NCJ Number
46755
Journal
Harvard Civil Rights-Civil Liberties Law Review Volume: 12 Issue: 2 Dated: (SPRING 1977) Pages: 233-296
Date Published
1977
Length
64 pages
Annotation
PRIVACY AS A LEGAL CONCEPT AND A RIGHT NEEDS TO BE REDEFINED.
Abstract
IN THE PAST, TWO MAJOR FORMULATIONS HAVE DEFINED THE DOCTRINE OF PRIVACY: THE GREAT WARREN AND BRANDEIS ARTICLE OF 1890 ON THE RIGHT IN COMMON LAW AND THE GRISWOLD V. CONNECTICUT DECISION OF 1965 ON THE SAME OR CORRESPONDING RIGHT IN CONSTITUTIONAL LAW. PRIVACY NEEDS A NEW AND UNAMBIGUOUS DEFINITION. THE AUTHOR POSITS A FRANKLY NORMATIVE DEFINITION OF PRIVACY AS AN AUTONOMY OR CONTROL OVER THE INTIMACIES OF PERSONAL IDENTITY. PRIVACY HAS NO EXPLICIT TEXTUAL BASIS IN THE CONSTITUTION, BUT CAN ONLY BE DERIVED FROM GENERAL CONSTITUTIONAL THEORY. PRIVACY LACKS BOTH PREMISE HISTORICAL ANTECEDENTS AND PRECISE CONCEPTUAL LIMITS. THE FIRST MODERN LAWYER TO DEFINE PRIVACY EXPLICITLY WAS SIR JAMES STEPHEN IN 1873, WHO FELT THAT THE CONCEPT WAS VAGUE AND BEYOND DEFINITION, BUT NOT BEYOND DESCRIPTION IN GENERAL TERMS, AND THAT PRIVACY WAS INTUITIVE AND COINCIDENT WITH DECENCY. AT PRESENT, THERE IS NO WIDELY ACCEPTED GENERAL RULE FOR THE IDENTIFICATION OF JUSTICIABLE PRIVACY RIGHTS. NOW, MORE THAN A DECADE AFTER GRISOLD, THE MORAL AND LEGAL IMPERATIVE OF SOME SUCH RIGHT IS NO LONGER IN GREAT DOUBT. THE PROBLEM WITH THE RIGHT TO PRIVACY IS ITS LACK OF A SPECIFIC IDENTITY IN THE FOREGROUND OF LEGAL RIGHTS AND REMEDIES, PARTICULAR UNDER THE CONSTITUTION. AN ANALYTICAL SURVEY OF THE CASE LAW OF TORTS IS USED TO WORK OUT A DEFINITION OF PRIVACY, BASED ON FOUR BROAD CATEGORIES: (1) INTRUSION UPON THE PLAINTIFF'S SECLUSION OR SOLITUDE OR PRIVATE AFFAIRS; (2) PUBLIC DISCLOSURE OF EMBARRASSING PRIVATE FACTS ABOUT THE PLAINTIFF; (3) PUBLICITY WHICH PLACES THE PLAINTIFF IN A FALSE LIGHT IN THE PUBLIC EYE; AND (4) APPROPRIATION, FOR THE DEFENDANT'S ADVANTAGE, OF THE PLAINTIFF'S NAME OR LIKENESS. PRIVACY, THEN, IS THE CONTROL OVER THE AUTONOMY OF THE INTIMACIES OF PERSONAL IDENTITY. THESE THREE CONCEPTS -- INTIMACY, IDENTITY, AND AUTONOMY -LIMIT AND FOCUS THE VALID APPLICATIONS OF THE CONCEPT OF PRIVACY. SEVERAL CASES INVOLVING OUTRIGHT INVASION OF THE INTIMACIES OF SEXUALITY AND PERSONALITY ARE EXPLORED, LIKE SO MUCH ELSE THAT MATTERS IN OUR LIVES, MOST OF THESE CASES ARE BEYOND THE LAW. (DJM)