Privacy

Plato, the Greek philosopher of the fourth century b.c.e., warned in The Laws that a citizen's private life was a proper subject for legislation. But today most nations recognize various aspects of individuals' right of privacy. English courts, for example, have held that if no common law remedy for an invasion of privacy exists, then courts of equity—a more flexible branch of English jurisprudence—may be invoked for protection. [Page p377]The constitutions of many other nations, Israel (1948) and Croatia (1990) among them, expressly guarantee their citizens' the right of privacy. The U.S.. Constitution does not directly address such a right, but the Supreme Court has derived it by implication from other language in the document.

In 1890 Louis D. Brandeis (1856–1941) coauthored an article in which the phrase “the right to be let alone” appeared. Thirty-eight years later, in a dissent in Olmstead v. United States (1928) when he was a justice on the Supreme Court, Brandeis expounded on the meaning of the Declaration of Independence's famous phrase, “Life, Liberty and the pursuit of Happiness”: “The makers of our Constitution,” he said, “… 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.”

This right to be left alone—the right of privacy—was finally recognized by the Supreme Court in the landmark case Griswold v. Connecticut (1965). In his decision for the Court, which struck down a state criminal law prohibiting the use of contraceptives, Justice William O. Douglas (1898–1980) emphasized that the contested law “operates directly on an intimate relation of husband and wife and their physician's role” in that relationship. The right of privacy, Douglas explained, exists in the penumbras (secondary shadows) and emanations of the First, Third, Fourth, Fifth, and Ninth Amendments of the Bill of Rights (1791). The First Amendment's right of association (see Assembly and Association) protects the marital relationship, while a basis for a right of privacy can be found in the Third and Fourth Amendment guarantees against invasions of one's home (see Search and Seizure) and in the Fifth Amendment's concern for due process of law before citizens are deprived of their liberty; the Ninth Amendment underscores that all residual rights are retained by the people.

The newly acknowledged right of privacy led to another landmark decision of the Supreme Court—Roe v. Wade (1973), which upheld a woman's right to an abortion during the first three months of pregnancy—and a number of cases stemming from that decision. Expanding on Griswold in a case in which Massachusetts prohibited the distribution of contraceptives to unmarried persons, Justice William J. Brennan (1906–97) declared in Eisenstadt v. Baird (1972) that if “the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

In Katz v. United States (1967), the Supreme Court created the “reasonable expectation of privacy” test and found that wiretapping a public telephone booth was unconstitutional. In 1977 the Court explained that privacy rights involve two types of interests: those of individuals who want to make important decisions about their own lives (as in Griswold and Roe) and those of individuals in avoiding personal disclosures (as in Katz). The right of privacy is thus sometimes a personal right and sometimes related to a place, such as the home or a public telephone booth. With respect to sexual privacy, however, the Supreme Court in Bowers v. Hardwick (1986) upheld a Georgia law that made sodomy a crime applicable to consenting homosexual adults (see Homosexuals) because homosexuality bore no relationship to “family, marriage or procreation,” on which privacy rights were based.

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