The Yale Law Journal Vol. 82: 1462, 1973 fessor Emerson, who argued the case for the Griswold plaintiffs before the Supreme Court, that only a newly declared constitutional right which "cuts across" other constitutional rights can adequately protect individual privacy.68 The First, Fourth, Fifth, Ninth and Fourteenth Amendment argument of Griswold-perhaps streamlined in Roe v. Wade to a Fourteenth Amendment argument alone69-presents the advantage of breadth. However, the definitions of privacy which the Griswold approach offers are at best descriptions of a widely shared emotional attitude.70 Analytically, the reasoning of Griswold and Wade offers no guidance for separating what privacy is from what it is not; it offers no generalizable definition of the right it is used to protect. Indeed, the extreme breadth of the Griswold analysis has produced utmost caution in courts called on to apply it,"1 and even Wade extends the resulting right only within the area of intimate bodily conduct. Confining the right to privacy inside that area is sanctioned by custom, but not by anything in the reasoning of the decisions. An alternative to the form of argument which identifies privacy as a wholly new constitutional right is one which discovers that privacy. is incident to a constitutional right already well established. If that established right is to be fully realized, the argument runs, privacy in some form must be protected. Each of the doctrines which Douglas col 68. T. EMERSON, supra note 7, at 556. Professor Emerson's brief in Griswold invoked the First Amendment in support of a constitutional right to privacy, but it did so only in a limited context. Brief for Appellants at 79-80, Griswold v. Connecticut, 381 U.S. 479 (1965). There is no suggestion that a constitutional right to privacy might rest on the First Amendment or its system of freedom of expression; indeed, the First Amendment was not included in the summary list of constitutional provisions from which a right to privacy was said to emanate. Id. at 12. 69. Roe v. Wade, 93 S. Ct. 705, 727, 733-36 (1973) (Stewart, J., concurring); id. at 755 (Burger, C.J., concurring). But cf. id. at 737-39 (Rehnquist, J., dissenting). Two of the Griswold opinions also located the right to privacy under the Due Process Clause of the Fourteenth Amendment. 381 U.S. at 499-500 (Harlan, J., concurring); id. at 502-03 (White, J., concurring). 70. The most familiar such definition of privacy is "the right to be let alone." See, e.g., Griswold v. Connecticut, 381 U.S. 479, 494 (Goldberg, J., concurring), quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Justice Goldberg offers another in Griswold: "the integrity of [family] life." 381 U.S. at 495. Cf. Justice Black's attack in Griswold on the dangers of defining privacy too narrowly, 381 U.S. at 509 (dissenting opinion). More usually, the Court's attempted definitions of privacy reflect only the Court's own sense that the subject is important. Examples of these include "the right most valued by civilized men," Griswold, 381 U.S. at 494 (Goldberg, J., concurring), quoting Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting); "a right older than the Bill of Rights," Griswold, 381 U.S. at 486; and "personal rights 'implicit in the concept of ordered liberty," Roe v. Wade, 93 S. Ct. at 726, quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937). 71. See T. EMERSON, supra note 7, at 557. Cf. Hufstedler, The Directions and Misdirections of a Constitutional Right of Privacy, 26 RECORD OF N.Y.C.B.A. 546, 559 n.59 (1971). Privacy in the First Amendment lected in Griswold offers such an analysis.72 And though Griswold may stand for the proposition that no one of them alone is adequate to support a right to privacy,73 one in particular has seemed promising. In her 1971 Cardozo Lecture, Judge Shirley Hufstedler set out an argument for deriving a broad constitutional protection of privacy from the Fourth Amendment prohibition of unreasonable searches and seizures. Judge Hufstedler argued that the Fourth Amendment (and to a lesser extent the Fifth as well) was drafted to prevent penetrations of individual privacy, and that to realize that goal a broad interpretation should be given to the words "searches and seizures." Were that course taken, any governmental probe, corporeal or incorporeal, designed to uncover or to disclose information about a person would be a "search." The question whether the search was permissible would turn on its reasonableness.75 In effect, Judge Hufstedler proposed a constitutional analogue to the torts of intrusion and appropriation. A Fourth Amendment "right to privacy," however, does not protect the substance of one's privacy; it merely prevents certain methods of obtaining that substance." A reasonable search or seizure would presumably be constitutional no matter what the content of the private information revealed, nor would the content of that information necessarily affect the judgment of what is reasonable. In other words, the Fourth Amendment offers no definition of the content of its right to privacy, other than a reflexive one: it is that which is violated by an unreasonable search or seizure. Although the Supreme Court has repeatedly denied that the Fourth Amendment protects the privacy of places rather than people, it has yet to produce a Fourth Amendment holding which does not depend on the nature of the place where the unreasonable search or seizure took place. To the extent that privacy 72. These include the types of privacy protected by the First, Third, Fourth and Fifth Amendments, 381 U.S. at 484. Douglas seems to gloss over the Due Process Clause of the Fourteenth Amendment. Id. at 482. He does not do more with the Ninth Amendment than to quote it. Id. at 484. 73. The First Amendment rights which Douglas recounts-freedom of schooling and freedom of association-are subordinate to the express free speech guarantee, and they act to secure it. The Third Amendment protects the privacy of the home, if at all, only against the specific threat of being forced to quarter soldiers in peacetime. The Fourth Amendment protects privacy only as an incident to the prohibition against unreasonable searches and seizures. The Fifth Amendment's "zone of privacy" is subordinate to the operation of the Self-Incrimination Clause. 74. Hufstedler, supra note 71. 75. Id. at 561-62. 76. See, e.g., United States v. White, 401 U.S. 745, 751, 752 (1971). 77. See Katz v. United States, 389 U.S. 347, 350 (1967). The Yale Law Journal Vol. 82: 1462, 1973 means something other than that which happens in private places, a Fourth Amendment rationale is inadequate to protect it.78 Both the Griswold doctrine and the narrower doctrines which go to make it up reflect the Supreme Court's concern with the protection of individual privacy, and all of them help to protect privacy to some extent. But each fails to provide an adequate concept of the nature of privacy: how it arises, and what its characteristics are. Until the Court can say what privacy is, at least in conceptual terms, constitutional protection of privacy will be haphazard. IV Although the First Amendment analysis of the public disclosure tort generates a conception of privacy which comes closer than the concep tions of current tort and constitutional law to describing what privacy is and to making it susceptible to the application of legal doctrine, the claim which results is limited. The analysis discovers only a constitutional interest in privacy, not a constitutional right to have it protected in all cases. It does not yield a "First Amendment right to privacy” which can be placed next to the constitutional privacy rights which already exist.79 The first drawback to asserting the interest as a “right” is the narrow boundary within which it can be applied. It arises only within the constitutional structure of a free expression system. And in every case of public disclosure, the publisher has access to free expression claims which also serve the system. Since the individual's privacy is secured only at the expense of the free speech right of the publisher, it cannot grow too large. The First Amendment privacy interest is only in preventing the identification of an individual with information published, 78. This proposition might appear to be contradicted by Katz v. United States, which extended protection to a public telephone booth. But the Court held that Katz was protected against being overheard in a public telephone booth because he "justifiably relied" on the booth to protect his privacy; in other words, he temporarily constituted a private space from an apparently public one. Id. at 352-53. The distinction is made clearer in United States v. White, 401 U.S. 745 (1971), in which the Court held that Katz did not apply to an informer who takes a concealed transmitter into a suspect's home. Though the suspect obviously relied on the privacy of his home in talking to the informer, the Court found his reliance unreasonable. Id. at 753. Under the Fourth Amendment, privacy seems to depend on what one ought to expect about the characteristics of one's surroundings. If, on the other hand, the Court in White was considering privacy to be the control of information about oneself, its holding means that limited dissemination of information about oneself is unprotected; if you tell one person, everyone has a right to know. But recall Fried's discussion of the value of being able to limit the sharing of private information, note 61 supra. 79. For a summary of the Court's many constitutional privacy rights, see Roe v. Wade, 93 S. Ct. 705, 726-27 (1973). Privacy in the First Amendment and even then only after weighing the net effect on the free expression system.80 83 The second drawback is a state action problem. Since it is a private publisher who most often threatens to infringe individual privacy through a publication, the individual probably cannot assert his constitutional claim against that publisher directly; 81 he must rely on the indirect protection of a common law tort suit,82 after the offending publication. Moreover, not all states recognize a public disclosure tort in their common law; 84 in those which do not, the individual would have no mechanism at all through which to assert his claim for protection. A "First Amendment right to privacy" would thus depend for its existence on state courts or legislatures, a situation which the Court-if it were to recognize the "right" at all-would be unlikely to find satisfactory.85 Though a First Amendment analysis does not by itself justify the enforcement of a constitutional right to privacy, it nevertheless underscores the weaknesses of existing constitutional privacy doctrine. The analysis directs attention to the one form of privacy which the law, both common and constitutional, has so far been unable to protect successfully: the non-corporeal, non-quantifiable right to control of information about oneself, based on the content of the information rather 80. See pp. 1470-72 supra. 81. If a state agency is the publisher, presumably the publication is state action. See, e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-26 (1961). In that event, the individual could assert his First Amendment rights against the state directly, claiming state inhibition of his freedom of decision-making. 82. If the public disclosure tort were codified in state statute, it might be argued that a refusal by state courts to enforce the resulting state right of privacy might itself be sufficient state action to create federal jurisdiction. At present, however, the public disclosure tort exists only at common law. See generally W. PROSSER, THE LAW OF Torts § 117, at 809-12 (4th ed. 1971). 83. Nothing in this discussion is intended to suggest the propriety of a prior restraint of the publisher. Cf. Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Near v. Minnesota, 283 U.S. 697 (1931). See also New York Times Co. v. United States, 403 U.S. 713 (1971). The individual's dependence on state laws to protect his federal constitutional rights is less startling than it seems; even the right to free speech depends to an extent on state laws prohibiting, for example, assault and battery. If a speaker were not protected by state law against being pummeled every time he opened his mouth, or if a newspaper or radio station could not use state law to prevent its equipment from being destroyed by a displeased audience, freedom of speech and of the press would be ef fectively curtailed. 84. The number of states which recognize something like a public disclosure tort is uncertain. See note supra. Some states, however, explicitly refuse to do so. New York, for example, has consistently refused to recognize such a right since the decision of Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902); instead the state legislature passed a statute, N.Y. Civ. RIGHTS LAW §§ 50, 51 (McKinney 1948), which more nearly fits the pattern of an appropriation tort. See Prosser, supra note 1, at 401. Cf. Time, Inc. v. Hill, 385 U.S. 374, 411-20 (1967) (Fortas, J., dissenting). 85. Cf. Rosenblatt v. Baer, 383 U.S. 75, 84 (1965), citing Pennekamp v. Florida, 328 U.S. 331, 335 (1946). 37-583 - 74 pt. 25 The Yale Law Journal Vol. 82: 1462, 1973 than the circumstances of its escape from one's control. Furthermore, the analysis suggests how privacy in that form might be integrated into a system of constitutional rights. The focus on the importance for privacy of information qua information, without regard to whether its content is specifically sexual or not, is perhaps the distinguishing contribution to privacy analysis of the First Amendment approach. A First Amendment analysis of privacy teaches that an application of First Amendment guarantees exclusively to speakers will not adequately protect a free expression system; decision-makers must be sheltered, too. For the protection of privacy, the analysis yields a constitutional interest which cannot always be vindicated because it must compete with conflicting constitutional interests arising from the same logic. Yet it is the nature of privacy to be entangled with other social interests and values; 86 privacy in law cannot be less entangled with and compromised by other legal goals. The First Amendment analysis of privacy makes these entanglements and compromises explicit. 86. See, e.g., Simmel, supra note 58. Law School of Harvard University Cambridge, Mass. 02138 July 9, 1974 Senator Sam J. Ervin United States Senate Dear Senator Ervin: Your letter of June 25 concerning S. 3418 and related bills dealing with privacy arrived at a time when I am too heavily committed on other matters to undertake a detailed analysis of the proposed legislation. This I very much regret, since I am most interested in the subject matter. I enclose a copy of an article on the subject which |