Privacy is many things to many people. One thing it is not, however, is a topic that can be adequately addressed in 15 minutes. So my comments may seem conclusory; they may seem provocative--but that is intentional. My goal is to suggest the many dimensions and conundrums of the right of privacy debate--the right Justice Brandeis called in 1890 "the right to be let alone"--"the most comprehensive of rights and the most valued by civilized men" (and women, I presume).
Americans worry a lot about privacy, though we're not quite sure of what it is exactly. Privacy has a DECISIONAL aspect--we believe that certain decisions should be no one's business but our own. How many of us would want to live in a nation whose officials might tell us who we could marry, how many children we could have, what sexual positions we must use, how long we must suffer the pain of a disabling disease, or what time we must go to bed. Privacy also has a SPATIAL aspect; we believe some places merit more protections against intrusion than others. You've heard it said, "One's home is one's castle". We believe that our homes and especially our bedrooms should be secure against unreasonable searches by the government or the prying eyes of the press. We believe that renting a suntan booth shouldn't turn us into film stars. We believe that the police should not be free to examine body cavities without the strongest of justifications. Finally, privacy has an INFORMATIONAL aspect. We believe that we should retain control over certain information about ourselves; that we have a right to expect that our financial records won't be posted on the internet, that we should be able to undergo certain types of genetic testing without exposing the information to our employers or insurance companies, that neither the government nor employers should be free to strap us to lie-detectors and steal from us our deepest secrets and most private beliefs. Three aspects of privacy--decisional, spatial, and informational--, all important, all raising fundamentally different issues. Further complicating the debate is that the law treats invasions of our privacy differently depending upon who's doing the invading: one set of rules for the government, another set for the press, another set for employers.
Perhaps even more important than the debate about the legal right of privacy is the debate over how much privacy is GOOD for us. Can we suffer from TOO MUCH privacy? What is the value of maintaining a separate sphere of PUBLIC LIFE? Are we witnessing today not the death of privacy, but the death of the public sphere?
Ready for a whirlwind tour of the privacy debate? Here goes. First, Constitutional privacy: protection against the Government.. Our Bill of Rights has been interpreted by the Supreme Court to provide both explicit and implicit protection for privacy. Protections for privacy can be found in the 1st, 3rd, 4th, 5th, and 9th Amendments. The SCT has found constitutional protection for decisional privacy. The Court has ruled that we have a consitutional right to send our kids to private schools, to believe what we want about the existence of God, to use contraceptive devices, to terminate a pregancy if we choose, to end life-sustaining medical treatment if we choose, to marry whom we want to-- at least if that person is of the opposite sex. The Court has also recognized protection for spatial privacy. Searches of our homes require warrants based upon probable cause and there are some things, such as pornography, which although they may be banned by the government can never be the justification for searching one's home. The court has also recognized protection for informational privacy: the government cannot demand that controversial political organizations turn over membership lists, that political candidates turn over urine samples for drug testing, or that persons accused of crimes submit to lie-detector tests. Yet, for all the significant protections for privacy the Court has recognized, it has failed to create a cohesive privacy doctrine. Constitutional privacy today is a mess. When the Supreme Court ruled, 5-4, in the 1986 case of Bowers v Hardwick that the Constitution does not prevent a state from criminally prosecuting a man for having sex with another man in his own bedroom all hope was lost for an intelligible and cohesive doctrine of constitutional privacy. The conduct at issue in that case, whatever your views may be concerning the moral issues relating to homosexuality, was at the core of what the SCt had previously indicated that privacy was all about: both decisional privacy (the choice of whom to be intimate with) and spatial privacy (the home turns out to not be much of a castle after all). Twenty years from now, one of two things likely will have happened: either the Court will have concluded that the Constitution doesn't protect the right to die, doesn't protect the right to have an abortion, doesn't protect the right not to be forcibly sterilized by the government, doesn't impliedly (as opposed to certain explicit constitutional protections) protect privacy at all. Or the Court will have reversed itself and recognized that sexual decisions by consenting adults are fully protected by the Constitution. Which of these two very different directions the Court will go will probably turn on the decisions made by voters over the next few Presidential elections.
Our second set of privacy issues relate to privacy against intrusions and disclosure by the media. One only has to turn on one's television or open a daily newspaper to recognize that what was once considered too private for publication is now considered within "the public's right to know." The salatious report recently prepared by Kenneth Starr is only the most recent and extreme example of how radically the rules have changed. One suspects that if Starr had obtained photos of the President having oral sex with Monica Lewinsky, he would have included those in his report too and that the Kansas City Star would have published the illustrated Starr Report, all in the name of the "public's right to know." Of course, it wasn't always this way. Even the existence of the affairs of public figures, let alone their explicit details, often went unreported in the press. The fact that President Harding was in a speakeasy when a prostitute was shot to death never made the papers; Babe Ruth could drink and womanize to amazing excess without a word of it appearing in the sports pages; one of the drafters of our Constitution, Benjamin Franklin, could seduce enough woman to be sometimes called "the true father of our country" without dreaming that his private conduct would become a topic of media discussion. What has caused the rules of the game to change? One factor that has affected the press's willingness over the past decade or two to expose more private conduct of public figures is competition. When the sources of information consisted of the three major networks, a couple of major newswire services, and a few news magazines like TIME and Newsweek, a general willingness to draw lines was observed. But enter syndicated shows like Geraldo Rivera and Entertainment Tonight, shock magazines like Larry Flynt's Hustler, gossipy publications like the National Enquirer, and Internet publications like the Drudge Report (which first broke the Lewinsky story) and Salon (which first reported the extramarital affair of congressman Henry Hyde), and the so-called respectable press was now able to say "We didn't decide to disclose these private facts, but now that the story's out there, we've got to cover it." In addition to the competition from new media outlets, an increased willingness to publish private facts has something to do with negative campaign advertising and highly partisan politics, increased sexual content in the movies and on television, and changes in how the press perceives its own role. Anything goes. And as far as the law is concerned, almost anything can go, at least so long as the facts are substantially true. Even non-celebrities, people who never sought out the public spotlight, have had little success in court fighting embarrassing disclosures. Courts have found First Amendment protection for media that have published the names of rape victims, dredged up evidence of decades old crimes or affairs, published nude photos of celebrities shot with telephoto lenses on private property (Jackie Onassis and Brad Pitt are two such celebrity victims), or revealed sexual orientation, such as disclosure of the secret gay life of the ex-marine who saved President Ford from an assassination. While some limits can be placed on HOW the media obtains private facts-- laws relating to trespass and fraud, for example, can be enforced--, there is essentially no protection against the disclosure of private facts so long as they are true. One suspects that it would take a story such as "Witnesses in the Federal Witness Protection Program--Where Are They Now?" to convince a court that the privacy concerns should trump the First Amendment claim. The courts will not, and perhaps should not, enforce protection for privacy against the media. Recognition for privacy values must come, if at all, from responsible editors responsibly balancing the public's right to know against the real costs of disclosing private facts.
In theory, at least, an individual should win a privacy suit against the media when it can be shown that the invasion of privacy was grossly offensive to an average person, and that the invasion of privacy clearly outweighed the newsworthiness of the information disclosed. In practice, however, the courts generally defer to the judgment of editors that the private information had significant news value. Extramarital affairs are private, yes-- But it is likely to be considered newsworthy if the affair involved the President, the Chair of the Committee considering impeachment, or even a public figure like Frank Gifford. The grades of students are private, yes-- But a grade is likely to be considered newsworthy if it belongs to a KU basketball star who is close to the 2.0 minimum grade point average for eligibility under NCAA rules. The name of a rape victim is private, yes-- But if the alleged rape victim had previously made false accusations of rape or if the victim was, say Chelsea Clinton, whose rape might very well affect both the performance and position on issues of the President, it is clearly a newsworthy event. Because of deference to editorial judgments about newsworthiness and the difficulty of drawing lines, the Supreme Court has never in its history yet found the publication of private, but true, facts to be outside of the protection of the First Amendment.
Third, we have controversy concerning employee privacy. Today workers' every keystroke leaves a trail of information that employers generally have the legal right to examine and use as the basis for disciplinary action against employees. Employees have been fired because of the content of e-mails or for surfing to internet sites deemed inappropriate by the employer. Employees have been forced to supply urine samples for drug testing, given personality tests in job interviews, and secretly videotaped--even in company restrooms. Yet very few laws protect employee privacy; the political power of business has been able to fend off most attempts to limit employer discretion. A few notable exceptions exist-- for example, federal law prohibits employers from administering lie-detector tests in job interviews (and, in most cases, to employees as well)--but the general rule is "Employee Beware!". Whether more laws are needed to protect employee privacy is hard to say. One would hope that the market would prevent most gross abuses of employee privacy, and that in good economic times quality workers would choose not to work for an employer who refuses to respect their privacy.
Quite apart from the law of privacy is the even more important issue of how much privacy is good for us. Just as it is possible for a society to suffer from too little privacy, so too is it possible for a society to suffer from too much privacy. A healthy society, I believe, maintains a healthy balance between the public and private spheres of conduct.
For many Americans today, privacy has become an obsession. By most measures, Americans live more private lives than ever before. Garrison Keillor, in describing his mythical hometown of Lake Wobegon, Minnesota, said it was a town in which no one used turning signals because everyone knew which way you were going anyway. Privacy was never a high priority in either the small towns or big cities of a generation or two ago. To a much greater degree than in today's suburbia, people knew what their neighbors were up to; they participated in a greater variety of communal activities. Parents relied much more on public transportation, kids either walked with other kids to school or rode school busses. Today adults and kids alike cruise to their destinations in CD-equipped sports utility vehicles. When families went on trips a generation ago it was more often to the mom-and-pop type resorts that provided communal activities for guests or to campgrounds where families intermingled. Today people prefer the predictability and privacy of the branded hotels and motels. A generation ago, families often ate at cafeterias where tables were shared with neighbors and strangers. Today people sit in private booths at themed franchised restaurants. A Saturday night a generation ago would more likely mean a movie or a dance, today it more likely to be spent with a video from Blockbuster on a "home entertainment system", or surfing the internet for satisfying "virtual experiences". In the era of larger families, siblings almost always slept with siblings; today, each member of a family is likely to have their own several hundred square feet of private space. Today even the most important socializing tool of the public space, the school, is under attack by many who prefer the non-value challenging privacy of home schooling. Our obsession with privacy today extends to the body as well. When I attended junior high and high school in Minnesota a generation ago, the swimming classes at the public school were conducted in the nude. Today, swimming suits are the rule. A generation ago, at least in my native Minnesota, skinny-dipping was a state pasttime engaged in on summer days even by people like my sixty-plus-year-old grandmother. Today, skinnydipping is mostly a nocturnal activity associated with drunk teenagers. The changing design or urinals is yet another indication of our obsession with bodily privacy-- today most urinals are for use by one person only, separated from other urinals by "privacy screens". A generation ago, our doors were often knocked-- by neighbors, by Jehovah's Witnesses, by politicians, by Fuller brushmen and Avon ladies. Today it is often only invited guests who ring our doorbells. We can screen our phone calls, screen our internet surfing, screen our world.
Is this trend toward ever more private worlds something to worry about? Does it matter that many people can live for a decade in their suburban homes without ever having a conversation with their neighbors? I believe it does. I believe we are drowning in privacy. Our too private lives today are fueling the evangelical Christian movement which offers the communal experiences that used to be found elsewhere in the public sphere. It is in the public sphere where we meet others who may not support our favored political candidates, may not believe in our chosen God, or may not share many of the assumptions that guide our lives. The public sphere is where we learn tolerance, learn to be civil, and achieve the satisfactions that come with civic participation. The public sphere is where we encounter the surprises and experience the serendipity that make for rich and interesting lives. As the public sphere collapses, people find reinforcement for their own values, wallow in self-obsession, move toward moral rigidity, and often become suspicious, sometimes even paranoid, about the unexplored public world and its strange inhabitants.
So where I come down on privacy is this: Today we are witnessing a collapse of the traditional distinction between the public and the private spheres. Our public space--witness Lewinskygate-- is becoming more like a home. The pageant of public life is dying as more and more details of the private lives of public figures are thrust at us. The former decorum of public life is being replaced by ever coarser language and an ever greater willingness of people to discuss absolutely anything on national television. Shock jocks compete for radio listeners by seeking new lows in titillation or incivility. In part because of this, and in part because we can, we increasingly limit our time spent in the communal activities that played such an important role in shaping earlier generations of Americans.
Yes, it IS important that the government respect the right of citizens to make fundamental decisions about their lives. Yes, it IS important that journalists understand that "the public's right to know" is an important value, but one that needs to be balanced against the costs that disclosing private facts may have...Privacy is not a value that trumps all others. It is a means to the end of preserving the dignity of individuals; it is not a goal in itself. It is one of the more interesting ironies of the late 20th century that even as in one sense our privacy continues to shrink-- less and less of our lives go unrecorded--, our obsession with privacy continues to grow.