Privacy, right to Summary

  • Last updated on November 11, 2022

Right to solitude, independence, security in one’s own home and possessions, self-determination, and self-definition.

The right to privacy, which is defined in many ways, is not explicitly guaranteed by the Constitution. However, the Supreme Court interpreted many of the amendments of the Bill of Rights as providing some protection to a variety of elements of individual privacy against intrusive government activities. These include the First Amendment freedoms of expression and association, the Third Amendment restriction on quartering of soldiers in private residences, the Fourth Amendment prohibition on unreasonable searches and seizures, the due process clause and guarantee against self-incrimination of the Fifth Amendment, the Ninth and Tenth Amendment reservations of power in the people and the states, and the due process and equal protection clauses of the Fourteenth Amendment.

George Orwell's 1949 novel Nineteen Eighty-Four depicted a grim future world in which civil liberties do not exist and privacy is unknown.

(Museum of Modern Art, Film Stills Archive)

The Court first applied the term “privacy” to interests protected by the Fourth Amendment in Boyd v. United States[case]Boyd v. United States[Boyd v. United States] (1886). More than forty years later, in his dissent in Olmstead v. United States[case]Olmstead v. United States[Olmstead v. United States] (1928), Justice Louis D. Brandeis defined privacy as “the right to be let alone the most comprehensive of rights and the right most valued by civilized men.” The Court adopted Brandeis’s reasoning in Katz v. United States[case]Katz v. United States[Katz v. United States] (1967). The constitutional concept of privacy requires only the federal government not the state governments to refrain from taking actions that would invade protected areas.

The Court found a subjective expectation of privacy encompassed by the Fourth AmendmentFourth Amendment to exist in calls made from a public telephone booth; it also found reasonable expectations of privacy in homes, businesses, hotel rooms, garages, sealed luggage and packages, and drums of chemicals. It declined to find privacy in bank records, voice or writing samples, telephone numbers, conversations recorded by concealed microphones, and automobile passenger compartments, trunks, and glove boxes. The Court also found no Fourth Amendment protection for abandoned or discarded property or for open fields. The definition of a reasonable expectation shifts, depending in part on the importance of the interest against which it is being measured. When motivated by drug and alcohol crackdowns, for example, individual expectations of privacy are minimized in the name of society’s interest in eradicating drug trafficking and driving while intoxicated. The reasonableness standard has been criticized as not keeping pace with the technological revolution.

The First and Fifth Amendments

The First AmendmentFirst Amendment right to privacy is balanced against other First Amendment freedoms, resulting in a guarantee of privacy within the home. However, when privacy rights conflict with free expression, the latter always prevails. Any government effort to protect privacy faces significant First Amendment obstacles. Although freedom of association is not specifically mentioned in the First Amendment, it is generally considered to be implicit in its guarantees. In National Association for the Advancement of Colored People v. Alabama[case]National Association for the Advancement of Colored People v. Alabama[National Association for the Advancement of Colored People v. Alabama] (1958), the Court found that Alabama could not require the National Association for the Advancement of Colored People to publicize its membership lists under First and Fourteenth Amendment protection of freedom of association.

Privacy is considered an aspect of the Fifth Amendment’sFifth Amendment protection against self-incrimination. It is also viewed as an element of the takings clause, in that private property cannot be taken without payment of just compensation.

The Fourth Amendment

The Fourth Amendment protects citizens’ property from seizure by the government and their homes and persons from arbitrary or warrantless searches. The Fourth Amendment recognizes a right of personal privacy and protects against arbitrary intrusions by law enforcement officials. The Framers were sensitive to the need to insulate people from unlimited governmental powers of search and seizure. Writing for the Court in Katz v. United States[case]Katz v. United States[Katz v. United States], Justice Potter Stewart stated that “the Fourth Amendment protects people not places.” He disallowed the placement of a “bug,” or listening device, on the outside of a public telephone booth without first obtaining a warrant. The Court later held that the Fourth Amendment extends to any place or thing in which an individual has a “reasonable expectation of privacy.”

The Fourth Amendment also states that no warrants should be issued without probable cause, a concept without a precise meaning.Search warrant requirement As interpreted by the Court, probable cause means that for a search to be valid, a police officer must have good reason to believe that the search will produce evidence of crime. A search warrant is an order issued by a judge or magistrate authorizing a search. To obtain a warrant, a police officer must take an oath or sign an affidavit attesting to certain facts that constitute probable cause to support issuance of a warrant. To maintain the integrity of the Fourth Amendment, the Court charges a neutral and detached magistrate with issuance of warrants that are to describe with particularity the place to be searched and the persons or things to be seized. Police often use tips provided by confidential informants to obtain search warrants. This area is one of the most controversial concerning information provided by anonymous sources. The Court held that a “totality of circumstances” standard would govern permissive reliance by police on anonymous tips.

Under federal law, officers are required to knock and announce their arrival at the place to be searched in order to reduce the potential for violence and to protect the occupants’ right of privacy. In Wilson v. Arkansas[case]Wilson v. Arkansas[Wilson v. Arkansas] (1995), the Court determined that officers facing exigent circumstances situations in which they risked losing evidence that is destroyed or disposed of easily could dispense with the knock and announce requirement. In Richards v. Wisconsin[case]Richards v. Wisconsin[Richards v. Wisconsin] (1997), however, the Court ruled unanimously that states may not create a blanket “drug exception” to the requirement that police officers knock and announce before executing a search warrant.

The Court held that certain exceptional situations do not require warrants before conducting a search. Searches in which a warrant is not necessary include searches incidental to a lawful arrest (Chimel v. California[case]Chimel v. California[Chimel v. California], 1969), consensual searches (Schneckloth v. Bustamonte[case]Schneckloth v. Bustamonte[Schneckloth v. Bustamonte], 1973), plain view searches (Coolidge v. New Hampshire[case]Coolidge v. New Hampshire[Coolidge v. New Hampshire], 1971), searches conducted as part of a hot pursuit (Warden v. Hayden[case]Warden v. Hayden[Warden v. Hayden], 1967), searches involving evanescent evidence (Schmerber v. California[case]Schmerber v. California[Schmerber v. California], 1966), and emergency searches (Michigan v. Tyler[case]Michigan v. Tyler[Michigan v. Tyler], 1978). In California v. Acevedo[case]California v. Acevedo[California v. Acevedo] (1991), the Court clarified the scope of a warrantless search regarding automobiles. It held that whether the search is of an automobile or any other place, the nature of its object is more important than the nature of the space being searched. Every part of an automobile can be searched, including closed containers.

Personal Autonomy

The constitutional right of privacy, which began to take shape in the mid-1960’s, came to include the freedom of the individual to make fundamental choices involving sex, reproduction, family life, and other intimate personal relationships. It is this aspect of the right of privacy that is the most intensely disputed and hotly contested. Procreation was ruled a basic civil right by the Court in Skinner v. Oklahoma[case]Skinner v. Oklahoma[Skinner v. Oklahoma] (1942). The marital relationship was viewed as being within a zone of privacy protected by the Ninth Amendment in Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut] (1965). It was that same right of privacy that the Court used to determine that a woman had the right to choose to terminate a pregnancy in Roe v. Wade[case]Roe v. Wade[Roe v. Wade] (1973). Claims of reproductive freedom extended to four aspects of reproduction: conception, gestation, labor, and child rearing.

Griswold held that a Connecticut law forbidding use of contraceptives by married couples intruded on the right of marital privacy implicitly guaranteed in the Constitution. In this case, the Court first formally recognized a constitutional right of privacy. It then remained for the Court to define that right. Justice William O. DouglasDouglas, William O., writing for the majority, recognized that because the marital relationship lay within a zone of privacy derived from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, it should be protected from state and federal interference. Douglas termed marriage “an association that promotes a way of life.” A law forbidding use of contraceptives rather than their manufacture or sale, he concluded, seeks to achieve its goals by means that have a maximum destructive impact on the relationship between husband and wife. Such a law was unacceptable. In Eisenstadt v. Baird[case]Eisenstadt v. Baird[Eisenstadt v. Baird] (1972), the Court invalidated a ban on distribution of contraceptives to unmarried people; in Carey v. Population Services International[case]Carey v. Population Services International[Carey v. Population Services International] (1977), the Court removed limitations on the sale of contraceptives to minors.

Roe v. Wade, a 7-2 decision, extended the right of privacy to a woman’s decision to terminate her pregnancy. Because that right was fundamental, the Court reasoned, only the most compelling reasons permit government interference with the exercise of that right. The Court also ruled that an unborn fetus is not a person entitled to Fourteenth Amendment guarantees of life and liberty because the word “person” in that amendment is used in the postnatal sense only. For ease of reference, the Court divided pregnancy into “trimesters,” three periods of about three months each. During the first trimester, the woman, in consultation with her physician, can decide whether to terminate her pregnancy, without government interference. During the second, the government can regulate abortion only to preserve and protect the health of the woman. During the third trimester, when the fetus is viable, or capable of meaningful life outside the womb, the government’s interest in protecting fetal life becomes more compelling. Only then can the government ban abortion. The Court found that although the government does have an interest in protecting prenatal life, that interest must be balanced against a woman’s right to privacy, which is broad enough to protect a woman’s exclusive claim to her body.

In the next two decades, the Court reviewed a number of cases in which state and local governments imposed various restrictions on abortion. During the 1970’s most of these restrictions were declared unconstitutional. As the composition of the Court grew more conservative in the 1980’s, however, many restrictions were viewed more favorably. In Webster v. Reproductive Health Services[case]Webster v. Reproductive Health Services[Webster v. Reproductive Health Services] (1989), for example, the Court upheld a Missouri statute imposing significant limitations on the performance of abortions, including a ban on use of public funds, employees, or facilities to counsel a woman about abortion as an option or to perform abortions not necessary to save the mother’s life. The future of abortion as an alternative appeared tenuous. However, in Planned Parenthood of Southeastern Pennsylvania v. Casey[case]Planned Parenthood of Southeastern Pennsylvania v. Casey[Planned Parenthood of Southeastern Pennsylvania v. Casey] (1992), the Court basically reaffirmed Roe but gave the states broader latitude in regulating access to abortion.

Other Privacy Interests

In Moore v. City of East Cleveland[case]Moore v. City of East Cleveland[Moore v. City of East Cleveland] (1977), the Court applied the right of privacy in reviewing city ordinances governing residential land use, stressing freedom of choice in matters of marriage and family life. In Bowers v. Hardwick[case]Bowers v. Hardwick[Bowers v. Hardwick] (1986), however, in a 5-4 decision, the Court placed limitations on privacy when it declined to extend the right to privacy to homosexuals engaging in consensual sodomy in their homes. Justice Lewis F. Powell, Jr., subsequently expressed reservations about his vote in that case, admitting that he probably “made a mistake.”

Further Reading
  • An ideal starting point for research into this subject is Kevin M. Keenan’s Invasion of Privacy: A Reference Handbook (Santa Barbara, Calif.: ABC-Clio, 2005). Kermit L. Hall’s Conscience, Expression, and Privacy (New York: Garland, 2000) examines how the Supreme Court has treated the concept of the right to privacy. Among other engaging books on the subject are Charles Sykes’s The End of Privacy: The Attack on Personal Rights at Home, at Work, On-Line, and in Court (New York: St. Martin’s Press, 1999), Richard A. Glenn’s The Right to Privacy: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003), and Suzanne U. Samuels’s First Among Friends: Interest Groups, the U.S. Supreme Court, and the Right to Privacy (Westport, Conn.: Praeger, 2004). Privacy is extensively treated in constitutional law and civil liberties textbooks. Ellen Alderman and Caroline Kennedy’s The Right to Privacy (New York: Alfred A. Knopf, 1995) treats privacy in the context of various scenarios and is well written and easy to understand. In The Limits of Privacy (New York: Basic Books, 1999), Amitai Etzioni argues that privacy should not be regarded as an individual right or given a privileged status in formulation of public policy but be viewed as one good among many. This is a well-written book for those interested in political science or public policy. In Privacy in the Information Age (Washington, D.C.: Brookings Institution, 1997), Fred H. Cate discusses privacy in the United States and compares it with privacy in Europe. The book encompasses the public sector, the private sector, and electronic privacy and contains discussions about notable cases. Priscilla M. Regan’s Legislating Privacy: Technology, Social Values, and Public Policy (Chapel Hill: University of North Carolina Press, 1995) examines public policy in information privacy (computerization), communication privacy (wiretapping), and psychological privacy (polygraphs).

Abortion

Automobile searches

Birth control and contraception

First Amendment

Fourteenth Amendment

Fourth Amendment

Gay and lesbian rights

Marriage

Ninth Amendment

Search warrant requirement

Takings clause

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