Privacy is something cherished by almost all Americans. It is the right to live life without the government prying into what we dohe right to be let alone. Privacy allows us to develop into individuals with our own thoughts, beliefs, hopes, and dreams. It permits us to decide how to live our lives in our own homes. Privacy allows adults to decide who to marry, whether to have children, and how to raise a family. The right to privacy restricts how the government can investigate our lives.
Surprisingly, the words "privacy" and "right to privacy" do not appear in the U.S. Constitution. Instead, certain parts of the Constitution protect specific kinds of privacy. For example, the freedoms of expression and religion in the First Amendment protect the right to have private thoughts and ideas. The Fourth Amendment says the government may not arrest a person or search his house without good reasons. The Fifth Amendment says a criminal defendant does not have to testify against himself at trial. That means he can keep private any information about the crime he is charged with committing.
These Amendments, however, do not say Americans have a general right to privacy. Where, then, does the right of privacy come from? The Supreme Court developed it through decades of interpreting the U.S. Constitution.
Developing the right of privacy
The first Americans to mention the right to privacy were Boston lawyers named Louis D. Brandeis and Samuel D. Warren. In 1890, they published an article called "The Right to Privacy." Brandeis and Warren said Americans needed protection from newspapers that invaded privacy by exposing private lives to the public. As they do today, newspapers then often wrote embarrassing or humiliating articles about people. Brandeis and Warren said Americans should be allowed to sue newspapers to protect their privacy.
In 1916, Brandeis became a justice on the U.S. Supreme Court. Twelve years later in Olmstead v. United States (1928), he wrote a famous dissenting opinion (which means he disagreed with the Court's decision in the case). Justice Brandeis said the Constitution was written to protect privacy to help Americans pursue happiness:
The makers of our Constitution ... sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against government, the right to be let alonehe most comprehensive of the rights of man and the right most valued by civilized men.
Almost four more decades passed before the Supreme Court recognized a general right of privacy. In between, some justices wrote opinions supporting such a right. In Public Utilities Commission v. Pollak (1952), Justice William O. Douglas said "the right to be let alone is indeed the beginning of all freedoms." Then in Poe v. Ulman (1961), Justice John Marshall Harlan II referred to a Connecticut law that interfered with marriage as "an intolerable invasion of privacy."
In Griswold v. Connecticut (1965), the Supreme Court finally recognized a right to privacy in the U.S. Constitution. The case involved a Connecticut law that made it illegal for married couples to use contraceptives, or birth control. (Contraceptives prevent a woman from getting pregnant when she has sexual intercourse.) Nothing in the Constitution specifically says married couples have a right to use birth control. The Court, however, said the law interfered with "the right of privacy in marriage." In other words, privacy for married couples in America allows them to decide whether to use contraceptive devices.
Since Griswold, the Court has had to decide what the right of privacy protects. The issue arises in cases involving marriage, sexual reproduction, abortion, family life, the right to die, and right to have information kept private. Sometimes the Supreme Court recognizes the right to privacy in these cases, but other times it does not.
As Griswold made clear, marriage is one of the relationships protected by the right of privacy. That is because families are an important part of the American way of life. People growing up often dream of the day when they will have their own family. Settling down with a family is one way Americans pursue happiness in life.
Many privacy cases, then, have been about the family. Two years after Griswold, for example, the Supreme Court decided Loving v. Virginia (1967). Loving involved a Virginia law that made it illegal for people of different races to marry each other. The Lovings were a white man and black woman who were convicted under this law. The Lovings appealed their convictions and won. The Supreme Court said marriage is one of the "basic civil rights of man." Laws that prevent people of different races from marrying each other violate the right to privacy and are unconstitutional.
Other marriage cases have included Zablocki v. Redhail (1978) and Boddie v. Connecticut (1971). In Zablocki, the Supreme Court said laws that make it financially difficult for poor people to get married violate the right to privacy. Logically, the freedom to marry also must include the freedom to end a marriage. In Boddie, then, the Court struck down laws that make it financially difficult for poor people to get a divorce.
As privacy protects marriage, it also protects the decision whether or not to have children. As described above, the Court in Griswold said the government may not prevent married couples from using contraceptive devices. In Eisenstadt v. Baird (1972), the Court said unmarried couples also have a privacy right to use contraceptives. Then in Carey v. Population Services International (1977), the Court said the government may not prevent people under sixteen years old from using birth control. Taken together, these decisions protect every American's right to determine whether or not to have children.
Some people believe these decisions also protect a couple's right to engage in sexual relations, whether or not they are trying to have children. The question soon arose whether the right to privacy protects homosexual relations. (Homosexuals are people who have sexual relations with members of the same sex.) Many states have laws that make homosexual relations a crime.
In Bowers v. Hardwick (1986), the U.S. Supreme Court said laws that make homosexual relations a crime do not violate the right of privacy. The Court said the right of privacy protects traditional relationships in America, which means marriage, family, and sexual reproduction by a man and a woman. Homosexuals, then, are still struggling to get the Supreme Court to recognize their right to privacy.
If privacy protects the right to avoid getting pregnant by using birth control, does it protect a right to end pregnancy by having an abortion? This is one of the most fiercely debated questions in the United States. Abortion rights activists say women, whose bodies are the ones affected by pregnancy, have a constitutional right to have an abortion. They say the medical risks and long term consequences of having a baby give women this right. Opponents of abortion say an unborn fetus is a living person with a right to life. For them, abortion is murder.
In the landmark decision of Roe v. Wade (1973), the Supreme Court said privacy protects the right to have an abortion until the fetus, the unborn, can live outside the mother's womb. At that point, the state can protect the unborn's life by preventing abortion unless it is necessary to save the mother's life. After Roe, people continue to argue, sometimes violently, about whether abortion should be legal.
After people marry and have children, they spend many years raising their families, trying to make them as healthy, safe, and happy as possible. The right to privacy allows people to make many family decisions. For example, in Pierce v. Society of Sisters (1925), the Supreme Court said parents do not have to send their children to public schools. As long as parents make sure their children get a good education, they can send their children to public or private schools, or teach them at home.
Another privacy case about family life was Moore v. City of East Cleveland (1977). East Cleveland had a law that required people living in a house to belong to one family. The law defined a family as a mother and father and their parents and children. Cleveland enforced the law by convicting Inez Moore, a woman who lived in a house with her unmarried son and two grandchildren, who were cousins. Moore said the law violated her right of privacy and the Supreme Court agreed. The Court said Americans are allowed to live with family members outside the traditional "nuclear" family of mother, father, and children.
The right to die
The right of privacy lets Americans decide how to live. Does it also protect a right to die? If a person has only six painful months to live while dying from cancer, does she have a right to end her life to avoid the pain. Can a family shut off the life support system for someone who will be in a coma for the rest of her life?
The last question was the issue in Cruzan v. Director, Missouri Department of Health (1990). After an automobile accident in 1983, Nancy Cruzan was alive but unable to move, speak, or communicateith almost no hope of recovery. Believing Nancy would not want to live like that, her family decided to shut off her life support system. The State of Missouri would not allow it, so Nancy's family took the case to the U.S. Supreme Court.
Although the Supreme Court decided in Missouri's favor, it also said Americans have a right to refuse unwanted medical treatment, even if it will result in death. In other words, the right of privacy includes a right to die. Nancy's family was allowed to remove the life support system only after coming up with more evidence that Nancy would not want to live that way.
The right to die came up again in Washington v. Glucksberg (1997). Washington, like most states, had a law making it illegal to help someone end her life. A group of physicians and terminally ill patients filed a lawsuit saying the law interfered with the right to die. They argued that people who are dying from painful illnesses have a right to end their lives with dignity rather than suffer until death. The Supreme Court disagreed. It said the right to die in Cruzan was a right to refuse medical treatment. The right of privacy does not include a right to be killed with medical assistance.
The end of the twentieth century has been called the beginning of the Information Age. Computers store vast amounts of information about people. Americans naturally are concerned about private information becoming available to the public. They also fear invasion of privacy by governmental agents trying to investigate criminal activity. At the same time, the government needs to investigate and catch criminals to bring them to justice.
To a certain degree, Americans are protected by privacy laws. The federal Omnibus Crime Control and Safe Streets Act of 1968 regulates the government's use of wiretapping to listen to telephone conversations. The Privacy Protection Act of 1974 and the Freedom of Information Act require the government to be fair when it collects, uses, and discloses private information. Sometimes, however, people file lawsuits saying the government has gone too far with an investigation.
That was the case in Watkins v. United States (1957). In the 1950s, Congress was investigating communist activity in the United States. Communists were members of a political party that wanted to overthrow the federal government. John T. Watkins, a labor union official, was called before Congress to testify about known communists. Watkins, however, refused to identify people who used to be, but no longer were, members of the Communist party. Watkins was convicted of contempt of Congress for refusing to answer such questions, but the Supreme Court reversed his conviction. The Court said Congress does not have unlimited power to investigate the private lives of American citizens.
Right to privacy cases came into the Information Age in Whalen v. Roe (1977). New York State had a computer system that stored the names and addresses of patients who received prescription medicines and drugs. The system was designed to control the illegal use of such drugs. Patients filed a lawsuit saying the computer system violated their right to privacy. The patients were afraid they would be called drug addicts if the public got access to the prescription information.
The U.S. Supreme Court said the computer system did not violate the right of privacy because the law required New York to keep the prescription information secret. As computers become more powerful and store ever increasing amounts of information, Americans need to work harder to protect their right to privacy.
Suggestions for further reading
Dolan, Edward F. Your Privacy: Protecting It in a Nosy World. New York: Cobblehill Books, 1995.
Hoobler, Dorothy, and Thomas Hoobler. Your Right to Privacy. New York: Franklin Watts, 1986.
Wawrose, Susan C. Griswold v. Connecticut: Contraception and the Right of Privacy. New York: Franklin Watts, 1996.
Did this raise a question for you?