Ellen Frankel Paul and Howard Dickman, eds., Liberty, Property, and Government: Constitutional Interpretation Before the New Deal (1989). J. Roland Pennock and John W. Chapman, eds., Nomos XIII: Privacy (1971). Alan Ryan, Property and Political Theory (1984). Ferdinand Schoeman, ed., Philosophical Dimensions of Privacy (1984). William B. Scott, In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (1977). Alan Westin, Privacy and Freedom (1967).

Sanford Levinson