The Right to Privacy

The Right to Privacy

The Right to Privacy was an article that advocated for the protection of a citizen’s private matters.

Learning Objectives

Examine the historical roots of the right to privacy as a legal concept

Key Takeaways

Key Points

  • The right to privacy noted that it had been found necessary to define anew the exact nature and extent of the individual’s protections of person and property. It stated that the scope of such legal rights broadened over time to now include the right to enjoy life and be let alone.
  • The article notes that defenses within the law of defamation, the truthfulness of the information published, or the absence of the publisher’s malice, should not be defenses.
  • Although the word “privacy” is actually never used in the text of the United States Constitution, there are Constitutional limits to the government ‘s intrusion into individuals’ right to privacy.

Key Terms

  • common law: A legal system that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions.
  • tort: A wrongful act, whether intentional or negligent, that causes an injury and can be remedied at civil law, usually through awarding damages. A delict.
  • law of defamation: In the United States, a comprehensive discussion of what is and is not libel or slander is difficult because the definition differs between different states. Some states codify what constitutes slander and libel together into the same set of laws.

Background

United States privacy law embodies several different legal concepts. One is the invasion of privacy. It is a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain.

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Harvard Law Review, Right to Privacy: The Right to Privacy was published at the Harvard Law Review in 15 December, 1890.

The Right to Privacy is a law review article written by Samuel Warren and Louis Brandeis. It was published in the 1890 Harvard Law Review. It is one of the most influential essays in the history of American law. The article is widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a right to be left alone. It was written primarily by Louis Brandeis although credited to both men, on a suggestion of Warren based on his deep-seated abhorrence of the invasions of social privacy. William Prosser, in writing his own influential article on the privacy torts in American law, attributed the specific incident to an intrusion by journalists on a society wedding. However, in truth it was inspired by more general coverage of intimate personal lives in society columns of newspapers.

Defining the Necessity of the Right to Privacy

The authors begin the article by noting that it has been found necessary from time to time to define anew the exact nature and extent of the individual’s protections of person and property. The article states that the scope of such legal rights broadens over time — to now include the right to enjoy life — the right to be left alone.

Then the authors point out the conflicts between technology and private life. They note that recent inventions and business methods, such as instant pictures and newspaper enterprise have invaded domestic life, and numerous mechanical devices may make it difficult to enjoy private communications.

The authors discuss a number of cases involving photography, before turning to the law of trade secrets. Finally, they conclude that the law of privacy extends beyond contractual principles or property rights. Instead, they state that it is a right against the world.

Remedies and Defenses

The authors consider the possible remedies available. They also mention the necessary limitations on the doctrine, excluding matters of public or general interest, privileged communications such as judicial testimony, oral publications in the absence of special damage, and publications of information published or consented to by the individual. They pause to note that defenses within the law of defamation — the truthfulness of the information published or the absence of the publisher’s malice — should not be defenses. Finally, they propose as remedies the availability of tort actions for damages and possible injunctive relief.

Modern Tort Law

In the United States today, “invasion of privacy” is a commonly used cause of action in legal pleadings. Modern tort law includes four categories of invasion of privacy:

  • Intrusion of solitude: physical or electronic intrusion into one’s private quarters
  • Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
  • False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory
  • Appropriation: the unauthorized use of a person’s name or likeness to obtain some benefits.

Constitutional basis for right to privacy

The Constitution only protects against state actors. Invasions of privacy by individuals can only be remedied under previous court decisions.

The Fourth Amendment to the Constitution of the United States ensures the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The First Amendment protects the right to free assembly, broadening privacy rights. The Ninth Amendment declares the fact that if a right is not explicitly mentioned in the Constitution it does not mean that the government can infringe on that right. The Supreme Court recognized the 14th Amendment as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in Griswold v. Connecticut, a 1965 decision protecting a married couple’s rights to contraception. It was recognized again in 1973 Roe v. Wade, which invoked the right to privacy in order to protect a woman’s right to an abortion.

Privacy Rights and Abortion

Abortion rights are can be determined by state courts and the Supreme Court and still continues to be a highly debated right for women.

Learning Objectives

Identify the legal court cases that established abortion as a right to privacy and discuss the recent cases and policies that have challenged individuals’ legal right to abortion

Key Takeaways

Key Points

  • Abortion in the United States has been legal in every state since the 1973 Supreme Court decision Roe v. Wade. Prior to the ruling, the legality of abortion was decided by each state; it was illegal in 30 states and legal under certain cases in 20 states.
  • The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a federal law entitled the Partial-Birth Abortion Ban Act of 2003, which President George W. Bush had signed into law.
  • Voter opposition to these ballot initiatives has proven to be far stronger than the support, despite the fact that American citizens poll as being much more evenly divided on the issue of abortion.

Key Terms

  • trigger laws: It is a nickname for a law that is unenforceable and irrelevant in the present, but may achieve relevance and enforceability if a key change in circumstances occurs.

Background

Abortion in the United States has been legal in every state since the 1973 Supreme Court decision Roe v. Wade. Prior to the ruling, the legality of abortion was decided by each state; it was illegal in 30 states and legal under certain cases in 20 states. Roe established that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

Before Roe v. Wade, abortion was legal in several areas of the country, but that decision imposed a uniform framework for state legislation on the subject, and established a minimal period during which abortion must be legal (under greater or lesser degrees of restriction throughout the pregnancy). That basic framework, modified in Casey, remains nominally in place, although the effective availability of abortion varies significantly from state to state. Abortion remains one of the most controversial topics in United States culture and politics.

Later judicial decisions

In the 1992 case of Planned Parenthood v. Casey, the Court abandoned Roe’s strict trimester framework. Instead adopting the standard of undue burden for evaluating state abortion restrictions, but reemphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution: “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law. ” The controlling word in the cases before us is “liberty. ”

The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a federal law entitled the Partial-Birth Abortion Ban Act of 2003, which President George W. Bush had signed into law. The law banned intact dilation and extraction, which opponents of abortion rights referred to as “partial-birth abortion,” and stipulated that anyone breaking the law would get a prison sentence up to 2.5 years. The United States Supreme Court upheld the 2003 ban by a narrow majority of 5-4, marking the first time the Court has allowed a ban on any type of abortion since 1973. Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and Chief Justice John Roberts, joined the swing vote, which came from moderate justice Anthony Kennedy.

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Signing the Partial-Birth Abortion ban.: The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls “partial-birth abortion”, often referred to in medical literature as intact dilation and extraction.

State-by-state legal status

Various states have passed legislation on the subject of feticide. On March 6, 2006, South Dakota Governor Mike Rounds signed into law a pro-life statute, which made performing abortions a felony, and that law was subsequently repealed in a November 7, 2006 referendum. On February 27, 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation. Several states have enacted trigger laws, which would take effect if Roe v. Wade were overturned. North Dakota HB 1572 or the Personhood of Children Act, which passed the North Dakota House of Representatives on February 18, 2009, but was later defeated in the North Dakota Senate, aimed to allocate rights to the pre-born, partially born, and if passed, would likely have been used to challenge Roe v. Wade.

Voter opposition to these ballot initiatives has proven to be far stronger than the support, despite the fact that American citizens poll as being much more evenly divided on the issue of abortion. Other states are considering personhood amendments banning abortion, some through legislative methods and others through citizen initiative campaigns. Among these states are Florida, Ohio, Georgia, Texas, and Arkansas.

Privacy Rights and National Security

National security practices impact privacy rights for the well-being and domestic security of the United States.

Learning Objectives

Explain the underlying tension between national security and civil liberties, identifying the historical roots and institutionalization of the concept of national security

Key Takeaways

Key Points

  • The U.S. National Security Act of 1947 was set up to advise the President on the integration of domestic, military and foreign policies relating to national security.
  • The measures adopted to maintain national security has led to ongoing dialectic on the role of authority in matters of civil and human rights.
  • If the exercise of national security laws is not subject to good governance, the rule of law, and strict checks and balances, national security may simply serve as a pretext for suppressing unfavorable political and social views.

Key Terms

  • dystopia: A miserable, dysfunctional state or society that has a very poor standard of living.
  • rule of law: The doctrine that no individual is above the law and that everyone must answer to it.
  • Orwellian: An over-controlling government that interferes in nearly every aspect of personal life. The term refers to George Orwell, the author of the fictional 1984, written in 1949, which predicted a future with a “big brother” government.

Background

The concept of national security became an official guiding principle of foreign policy in the United States when U.S. President Harry S. Truman signed the National Security Act of 1947 on July 26, 1947.

Together with its 1949 amendment, this act stood as the precursor to the Department of Defense. It also established the National Security Council and the Central Intelligence Agency, while subordinating the military branches to the Secretary of Defense. The Act did not define national security. Its ambiguity made it a powerful phrase to invoke whenever issues threatened by other interests of the state came up for discussion and decision.

The realization that national security encompasses more than just military security was present early on. The U.S. National Security Act of 1947 was set up to advise the President on the integration of domestic, military and foreign policies relating to national security.

Rights and Freedoms Under National Security

The measures adopted to maintain national security in the face of threats to society has led to ongoing dialectic, particularly in liberal democracies, on the appropriate scale and role of authority in matters of civil and human rights.

Tension exists between preservation of rights and freedoms of individuals. Although national security measures are imposed to protect society as a whole, many such measures will restrict the rights and freedoms of all individuals in society. The concern is that where the exercise of national security laws is not subject to good governance, the rule of law, and strict checks and balances, national security may simply serve as a pretext for suppressing unfavorable political and social views. Taken to its logical conclusion, this view contends that measures like mass surveillance and censorship of mass media could ultimately lead to an Orwellian dystopia.

In the United States, the politically controversial USA Patriot Act and other government action has raised two main questions – to what extent should individual rights and freedoms be restricted and can the restriction of civil rights for the sake of national security be justified?

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Bush signs USA PATRIOT Improvement and Reauthorization Act: United States President George W. Bush shakes hands with U.S. Senator Arlen Specter after signing H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005 in the East Room of the White House

Privacy Rights and the Right to Die

There is a wide range of public opinion about the right-to-die movement in the United States, yet It is only legal in a few states.

Learning Objectives

Compare and contrast euthanasia and physician aid-in-dying

Key Takeaways

Key Points

  • The key difference between euthanasia and PAD is in who administers the lethal dose of medication. Euthanasia requires the physician or another third party to administer the medication.
  • The process of physician assisted suicide, set forth in law, includes requirements that the patient must be of sound mind when requesting assisted suicide as confirmed by a doctor and other witnesses, and the patient must be diagnosed with a terminal illness.
  • The Oregon Death with Dignity Act and the Washington statute modeled after it, set certain requirements and safeguards before a person may commit suicide with a doctor’s assistance. The patient must be of sound mind when they request a prescription for a lethal dose of medication.

Key Terms

  • Euthanasia: The act of putting a person or animal to death painlessly or allowing death if suffering from an incurable and painful condition.

Background

Euthanasia is illegal in all states of the United States. Physician aid-in-dying (PAD), or assisted suicide, is legal in the states of Washington, Oregon, and Montana. The key difference between euthanasia and PAD is who administers the lethal dose of medication. Euthanasia requires the physician or another third party to administer the medication, whereas PAD requires the patient to self-administer the medication and to determine whether and when to do this. Attempts to legalize PAD resulted in ballot initiatives and “legislation bills” in the United States in the last 20 years, as follows.

  • Voters in the state of Washington saw Ballot Initiative 119 in 1991.
  • The state of California placed Proposition 161 on the ballot in 1992.
  • Oregon voters passed Measure 16 (Death with Dignity Act) in 1994.
  • The state of Michigan included Proposal B in their ballot in 1998.
  • Washington’s Initiative 1000 passed in 2008.

Public Opinion on Euthanasia in the United States

There is a wide range of public opinion about euthanasia and the right-to-die movement in the United States, which reflects their religious and cultural diversity. During the past 30 years, public opinion research shows that views on euthanasia tend to correlate with religious affiliation and culture, though not gender.

Assisted Suicide in the United States

Physician-assisted suicide in the United States is legal in the states of Oregon, Montana, and Washington. The process is set forth in law, including the requirements that the patient must be of sound mind when requesting assisted suicide, as confirmed by a doctor and other witnesses. The patient must also be diagnosed with a terminal illness.

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Map of USA highlighting euthanasia states: Map of the United States highlighting states and districts with legalized physician-assisted suicide.

The Oregon Death with Dignity Act and the Washington statute modeled after it, set certain requirements and safeguards before a person may commit suicide with a doctor’s assistance. The patient must be of sound mind when they request a prescription for a lethal dose of medication. Two doctors must confirm a diagnosis of terminal illness with no more than six months to live. Two witnesses, one non-doctor unrelated to the patient, must confirm the patient’s request, and the patient must make a second request after 15 days.

Privacy Rights and Sexuality

Rights to sexuality allow people in the United States to express sexual orientation without discrimination.

Learning Objectives

Identify the legal cases and national legislation that protects people on the grounds of sexual orientation

Key Takeaways

Key Points

  • The right to sexuality, and to freedom from discrimination on the grounds of sexual orientation, is based on the universality of human rights belonging to every person by virtue of being human.
  • Same-sex sexual acts between consenting adults of the same sex (depending on the age of consent in each state, varying from age 16 to 21), and adolescents of a close age, have been legal nationwide in the U.S. since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas.
  • Hate crimes based on sexual orientation or gender identity are punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.

Key Terms

  • sexual orientation: It describes an enduring pattern of attraction—emotional, romantic, sexual, or some combination of these—to the opposite sex, the same sex, or both sexes, and the genders that accompany them.

Background

The right to sexuality incorporates the right to express one’s sexuality, and to be free from discrimination on the grounds of sexual orientation. It specifically refers to the protection of the rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people (although it is equally applicable to heterosexuality). The right to sexuality, and to freedom from discrimination on the grounds of sexual orientation, is based on the universality of human rights belonging to every person by virtue of being human.

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Transgender Symbol: From the female and male symbols. Intersexual or transgender.

The right to sexuality does not exist explicitly in international human rights law; rather, it is found in a number of international human rights instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

LGBT Rights in the United States

Lesbian, gay, bisexual, and transgender rights in the United States have evolved over time and vary on a state-by-state basis. Sexual acts between consenting adults of the same sex (depending on the age of consent in each state, varying from age 16 to 21), and adolescents of a close age, have been legal nationwide in the U.S. since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas.

Twenty-one states plus Washington, D.C. outlaw discrimination based on sexual orientation, and sixteen states plus Washington, D.C. outlaw discrimination based on gender identity or expression. Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.

Adoption policies in regard to LGBT parents also varied greatly from state to state, but since March 2016, a federal judge in Mississippi overturned the last remaining state law that prohibited such adoptions.