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1992 WILR 1335

(Cite as: 1992 Wis. L. Rev. 1335)

 

Wisconsin Law Review

1992

 

*1335 ONE HUNDRED YEARS OF PRIVACY

 

Ken Gormley [FNa1]

 

Copyright 1992 by the University of Wisconsin; Ken Gormley

 

ARTICLES

 

In this Article, Professor Ken Gormley examines the evolution of privacy law in the United States one hundred years after Samuel Warren and Louis Brandeis authored their seminal piece in the Harvard Law Review in 1890‑91. Professor Gormley argues that scholars have been unable to agree upon a one‑size‑fits‑all definition of legal privacy because it actually consists of five distinct species:

1) The Privacy of Warren and Brandeis (Tort Privacy)

2) Fourth Amendment Privacy

3) First Amendment Privacy

4) Fundamental‑Decision Privacy

5) State Constitutional Privacy

 

Professor Gormley demonstrates that these five species are heavily interrelated, with historical jolts or "catalysts" producing new brands of privacy when existing law is incapable of dealing with unexpected societal and technological changes. Thus, he argues, seeking a simple definition of privacy is a misguided quest. Rather, privacy will remain extremely sensitive to historical triggers, and new permutations of this "right to be let alone" will inevitably develop as American democracy itself evolves.

 

I. INTRODUCTION

 

As the year 1990 was retired into the discarded calendar‑books of history, the United States celebrated a birthday that came and went in appropriate silence. It was one hundred years ago, in the winter of 1890‑91, that Samuel Warren and Louis Brandeis published their now‑famous article in the Harvard Law Review, entitled simply: The Right to Privacy. [FN1] In that compact twenty‑ seven‑page work, appearing four years *1336 after the Law Review had been established at Harvard through the efforts of Brandeis and others, [FN2] the authors argued that the common law had nurtured a new right, known simply as privacy, which demanded acceptance in American jurisprudence. [FN3] "Political, social, and economic changes entail the recognition of new rights," wrote Warren and Brandeis "and the common law, in its eternal youth, grows to meet the demands of society." [FN4]

 

In the hundred years after those ambitiously unsupported words were written in December of 1890, and gained widespread attention when volume IV of the Harvard Law Review was published in 1891, there have been literally hundreds of books and articles written about the notion of privacy in the United States. Many of the foremost legal scholars and philosophers of the twentieth century‑‑ Roscoe Pound, [FN5] Paul Freund, [FN6] Erwin Griswold, [FN7] Carl J. Friedrich, [FN8] William Prosser, [FN9] Laurence Tribe [FN10]‑‑have at one time or another attempted to wrestle down this evanescent concept. Much of the literature has devoted itself to defining, with excruciating precision, exactly what this "right to privacy" means once it is hard‑boiled and peeled out of its shell of disjointed case law. Warren and Brandeis themselves defined it as a "right to be let alone." [FN11] More recently, commentators and scholars of the twentieth century have invoked a barrage of philosophy, sociology, theology and anthropology to devise definitions which are endlessly varied, creative and elaborate. [FN12]

 

*1337 The definitional urge which has accompanied privacy during its century‑long existence has only become intensified as the different manifestations of privacy, and the importance of this talismanic word in American law, have grown to looming proportions in recent years. With the zeal of astronomers seeking to name a previously evasive star in the constellation, legal theoreticians walking in the footsteps of Warren and Brandeis have searched mightily for a single definition, a satisfying string of words, to pin down privacy on the revolving map of jurisprudence, in order to give it certainty of location and a degree of predictability. Looking back with one hundred years' worth of perspective, it is possible to conclude that the definitions have tended to cluster into four major categories.

 

First, many scholars, dating back to Roscoe Pound in 1915 and Paul Freund in 1975, have viewed privacy as an expression of one's personality or personhood, focusing upon the right of the individual to define his or her essence as a human being. [FN13] Second, closely akin to the "personhood" cluster, are those scholars such as Louis Henkin who have marked privacy within the boundaries of autonomy‑‑the moral freedom of the individual to engage in his or her own thoughts, actions and decisions. [FN14] A third cluster, typified by Alan Westin and Charles *1338 Fried, have seen privacy‑‑at least in large part‑‑in terms of citizens' ability to regulate information about themselves, and thus control their relationships with other human beings, such that individuals have the right to decide "when, how, and to what extent information about them is communicated to others." [FN15] Finally, a fourth cluster of scholars have taken a more noncommittal, mix‑and‑match approach, breaking down privacy into two or three essential components, such as Ruth Gavison's "secrecy, anonymity and solitude," [FN16] and the "repose, sanctuary and intimate decision" of a California Law Review commentator. [FN17]

 

The method de rigueur in legal scholarship has been for the author to examine the previously‑favored definition of privacy, tear it down to its bones, expose its fallacies, and establish a new contender for the crown. Thus, Professor Gavison in the Yale Law Journal in 1980 sought to refute those before her (including Fried and Westin) who had labelled privacy as a form of control over information, and advanced a putatively neutral definition of privacy bottomed on secrecy, anonymity and solitude. [FN18] Louis Henkin, writing in the Columbia Law Review in 1974, exploded the prevailing notion of privacy as "freedom from official intrusion," and gave us a privacy bottomed on a "zone of prima facie autonomy." [FN19] In a recent Harvard piece, Professor Jed Rubenfeld gunned down "autonomy" and "personhood" as definitions, and set up privacy as a form of "anti‑totalitarianism," concluding that the right of privacy is "the right not to have the course of one's life dictated by [a progressively normalizing] state." [FN20]

 

*1339 This Article will show that each of these definitions of privacy is sensible and useful, and adds to the understanding of that concept as it has evolved in American law. Yet standing alone, none of these definitions tells the century‑long story in a fashion that Warren and Brandeis would find satisfying, or particularly helpful in predicting the future course of American privacy law.

 

Commentators have stumbled over privacy, and have failed to agree upon an acceptable definition, because they have generally focused on privacy as a philosophical or moral concept‑‑which allows for multiplicitous definitions, as seen above‑‑while wholly ignoring privacy as a legal concept. The latter encompasses a number of different species in American law all of which were seeded by Warren and Brandeis in 1890, and now entitle an individual to very concrete but different protections and remedies in twentieth century American law. To the extent commentators in search of theoretical definitions of privacy‑‑such as Fried and Gavison and Rubenfeld‑‑have intimated that such definitions are the Holy Grail which will lead us to the ultimate meaning of privacy in a legal sense, their crusade is somewhat misplaced. Although helpful in refining our understanding of various subsets of privacy opinions and case law, single one‑size‑fits‑all definitions of privacy have proven to be of limited value. The harsh reality is: legal privacy consists of four or five different species of legal rights which are quite distinct from each other and thus incapable of a single definition, yet heavily interrelated as a matter of history, such that efforts to completely sever one from another are (and have been) disastrous.

 

This Article, unlike most others which have preceded it (other than the original Warren and Brandeis piece, and Prosser's classic work in 1960) focuses heavily upon the legal face of privacy. How has privacy actually developed in American law in the past 100 years, and how can we predict the corridors of jurisprudence into which it might develop in the next hundred? The late Professor Freund was correct to advance the query whether privacy is "one concept or many," [FN21] for in the practical evolution of American law, it is certainly many. It is only by pulling privacy apart, and acknowledging the many threads which bind it together, that we can begin to explore the intriguing historical interrelationships between these distinct species of legal privacy and make use of scattered theoretical definitions, which assist us in predicting privacy's future course only when applied to the proper species and genus.

 

More important than seeking a unitary definition of legal privacy, which does not (and most likely never will) exist, this Article will *1340 segregate the subsets of privacy and explore the patterns, characteristics and interrelationships of the various species of privacy as they have grown up as a legally protected pile of rights in a hundred years of upheaval, expansion and colorful United States history. This Article will examine five dominant species of legal privacy which have developed (with the help of Louis Brandeis) and have become intertwined since the year 1890. These five species are:

1) Tort privacy (Warren and Brandeis's original privacy);

2) Fourth Amendment privacy (relating to warrantless governmental searches and seizures);

3) First Amendment privacy (a "quasi‑constitutional" privacy which exists when one individual's free speech collides with another individual's freedom of thought and solitude);

4) Fundamental‑decision privacy (involving fundamental personal decisions protected by the Due Process Clause of the Fourteenth Amendment, often necessary to clarify and "plug gaps" in the original social contract);

5) State constitutional privacy (a mish‑mash of the four species, above, but premised upon distinct state constitutional guarantees often yielding distinct hybrids).

 

A number of interesting characteristics are discerned, once one segregates the various species of privacy and examines their common points of intersection in American law. Each species amounts to a new layer built atop some other pre‑ existing body of law, designed to keep pace with basic notions of democracy‑‑ not in a theoretical vacuum, but as democracy has actually unfolded in twentieth century America.

 

The key to understanding legal privacy as it has developed over 100 years of American life, it will be argued, is to understand that its meaning is heavily driven by the events of history. What constitutes an engine of privacy in the year 1890, is not necessarily the same thing which formulates a societal notion of privacy in the United States in 1939, or 1968 or 1973. Rather, like a strawberry geranium‑‑saxifraga sarmentosa‑‑which creeps and sprouts new shoots at unexpected intervals throughout its lifetime, privacy in the United States has led a similar vine‑like existence, creating a variety of different offshoots depending upon the particular climate of American life.

 

Since privacy is a creature of American history, it is impossible to predict with any precision new permutations of this right, any more than *1341 one can predict the events of American history itself. This is one of the reasons authors have been forced to focus upon one type of privacy or another in seeking definitions, and discard the rest as unrelated. For example, Professor Rubenfeld begins his genealogy of privacy in the Harvard Law Review by offering this disclaimer: "The right to privacy discussed here must not be confused with the expectations of privacy secured by the Fourth Amendment, or with the right of privacy protected by tort law." [FN22] More recently, the Case Western Reserve Law Review has published a lengthy symposium to celebrate the hundred year anniversary of the Warren and Brandeis piece, and has noted that the 1890 privacy article "pervades the law;" [FN23] yet the symposium goes on to examine with virtual exclusivity the tort aspects of privacy, as if these can be removed in a husk with little or no bearing on the remainder of twentieth century privacy law. This is unfortunate; although legal privacy does not admit to a single definition, each species is best understood in conjunction with the rest. The patterns of privacy, once linked together, are the only certain clue as to the path of privacy in future decades. The cases viewed as a whole reveal an intriguing "right to be let alone" which has thus far travelled down a number of quite identifiable routes, with a number of common characteristics.

 

Attempting to discern these characteristics, in the practical world of case law in which five species of privacy have taken root, is just as critical as ascertaining privacy's philosophical and moral status. Professor Gavison has generally criticized the approach of starting with the cases and working backwards‑‑an approach similar to that undertaken by William Prosser on a different scale in 1960 in classifying privacy torts [FN24]‑‑as a vain attempt to impose coherence on an incoherent body of case law. [FN25] However, Oliver Wendell Holmes, Jr., would answer with *1342 the same retort he gave in 1881: "[T]he life of the law has not been logic: it has been experience." [FN26]

 

The tiger has chased its tail with respect to the ongoing quest for a single philosophical definition of privacy only because privacy (inherently) is not a static concept, any more than democracy or American life are static conditions. In the year 1992, democracy in America looks different than it did in 1835 to Alexis de Tocqueville. [FN27] And in the year 2092, it will doubtlessly look different than it does today to Robert Dahl. [FN28] One hundred years later, Warren and Brandeis's definition of privacy as simply the "right to be let alone," is still as good as any other. The question we have forgotten to ask, however, is "with respect to what?" For Warren and Brandeis in 1890, it meant the right to be let alone with respect to prying newspapers and photographers. For subsequent generations of Americans, it has meant new and different things: a still‑growing collection of species, a boundary of individualism safeguarded by the force of law, but only when, and to whatever extent, history dictates that it shall be.

 

One hundred years after Warren and Brandeis presented the term to American jurists for their consideration, privacy has become a central player in American law. To the extent one can say that constitutional law was dominated by Commerce Clause issues in the 1930s and 1940s; [FN29] to the extent that one can say the 1960s and early 1970s were a time defined in large part by equal protection and due process issues; [FN30] it is equally fair to say that the 1990s have entered a time of privacy. Abortion issues, the right‑to‑ die, drug testing in the workplace, AIDS, homosexuality, drunk‑driving roadblocks, all of these issues central to our society involve, at least in part, an investigation of the legal concept of privacy, as that term has gained variegated meaning by the year 1992.

 

Thus, we will now turn to a historical examination of the hundred‑year evolution of the right to privacy in the United States, in its various offshoots, in order to understand the role of history in providing a lattice upon which it has crept.

 

*1343 II. THE PRIVACY OF WARREN AND BRANDEIS (TORT PRIVACY)

 

Samuel Warren and Louis Brandeis did not cross paths as collaborators in the Harvard Law Review in 1890 by mere happenstance. Classmates at Harvard Law School between 1875 and 1877, and partners in a small firm of their own creation in Boston, the two men had been long‑time friends. [FN31] They also shared an interest in establishing the Harvard Law Review, Brandeis becoming one of its first Trustees in 1889. [FN32] Warren and Brandeis had collaborated on two less‑celebrated articles for the Review in 1888 and 1889, entitled "The Watuppa Pond Cases" and "The Law of the Ponds," which drew upon their own experiences in practice but left no enduring mark upon legal scholarship. [FN33] When the two authors turned their attention to the issue of privacy the following year, however, the challenge was more novel‑‑there existed no coherent notion of privacy at all in American law. Judge Thomas Cooley had mentioned a "right to be let alone" in passing in his treatise on Torts published in 1888; [FN34] Sir James Fitzjames Stephen briefly discussed privacy in a treatise in 1873, in response to John Stuart Mill's On Liberty. [FN35] However, other than such fleeting references, no tort or constitutional notion of privacy could fairly be regarded as part of the jurisprudence of the United States.

 

This is not to suggest that notions of privacy were entirely foreign to early American law. Common law trespass notions‑‑including trespass to land and chattels‑‑long protected property from invasion by others, a sort of privacy‑ related concept. [FN36] Criminal law safeguarded individuals from the most blatant assaults on person, another concept by definition linked to the notion of privacy. Basic kernels of privacy thus were infused in early American common law, albeit indirectly. Although certain writers have incorrectly suggested that privacy was a nonexistent concept in colonial America, [FN37] it certainly took on forms different, and *1344 more abstruse, than those which have become familiar in American hornbooks today. [FN38] In homes where family and lodgers often shared beds for warmth and household members moved freely from room to room in order to light candles and pipes, where small towns were set up on linear grids around town greens so that citizens knew each others' collective business, the opportunities for solitude and anonymity in the modern sense were greatly diminished. [FN39] At the same time, privacy of the family apart from the rest of society was highly valued, and early American colonists had easy retreat to the outdoors, the darkness and self‑ imposed quietude through silence and meditation, the early predecessors of modern privacy. [FN40] Early Americans, like the Puritan minister Cotton Mather [FN41] and the settler William Penn, [FN42] wrote of privacy in the earliest *1345 days of the country's history, but in terms then suited to the early American experience.

 

In short, there was nothing resembling an explicit notion of privacy in tort law in 1890, when Warren and Brandeis committed to collaborating on a short article for the Harvard Law Review. What Warren and Brandeis pieced together was a patchwork of cases‑‑mostly from English and Irish courts‑‑which purported to demonstrate that a tort‑like notion of privacy had come of age in America through the natural evolution of the common law. What they did, in fact, was to serve as a catalyst for the evolution of the process themselves. An examination of The Right To Privacy reveals a piece of scholarship light on hard precedent, but full of optimism with respect to the ability of the law to expand in synchronization with society's development: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." [FN43] These were not words of legal commentators, but of jurisprudential architects.

 

The "right to be let alone," which Warren and Brandeis went on to introduce to American jurisprudence, was a basic tort notion. Their concluding section on remedies confirms this point, as the authors propose: "An action of tort for damages in all cases," wherever a violation of the right to privacy was found. [FN44] It is not surprising, then, that the right to privacy as contemplated in December of 1890 had nothing to do with birth control, abortions or drunk‑driving roadblocks. An examination of volume IV of the Harvard Law Review indicates that the privacy of Warren and Brandeis had the following characteristics:

1) It bore a "superficial resemblance" to an action for defamation. [FN45] However, unlike a suit for slander or libel, it did not require proof of actual monetary damages flowing from the wrong. Moreover, truth was not a defense. [FN46]

2) The right of privacy was not, strictly speaking, based upon a right of property; [FN47] nor was it based upon copyright. [FN48] *1346 Rather, the principles at work were designed to protect the individual's "inviolate personality." [FN49] A plaintiff could recover strictly based upon injury to his or her "feelings" or "honor," which in turn were linked to his or her "personality." [FN50]

3) The right of privacy was built upon common law notions that each individual possesses a right to determine "to what extent his thoughts, sentiments, and emotions shall be communicated to others." [FN51]

4) There were limitations upon the right of privacy. It did not apply to matters of "public or general interest," such as political campaigns. [FN52] Furthermore, the right was lost when the individual possessing the right made the information part of the public domain. [FN53]

 

The cases upon which Warren and Brandeis drew to mold their privacy tort were both colorful and varied. One highly publicized case of the day which apparently symbolized, in their minds, the growing need for a privacy right was Marion Manola v. Stevens & Myers, [FN54] a decision issued by the New York Supreme Court in June of 1890. The plaintiff in that case was a starlet who had appeared in a Broadway play wearing tights and was photographed surreptitiously by two individuals in the theatre, one holding a "flash light." She brought an action in the New York trial courts to restrain the defendants from publishing the *1347 photograph (most likely in the newspapers) and a preliminary injunction was issued. For Warren and Brandeis, the issue was a critical one: "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house‑tops.' " [FN55]

 

Warren and Brandeis produced a string of English cases to show that, in fact, the common law had already begun to creep toward a notion of privacy. Significantly, courts were beginning to recognize that although one might not have a property interest, strictly speaking, in one's likeness, one's artwork or one's thoughts, there was nonetheless something akin to a "breach of trust" when these were purloined and thrown into the public domain. For instance, in Pollard v. Photographic Co., [FN56] a woman was able to obtain an injunction in the Court of Chancery to prevent a photo studio from selling Christmas cards with her picture on it, even though she had no copyright; this holding was based upon a loose notion of "breach of contract" or "breach of faith." [FN57] In Prince Albert v. Strange, [FN58] another leading case cited heavily by Warren and Brandeis, a printer was prohibited from displaying and publishing etchings made by Prince Albert and Queen Victoria, based primarily on standard property law. However, Lord Cottenham wrote in passing that "privacy is the right invaded." [FN59] For Warren and Brandeis, the Prince Albert case stood for a "principle broader than those [issues] which were mainly discussed." [FN60]

 

If one takes the time to dust off and read the rather colorful hodgepodge of English, Irish and American cases assembled by Warren and Brandeis, one is singularly impressed with the fact that a right to privacy clearly did not exist in any of those jurisdictions in the year 1890. Although the authors concluded the article by poetically suggesting that this new right had been "forged in the slow fire of the centuries," [FN61] the truth was that there were shreds and ribbons of privacy adorning the jurisprudence of England and America, but nothing big enough to wrap up and place in a package. [FN62] Warren and Brandeis were not presenting *1348 a picture of the law as it was, but of the law as they believed (or hoped) it should be.

 

In order to understand the unique inter‑meshing between privacy and history in America, we are next led to the important question: "What motivated Warren and Brandeis to construct this new right? What accounts for its creation and acceptance in the year 1890? " Thus far, attempts to answer this question have been rather superficial. It is obvious that the excesses of newspapers and photographers, in large part, prompted the article. This much is clear from the often‑quoted words of the authors themselves:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. [FN63]

 

But what lay behind this assault upon the "modern invention" of newspapers and photography, such that a "right to be let alone" was so critical? Dean William Prosser, in his authoritative study of the newly‑evolved privacy tort in 1960, [FN64] suggested that Samuel Warren had been piqued at the Boston newspapers for reporting his wife's elite social functions in "highly personal and embarrassing detail." [FN65] The matter came to a head, reported Prosser, "when the newspapers had a field day *1349 on the occasion of the wedding of a daughter, and Mr. Warren became annoyed." [FN66] Dean Prosser concluded that the young Ms. Warren "must have been a very beautiful girl," since hers was "the face that launched a thousand lawsuits." [FN67]

 

This general explanation of Warren's distaste for the press as the impetus for the privacy article gathered momentum from various quarters, although the legend tended to differ with the writer. Alfred Lief, in his biography of Brandeis, [FN68] told yet a different story:

Sam [Warren] was married to Mabel Boyard, daughter of the ambassador to Great Britain, and editors thought his affairs belonged to the public eye, and in the camera's eye. He was outraged when photographers invaded his babies' privacy and snapped perambulator pictures. Instead of turning to the courts for redress he turned to Louis. [FN69]

 

These stories, unfortunately, appear to be apocryphal. Warren's daughter was only six years old at the time the privacy article appeared, [FN70] making it unlikely that her wedding launched a thousand lawsuits. Although the Boston papers did cover social affairs, The Saturday Evening Gazette‑‑generally credited with infuriating Warren‑‑only mentioned his name twice between the years 1883 and 1890, [FN71] both times regarding innocuous matters. Thus, the old wives' tale (or "young lady's tale") that has generally been circulated to explain the privacy article appears as fatuous as the newspaper gossip which Warren and Brandeis chided.

 

It is true, however, that Samuel Warren was displeased with the Boston press and requested Brandeis to work with him on the privacy article‑‑this much is confirmed by Brandeis's own correspondence to *1350 Warren fifteen years later. [FN72] Nonetheless, any explanation of the emergence of privacy in the early 1890s requires more than an ill‑defined legend of quarrels between Warren and the Boston press. It is here that history provides the missing clue with respect to the incubation and acceptance of privacy‑‑specifically "informational" privacy‑‑at this particular juncture of American life. Any understanding of what the "right to be let alone" meant, in the context of American jurisprudence in 1890, requires an understanding of the historical catalyst that produced privacy. That historical jolt had to do with the explosion of mass‑media in the United States.

 

The late nineteenth century in which Warren and Brandeis wrote, it must be remembered, was the high‑point of "yellow journalism" in the United States. Not only had newspapers adopted startling new practices to sell papers on the street, but journalism as a business had been completely overhauled and transformed in the 1870s, 1880s and 1890s. [FN73] In the decades following the Civil War, as the United States entered the age of industrialism, the nation moved from a rural to an urban emphasis, producing a new working class which swarmed into the cities anxious to know about the new world around them. Prior to the Civil War, newspapers had been small and expensive, and largely served as appendages of local political parties. [FN74] In the 1870s, however, a major change took place in American journalism. With the growing market of barely‑educated, immigrant, inquisitive masses in the large cities, newspapers jettisoned their political moorings and revamped the idea of the old penny press of the 1830s, seeking mass circulation. [FN75]

 

Along with this overhaul came a surge of new technology. Linotypes and faster presses were available by the 1870s, along with more striking typography, color printing, cartoons and photographs. [FN76] Format changed dramatically from the pre‑Civil War papers, allowing two, three and even *1351 eight‑column banner headlines to be spread across the front page. [FN77] The first newspaper "chains" sprung up, with Joseph Pulitzer building an empire through purchasing the debt‑ridden St. Louis Dispatch and New York World, and William Randolph Hearst taking control of the San Francisco Examiner and the New York Journal. [FN78]

 

It was in the context of this newspaper revolution that "yellow journalism" or "new journalism" swept onto the scene in the United States. The trademark of Pulitzer, Hearst and others who followed in their footsteps was to emphasize the curious, dramatic and unusual, providing readers "a palliative of sin, sex, and violence." [FN79] Thus, in the 1880s, the New York World ran such headlines as "Death Rides the Blast," "All for a Woman's Love," "A Bride but not a Wife" and "Baptised in Blood." [FN80] By the late 1880s, the enormous size and success of "yellow journalism" publications [FN81] caused other papers like the Philadelphia Record and the Boston Globe to follow suit. [FN82]

 

The result of this upheaval in American journalism, as it relates to privacy, is apparent. By the time Warren and Brandeis published their piece in the Harvard Law Review, as the calendar flipped from 1890 to 1891, the intrusions of the press and photographers upon the privacy of the home and person had become legendary. Frank Luther Mott, in his treatise on American journalism, explains that this era of "keyhole journalism" had obvious ramifications: "Closely connected with sensationalism ... was the invasion of privacy by prying reporters." [FN83] *1352 Indeed, stories of the press spying on President Grover Cleveland and his bride on their honeymoon were notorious and well‑documented. [FN84]

 

Thus, there is little doubt that the significant upheaval in American journalism and photography between 1870 and 1890‑‑and the concomitant abuses of the press and photographers in culling and disseminating information‑‑was the historical force which propelled Warren and Brandeis toward publishing The Right to Privacy in late 1890. Indeed, the writings of other turn‑of‑the‑ century authors support this link. [FN85]

 

This underscores the first lesson about privacy, if a meaningful understanding of that term is to be derived from its hundred‑year evolution in American law. The privacy of Warren and Brandeis was a tort notion, but it was meant to reflect a deeper instinct in the common law. It was meant to preserve an individual's "inviolate personality," a fragile and intangible thing, quite different than one's property or person, but essential to preserve a "civilized" and "cultured" society, particularly in an evolving American democracy which placed a premium on the individual. Humankind's own inventiveness had created a new threat to solitude. The law, as it existed, was not equipped to deal directly with this new clash between citizen and environment. When the problem *1353 became acute enough, when society as a whole had been steeped in the consequences of its own ingenuity, a jolt occurred which was strong enough to create a new layer of law atop the old. The precise catalyst which thus introduced an explicit right of privacy in 1890, and thereafter led to its slow‑but‑steady acceptance throughout the United States, [FN86] was the transformation of the American press, photography and the ability to engage in mass‑circulation of information in a newly‑ urbanized society. Not only was the printing of scandal and gossip a concern, but also the surging ability of the media to capitalize upon private individuals' pictures, likenesses and endorsements for the purposes of making money through advertisement. [FN87] Individuality was threatened in both instances. Privacy came into being in order to keep American democracy in step with its own inventiveness. It seems fair to say that if Warren and Brandeis had not invented a right of privacy in December of 1890, somebody else would have had to invent a similar legal concept, by whatever name, in short order.

 

The development of an unmistakable privacy tort in the years following the Warren and Brandeis article bears out this assertion. Although the initial blossoming occurred in fits and starts, it occurred nonetheless. Volume IV of the Harvard Law Review, containing the privacy piece, was published in 1891 and received immediate attention by scholars and courts. A trickling of cases first emerged in New York, Massachusetts and Georgia. [FN88] The most well‑known of these cases, Pavesich v. New England Life Insurance Co., [FN89] decided by the Georgia *1354 Supreme Court in 1905, declared the existence of a right of privacy where an insurance company published the picture of a well‑ known artist in the Atlanta Constitution next to the picture of a sickly and depressed man, along with a contrived endorsement for New England Mutual life insurance.

 

Around the same time, a number of other states gradually moved to enact privacy statutes, directed primarily at abuses by newspapers and advertisers who published the names or pictures of individuals for trade purposes without consent. California (1899), [FN90] New York (1903), [FN91] Pennsylvania (1903), [FN92] Virginia (1904), [FN93] and Utah (1909), [FN94] all adopted legislation reflecting the theme of Warren and Brandeis, although some of these statutes proved to be short‑lived. [FN95]

 

It is true, as a number of commentators have noted, that the development of a privacy tort in the United States after the initial bang of the Warren and Brandeis article was anything but swift, organized or universal in its acceptance. [FN96] A number of state courts, most notably New York in Roberson v. Rochester Folding Box Co., [FN97] prior to the adoption of a New York privacy statute in 1905, specifically found that *1355 such a right did not exist under common law. [FN98] It is also true that many of the decisions which ultimately embraced a tort notion of privacy, as the case law picked up steam, had nothing to do with newspapers, photographers or the specific ills which had been on the minds of Warren and Brandeis. [FN99]

 

However, this much can be said: A right of privacy did develop and gather general acceptance, such that the first Restatement of Torts in 1939 vouchsafed for its existence. [FN100] Although the cases were a hodgepodge of different types of privacy torts, as later placed into categories and tidied‑up by Dean Prosser, [FN101] many of the early cases, both accepting and rejecting privacy, dealt with issues of newspapers, unscrupulous photographers, unauthorized advertisements and the same types of informational privacy that initially sparked Warren and Brandeis to craft their article. [FN102]

 

*1356 Despite its erratic gestation period, a privacy tort was well in place by the time Prosser commented on it in his California Law Review article in 1960. The "overwhelming majority" of the American courts, he wrote, had recognized such a right in one form or another, [FN103] with only a handful of states rejecting it entirely. [FN104] Since Prosser's assessment, the tort of privacy has continued to expand, with scholars of tort law continuing to sub‑divide Brandeis's "right to be let alone" into various causes of action now recognized in the United States. These consist (in Prosser's categorization) of the following: 1) unlawful appropriation of an individual's name or likeness; [FN105] 2) unreasonable intrusion into the solitude or seclusion of another; [FN106] 3) public disclosure of truthful (but embarrassing) facts; [FN107] and 4) publicity that places a plaintiff in a "false light" in the public eye. [FN108]

 

Thus, the first stage of privacy was in place, jarred into existence not haphazardly, but by a precise set of historical facts in turn‑of‑the‑ century America. Despite its many different permutations, the original privacy tort of Warren and Brandeis generally matches the description of those legal philosophers who relate privacy to "control of information" or "reserve." [FN109] Such a privacy tort was essential to the maintenance of democracy as it had come to be known in America because control of information about oneself is critical in determining how and when (if ever) others will perceive us, which is in turn essential to maintaining our individual personalities. As Professor Hyman Gross has explained it, it is through this delicate process of "editorial privilege" that we establish *1357 our identities in a social setting, [FN110] thus maintaining control over how society views us: as parents, brothers and sisters, employers, employees, neighbors, citizens, all of the different roles and perceptions which collectively establish our identity, and individuality, within a modern American democracy. [FN111] As a legally protected right, the original species of privacy introduced by Warren and Brandeis can be defined as the "right to be let alone, with respect to the acquisition and dissemination of information concerning the person, particularly through unauthorized publication, photography or media."

 

This offshoot of the plant having blossomed, the right to privacy‑‑like a strawberry geranium‑‑continued to creep.

 

III. FOURTH AMENDMENT PRIVACY

 

By 1916, President Woodrow Wilson had appointed Louis D. Brandeis to the United States Supreme Court, and with Brandeis came his percolating notion of privacy. Many commentators have attempted to sever the "expectation of privacy" which has evolved in American jurisprudence under the Fourth Amendment, [FN112] from the tort of privacy created by Warren and Brandeis in 1890, the "fundamental‑decision privacy" later introduced in Griswold v. Connecticut, [FN113] and other forms of privacy which have concurrently taken shape in American law. Such a sharp division is unfortunate, however, because history confirms that the various offshoots of privacy are deeply intertwined at the roots, owing their origins to the same soil. In the case of the Fourth Amendment, the same soil was Louis Brandeis, who laid the groundwork for the constitutionalization of his notion of privacy in Olmstead v. United States. [FN114]

 

Before examining Brandeis's dissent in Olmstead and considering the historical forces which converged to forge an explicit Fourth Amendment *1358 right of privacy in the 1967 decision of Katz v. United States, [FN115] it is worth first exploring the underpinnings of "search‑and‑ seizure" privacy in the United States. If privacy was explicitly acknowledged anywhere in the early contours of American law, it was within the folds of criminal procedure, where even in the early days of colonial life there existed a strong principle, inherited from English law, that a "man's house is his castle; and while he is quiet, he is well guarded as a prince in his castle." [FN116] William Pitt the Elder declared in his Speech on the Excise Bill:

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail‑‑its roof may shake‑‑the wind may blow through it‑‑the storm may enter, the rain may enter‑‑but the King of England cannot enter‑‑all his force dares not cross the threshold of the ruined tenement! [FN117]

 

This notion carried over with a nearly‑sacred resolve to the American colonies. The Rhode Island Code of 1647 provided that "a man's house is to himselfe [sic], his family and goods as a castle." [FN118] John Adams addressed a jury in 1774 with the following admonition: "An Englishman's dwelling House is his Castle. The law has erected a Fortification round it." [FN119]

 

Such a fierce protection of the inner sanctum of the home therefore made its way into the U.S. Constitution in the fashions most relevant to citizens of the early American period. A prohibition against the quartering of soldiers was placed in the Third Amendment; [FN120] after all, such an invasion of privacy had been specifically alleged against King George III in the Declaration of Independence. A requirement of *1359 particularized warrants to guard against unreasonable searches and seizures was embodied in the Fourth Amendment, largely in response to the use of general warrants and writs of assistance by the British, by which customs officials and soldiers conducted wide‑roaming searches of colonists' homes and private affairs for contraband. [FN121] Privacy was far from a lost concept in the context of colonial life. It was, rather, a subtle notion which lay behind other safeguards relevant in the 18th century.

 

The case of Boyd v. United States, [FN122] decided in 1886, first specifically wed the notion of privacy to the guarantee against unreasonable searches and seizures in the Fourth Amendment. In that case, Justice Bradley spoke of the "sanctities of a man's home and the privacies of life" [FN123] when he condemned the seizure of thirty‑five cases of polished plate glass by federal authorities at the port of New York. The defendants had been forced to produce an invoice which was later used to prosecute them for violations of the customs laws. [FN124] This link between the privacy‑laden notion of "home is your castle" and the Fourth Amendment had already been made by Judge Thomas Cooley‑‑the same Judge Cooley who had written about a "right to be let alone" in his treatise on Torts, prior to Warren and Brandeis adopting that phrase as their own. [FN125] Cooley, in his 1868 treatise on Constitutional Law, described the criminal procedural aspect of privacy as:

[the] maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers even against the process of law, except in a few specified cases. The maxim that "every man's house is his castle" is made a *1360 part of our constitutional law in the clause prohibiting unreasonable searches and seizures. [FN126]

 

When Brandeis moved from Harvard Law School to the Supreme Court in 1916, he made use of this rich history to solidify the link between the Fourth Amendment and a constitutional version of privacy. His 1928 dissent in Olmstead v. United States [FN127] took aim at newly‑invented technology which allowed wiretapping of telephone lines by federal officers, and vehemently contended that such an interception of communications‑‑even without a physical trespass or seizure of tangible property‑‑constituted an illegal "search and seizure" under the Fourth Amendment. [FN128]

 

Most forceful was Brandeis's argument that the Fourth Amendment embraced a "right to be let alone," of the same cast and character as that formulated in his article in the Harvard Law Review thirty‑seven years earlier. In rejecting the five‑person majority's holding that the Fourth and Fifth Amendments were not abrogated since there had been no "search" (in terms of physical trespass) and no "seizure" (of tangible property), [FN129] Justice Brandeis borrowed heavily from his Harvard piece and wrote this evocative passage, weaving the "right to be let alone" into a Fourth Amendment concept of privacy relating to searches and seizures:

The protection guaranteed by the [4th and 5th] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of *1361 happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone‑‑the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. [FN130]

 

Justice Brandeis was keenly aware of technological change in arguing that a right of privacy had come of age under the Fourth Amendment, particularly with respect to wire communications. "Subtler and more far‑reaching means of invading privacy have become available to the Government," he wrote. "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." [FN131] It was this change in society's technological arsenal which enabled the government to intrude upon an individual's personal sphere (like the change in the ability of newspapers and photographers to invade the individual's personal space in the 1890s), prompting Brandeis to advocate the creation of a new offshoot of privacy.

 

It is interesting to note that Brandies's perception of technology's impact upon privacy was even deeper than the opinion itself reflects. Brandeis's working file on Olmstead included an Associated Press clipping dated January 13, 1928, which announced the perfection of a new invention known as the television. [FN132] According to the late Henry Friendly, who was then Brandeis's law clerk, the original draft of the Olmstead dissent included a passage which warned of the dangers that television posed to privacy. That now‑ forgotten passage read: "Through television, radio and photography, ways may soon be developed by which the Government can, without removing papers from secret drawers, reproduce them in court and by which it can lay before the jury the most intimate occurrences of the home." [FN133] Friendly believed that television *1362 had no direct relevance to government spying and convinced Brandeis to omit that passage in his final dissenting opinion. [FN134] Yet it is clear that Brandeis sensed a direct clash between such new inventions‑‑ including radio, television and bugging devices‑‑and the "right to be let alone" under the Fourth Amendment.

 

What Brandeis foresaw when he viewed the Constitution as being flexible enough to include new forms of Fourth Amendment privacy, which could never have been envisioned when early Englishmen spoke of "home is your castle," was a vision not shared by society as a whole in 1928. Like other shoots on the privacy vine, it was not until the events of history coalesced to make this a matter one of fundamental concern on a societal scale, deeply sensed after years of experiencing the effects of humankind's own inventiveness, that Fourth Amendment privacy took shape in American jurisprudence. That, of course, did not fall into place until Katz v. United States [FN135] was decided by the Supreme Court in 1967.

 

The precise historical catalyst which prompted the acceptance of an explicit Fourth Amendment privacy, well after Brandeis's death in 1941, was relatively looming in its presence. Like the original privacy tort of 1890 which was jolted into existence by technological advance in America‑‑relating to prying newspapers and mass media‑‑Fourth Amendment privacy took shape as a result of a different explosion in gadgetry. This involved the perfection and widespread availability of electronic surveillance devices, making it possible for the government (and private citizens) to pose a previously unimagined threat to personal solitude‑‑a new encroachment upon the old but central "home is your castle" precept.

 

Although wiretapping had been possible two decades earlier, surveillance technology underwent a boom in terms of both availability and sophistication in the 1940s and 1950s. J. Edgar Hoover, in his high‑profile tenure as director of the Federal Bureau of Investigation, made public the government's extensive use of wiretaps in "national‑security" matters. [FN136] Particularly notorious was the use of wiretapping by the federal government during the course of, and in the aftermath of, World War II, primarily for purposes of detecting Communist sympathizers and foreign government informants. [FN137] Although the Supreme Court had *1363 declared in Nardone v. United States [FN138] that wiretaps were illegal by statute, pursuant to the ambiguous Federal Communications Act of 1934, Congress heatedly debated the issue throughout 1941 and 1942 but failed to gather a consensus or to produce more forceful legislation. [FN139] As a result, government agents continued to judiciously ignore the Supreme Court's ruling in Nardone, instead abiding by a purported secret Executive Order issued by President Roosevelt to Attorney General Jackson, which authorized the use of wiretapping by the FBI "when necessary in situations involving national defense." [FN140]

 

By the 1950s, the technology that enabled government surveillance had grown by exponential leaps. Parabolic microphones, transmitters the size of cigarette packs, induction‑coil devices and miniature television transmitters made it possible for government agents, police, private investigators and average citizen snoopers to watch, listen and record virtually any sound or movement. [FN141] Accompanying this perfection in technology came the growing use of private detectives as surreptitious information‑gatherers in business and family disputes, extending the intrusive scope of eavesdropping to the private sector. [FN142] Attempts by the states to curb or prohibit wiretapping were largely ineffective. The state statutes tended to create broad exceptions for police conducting eavesdropping, as well as for citizens who agreed to have their own phones tapped, making them less than air‑tight. As well, the language of the statutes was rarely drafted to keep up with the swiftly‑changing technology, rendering them quickly obsolete. [FN143] By the time the United States entered the 1960s, most of the attempts to protect individual privacy by curbing electronic surveillance at the state level had failed. [FN144]

 

The 1960s soon witnessed a national uproar over the unchecked ability of government and private investigators to eavesdrop. Attorney General Robert Kennedy appeared before the Senate Judiciary Committee *1364 in 1962 in support of new legislation which would ban private wiretaps entirely and authorize government interceptions only with court orders. [FN145] Influential scholars, including Alan Westin [FN146] and Arthur Miller, [FN147] produced volumes of literature detailing the threat of surveillance technology to individual privacy. [FN148] Newspapers and periodicals throughout the country, including the New York Post and U.S. News and World Report, featured articles and editorials decrying the runaway use of electronic surveillance and calling for reforms. [FN149] The Senate Subcommittee on Administrative Practices and Procedures, chaired by Senator Edward V. Long (D.Mo.), held lengthy hearings between 1964 and 1966 on the surveillance activities of the FBI, the Department of Treasury and other branches of the U.S. government, with the Subcommittee exposing shocking stories to the public. [FN150]

 

In his State of the Union address in 1967, President Lyndon B. Johnson stood before the United States Congress and delivered the following message, amidst bipartisan applause:

We should protect what Justice Brandeis called the "right most valued by civilized men"‑‑the right to privacy. We should outlaw all wiretapping‑‑ public and private‑‑wherever and whenever it occurs, except when the security of the nation is at stake‑‑and only then with the strictest governmental safeguards. And we should exercise the full reach of our Constitutional powers to outlaw electronic "bugging" and "snooping." [FN151]

 

It was during this time that Fourth Amendment law underwent a similar, gradual shift towards an increased role for privacy, as American society itself became slowly, intensely aware of the dangers posed to personal solitude by this new hardware. Olmstead had been followed by *1365 a string of cases‑‑ most notably Goldman v. United States [FN152] and On Lee v. United States [FN153] ‑‑which reinforced the notion that violations of the Fourth Amendment took place only where there was a physical trespass on property or seizure of material goods, thus allowing government agents to employ dictaphones and microphones as long as a defendant's person or property was not touched. [FN154] It was not until 1961, in the decision of Silverman v. United States, [FN155] that a unanimous Court began to budge towards a pro‑ privacy posture, disallowing the use of a "spike mike" driven into the wall of a row house, where it tapped into a heating duct and allowed officers to monitor conversations within the defendant's entire house. The Court in Silverman continued to cling to its notion of physical trespass. [FN156] At the same time, Justice Stewart's majority opinion presaged a shift in the Court's Fourth Amendment philosophy toward a greater solicitude for privacy flowing from the person. Justice Stewart noted that although it was not appropriate to re‑examine the rigid approach of Goldman at that moment, "we decline to go beyond it, even by a fraction of an inch." [FN157]

 

*1366 By the time Katz v. United States [FN158] was scheduled for oral argument on October 17, 1967, Brandeis's dissent in Olmstead had finally caught up with the times, or vice‑versa. Charles Katz was arrested by federal authorities in Los Angeles, after an electronic listening device attached to the outside of a telephone booth was used to record his conversations, as he ran bookmaking activities through Boston and Miami. The Supreme Court, again in an opinion authored by Justice Stewart, found that this mode of gathering evidence ran afoul of the Fourth Amendment, even though the physical property of defendant had never been violated. The Fourth Amendment, wrote Justice Stewart, "protects people, not places." [FN159] After jettisoning the niggardly "constitutionally protected area" approach of Olmstead, Justice Stewart went on to embrace an explicit privacy concept under the Fourth Amendment: "[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected...." [FN160] Justice Harlan's concurrence in Katz, of course, eventually won the day and left an indelible mark on the history of privacy under the Fourth Amendment by offering a notion of "reasonable expectations of privacy" which can now be recited by every first year law student as the standard for search and seizure analysis in criminal procedure. [FN161]

 

Brandeis may have foreseen, in 1928, the need for a "right to be let alone" to guard against electronic eavesdropping, television and other untested forms of technological wizardry, but such a fear for the individual's personal space was not commonly shared by society, it seems fair to say, until Katz's telephone booth was bugged in the mid‑1960s. [FN162] Prior to Katz, the nation had collectively grappled with this new electronic threat to personal solitude for several decades. Like the original privacy tort concocted by Warren and Brandeis in 1890‑‑prompted by unexpected encroachments upon personal solitude *1367 posed by technological advances in newspapers and photography‑‑history once again fashioned a new plantlet on the strawberry geranium.

 

This type of "search and seizure" privacy is most closely aligned with those scholars who offer definitions of privacy as "sanctuary" [FN163] "secrecy," [FN164] "solitude" [FN165] or some combination containing those elements. [FN166] It is not a wholly new concept in American law, but a variation of the "home is your castle" notion held fundamental by the English forebears and colonists, [FN167] now subsumed under the "privacy" rubric in order to encompass more modern threats to the same old castle.

 

What bond does Fourth Amendment privacy share with tort privacy, discussed in the previous section? First‑‑and most obvious‑‑both were introduced into American law by Louis Brandeis, drawing upon many of the same raw materials. The Olmstead dissent borrowed unabashedly from the theme of the Warren and Brandeis article of 1890 because, in Brandeis's mind, tort and Fourth Amendment privacy were not dissimilar. Both involved a "right to be let alone," one from other citizens (i.e., newspapers, etc.), the other from an intrusive government. Neither tort law nor Fourth Amendment jurisprudence was equipped to deal‑‑as Brandeis originally found them‑‑directly with these new threats to individuality and solitude wrought by society's inventiveness. So he set about to build a new lawyer atop each. After all, a basic notion of privacy and protection of individuality ran through the common law; some of it made its way into the Constitution, some of it blossomed into civil tort law, but all of it was central to the idea of American democracy. And so it was perfectly natural for Brandeis to look towards the same pool of resources to construct these two different species of privacy. In the Harvard Law Review piece of 1890, the justification for a privacy tort flowed from "a principle as old as the common law," which included a *1368 "recognition of man's spiritual nature, of his feelings and his intellect." [FN168] In the Olmstead dissent, the justification for Fourth Amendment privacy was the same. The makers of the Constitution had incorporated the "home is your castle" maxim‑‑a common law principle [FN169]‑‑into the Constitution because they recognized "the significance of man's spiritual nature, of his feelings and intellect." [FN170] The identical language was used by Brandeis because the two privacies came from the same swath of common law, both designed to assure individual liberty within American society.

 

The other bond shared by these two species of privacy relates to their modes of development. Both were initially jarred into existence by technological change, yet in each case it is noteworthy that several decades elapsed before the new species of privacy was brought into the mainstream of American law. Both tort privacy and Fourth Amendment required time to percolate through the system. The threat to individuality and solitude posed by new technology reached acute and obvious levels, with society wallowing in the drawbacks of its own ingenuity, before the notion of privacy reached a level of general societal acceptance sufficient to trigger acceptance by the courts, a microcosm of American society. Both species of privacy thus required a period of coalescence following the initial technological jolt before the law was ready to lend its imprimatur.

 

How have the courts fared in maintaining this constitutionally‑based privacy under the Fourth Amendment since Katz? The twenty‑odd years following the Katz decision have witnessed a roller‑coaster ride up peaks and down valleys, yet Fourth Amendment privacy has remained surprisingly well‑entrenched in American law. This species of the "right to be let alone" is certainly broader and more durable than the original proscription against government‑sponsored bugging devices which originally spawned it.

 

Although this Article does not seek to provide an absolute treatise on search and seizure law, a review of the cases dealing with "reasonable" and "unreasonable" expectations of privacy certainly provide a flavor for the mixed results in the aftermath of Katz. On the pro‑privacy side of the equation, the Court over the past two decades‑‑in many different contexts‑‑has protected individual solitude from governmental intrusion, within the castle of the home and beyond. A "reasonable" expectation of privacy has been found, sufficient to ward off governmental intrusion, *1369 with respect to the use of myriad bugging devices; [FN171] administrative searches of homes and businesses; [FN172] searches of closed luggage and footlockers; [FN173] sealed packages; [FN174] beepers placed by DEA agents inside drums of chemicals; [FN175] roving border patrols searching for illegal aliens; [FN176] traffic checkpoints searching for concealed aliens; [FN177] and random spot‑ checks for automobiles to inspect drivers' licenses and vehicle registrations. [FN178]

 

On the negative side of the privacy equation, an equally varied list can be drawn up in which no "reasonable" expectation of privacy has been found under the Fourth Amendment, within the context of a wide array of governmental efforts to ferret out criminal activity. The Court has found no reasonable expectation of privacy in an individual's bank records; [FN179] in voice or writing exemplars; [FN180] in phone numbers *1370 recorded by pen registers; [FN181] in conversations recorded by wired informants; [FN182] and in a growing list of cases involving automobiles, trunks, glove compartments and closed containers therein, [FN183] particularly where police are perceived to be in need of clear‑cut rules.

 

What is most telling about the recent Fourth Amendment privacy cases, however, is that the Court seems to be especially heavy‑handed in discounting the "reasonableness" of the citizen's expectation of privacy where the individual's claim to secrecy or solitude collides with the government's war on drugs and alcohol. Put in other terms, the existence or non‑existence of Fourth Amendment privacy now appears to be dependent (to some extent) upon the subject‑matter of the case. No violation of Fourth Amendment privacy, for instance, has been found where drug‑sniffing dogs discovered cocaine after subjecting luggage to a "sniff test" in United States v. Place; [FN184] where an individual's garbage was searched by police for evidence of narcotics use in California v. Greenwood; [FN185] where a high school student's purse was searched for marijuana by an assistant vice principal in New Jersey v. T.L.O.; [FN186] and in a host of "open fields" and "overflight" cases in which airplanes, helicopters and high‑powered photographic equipment have been used to swoop, hover and snap pictures in search of illegally grown marijuana and other (often drug‑related) activity. [FN187] In line with this anti‑ drug‑*1371 and‑alcohol trend, Skinner v. Railway Labor Executives' Ass'ns [FN188] and National Treasury Employees Union v. Von Raab, [FN189] together, held in 1989 that the government was permitted to conduct mandatory drug testing of certain federal employees (railroad engineers involved in accidents; customs agents carrying firearms), under a theory that the "special governmental needs" at stake outweighed the individual's privacy expectations. [FN190] Most recently, Chief Justice Rehnquist, in 1990, authored the politically‑charged opinion in Michigan Department of State Police v. Sitz, [FN191] upholding the use of "sobriety checkpoints" to detect drunk drivers under a theory that the "brief intrusion" upon individual privacy occasioned by DUI roadblocks was outweighed by the state's significant interest in eliminating alcohol‑related deaths on the highways. [FN192]

 

Several observations can be made about the Court's determination of "reasonableness" and "unreasonableness" undergirding Fourth Amendment privacy in the years since Katz. First, it is true, as some commentators have charged, that the concept of privacy under the Fourth *1372 Amendment has become somewhat hierarchical. [FN193] The "reasonableness" of expectations is often a function (in the eyes of the Court) of the type of property or activity secreted by the individual. Particularly where drug and alcohol crack‑downs motivate the search, individual "expectations" become quickly minimized in the name of society's massive stake in eradicating drug traffic and drunk driving. However, such a trend should come as no great surprise. Fourth Amendment privacy is by definition a hierarchical creature. In order to determine which searches and seizures are "unreasonable," within the indeterminate language of the Constitution, the Court must balance the intrusion upon the individual's solitude against the societal interest at stake. Such a balancing exercise has been carried out quite overtly in cases like Skinner, Von Raab and Sitz. More subtle balancing, however, goes on in each Fourth Amendment privacy case. A form of prioritizing is inevitable under Fourth Amendment privacy law, frankly, because the individual's interest in maintaining solitude and secrecy necessarily tugs against society's goal of identifying and prosecuting criminal conduct, both legitimate concerns in applying the Fourth Amendment. [FN194] This feature sharply distinguishes Fourth Amendment privacy from tort privacy. Unlike tort privacy, which deals with purely private conduct, Fourth Amendment privacy deals exclusively with government conduct, constantly pitting the individual against society, often (as in the drug and alcohol cases) with massive odds stacked in favor of the state.

 

What is perhaps most interesting to observe about the Court's balancing act in Fourth Amendment privacy cases, however, is that the entire Court‑‑including the conservative wing‑‑has displayed little difficulty in interpreting and applying unwritten principles in the Constitution. Nowhere is the word "privacy" mentioned in the Fourth Amendment. Nowhere does the Constitution speak of "reasonable expectations" of privacy, nor define how society in its collective wisdom is to arrive at a determination of "reasonableness" or "unreasonableness" in twentieth century America. Yet the Court has applied these concepts with no apparent difficulty, using the precise judicial tools‑‑unspecific text, constitutional history, evolving case law, modern societal *1373 norms‑‑which have generated so much controversy in other areas of privacy law, particularly in the abortion and fundamental‑ decision privacy cases. Thus, in Oliver v. United States, [FN195] the conservative bloc of the Court joined in a Fourth Amendment privacy opinion which drew upon the "intention of the Framers" and "our societal understanding" of protected areas, in concluding that there existed no reasonable expectation of privacy in an open field marked with "No Trespassing" signs. California v. Greenwood [FN196] reveals the same conservative members of the Court relying upon "common knowledge," Fourth Amendment precedent, federal and state court trends, and other traditional tools of judicial interpretivism, in order to provide the textually unspecific notion of Fourth Amendment privacy with a sensible application in the context of twentieth century life.

 

The interesting upshot of such cases is that the Court has quite successfully balanced and created hierarchies in Fourth Amendment privacy matters, true; but it has done so using the same tools of judicial interpretivism which have drawn so much fire in the context of fundamental‑decision privacy (e.g. abortion and contraception, discussed in Part V).

 

The scholarly criticism of the Court's perceived retrenchment in Fourth Amendment privacy jurisprudence has become increasingly loud and sustained. A youthful Justice Rehnquist was certainly correct in 1974, when he predicted that "the government will (inevitably) know more about each of us than it did 50 years ago," resulting in "much less privacy." [FN197] To a certain extent this has become a self‑fulfilling prophecy. Yet in the broader historical sense, Fourth Amendment privacy has become a quite healthy species of the "right to be let alone" in the past thirty years. It is hardly surprising that American society, and the judicial branch which feels its pulse, have been less prepared to embrace a strong notion of individual solitude and secrecy when it gives the appearance of colliding with the war on drugs or the battle against alcohol, two of the most symbolic issues of our time. As privacy percolates through society, it often does not percolate with absolute equanimity. Yet it is a fact of American law that the "reasonable expectation of privacy" has now become permanently embedded in Fourth Amendment jurisprudence, with frequent victories against improper government searches and seizures, along with occasional set‑backs as the delicate balance between individual solitude and state intrusion is *1374 constantly defined and re‑defined. This is not a bad achievement, considering that Louis Brandeis was unable to convince a majority of the Court that any such serious balance should take place at all in the relatively recent history (1928) of American law.

 

Brandeis's vision of Fourth Amendment privacy set down in Olmstead, curiously intertwined with his original privacy tort, is now a fixture of American criminal procedure. It is built atop the fiercely guarded principle of "home is your castle," transferred into the Fourth Amendment from the common law, an expression of the very essence of American democracy.

 

Rather than controlling the flow of information about oneself in order to preserve individuality (the function of tort privacy), the Fourth Amendment species of privacy is designed to preserve "secrecy" or "sanctuary" or "solitude" vis‑a‑vis the government, allowing one to carry on one's activities in life‑‑working, praying, interacting with family, owning property, reading, relaxing, thinking‑‑without unjustified interference from the body politic. Such solitude was viewed as a core aspect of individual liberty at the time American democracy took shape, for otherwise, as James Otis put it, the liberties of every person would be placed "in the hands of every petty officer." [FN198] As early as 1690, William Penn wrote a verse entitled Some Fruits of Solitude, which contained the following observation: "Remember the Proverb, Bene qui latuit, bene vixit, They are happy that live Retiredly.... It is the Advantage little Men have upon them; they can be private, and have leisure for Family Comforts, which are the greatest Worldly Contents Men can enjoy." [FN199]

 

In legal terms, the species of privacy now secured under the Fourth Amendment may be defined as the "right to be let alone, with respect to governmental searches and seizures which invade a sphere of individual solitude deemed reasonable by society."

 

The strawberry geranium, once having taken root, develops strongholds as its climate dictates.

 

IV. FIRST AMENDMENT PRIVACY

 

Perhaps the most curious, and least settled, offshoot of privacy to develop in the hundred years since Warren and Brandeis put pen to paper is that intertwined with the First Amendment. Many scholars have ignored this species of privacy altogether or attempted to gloss over its *1375 height, weight and measurements; for good reason‑‑it is the most muddled and difficult to classify. Yet the fact remains that the Supreme Court, as recently as 1988, in Frisby v. Schultz, [FN200] continues to refer to privacy as if it has a tentacle of the vine intertwined with free speech under the First Amendment, albeit in a somewhat elusive fashion which will (hopefully) be sorted out in the following pages.

 

It is first important to distinguish between two types of cases in which privacy and the First Amendment wash into each other. First, there are those cases in which privacy intersects with free speech‑‑for instance, where a door‑ to‑door religious solicitor may seek to convey a message to an unwilling listener in the home. It is here, it will be argued, that privacy has evolved into a third species, quasi‑constitutional in nature. Quite distinct, although often jumbled together, are those cases in which privacy collides with free press under the First Amendment‑‑for instance, where a newspaper seeks to publish the name of a rape victim who wishes to remain anonymous. The latter cases, it will be shown, involve privacy as a mere tort. In such cases, privacy enjoys no preferred status in the law and is routinely flattened when it comes into conflict with the First Amendment.

 

The species of privacy linked to free speech under the First Amendment, which will be discussed in the following pages, is unique for several reasons. It is first and foremost a parasite, deriving its importance not from any direct or consistent source in the Constitution, but as a counterweight which has latched itself onto, in order to restrict, free speech under the First Amendment. Thus, one person may have a right to knock on doors or deliver sermons through loudspeakers in the park‑‑arguably protected "speech" under the First Amendment‑‑but there is a competing notion of privacy inherent in the audience which at some point overtakes the free speech interest. Unlike tort privacy or Fourth Amendment privacy which have developed in American law in their own right, to protect important spheres of individuality and solitude, First Amendment privacy has developed primarily to moderate, balance out, another constitutional right; namely, that of free speech.

 

The term "First Amendment privacy" is perhaps a misnomer. It is far from clear whether the privacy being described here flows from the First Amendment at all (in some cases it appears so), or whether it is more accurately a hybrid of "home is your castle" privacy derived from the Fourth Amendment, or perhaps a common law tort of privacy with super‑tort‑like powers, or a combination of all the above. Although the Supreme Court has in essence institutionalized this species of privacy by routinely balancing it against the right of free speech under the First *1376 Amendment‑‑often with the victory going to privacy‑‑ the precise parameters of this "right to be let alone" are anything but self‑ evident. An examination of its history and evolution reveal a privacy starkly similar to other species, but with ambiguous moorings both inside and outside the Constitution.

 

The origins of First Amendment privacy are largely ignored, but unfortunately so. Not only is it historically significant that Justice Brandeis (once again) helped introduce the concept to modern American jurisprudence, but it is particularly noteworthy that this occurred in 1920, well before his famous dissent in Olmstead sought to link privacy to the Fourth Amendment. First Amendment privacy, then, was actually the first brand which Brandeis attempted to constitutionalize. Indeed, the Supreme Court cases acknowledging this unusual link between the right to privacy and the First Amendment in the 1940s pre‑dated the acceptance of Fourth Amendment privacy in Katz by two decades.

 

Gilbert v. Minnesota [FN201] was the first case in which Justice Brandeis, in dissent, sought to graft his notion of a "right to be let alone" onto First Amendment principles, albeit in a circumlocutious fashion. Gilbert involved a Minnesota statute, enacted during World War I, which made it unlawful to "discourage" the enlistment of men in the military, or to teach or advocate that citizens not assist the United States against its public enemies. When Gilbert spoke out against the war in Europe at a public meeting of the Nor‑ partisan League, suggesting "we had better make America safe for democracy first," [FN202] he was criminally prosecuted under the Minnesota statute.

 

A majority of the Court rejected Gilbert's assertion that his anti‑war speech was protected by the First Amendment. The Court declared that such freedom of speech "is natural and inherent, but it is not absolute." [FN203] Justice Brandeis, on the other hand, took sharp issue with the majority, condemning the fact that the Minnesota statute prohibited citizens from articulating views against the war, even in the sanctity of their own homes: "Father and mother may not follow the promptings of religious belief, of conscience, or of conviction, and teach son or daughter the doctrine of pacifism." [FN204] This sort of extreme regulation of dissident speech, wrote Brandeis, "invades the privacy and freedom of the home." [FN205]

 

It is not particularly clear where Brandeis found this right of privacy of the home‑‑whether as a corollary of free speech under the First *1377 Amendment or connected to the notion of "liberty" under the Fourteenth Amendment, both of which he mentioned. [FN206] Nevertheless, it is clear that Brandeis was attempting to introduce a notion of privacy which was connected in some fashion to the Constitution (unlike his original tort privacy) and which worked in tandem with the First Amendment to assure a freedom of speech within the four brick walls of the citizen's residence. Unfortunately, the Gilbert dissent has, for the most part, been lost to history. Yet Brandeis's underlying notion that privacy has some place among the shade of the First Amendment was swiftly resurrected in the 1940s.

 

A. Privacy and Free Speech

 

It was in the door‑to‑door solicitation cases of the World War II era that First Amendment privacy began to take root in its uncertain soil. [FN207] In Martin v. City of Struthers, [FN208] the Court forbade the city of Struthers, Ohio, from prohibiting the door‑to‑door distribution of leaflets by Jehovah's witnesses, advertising the group's Theocratic Convention. Although the free speech rights of the Jehovah's Witnesses prevailed in that case, a widely divergent set of separate opinions brought privacy to the forefront. Justice Murphy, concurring, believed that there were narrower ways to protect the homeowners' solitude in this case short of an out‑and‑out ban on door‑to‑ door speech. At the same time, he explicitly acknowledged a right of privacy in the home, stating: "[F]ew, if any, believe more strongly in the maxim, 'a man's home is his castle,' than I." [FN209] After citing his own dissent in the Fourth Amendment case of Goldman v. United States, [FN210] in which he extolled the virtues of Fourth Amendment privacy, as well as the Warren and Brandeis article of 1890 and various cases adopting privacy torts, Justice Murphy concluded of privacy in the home that: "If this principle approaches a collision with religious freedom, there should be an accommodation, if at *1378 all possible, which gives appropriate recognition to both." [FN211] Justice Frankfurter, in dissent, launched an impassioned attack upon the "lack of privacy and the hazards to peace of mind and body caused by people living not in individual houses but crowded together in large human beehives," [FN212] concluding that the steel town's ordinance banning the distribution of handbills and door‑to‑door solicitation was appropriate. Likewise, Justice Reed (also dissenting) believed that the "assurance of privacy" in the home was broad enough to restrict the First Amendment rights of the speaker. [FN213]

 

Admittedly, Martin cannot be viewed as an open‑and‑shut endorsement of privacy linked to the First Amendment. However, it certainly represents an implicit acknowledgment that some curious privacy species (of imprecise origin) existed which might be used to counterbalance the First Amendment freedom of speech.

 

It was in Breard v. City of Alexandria, [FN214] decided in 1951, that the court gave its first victory to privacy in the clash between the undaunted solicitor and the unwilling homeowner. Breard involved a prosecution in Alexandria, Louisiana under a so‑called "Green River" ordinance [FN215] of the sort which came into vogue in the 1930s and 1940s as Fuller brushmen and other entrepreneurs flocked door‑to‑door. Breard had solicited the sale of subscriptions to popular magazines like the Saturday Evening Post and Ladies' Home Journal, and was convicted under the ordinance which prohibited "solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise" from soliciting private residences without being invited by the owner or occupant. Justice Reed, now able to persuade a majority of the Court, invoked his dissenting theme in Martin and found that the homeowner's right to privacy properly limited the huckster's right to free speech under the First Amendment: *1379 "[T]he constitutionality of Alexandria's ordinance turn[s] upon a balancing of the conveniences between some householders' desire for privacy and the publisher's right to distribute publications in the precise way that those soliciting for him think brings the best results." [FN216]

 

In the evolution of privacy, Breard is significant in providing the first solid link between First Amendment freedom of speech and a competing privacy in the homeowner. Admittedly, Justice Reed's version of privacy can be viewed as a basic tort notion in this case. [FN217] However, its precise origin is far from clear, and it seems to have a preferred status, potent enough to outweigh the First Amendment, which is no small task.

 

This central ambiguity, involving the origin of this right to privacy which counterbalances the First Amendment freedom of speech, only becomes more apparent and complex in later cases, as privacy seems to establish an uncertain parasitic relationship with that provision of the Bill of Rights, even moving outside the sanctuary of the home. Any doubt that Brandeis had a hand in developing this, like other species of privacy, can be resolved by examining the related "captive audience" cases. One of the earliest of these was the 1932 case of Packer Corporation v. Utah [FN218]‑‑authored by Justice Brandeis‑‑ which upheld a Utah statute prohibiting the advertisement of cigarettes and other tobacco products on billboards, street car signs and placards, throughout the state. Justice Brandeis, writing for a unanimous Court, rejected a challenge to the statute under an equal protection theory (the statute did not ban such advertising in newspapers) and then turned his attention to the privacy rights of the unwilling observer. In words borrowed from the Utah Supreme Court, Brandeis endorsed a broad concept of the "right to be let alone" powerful enough to defeat the First Amendment, even where the "captive audience" was on the street rather than within the home. "The radio can be turned off," wrote Brandeis, "but not so the billboard or street car placard." [FN219]

 

*1380 Brandeis's rather extreme notion of privacy articulated in Packer, which could be used to curtail speech virtually any time an unwilling viewer or listener indicated that he or she wished to be free from the speaker's message, has properly been dismissed as an "unacceptable political ideal." [FN220] It would ultimately collapse into a boundless bundle of privacy rights, allowing an individual to claim a right to solitude in almost every setting in which he or she wished not to hear or see a message. Nevertheless, Packer successfully introduced the germ of privacy linked to "captive audiences," which continued to grow.

 

Kovacs v. Cooper, [FN221] handed down in 1949, gave the right to privacy its successful debut in a traditional "captive audience" case, beating out the right to free speech under the First Amendment. [FN222] In upholding a Trenton, New Jersey, statute which made it unlawful to use sound trucks and loudspeakers emitting "loud and raucous noises," Justice Reed stressed that the captive listener‑‑faced with music and labor‑dispute speeches broadcast from a truck on a public street‑‑should not be forced to suffer a loss of privacy:

The unwilling listener is not like the passer‑by who may be offered a pamphlet in the street but cannot be made to take it. In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality. [FN223]

 

Justice Frankfurter went even further, in Kovacs, decrying the diminishing opportunities for "serenity and reflection" in American life, and stating: "Without such opportunities freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society." [FN224]

 

Thus, privacy was not only recognized as a counterbalance to free speech within the sacred confines of the citizen's home, but in Kovacs and later "captive audience" cases, it managed to sneak outside the home and *1381 become bigger than life. Although the origin of the privacy right at issue was still murky, it did not look or smell exactly like a tort. It was pushing the odd symbiotic relationship between privacy and the First Amendment a step further, beginning to give it constitutional muscle as Brandeis originally envisioned.

 

The easiest way to explain this odd permutation of privacy is therefore to say that the First Amendment came to be viewed as possessing two distinct hemispheres. The first was the familiar freedom to speak and express views in public without governmental interference. The second was the less familiar freedom of the citizen to think and engage in private thoughts, free from the clutter and bombardment of outside speech. The latter concept, if indeed it was seeping into the free speech cases, was not a concept entirely new to American law. Justice Joseph Story, in his classic Commentaries on the Constitution of the United States, wrote in 1833 that the First Amendment included the protection of "private sentiment" and "private judgment." [FN225] Francis Lieber, a leading scholar on the Constitution prior to the Civil War, included within his definition of the First Amendment a notion of "freedom of communion" and "liberty of silence." [FN226] It was a variation of such less familiar notions of "privacy of thought," then, which was beginning to creep into this odd species of privacy linked to the First Amendment.

 

One obvious problem, of course, was that in most of these free speech cases in which privacy of the listener was being balanced against the speaker's First Amendment rights, there was no state action. Purely private conduct was involved (albeit with regulations promulgated by the state or local municipality, creating a tangential governmental involvement). Thus, the "privacy of thought" belonging to the listener could not technically flow from the First Amendment, because that Amendment dealt only with transgressions by the body politic. As a result, this species of privacy continued to grow; but it was forced to draw upon multiple sources‑‑both inside and outside the Constitution‑‑in order to save itself from the state action quandary.

 

Thus from the 1950s forward, species number three of the right to privacy came to be recognized as a valid counterweight to free speech under the First Amendment, yielding varying results. In Public Utilities Commission v. Pollak, [FN227] the Court rejected a privacy attack by passengers on a street railway in Washington D.C., who found broadcasts *1382 of music and radio programs to be distracting and offensive. Although the majority seemed to acknowledge the existence of a right of privacy grounded in the Fifth Amendment, [FN228] it found no such right encroached where an individual rode in a public conveyance. Justice Douglas, in a vigorous dissent, would have created a "liberty of silence" based upon the First Amendment. He argued that: "The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone." [FN229]

 

Nearly two decades later, Stanley v. Georgia [FN230] added a powerful boost to the notion that the First Amendment included a second hemisphere which protected freedom of thought and solitude in the home. In overturning a conviction for possession of obscene materials found in appellant's bedroom, Justice Marshall spoke of a "fundamental" right to be free from governmental intrusions into one's privacy, citing Brandeis's dissent in Olmstead. In case there was any doubt where this fundamental right originated, Justice Marshall wrote:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. [FN231]

 

The following year, in Rowan v. United States Post Office, [FN232] the Burger Court shored up the notion of First Amendment privacy in the home, upholding a federal statute which permitted homeowners to insulate themselves from mail which they believed to be "erotically arousing" or "sexually provocative." [FN233] After making explicit that the "right to be *1383 let alone" must be placed on the scales and balanced against free speech under the First Amendment, [FN234] Chief Justice Burger concluded that "a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail." [FN235]

 

What was going on, then, was a metamorphosis of this awkward species of privacy into a creature of the First Amendment itself. Neither Stanley nor Rowan involved state tort laws. Stanley was a criminal action and Rowan involved regulations of the federal government. Yet both of these cases found a distinct brand of privacy in the home: Stanley specifically located this right in the First Amendment; Rowan remained ambivalent.

 

This is not to suggest that First Amendment privacy, even to the extent it was becoming quasi‑constitutionalized, was invincible. In a number of familiar cases, the Court found that the privacy rights of the unwilling listener or observer, particularly outside the home, lost out to the freedom of speech under the First Amendment. Thus in Cohen v. California [FN236] (war protester wearing "Fuck the Draft" jacket in Los Angeles County Courthouse), Organization For a Better Austin v. Keefe [FN237] (peaceful distribution of leaflets advocating racial equality) and Erznoznik v. City of Jacksonville [FN238] (showing of R‑rated movie in drive‑in theatre, in which female buttocks and breasts could be observed) privacy claims were all defeated by free speech. Yet what is most important about these cases is that in each one, the privacy rights of the viewer or listener were recognized as valid, a legitimate right to be reckoned with under the First Amendment. This led to a further solidification of privacy in its curious, watchdog role with respect to the First Amendment. Whether it was derived from the First Amendment "liberty of conscience," or the Fourth Amendment "home is your castle" principle, or state tort laws of a preferred stock, or (most likely) a swirl of all of the above, it was becoming a bona‑fide species in American law.

 

The modern result has been that the Court seems to automatically balance the right to privacy against the freedom of speech in First *1384 Amendment cases, essentially regularizing this symbiotic relationship. In FCC v. Pacifica Foundation, [FN239] for instance, the Court permitted the FCC to ban comedian George Carlin's monologue, Filthy Words, from the public airwaves, finding that "the individual's right to be left alone [in the home] plainly outweighs the First Amendment rights of an intruder." [FN240] In Carey v. Brown, [FN241] a residential picketing case, the Court struck down an Illinois statute which impermissibly drew a line between labor picketing and other peaceful picketing. At the same time, the Court acknowledged that "the State's interest in protecting the well‑being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." [FN242]

 

The concept of "residential privacy" continued to crystallize in 1988 in Frisby v. Schultz, [FN243] a case in which a majority of the Court upheld a Brookfield, Wisconsin statute which established a flat ban on residential picketing. Justice O'Connor undertook a lengthy review of the privacy cases enmeshed with the First Amendment, painting a generous picture of "residential" or "family" privacy in upholding the statute. Not only was the State's interest in protecting tranquility in the home "of the highest order," as stated in Carey, but the sanctity of the home was "the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits" [FN244] and "the last citadel of the tired, the weary, and the sick." [FN245]

 

What can be said of this species of privacy, after its lengthy but herky‑jerky evolutionary period? Is it legitimate and proper that the *1385 Court should continue to recognize such a legal concept in free speech cases, without addressing, with some honesty, its source and parameters? Probably not. The fairest way to describe this odd species of privacy is to acknowledge that it was originally built as an amalgam of the two species discussed in the previous sections, but has now moved towards an increasingly strong link with the First Amendment itself. Like Brandeis's original privacy tort and Fourth Amendment privacy, it flows from common law principles underlying and predating the Constitution and tort law notions of solitude and individuality upon which American democracy was built. Where state action is present, such privacy flows directly from the First and Fourth Amendments and is thus quasi‑constitutional in nature. Where no state action is present and one individual's solitude is threatened by another private citizen engaging in free speech, such privacy necessarily flows from the highest priorities of tort law, as well as common law notions underlying tort and constitutional concepts of solitude. In either case, it is frequently powerful enough to outweigh competing First Amendment interests of other citizens.

 

The historical impetus which produced this offshoot of the strawberry geranium is perhaps less sharp and focussed than others. Since this species of privacy evolved, despite Brandeis's broader intentions in Gilbert and Parker, primarily as an adjunct to the First Amendment freedom of speech, it is difficult to say it evolved on its own, with its own catalyst, in the same fashion as tort privacy at the turn of the century or Fourth Amendment privacy in the 1970s. Part of the reason that First Amendment privacy was born in the 1940s is attributable to a societal need to protect solitude in a new fashion at that time, but part of it is attributable to American history as it worked to temper the evolution of free speech, as well. By the time Martin and Breard were decided in the 1940s and 1950s, the urbanization of America was virtually complete, and the "suburbanization" of America had begun. In the cities and steel mill towns, like Struthers, Ohio, of the Martin case, houses were crowded on top of each other, and people were living in "large human beehives," in the words of Justice Frankfurter. Men were working 24‑hour swing shifts, such that any time of the day or night might be essential time for sleep and solitude. [FN246] At the same time, the suburbs were developing. Increased crowding in the cities, along with the advent of automobile traffic as an everyday fact of life, as well as increasingly crowded industrial work environments, created an urge in Americans to withdraw from the crowd and distance themselves from the perpetual mental clatter which emanated from the cities. The Puritan Cotton Mather, in the 18th *1386 century, had stressed the importance of solitary thoughts‑‑"a Godly man will sometimes Retire, that he may carry on the Exercises of Godliness" [FN247]‑‑and this instinct continued to run strong in America. By the middle of the twentieth century, when First Amendment privacy made its debut, such simple retreats into solitude were becoming much more difficult for the average American citizen. Coupled with the growing feeling of isolationism which settled upon the United States after World War II, an increased yearning took hold for a home and family untainted by the hubbub of modern city life. Added to this was the fact that door‑to‑door canvassing dramatically increased as a method of speech and commercial solicitation, feeding upon the greater concentration of housing, [FN248] which resulted in a strong push for legally protected solitude both in the city and the suburbs. This led to a new emphasis on "residential" or "family" privacy, as the door‑to‑door solicitation cases of the 1940s and 1950s concurrently tested the limits of free speech. [FN249]

 

Towns such as Brookfield, Wisconsin, which form the backdrop for more modern cases like Frisby, represent the continuing retreat of middle‑class America into the quiet sanctuary of small town or suburban life, insulated homes with backyards and hedges as tiny barriers, places to grow old and raise families without the constant bombardment of commercial solicitation and religious or political proselytizing. First Amendment privacy, like the previous species of privacy discussed, was shaken into existence by major changes in American life and quite identifiable historical forces. At the same time, this species is equally a creature of the forces which shaped First Amendment law, upon whose stalk it has become permanently affixed.

 

B. Privacy v. Free Press

 

Proof that privacy, as it has been spun into a third species out of the free speech cases, is something more than an ordinary tort concept can be found in the quite distinct body of cases relating to free press. Here, although many commentators have jumbled the case law together with *1387 previous speech cases, privacy does not flow from the Constitution whatsoever. The two are fierce competitors. Nor does it come from preferred stock. The privacy at stake is an ordinary state‑created right embodied in tort law (Brandeis's original privacy tort), vying against the First Amendment freedom of press, as the press attempts to publish information, however truthful, which invades an area of secrecy or solitude the individual has an arguable right to safeguard. Privacy in the free speech area, as we just saw, frequently wins out in its battle against the First Amendment, particularly where the privacy interest of the listener is the strongest (i.e., in the home). But the privacy tort that appears in the free press area, devoid of constitutional underpinnings or special status, is no match for the weighty guns of the First Amendment.

 

The cases themselves illustrate the wide divergence between these two distinct types of privacy settings, which are (unfortunately) often heaped together when discussing the First Amendment's relationship to privacy law. The New York Times v. Sullivan [FN250] line of cases established a standard in defamation cases extremely favorable to the press under the First Amendment, sharply curtailing the states' ability to permit libel suits against newspapers and media defendants unless "actual malice" is proven. Having thrashed out this approach in the defamation setting, the Court mechanically applied the same standard in the realm of privacy torts when quite distinct "false light" and "public disclosure" privacy cases reached the docket. [FN251] The result has been that state privacy tort actions have been effectively squashed in nearly every *1388 instance when they have come into conflict with the constitutional guarantee of free press. [FN252]

 

This downhill spiral for Brandeis's privacy tort, as it battled against freedom of the press, began in Time, Inc. v. Hill [FN253] and continued in Cantrell v. Forest City Publishing Co. [FN254] and Cox Broadcasting v. Cohn. [FN255] In those "false‑light" and "public disclosure" cases, the Court allowed the First Amendment freedom of the press to perfunctorily extinguish state privacy tort claims, simply as a result of plugging them into the New York Times equation. The track record became increasingly hopeless in Oklahoma Publishing Co. v. District Court, [FN256] Landmark *1389 Communications, Inc. v. Virginia [FN257] and Smith v. Daily Mail Publishing Co., [FN258] cases handed down in the late 1970s, all of which stamped out the plaintiffs' privacy claims by applying the New York Times standard, emphasizing that the media must be able to print information lawfully obtained through public sources.

 

The most recent blow to privacy in its unsuccessful battle against free press was the Court's 1989 decision in Florida Star v. B.J.F. [FN259] In that case, the Court took the further leap of allowing free press to prevail over a state privacy statute, even though the newspaper printed information improperly disclosed in public records, and both the statute and internal newspapers rules specifically forbade such publication. [FN260] Despite a successful verdict in the Florida courts, utilizing an invasion of privacy tort as well as a Florida non‑disclosure statute, the Supreme Court (per Justice Marshall) once again flattened the privacy interest under a rubble of First Amendment language, stressing that the newspaper reporter had "lawfully obtained" the information, albeit through mistakenly‑released public records. The Court fell short of holding that there is "no zone of personal privacy within which the state may protect the individual from *1390 intrusion by the press." [FN261] Justice Marshall acknowledged that there might be times when a statute is "narrowly tailored to a state interest of the highest order" and is thus sufficiently weighty to counteract the First Amendment freedom of the press. [FN262] But nowhere does the Court tell us when this might be. The clear upshot of Florida Star, as it relates to the history of privacy, is that it does not leave much breathing room for privacy torts in the air space of the First Amendment, at least where free press is concerned.

 

These cases, above all else, illustrate the radical difference in approach taken by the Court when it perceives itself to be stacking an ordinary state‑ created privacy tort against the First Amendment (in the free press cases), compared to the free speech cases where, it was argued, the privacy interest at stake has been quasi‑constitutionalized. In the free press cases, as Professor Edelman points out, there has been no serious balancing between the First Amendment and the right asserted. [FN263] This is precisely why, in recent years, the "false light privacy" has been dubbed "the light that failed." [FN264] In the free speech cases, on the other hand, where privacy of the listener has been cemented to the First or Fourth Amendment, or derived from common law principles of the "highest order," a serious balancing does take place as a routine matter, and privacy frequently wins the bout.

 

This latter type of privacy‑‑the only true brand of privacy with a hard link to the First Amendment, with the possible exception of "associational privacy" discussed in the Epilogue [FN265]‑‑can properly be characterized as the "right to be let alone, where one individual's freedom of speech threatens to disrupt another individual's freedom of thought and solitude."

 

Like Fourth Amendment privacy, this odd permutation of Brandeis's original privacy tort is concerned with what legal philosophers describe as "repose," "sanctuary" and "solitude." Yet, unlike Fourth Amendment privacy, it does not always involve solitude vis‑a‑vis governmental action, but can leap the fence into purely private conduct, such as door‑to‑door *1391 solicitation. Particularly as American society has moved away from farms to cities, from cities to suburbs, from apartments to small homes with front yards and hedges, this branch of quasi‑constitutional privacy has become much more significant. It safeguards the ability of citizens to engage in religious, political, artistic, domestic, or introspective thought and activity‑‑all the grist of individualism in American democracy‑‑without a constant bombardment of "free speech," knocking doors, ringing bells and preachers‑saving‑the‑world from the outside.

 

Because it assumes a watchdog role, however, possessing no tangible meaning except as a guardian against over‑zealous expressions of First Amendment freedoms of speech, this branch of the strawberry geranium is likely to continue to experience an identity crisis, until scholars and courts become more honest about its status and acknowledge that it has become something quite different than an ordinary privacy tort. It has elevated itself close to the constitutional status which Louis Brandeis originally envisioned for it.

 

V. FUNDAMENTAL‑DECISION PRIVACY

 

The most controversial, boldly‑constitutional species of privacy began to take form out of bits and shreds in 1965, with the decision of the Supreme Court in Griswold v. Connecticut. [FN266] Griswold exploded the world of individual liberties wide open by holding that an 80‑year‑old Connecticut law forbidding the use and distribution of contraceptives violated the right of "marital privacy" [FN267] embodied‑‑somewhere‑‑in the Constitution. Six members of the Court agreed that the privacy was a fundamental right. Yet where this right took up residence in the text of the Constitution was a source of splintered opinions. [FN268] Justice *1392 Douglas, who authored the opinion for the Court, offered his now‑famous explication that the "right to privacy" could be found drifting amidst the "penumbras" of the First, Third, Fourth, Fifth and Ninth Amendments. [FN269] Other Justices quarrelled over its source, but a majority of the Court found a fundamental right of privacy broad enough to protect the ability of married couples to decide what to do in the privacy of their marital bedrooms, without the intruding nose of the state of Connecticut.

 

In the single most noteworthy and (simultaneously) notorious decision of the twentieth century, the Court extended its privacy logic in 1973 in Roe v. Wade [FN270] and created a species of privacy unattached to specific guarantees of the Bill of Rights, now burrowed in the single word "liberty" appearing in the Fourteenth Amendment. [FN271] This substantive right of privacy inhering in the Due Process Clause was "broad enough to encompass a woman's decision whether or not to terminate her *1393 pregnancy." [FN272] Thus, the Court directly flirted with the Lochner bugaboo that Justice Douglas had so assiduously sought to sidestep in Griswold and Poe v. Ullman, [FN273] suggesting that substantive due process was alive and well in the form of a privacy safeguarding certain profound human choices.

 

The leap from Griswold to Roe, which solidified this new species of privacy, was profound. Griswold had played it safe by straddling the line between familiar, constitutionally based notions of privacy‑‑such as privacy in the home (Fourth Amendment privacy), privacy in disclosure of personal information (tort privacy) and privacy in the associational relationship of marriage (First Amendment privacy)‑‑with mere overtures towards a more revolutionary concept of privacy dealing with individual liberties of choice. Because the Connecticut statute at issue had prohibited the "use" of contraceptives, among other things, the Court was able to avoid plummeting into the abyss of Lochner and substantive due process by stacking together all the privacies recognized as legitimate under the Constitution and painting an attractive picture of a natural, amalgamated privacy which protected the sanctity of the home and the marital bedroom.

 

The leap to Roe was a difficult and dangerous one. It could not rely upon the crutch of tried‑and‑true forms of Constitutional privacy, at least not directly. Roe involved the individual decision‑making process itself, not confined to physical boundaries such as homes and bedrooms which were the usual repositories of secrecy and solitude. Although Roe invoked every type of explicit privacy known to the Bill of Rights, it was forced to rest‑‑in the end‑‑squarely upon the Due Process Clause of the Fourteenth Amendment, the single word "liberty" its only claim to a *1394 constitutional mooring. This was the position originally advocated by Justice Harlan in his concurring opinion in Griswold, [FN274] as well as in his impassioned dissent in the earlier contraceptive case of Poe v. Ullman. [FN275] The two‑step leap‑frog from Griswold to Roe thus became the single most significant burst in the history of twentieth century privacy. It was no less dramatic than the original patching together of tort privacy by Warren and Brandeis in 1890, by which bits and scraps of English and Irish common law were assembled together to justify the existence of a right which, before the assembly work, did not exist at all.

 

The privacy of Griswold and Roe is far more intertwined with other types of privacy (previously discussed) than one would suspect from the sharply divided walls of legal literature. To confirm this, one need only re‑read the same standard cases with a different eye. Where did Griswold look for its right of "marital privacy?" Toward Fourth and Fifth Amendment privacy cases such as Boyd v. United States and Mapp v. Ohio, [FN276] as well as the "home is your castle" decision of Lord Camden in Entick v. Carrington. [FN277] Toward First Amendment privacy cases dealing with repose, such as Breard v. Alexandria and Public Utilities Commission v. Pollak. [FN278] Toward associational privacy decisions under the First Amendment, such as NAACP v. Alabama. [FN279] These were blended together with a dormant collection of Fourteenth Amendment "liberty" cases which had escaped the scourge of Lochner‑Skinner v. Oklahoma, [FN280] Meyer v. Nebraska [FN281] and Pierce v. Society of Sisters [FN282]‑‑and from this odd mixture of penumbral guarantees came a right of marital privacy.

 

*1395 It is interesting that Justice Douglas's now‑famous concept of "penumbras," used to build this amalgamated privacy, was not really a novel creation. If one turns to the largely‑unknown dissent of Justice Holmes in Olmstead, directly following the dissent of Justice Brandeis, one can see that Justice Holmes spoke of "penumbras" in describing the locus of Fourth and Fifth Amendment privacy. [FN283] One can at least intelligently infer that Justice Douglas was reading the Brandeis and Holmes dissents in Olmstead, relating to Fourth and Fifth Amendment privacy, at the time he formulated his "penumbral" approach in Griswold, another tribute to the meshing of the species.

 

There were other inter‑connections. Justice Goldberg, who concurred in Griswold to suggest that marital privacy flowed from the Ninth Amendment, relied directly on Brandeis's dissent in Olmstead, stating that Brandeis had "comprehensively summarized" the principles underlying the constitutional guarantee of privacy. [FN284] Even Justice Harlan, the lone member of the Court who sought to hinge Griswold directly on the Due Process Clause of the Fourteenth Amendment, referred back to his dissent in Poe v. Ullman for support. [FN285] That opinion in turn linked due process to those fundamental rights "implicit in the concept of ordered liberty," which in turn‑‑according to Harlan‑‑included Fourth Amendment privacy (citing Brandeis's dissent in Olmstead) and First Amendment privacy (citing Brandeis's dissent in Gilbert v. Minnesota). [FN286] Thus, Griswold was very much an admixture of the species of privacy previously discussed, although rarely viewed this way.

 

Similarly, Roe contained open links to other types of privacy. This was inevitable, really, because it was necessary to seal the gulf between the old "liberty" cases and the new "liberty of choice" which now centered around intimate decisions. Justice Blackmun came to the punch‑line in Roe by invoking constitutional privacy drawn from the First Amendment via Stanley v. Georgia, [FN287] and from the Fourth and Fifth Amendments a la Katz, Boyd and Olmstead, [FN288] and integrating dormant *1396 Fourteenth Amendment liberty cases, including Loving and Skinner. [FN289] Thus, a fourth species was born, with Justice Rehnquist vehemently objecting that this new brand of privacy was not even "a distant relative of the freedom from searches and seizures protected by the Fourth Amendment" upon which the majority partially relied. [FN290] Ironically, the Court had accomplished precisely this sort of hereditary merger.

 

The ingenious thing about Griswold and Roe, in retrospect, was that they succeeded in blending well‑respected constitutional privacy notions‑‑primarily drawing from Fourth and First Amendment cases‑‑with forgotten turn‑of‑the‑ century "liberty" cases under the Fourteenth Amendment and swirled these together to produce a completely new form of privacy dealing with "liberty of choice."

 

The significant questions which present themselves, then, if we are to place species number four of privacy into the framework with other types of previously‑discussed privacy are: What historical forces generated this new species of privacy?; Was it (and is it) constitutionally legitimate?; and What are its distinguishing features such that one can predict the path of its future growth, in conjunction with other species of privacy?

 

It will be argued that, more than any other form of privacy born of the twentieth century, this new brand of privacy (which will be called fundamental‑ decision privacy) was the direct by‑product of technological advance, which created a sphere of personal choice never before imagined by earlier generations of Americans. The result was a pitched battle between citizen and state, as the issue turned into something different than a mere quest for secrecy or solitude; rather, it became a search for a missing piece of the original social contract, with the question being framed: "Who gets to make this fundamental decision; is it me or is it the government?" This significant question mark is what led to anguished battles over issues formerly dormant or noncontroversial in our society, relating to contraception, abortion, homosexuality, the "right‑to‑die" and other volatile subjects. Unlike previous sorts of privacy, which dealt primarily with the ability of citizens to maintain peace and tranquility in their domiciles or regulate the flow of information others might receive about them, privacy under the Fourteenth Amendment dealt much more directly with the subject of American individuality. It required an immediate reassessment, a clarification of the existing social contract embodied in the Constitution, as citizens and government sought to *1397 determine for the first time whether certain fundamental decisions‑‑ never specifically contemplated by humankind, let alone by the Framers of the Bill of Rights in 1791‑‑fell within the sphere of personal autonomy protected by the word "liberty" in the Constitution. Fundamental‑decision privacy was simultaneously the strongest and the weakest because it relied directly upon the pivot of American democracy‑‑i.e., liberty‑‑thus entering the realm of substantive due process, one of the most vilified doctrines in American constitutional law.

 

It was the latter characteristic which immediately raised a cry of "foul" among influential scholars, including John Hart Ely, [FN291] Alexander Bickel [FN292] and Harry Wellington, [FN293] who viewed Roe and its newfangled privacy as a form of social legislation, dredging up long‑ discarded notions of substantive due process which they thought had been discarded with the fall of Lochner. As Professor (later Dean) Wellington of Yale Law School wrote: "The Court could have put it better had it been candid enough to quote Lochner...." [FN294]

 

Was the fundamental‑decision privacy of Roe (and subsequent cases) a re‑ enactment of Lochner? Yes and no, but to the extent Lochner is a pejorative term, mostly no. Both Roe and Lochner located substantive rights (not mere procedural guarantees) within the word "liberty" of the Fourteenth Amendment Due Process Clause. However, there were noteworthy differences. The most obvious was that Lochner dealt with economic rights, while Roe dealt with liberties of a more personal nature. [FN295] This common explanation, however, only scratches the surface. Lochner dealt with economic rights of a specific sort‑‑labor, working hours, health and safety‑‑which traditionally occupied the core *1398 of state police powers. Also, Lochner had collided with the Depression and the New Deal, adding a political spin to its decline. [FN296] Most importantly, however, the 1910 bakery case viewed "liberty" as a repository for virtually every freedom an individual could assert, big or small. It drew no distinction between "economic" or "noneconomic" rights, where such a distinction made a difference. It constructed no wall between garden‑ variety rights, which citizens enjoyed or traded away to society each day, and certain rights that American society deemed basic, irrevocable or fundamental. It can hardly be said that the bakers of Lochner possessed no liberty interest. Indeed, if the issue in Lochner had been whether a citizen has a right to hold a job as a baker at all, the answer might have been different. [FN297] What can be said, in the end, was that the liberty of contract at stake in Lochner was relatively picayune in the overall scheme of the Constitution. [FN298]

 

John Hart Ely, writing in the Yale Law Journal shortly after the decision in Roe, [FN299] concluded that Roe and Lochner were two peas in the same pod, both of them fatally defective because they could point to no mooring in the words of the Constitution. For Ely, the distinction between economic and noneconomic rights was irrelevant; both Roe and Lochner sought to "grant unusual protection to those 'rights' that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them." [FN300]

 

Laurence Tribe, on a different end of the spectrum, was quick to argue that Roe was a legitimate expression of society's morality, which was constantly in a state of flux. [FN301] The Constitution, for Tribe, was a document of an "organic and evolving sort." The new form of privacy introduced in Roe came as a result of the Court "giving structure to the evolution, or rather participating in the structure of the evolution, of *1399 social norms and understandings as they come to find expression in the law." [FN302]

 

In hindsight, the truth about fundamental‑decision privacy is somewhere between the original visions of Ely and Tribe. The new privacy proved not to be a return to Lochner, to the extent that case may be viewed as carte blanche for the Court to invent and insert "liberties" into the text of the Fourteenth Amendment; nor has it amounted to an open‑ended repository for the collective morality of society, as religion and morality spin through a constant state of flux in America. Rather, it will be argued, the fundamental‑ decision privacy developed in Griswold and Roe has become a narrow species designed to clarify and "plug gaps" in the existing social contract. It comes into play, and becomes necessary, where purposely broad constitutional language comes face‑to‑face with unforeseen decision‑making capabilities of citizens‑‑ generally due to unexpected inventions or dramatically altered societal conditions‑‑and the Constitution must inform us whether the government or the citizen possesses the final say.

 

Like the previous three species of privacy discussed, including Brandeis's original privacy tort advanced in 1890, a precise historical catalyst can be identified which jolted fundamental‑decision privacy into existence at that particular juncture of American history. Indeed, it is so obvious that we often ignore the depth and significance of the role of medical technology in shifting American society, during the 1950s and 1960s, in preparing our jurisprudence for a new brand of privacy. The specific technological catalyst, of course, was the unprecedented development of medical sophistication in the area of contraception and abortion. This opened up whole new vistas of choice with respect to the most private of all castles: the body, the human reproductive machinery. In turn was born a "right to be let alone" which shared no counterpart in the earlier campaign of Louis Brandeis. It was a form of "autonomy," as legal philosophers refer to it, the ability of an individual to determine whether or not he or she "will perform act A or undergo an experience E." [FN303] It was a right to be let alone with respect to certain basic life decisions, many of which were not decisions at all in earlier American life.

 

The use of contraceptives in the United States and elsewhere, was certainly nothing new. Crude birth control methods had existed as early as the ancient Chinese, Greek and Egyptian civilizations, when drugs, herbs and camel sputum were used to prevent conception or induce *1400 abortion. [FN304] But progress was slow, and methods were primitive, even into the twentieth century. It was not until 1944‑‑very recent history in terms of civilized society‑‑that scientists first observed the union of a human sperm and ovum under a microscope. [FN305] On the heels of this breakthrough, a rapid succession of medical advances revolutionized the production and success‑rate of contraceptives.

 

In the late 1950s, the pharmaceutical industry in the United States developed spermacides that could be used with or without a diaphragm with a respectable success‑rate. [FN306] More significant was the introduction of contraceptives‑‑such as the 19‑nor steroid, chemically related to the female sex hormone (progesterone)‑‑which were first tested in the United States in the mid‑1950s and officially approved for commercial distribution by the Food and Drug Administration in 1960. [FN307] A widely‑acclaimed study by Gregory Pincus and others in 1958 quickly confirmed the success of this simple revolutionary pill. [FN308] Pregnancy rates with new oral contraceptives were shown to range from 0.4 to 2.7, an almost negligible risk compared to the old methods of birth control. [FN309]

 

*1401 The societal response to these new medical breakthroughs in the United States was powerful, ultimately having a great impact upon the creation of fundamental‑decision privacy. Medical associations across the country endorsed the use of birth control devices. [FN310] By 1964, forty‑ eight states permitted the legal prescription of contraceptive devices by statute. [FN311] A Gallup poll published in early 1965‑‑the year Griswold was decided‑‑showed that eighty‑one percent of those questioned believed that "birth control information should be available to anyone who wants it." [FN312] By that same year, the "pill," with its convenience and enormous effective‑rate, had become the most commonly used form of contraceptive among married couples (and most likely others) in the United States. [FN313]

 

Just as new perfection of contraceptive methods created previously‑ unthinkable realms of personal decision making in the 1950s and 1960s, enhanced medical sophistication relating to abortion created an explosion of privacy dialogue in the late 1960s and early 1970s‑‑another powerful impetus towards a constitutional brand of fundamental‑decision privacy.

 

Abortion, like contraception, had been tinkered with for centuries. [FN314] However, it had generally been a grisly business. The notion of requiring antiseptic procedures for all surgery had not even been introduced by Joseph Lister until 1867. Until that time, all surgery (including abortion) was by nature a dangerous proposition, a breeding‑ground for infection and (frequently) fatal complications. [FN315] In the sterile womb of the modern hospital, however, aided by enormous advances in technology, abortion became a routine and safe medical procedure, particularly in the first trimester of pregnancy. [FN316] Vacuum *1402 aspiration techniques were perfected, by which the uterus was rapidly emptied through the use of a sterilized vacuum pump. [FN317] The discovery of the chemical make‑up of prostaglandins (substances relating to reproduction found in mammalian tissues) in the early 1960s allowed, among other things, the development of menstrual‑inducing and abortifacient drugs, which were extremely safe and successful in the early stages of pregnancy. [FN318]

 

Medical experts were soon able to declare that the risk of death to the mother, undergoing an early abortion in a medical facility setting, was as low or lower than the rate of mortality for normal childbirth. [FN319] In New York City, following the amendment of the New York abortion statute, 165,000 abortions were performed in the first eleven months under the new law. The mortality rate for legal abortions during this period was 5.3 per 100,000, comparable to the mortality rate for a tonsillectomy. [FN320]

 

The nation slowly inched toward a view of the abortion choice as one shrouded in the protective webbing of privacy. As early as 1962, the American Law Institute relied heavily on the work of Glanville Williams‑‑an English reformer and professor of law at Cambridge University‑‑in revising the Model Penal Code in favor of decriminalizing elective abortion. [FN321] The American medical community, formerly lukewarm towards the prospect of legalized abortion, embraced the notion more enthusiastically as the calendar flipped over to 1970. [FN322] The *1403 American Medical Association House of Delegates in 1970 softened its stand on abortion, suggesting that "medically necessary" abortions were legitimate. [FN323] In the meantime, the Colorado legislature became the first of many to adopt the ALI's proposed Model Penal Code, decriminalizing therapeutic abortions. [FN324]

 

By the 1970s, a number of Protestant churches in the United States including the United Methodist Church and the United Church of Christ, took a softened stand on abortion laws. [FN325] The Nixon Administration and Congress, while ostensibly opposed to abortion, allowed increased federal funding and studies with respect to family planning and population control research. [FN326] George Bush, then a young delegate to the United Nations, wrote the Forward to a book imploring the world to study population control. [FN327] According to a 1969 Harris Poll, a majority of Americans believed that the decision on abortion "should be a private one." [FN328]

 

The historical catalyst which produced Griswold and Roe, then, was even more dramatic in degree and depth than those which had produced previous types of privacy in American law. The original privacy tort of Warren and Brandeis had been created to deal with technological change but as a rather close variation of an already familiar American legal theme. Prying newspapers and photographers were a new threat to individual solitude but could be dealt with by adapting familiar concepts in tort law (such as defamation) to new situations. Likewise, the Fourth Amendment privacy of Olmstead and Katz developed in order to deal with new technology and electronic bugging, however, this could be plugged into the "home is your castle" precept, long a part of search and seizure *1404 jurisprudence under the Fourth Amendment. In contrast, the privacy of Griswold and Roe dealt with fundamental decisions never quite imagined. Admittedly, condoms and abortions were older than the colonies of America. But perfection in technology in the 1950s and 1960s allowed near 100SSficiency, near absolute medical safety, making previous state laws wrapped in religious, moral and safety concerns‑‑society's haunting creeds against unwanted pregnancy and bastardy‑‑suddenly obsolete. Individual citizens perceived avenues of choice which formerly did not exist. These related to major decisions‑‑in their minds‑‑essential to maintaining the underlying guarantee of American democracy. The privacy at stake was as basic as the social contract itself and had no precise historical antecedent other than the guarantee of "liberty," as broad and essential to American democracy as any other single word.

 

The cases that followed Roe v. Wade successfully merged privacy concepts borrowed from the Fourth and First Amendments with rusty "liberty" cases that had escaped the execution of Lochner, and produced a fourth species of privacy premised upon "fundamental choice." It sprung directly from the font of the Fourteenth Amendment, and centered around decisions whether to bear or beget children (Griswold, Roe, Eisenstadt), [FN329] decisions concerning marriage and family life (Loving v. Virginia, Cleveland Board of Education v. LaFleur, Moore v. City of East Cleveland) [FN330] and basic decisions concerning child‑rearing (Pierce v. *1405 Society of Sisters, Meyer v. Nebraska, Prince v. Massachusetts). [FN331] As Justice Rehnquist summarized in Paul v. Davis, [FN332] the new right of privacy under the Fourteenth Amendment could be viewed as a clustering of "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." [FN333]

 

The immediate rush of scholarship after Griswold and Roe sought to proclaim "personhood" as the victor in the holy crusade for privacy's definition. [FN334] Indeed, some viewed fundamental‑decision privacy as the long‑awaited constitutionalization of the philosophy of John Stuart Mill, as reflected in his famous 1859 treatise On Liberty. [FN335] In reality (and *1406 most likely for the better), fundamental‑decision privacy has not worked its way out to be a sweeping endorsement of the "self‑regarding" philosophy of John Stuart Mill. Plenty of decisions since Griswold and Roe have refused to recognize privacy rights, where certain "self‑regarding" choices of the individual have been involved, although arguably within a zone of autonomy which did not adversely affect fellow citizens. [FN336] Certainly, seat belt laws, motor cycle helmet laws, "No Parking after 1:00 A.M." laws, "No Fishing" laws, all arguably deal with self‑regarding choices that are nevertheless the proper subjects of regulation by the state. In place of Mill's liberty (and in contradistinction to it), fundamental‑decision privacy under the Fourteenth Amendment has limited itself to certain "core," "central" or "pivotal" liberties of the person. [FN337] Consequently, privacy has carved out a tiny niche within the broader realm of individual autonomy and has clothed only a small portion of that with constitutional priority. We thus come to the critical question: Which "liberties" qualify for the crown? How does the judiciary know Fourteenth Amendment privacy when it sees it?

 

A. Clarification of the Existing Social Contract

Jed Rubenfeld recently postulated in the Harvard Law Review that the important niche which privacy occupies is (instead of "personhood" or "personality") equivalent to anti‑totalitarianism. As Professor Rubenfeld sought to explain: "The principle of the right to privacy is not the freedom to do certain, particular acts determined to be fundamental through some ever‑ progressing normative lens. It is the fundamental freedom not to have one's life too totally determined by a progressively normalizing state." [FN338] This is an appealing, colorful definition, quite similar to that suggested by political scientist Carl J. Friedrich in 1971. [FN339] Certainly, Griswold, Roe and subsequent cases involving fundamental‑decision privacy do share a common theme relating to a repulsion from governmental intrusion. That is, privacy protects the individual from an ever "normalizing" state, as Rubenfeld calls it, by preventing the government from imposing certain fundamental decisions upon the individual.

 

*1407 The problem, however, is that Rubenfeld's definition of species number four of privacy‑‑however enlightening‑‑does not escape eventual collapse into a form of personhood. The question becomes, "which acts and decisions of the citizen are protected from the ever‑normalizing, totalitarian encroachments of the state?" Certainly not all. Although Rubenfeld is concerned with "standardization" at the hands of the government, citizens in America (and indeed in other democratic states) have always been standardized in certain respects, as willing participants in society. The more important question is which decisions have been given up to government standardization, and which have not? The answer, of course, must be that only those decisions which are "central," "core" or "basic" to the citizen's personhood are protected by fundamental‑decision privacy, as unsatisfying as these words may be. And so this theory of anti‑totalitarianism takes us full circle, back to a notion of personhood.

 

Despite the urge of legal philosophers to attach a one‑size‑fits‑all definition to this new privacy, none of them scores a bull's eye. In philosophical terms, those definitions which have hovered around "personhood" or "anti‑totalitarianism" are equally apt. But in practical terms, as that species of privacy has in fact evolved, both definitions are over‑inclusive. The cases are proof enough that not every expression of "personhood" is protected; not all forms of "creeping totalitarianism" are halted by the Fourteenth Amendment. Rather, what is most significant in the practical evolution of fundamental‑decision privacy is that it settles upon a narrow subset of basic choices available to the individual, and resolves the question: "Who gets to make this potentially‑fundamental decision relating to a person's existence, the citizen or the state?" The "who?" is ordinarily easy to identify in the realm of Large Choices because most fundamental choices were hashed out with some specificity in the original written manifestation of the social contract (i.e., the Constitution). This was done for the very reason that the choices in question‑‑at that particular period of American history‑‑ were known to exist and known to be important, allowing the Framers to be quite specific in their boundary‑making between citizen and state.

 

But all such boundaries are not, and can never be, so clear‑cut, with all due deference to John Hart Ely. Imagine three different levels of specificity in the Constitution, and hence in the social contract itself (although there are certainly more, in various shades of gradation of written precision). [FN340] The First Level is most specific; it allows issues *1408 of personal autonomy to be decided by virtue of the precise words of the Constitution. Thus, an individual has a right not to be a "slave," or to be held in "involuntary servitude," because that is what the words of the Thirteenth Amendment tell us. [FN341] This sphere of personal autonomy is preserved; the right to make a decision concerning slavery or non‑slavery is not ceded to the government, because the social contract itself says so in precise language.

 

The Second Level is a shade less specific. Issues regarding personal autonomy may be resolved by examining the written words of the Constitution, but not without resorting to history and an evolving body of constitutional case law. Thus, the Supreme Court has decided that an individual, by accepting the benefits of society, has in fact ceded the decision concerning the imposition of the death penalty to the state, once he or she is convicted of certain capital offenses. This shedding of the individual's right to "decide" whether to live or die is occasioned by the words of the Eighth Amendment which prohibit "cruel and unusual punishment," thus marking the boundaries of the citizen's agreement with society. The words "cruel and unusual punishment" nowhere define themselves; they do not include the words in parentheticals ("the death penalty, however, is permissible"). But the Court in Gregg v. Georgia [FN342] was able to examine the non‑specific words of the Eighth Amendment in conjunction with the history of that provision in the United States and England (which had sanctioned the death penalty), [FN343] along with the "evolving standards of decency that mark the progress of a maturing society" [FN344] (including society's endorsement of the death penalty in thirty‑five state statutes), [FN345] in order to conclude that "the punishment of death does not invariably violate the Constitution." [FN346] Thus, in this Middle Level of specificity, the words of the Constitution do not, on the face of the document, resolve the question of individual autonomy. However, after referring to history and translating non‑specific words into a modern societal context, the Court is able to mark the boundaries between individual and state.

 

*1409 The Third Level is the least specific. Invariably, it is also the most critical. Here, the meaning of the Constitution is left broad on its face, often dealing with the most fundamental rights. And although history and modern societal norms can guide judicial interpretation, the task is made most difficult where history did not (and could not) anticipate the precise application of words to facts, and societal norms are in the process of congealing. Thus, does the word "liberty" include the right to choose whether to have an abortion? Do the words "equal protection of the laws" include the right of black citizens to choose to attend public schools with whites? There exist no precise historical guide‑posts to be identified, from the time period in which the Fourteenth Amendment was drafted, that are sufficient to provide a definitive answer to either question. And so, as in Brown v. Board of Education [FN347] and again in Roe v. Wade the Court occasionally is forced to determine the scope of personal autonomy based upon purposely broad, non‑ specific constitutional language with no precise historical or societal package of guide‑posts. [FN348]

 

Fundamental‑decision privacy, born of Griswold and Roe, has focused upon these lower reaches of constitutional specificity. Professor Thomas Grey, in his classic work in the Stanford Law Review, speaks of this in terms of an "unwritten" constitutional guarantee. [FN349] However, such a characterization can be dangerous. Certainly, the word "liberty" appears in the Constitution. Likewise, many broad terms appearing in the text have been given meaning for two hundred years. The privacy of Griswold and Roe is distinctive because it has been used to address fundamental personal decisions never directly thrashed out in the original social compact, either because the decision was nonexistent at the time the Constitution was drafted or because it represents a modern variation of an older, purposely nonspecific constitutional theme. This characteristic of *1410 fundamental‑decision privacy makes it quite consistent with the theory of Social Contract advanced by John Locke, and (it will be seen) this species of privacy has evolved for the very purpose of clarifying the agreement between citizen and state, where historical and textual gaps are created by an ever‑advancing society.

 

The notion of social contract, made prominent in early American legal thought by Locke's influential Second Treatise of Government, [FN350] was premised upon an idea that men begin in a state of nature where they are "free, equal, and independent." [FN351] No individual can be stripped of that freedom and subjected to political power without consent; such consent is accomplished by agreement with other individuals to join in a single body politic for their common peace and safety. [FN352] It is by entering into this social contract that the individual cedes a certain amount of freedom and autonomy to the government, which now has the power to act as one unit and override the will of its individual components. [FN353]

 

*1411 In the process of entering into this social contract, however, the individual does not give up all liberty. Although "many things confine the liberty he had by the law of nature," not all freedoms of individuality and decision‑making are surrendered to the state. [FN354] Specifically, for Locke, the very goal of society was to preserve the property (i.e., the "lives, liberties and estates") of its individual members. [FN355] Inherent within this property was a right in one's own person, which an individual possessed even in a state of nature. [FN356] Thus, the act of entering into a social contract did not obliterate the liberty and personal autonomy of the individual. Rather, it defined the boundaries between citizen and state and sought to illuminate with varying degrees of candle‑power those liberties which had been ceded to the government in the name of societal good and those which had been retained by the citizen as a non‑surrendered component of freedom.

 

Locke and his Whig contemporaries had developed their theories within the framework of an unwritten English Constitution. [FN357] Once transported across the Atlantic to America, however, Locke's ideas were taken one step further. In a novel twist of American ingenuity, it was determined that the social contract, like any other contract, should be reduced to writing. [FN358]

 

After the initial drafting, one question remained: Who would thereafter make the determination which liberties had been reserved to the people and which had been surrendered to the government via the Constitution? First and foremost, it would be the legislature, which was the first branch created and was the "supreme power of the commonwealth." [FN359] The legislature would read the Constitution, interpret it and enact laws in accordance with its understanding of the explicit and implicit words. But once a social contract was entered into and reduced to writing, not even the legislature could exercise arbitrary *1412 power over the rights created therein. The only freedoms surrendered were those specifically delineated in the social contract, "so that the legislative can have no more than this." [FN360]

 

If the legislature, in enacting laws, exceeded its powers and impinged upon the basic rights of the individual, there were only two resorts. One was the citizen's "appeal to Heaven," which for Locke was equivalent to a right to engage in revolution, authorized by "a law antecedent and paramount to all positive laws of men." [FN361] However, a second, less drastic resort was implicit in Locke's philosophy (although usually ignored), sprinkled throughout the Second Treatise. That was a resort to those charged with impartially interpreting the laws of society, who would test the laws' legitimacy once stacked up against the social contract. Locke explained it this way:

Secondly, the legislative or supreme authority cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice and decide the rights of the subject by promulgated standing laws, and known authorized judges. For the law of Nature began unwritten, and so nowhere to be found but in the minds of men, they who, through passion or interest, shall miscite or misapply it, cannot so early be convinced of their mistake where there is no established judge.... [FN362]

 

Thus, although Locke is generally viewed as a champion of the legislature, this is not entirely so. Locke intended to entrust an important function, relating to his unwritten Constitution, to these "known and authorized judges." [FN363] Although it is unclear precisely what role such judges would possess in preserving Locke's delicate social contract, under the written American Constitution the answer became clear. The legislature, since Marbury v. Madison, [FN364] has been determined not to be the final judge of the constitutionality of its own acts. It may not legislate, into or out of existence, fundamental rights which are the *1413 subject of the social contract between citizen and state. [FN365] Without getting into the "interpretive" versus "noninterpretive" debate, [FN366] it is safe to say that the U.S. Constitution allows for a certain measure of judicial review where the legislature violates the ground rules of the broader social compact.

 

All of this having been said, whether one likes it or not, fundamental‑ decision privacy has in fact amounted to a clarification by the judiciary of the original social contract, as it relates to issues of personal autonomy. Countless "little privacies" regarding personal decisions are surrendered to the state each day. However, where certain Large Choices are arguably at risk, the judiciary becomes involved to ensure that the state has not broken the engagement rules surrounding the very agreement by which it is empowered.

 

Two rough categories of fundamental‑decision privacy can thus be sorted out of the cases after Griswold and Roe. Category number one consists of those fairly noncontroversial "marriage‑family‑home" cases, which deal with a specific liberty familiar since the founding of American democracy. It is hardly earth‑shattering when the Court declares that citizens retain the right to make decisions regarding whom they should marry, how their children should be educated and which family members should live in their homes. Such basic decisions, although not mentioned by name in the Constitution, have a pile of history and silent tradition backing them up. Thus, for instance, in 1923 the Court was able to declare in Meyer v. Nebraska [FN367] that the "liberty" of the Fourteenth Amendment included the right of parents to send their children to a school where German was taught. The Ordinance of 1787 had declared from early on that "schools and the means of education shall forever be *1414 encouraged." [FN368] Education and bringing up children according to one's own conscience had long been a part of the fabric of American democracy. [FN369] A clarification of the social contract? Yes. An interpretation of nonspecific constitutional language? Certainly. But not an earth‑shattering one. It rested upon a well‑known, well‑documented understanding of the freedom of decision‑making with respect to education and child‑rearing in America. Thus, the decision to find a constitutionally protected "liberty" here was a benign one.

 

Cases like Meyer v. Nebraska, Pierce v. Society of Sisters, Loving v. Virginia, Moore v. City of East Cleveland and others of their ilk fit neatly into this Category. [FN370] Such cases have generated a minimum level of controversy, because they have dealt with well‑recognized (albeit unwritten) liberties of choice with strong historical antecedents in American life.

 

Category number two generates much more friction and dissent. It moves into the darkest, lowest reaches of specificity, while still seeking to clarify the ambiguous social contract. The abortion‑contraception, right‑to‑die and homosexuality cases may all be lumped into this Category because they all attempt to plug gaps in the social contract, not based upon hard history and specific tradition in these areas, but based upon an extrapolation of how completely unanticipated rights should be dealt with under a written Constitution that never imagined them.

 

Griswold, Roe, Carey v. Population Services International, Planned Parenthood of Missouri v. Danforth, Colautti v. Franklin and the string of cases recognizing Fourteenth Amendment privacy rights inherent in the abortion and contraception decisions all fall within this grouping. [FN371] Here, the judiciary's clarification shakes more deeply at the social contract. This is so not because the word "liberty" is any more or less *1415 specific than in Category number one cases, but because the sphere of personal choice in question‑‑preventing life through chemical contraception; preventing birth through medically safe, high‑tech abortions‑‑had never been contemplated (in any realistic sense) when the original compact between citizen and state was entered into. A gap in the social contract existed when an arguable form of "liberty," created by society's ingenuity and new technical acumen, had no precise historical antecedent. Did the citizen make this Large Choice, or did the state? Fundamental‑decision privacy entered the scene to plug that gap, to resolve the contractual question between citizen and state.

 

The Court wrestled with a similar spectre in Cruzan v. Missouri Department of Health, [FN372] relating to the potential "liberty" to choose whether one's life will be sustained by artificial nutrition and hydration in a hospital bed. Although Cruzan skirted the million‑dollar privacy question, allowing the Court to gasp a breath of temporary relief, the courts ultimately must face the question as technology continues to surge forward. New medical sophistication has created the ultimate confrontation of the individual versus the state, the ultimate question of individual "liberty" never before anticipated by the draftsmen of the Fourteenth Amendment. Is it the citizen or the state who has the power to decide whether my artificial life support systems will be unplugged? Is it the citizen or the state who will determine whether I may choose to die a natural death? An arguable "right to be let alone" has been created which Brandeis and others never could have anticipated. And so, the difficult task of clarifying the word "liberty" in a nonspecific social contract once again falls upon the shoulders of the judiciary.

 

It would be easy to attempt to place the homosexuality cases, such as Bowers v. Hardwick, [FN373] in a different category. Certainly, homosexuality can be traced through a long path of historical debates, with "ancient" laws regulating it. [FN374] But the sustained wave of modern gay rights activism and homosexuality as a socially accepted lifestyle never existed in eighteenth century England, in colonial America or in the minds of the Constitutional draftsmen. [FN375] Here, it is society rather than technology which has arguably undergone a fundamental change. Does "liberty" include, 200 years later, the liberty of choosing one's sexual orientation? Does it include the liberty of determining in which intimate *1416 associations one will become involved, as an alternative to the traditional American family which has (arguably) dwindled in importance? Displays of homosexual contact in public bathrooms and bars can certainly be regulated under the police powers of the state‑‑particularly given the current health risk of AIDS‑‑as can similar heterosexual contact in the public domain. But how can one regulate such conduct in the confines of the home, behind locked door and drawn curtain? The Bowers Court undertook the clarification of the citizen‑state contract and concluded that fundamental‑decision privacy did not extend to allow the citizen to make this choice. The rumblings are loud and persistent, however, indicating that the issue is far from over. [FN376]

 

Nor has it been the case, historically, that fundamental‑decision privacy‑‑or any other type of privacy‑‑has necessarily scored a win on its first attempt. [FN377] As discussed in previous sections of this Article, one hallmark of privacy is percolation through society before it finds judicial acceptance. Most likely the failure of Bowers to garner a pro‑privacy majority reflects an accurate ambivalence in American society, generally, as to whether homosexuality constitutes a new (and permanent) alternative to marriage as a lifestyle in the United States, or whether it is merely a passing fancy. Just as tort privacy and Fourth Amendment privacy required decades during which new technological changes were digested and examined before changes in the law occurred, fundamental‑decision privacy is likely to be super‑sensitive to resolving certain gaps in the social contract‑‑such as the homosexuality issue‑‑until it is clear that they will not go away. [FN378]

 

*1417 B. Legitimacy of Judicial Clarification of the Social Contract

 

Judge Learned Hand wrote before his death that the search for "fundamental" rights is one "whose office usually, though quite innocently, is to disguise what [judges] are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision." [FN379] It is true that the less specific the language of the Constitution, the more difficult and open‑to‑dispute the judges' ultimate interpretation of its meaning may be. But does that mean the judge should not interpret the Constitution when it comes to "privacies" of a modern cast? The answer must be "no," unless the Constitution is viewed as a nullity except to the extent the legislature voluntarily consents to be controlled by it.

 

The Court's decisions in clarifying the social contract within the context of species number four of privacy have not been, nor should they be, plucked out of thin air. Former Judge Robert Bork suggests that modern Fourteenth Amendment privacy is "vaporous stuff" which amounts to nothing more than a judicial legislation of "moral codes." [FN380] However, this is not exactly a fair description. As in a myriad of other complex areas involving nonspecific constitutional or statutory language, the Court must remain strictly cognizant of history, prior case law and the entire constitutional skeletal system in applying open‑ended constitutional language to unexpected changes in the lives of its citizens. As was discussed previously in connection with Fourth Amendment privacy, this is precisely the process which the Court‑‑ including its conservative wing‑‑has undertaken quite comfortably in search‑ and‑seizure cases since Katz. Unwritten notions of "reasonable expectations of privacy," in the context of that species, are given meaning via the Court's determination as to what society deems objectively reasonable at a particular period in American history. The Court examines historical facts, evolving case law, the decisions of state courts and legislatures, and reaches a reasoned result based upon its sound understanding of the revolving globe of American jurisprudence. This is a difficult process, certainly, but no different than the process that judges are called upon to perform daily‑‑in interpreting ambiguous wills, deeds, contracts, employment agreements, etc., in a very concrete world.

 

It is clear from the Supreme Court's recent decision in Webster v. Reproductive Health Services [FN381] that not all members of the Court agree *1418 that such a function is legitimate. Webster reveals an ongoing rift within the Court, when it comes to such "clarification" or "gap‑plugging" of the social contract, particularly in the abortion context. Chief Justice Rehnquist has exerted a strong push to extricate the Court from its decision in Roe by downgrading fundamental‑decision privacy to a garden‑variety "liberty" in lower‑case letters. For Chief Justice Rehnquist, the woman's right at stake in Webster was "a liberty interest protected by the Due Process Clause," rather than some "fundamental" constitutional right. [FN382] As Justice Blackmun warned in dissent, Chief Justice Rehnquist's approach in Webster "appears to be nothing more than a dressed‑up version of rational‑basis review, this Court's most lenient level of scrutiny." [FN383] Or, as Professor Tribe has put it, the "liberty interest" described by Chief Justice Rehnquist harks back to his own Roe dissent and is "apparently no different from [a woman's] 'right' to drive a car, say, or open a store, or work as a dentist." [FN384] Thus far, it does not appear that a majority of the Court subscribes to the Chief Justice's demoted view of fundamental‑decision privacy under the Due Process Clause. However, as continued rifts develop in defining fundamental gaps in the agreement between citizen and government, particularly in the abortion cases, the danger is that the Court might eventually throw up its hands and resolve the clarification process in favor of the government in one sweeping fashion. With the addition of Justice Clarence Thomas to the bench, such a demotion of fundamental‑decision privacy‑‑at least in some areas of the law‑‑is certainly more than a distant prospect.

 

If the judiciary is not permitted to engage in a clarification process in order to determine if its citizens are entitled to certain unanticipated "liberties," there are certain dangerous ramifications. One side‑effect which will result, if the dissatisfaction reaches deeply enough into society, is that citizens will become dramatically alienated and disaffected from government. Their only resort becomes an "appeal to Heaven" (i.e., a revolt) every time fundamental rights take on a new dimension in an evolving society, hardly a solution Locke or anyone else would find desirable. So you amend the Constitution, Chief Justice Rehnquist would reply, consistent with his Webster approach. Each time technological and *1419 historical forces create new, unexpected choices, you simply amend the written social contract to deal with them directly. A simple enough suggestion; however it has the process backwards.

 

In American democracy, there is a presumption of autonomy relating to major decisions. As with any other contract, the social contract must be construed against the draftsman, i.e., society. To conclude otherwise would be to conclude that any unexpected fundamental right invented after 1791‑‑however central to our individuality‑‑must await the laborious and uncertain process of constitutional amendment for years or decades, before citizens have a right to enjoy it.

 

Fundamental‑decision privacy, at least as it has evolved in the United States, has been premised upon the opposite assumption. If the judiciary commits a perceived error in clarifying and plugging gaps in the Constitution, the legislature is free to move forward to amend the Constitution, in order to resolve properly the boundary‑line between citizen and state. In the absence of such extraordinary steps by the legislature to impose its own framework upon the Constitution, however, there is an assumption that the Bill of Rights is neither all‑specific nor exhaustive, leaving room for interpretation and gap‑ plugging by the courts. This is precisely what the Ninth Amendment (whether one agrees that it embodies specific rights or not) was designed to remind future generations reading the Constitution. Were Chief Justice Rehnquist's view of privacy accurate, the Ninth Amendment would necessarily be amended to read: "The enumeration in the Constitution of certain rights shall be construed to deny or disparage others retained by the people."

 

The courts, in the final analysis, have proceeded with extreme caution since Griswold and Roe. Proof that species number four of privacy has not evolved into a re‑enactment of Lochner can be found in the short list of privacy rights held to exist in the inexplicit world of fundamental decisions. [FN385] Like the original "liberties" which travelled *1420 to America in the colonists' souls, fundamental‑decision privacy has been difficult to define in advance, prior to its transgression. But it is quite narrow. It relates to autonomy, personal choice, if one is matching it up to philosophical definitions. In its legal sense, species number four of privacy may be characterized as: "the right to be let alone, with respect to fundamental (often unanticipated) decisions concerning the individual's own person, which are explicitly or implicitly reserved to the citizen (rather than ceded to the government) by the terms of the social contract."

 

Fundamental‑decision privacy has in effect served as the Platonic form around which many other smaller privacies in American democracy revolve. It touches upon our most fundamental decisions, which in turn act as a fertilizer for our individuality. Griswold and Roe built this species primarily out of pieces of Fourth, Fifth and First Amendment privacy‑‑but went behind the Constitution to the same storehouse of common law which Brandeis used to fashion his original privacy tort. [FN386]

 

Because this unique species is reliant upon an evolving definition of "liberty" in the United States, a concept as basic as democracy itself, fundamental‑decision privacy is destined to continue in its role as the most controversial vine of the strawberry geranium. It will exist in American law only as a result of wrenching, divisive, unsettling examinations of unspecific words in the social contract‑‑a process which will continuously cause segments of society to call for its demise‑‑as it gropes for the shifting rocks of societal norms upon which it must latch.

 

VI. STATE CONSTITUTIONAL PRIVACY

 

One historical catalyst which has spurred the development of privacy, and one which Louis Brandeis could not have anticipated, was the rebirth of interest in state constitutions in the early 1970s. [FN387] The state constitutional law movement began to sweep across the United States in part as a response to the perceived conservatism of the Burger Court on *1421 civil rights issues, [FN388] and in part due to a contagious curiosity with respect to forgotten, historically‑rich state documents which had predated (in many cases) the U.S. Constitution by over a decade. [FN389]

 

The resurrection of state constitutional law was, in fact, a natural occurrence in the history of American law. Much of the justification for rolling back individual rights and liberties at the federal level during the 1970s and 1980s‑‑by the Supreme Court and the executive branch‑‑revolved around a theme of "Federalism" and "States Rights"; that is, a return of power to the states. [FN390] Consequently, the "erosion" of the liberal decisions of the Warren Court era brought with it a concomitant interpretation of the U.S. Constitution which intentionally left *1422 a great deal of decision‑making to the states, particularly in the realm of criminal procedure and individual rights. [FN391]

 

The blossoming of state constitutional law or "New Federalism" [FN392] in the latter quarter of this century (itself a twist of history) has had a direct impact upon the expanse and texture of the right of privacy in the United States. It has led to unique hybrids of the strawberry geranium in terrain analogous to Fourth Amendment, First Amendment and Fourteenth Amendment privacy but in soil protected from federal disturbance. More importantly, it has served as an experimentation ground for new, untested types of privacy‑‑e.g., concerning the "right‑to‑die," drug testing in the workplace and drunk driving roadblocks‑‑which in turn have had a profound impact on federal pronouncements on privacy law.

 

It may not be entirely accurate to refer to state constitutional privacy as a "fifth" species; many of the manifestations of this type of privacy are identical to those discussed in the previous sections, albeit given distinct legal protection under state documents. The difference goes deeper, however. Many of the state constitutional cases create broader spheres of privacy, beyond those under federal or common law. Moreover, as will be seen, some state constitutional provisions create entirely novel pockets of privacy, which have no true counterpart in any of the bodies of case law just discussed.

 

Justice Brandeis never could have anticipated this important means of germinating the privacy right in the United States; yet he surely would have approved. State constitutional privacy has become the modern "laboratory" which Brandeis so much craved in a federal system, [FN393] a place where new shades of privacy can continue to be perfected and *1423 adapted as the United States enters a new century increasingly dominated by privacy concerns.

 

Step 1: Merger Into State Constitutions

 

Few of the states recognized anything approaching an identifiable right of privacy under their own constitutions during the first two centuries of this nation's history. Washington and Arizona, admitted into statehood around the turn of the century, both included search and seizure provisions in their original constitutions which contained a hint of privacy. [FN394] However, these curiosity‑pieces of early Americana had little independent vitality in the shadow of the Fourth Amendment until the state constitutional law movement took off eighty years later.

 

It was really not until the U.S. Supreme Court's 1967 decision of Katz v. United States, [FN395] which solidified a right of privacy under the Fourth Amendment, that a number of states took the expansion one step further by explicitly incorporating "search and seizure privacy" language into their own constitutions. Hawaii in 1968, [FN396] Illinois in 1970, [FN397] South Carolina in 1971 [FN398] and Louisiana in 1974, [FN399] all rewrote or *1424 amended their constitutions to guard against unreasonable "invasions of privacy," some making specific reference to interceptions of communications or electronic eavesdropping, inspired by Katz. This represented a first step in the states' development of privacy, a sort of follow‑the‑leader approach in imitating the decisions of the U.S. Supreme Court.

 

A similar duck‑step approach occurred‑‑with far more dramatic implications‑‑ in response to the fundamental‑decision privacy cases of Griswold and Roe. The states of Montana (1972), [FN400] Alaska (1972), [FN401] California (1972), [FN402] Hawaii (1978) [FN403] and Florida (1980) [FN404] all took the not insignificant step of grafting Griswold‑Roe type privacy provisions onto their own state constitutions, locking that right into place so that it became insulated from future federal upheaval. Montana and Hawaii went so far as to include "compelling state interest" language a‑la‑Griswold‑Roe, essentially constitutionalizing the multiple‑tiered standard of judicial scrutiny developed under the Fourteenth Amendment, making that an explicit component of their own *1425 constitutional jurisprudence. [FN405] Thus, ironically, Roe‑type privacy is now more secure under a number of state constitutions than it is in the federal system which created it.

 

Some states, rather than plugging a fresh privacy provision into their own state charters in order to mimic the developments at the federal level, have accomplished the same result by indirection, interpreting their own constitutions to contain unwritten privacy provisions. For instance, a number of states have interpreted their constitutions to contain a silent guarantee of search and seizure privacy, much as the federal Katz decision had done with the Fourth Amendment. [FN406] As the privacy wave swept across the country‑‑in response to Griswold and Roe‑‑the highest courts of many states found a fundamental‑decision type of privacy buried within the nooks, crannies and homegrown penumbras of their own constitutions, without the need for an explicit constitutional amendment. [FN407]

 

Step 2: Reaction to Federal Precedent

 

Having accomplished the merger of search‑and‑seizure and fundamental‑decision privacy into their own state constitutions, the next step was to react to certain unacceptable decisions of the U.S. Supreme Court and develop an autonomous state constitutional privacy which was broader (in select areas) than the federal minimums.

 

Search‑and‑seizure privacy experienced the most immediate jolt. This was in large part due to the Supreme Court's aggressive retrenchment in this area, dramatically rolling back decisions of the Warren Court in Fourth Amendment cases. In response, there developed a wide‑ranging collection of apostate decisions from the states disavowing U.S. Supreme Court precedent, declaring that broader rights existed *1426 under their own constitutions. This revolution is particularly noteworthy because (as discussed earlier) most states had not even acknowledged a privacy right under their own state charters until the post‑Katz wave at the start of the 1970s. Nonetheless, the state reaction was swift, and privacy found a new haven in state constitutional law, insulated from federal diminution in key areas of criminal procedure.

 

South Dakota, Montana and Alaska [FN408] early on rejected the U.S. Supreme Court decision in South Dakota v. Opperman, [FN409] finding that their own brands of privacy did not permit warrantless inventory searches of impounded vehicles. The highest courts of Michigan, New Hampshire, Montana, Alaska and Florida [FN410] all declined to follow United States v. White, [FN411] which had permitted wired government informants to monitor and record surreptitiously conversations with suspects without a warrant.

 

As the state constitutional law movement entered the 1980s and the decisions of the Burger and Rehnquist Courts continued in their path of curtailment, search and seizure privacy received continuous boosts from state constitutional guarantees. Several states swiftly denounced the Supreme Court's decision in United States v. Ross, [FN412] which had permitted the warrantless search of closed containers as part of an automobile search. [FN413] Idaho forbade the use of pen registers [FN414] (devices used by the government to record numbers dialed on telephones), notwithstanding Smith v. Maryland which permitted such technology *1427 under the Fourth Amendment. [FN415] North Carolina, Connecticut, New Jersey and most recently Pennsylvania rejected the controversial decision of United States v. Leon, [FN416] finding that the states' strong interest in privacy from unlawful searches and seizures precluded the adoption of a "good faith exception" to the exclusionary rule. [FN417] A myriad of other miscellaneous state constitutional decisions appeared, constructing safe harbors for privacy where the federal Bill of Rights no longer offered a sanctuary. [FN418]

 

All of the above cases reflect a significant turn of events in the development of privacy in the United States. The constitutional manifestations of privacy, particularly search and seizure privacy under the Fourth Amendment, were purely a creation of the U.S. Supreme Court in the early 1970s. Once the states became comfortable with that privacy, however, and specifically incorporated it into their own constitutions through amendment or judicial construction, they were reluctant to give it up. Thus, in a unique twist of history, Brandeis's creation under the Fourth Amendment, dating back to Olmstead, became‑‑in large part‑‑a ward of the states.

 

*1428 Step 3: Diversification and Experimentation

 

The most important contribution of state constitutional law to the growth of privacy in the United States, however, lay not in the early cases which "reacted" to unpalatable federal decisions, but rather in a third phase of cases in which states tinkered and experimented with privacy issues not yet decided by the U.S. Supreme Court. It is here that the state courts contributed heavily to the national dialogue on privacy issues still in limbo and helped sharpen the resolution of major issues at the federal level.

 

The most powerful example appears in the "right‑to‑die" area. It was not until June of 1990 that the U.S. Supreme Court issued its decision in Cruzan [FN419] (discussed earlier), the first major "right‑to‑die" case to work its way through the federal system. Cruzan frustrated many ardent Court‑ watchers by backing off the million‑dollar privacy question, finding that although a competent person might have a "liberty" interest under the Fourteenth Amendment sufficient to refuse lifesaving hydration and nutrition, an incompetent person (such as Ms. Cruzan) was not capable of making the same voluntary choice through a surrogate. [FN420] Thus, the pivotal "right‑to‑ die" question was not addressed.

 

For Justice O'Connor writing in concurrence, however, the central issue in Cruzan was left in limbo. "Today," she wrote, "we decide only that one State's practice does not violate the Constitution; the more challenging task of crafting appropriate procedures for safeguarding incompetents' liberty interests is entrusted to the 'laboratory' of the States...." [FN421] In fact, the states had long been at work on the issue and had already developed most of the jurisprudence in the right‑to‑die (and right‑to‑refuse medical treatment) area. Cruzan itself relied heavily on state constitutional cases, [FN422] particularly In re Quinlan, [FN423] the premiere decision of the New Jersey Supreme Court in 1976. That case held that Karen Ann Quinlan's implicit right of privacy under Article 1, Paragraph 1 of the New Jersey Constitution outweighed the state's interest in preserving her life by means of a mechanical respirator. The New *1429 Jersey Court in Quinlan found that although incompetent herself, Ms. Quinlan's right to privacy encompassed the right to choose termination of life‑support systems, and this right extended to her father as natural guardian. [FN424] The Quinlan decision became enormously influential throughout the United States, establishing a framework for right‑to‑die analysis long before Cruzan. It was followed by equally unique decisions in Arizona [FN425] and California, [FN426] dealing with the right‑to‑refuse medical treatment relating to nursing home residents, and patients not definitively diagnosed with terminal illnesses.

 

Other cases abound which bear witness to the leading role of state constitutional law in tackling aggressively, and formulating judicial approaches to, freshly evolved privacy issues not yet confronted by the U.S. Supreme Court. It was not until 1989 that the Skinner and Von Raab decisions (discussed in connection with Fourth Amendment privacy) [FN427] took a first stab at dealing with the critical issue of drug‑testing in the workplace, and those cases were limited to unique occupations‑‑railroad engineers and customs agents carrying firearms‑‑triggering "special governmental needs." A number of state courts, however, were already in the process of thrashing out drug‑ testing issues under state constitutions, with varying originality and ranges of results.

 

In Massachusetts, for example, the Supreme Judicial Court held that random drug testing of race track personnel violated the state's privacy provision, stating that urine testing "probes into an individual's private life as surely as if the commission were to enter a licensee's home to search for illegal drugs." [FN428] The Alaska Supreme Court, in Luedtke v. *1430 Nabors Alaska Drilling, Inc., [FN429] concluded that the explicit privacy provision in that state's constitution did not apply to private employers, but in a novel twist the court went on to find that private drug testing programs would still be required to meet a test of "reasonableness" based upon a common law tort of privacy‑‑similar to Warren and Brandeis' original privacy tort‑‑a test satisfied in that case. [FN430]

 

The privacy issues surrounding drunk driving roadblocks have likewise been dominated by the courts. Before the U.S. Supreme Court upheld the constitutionality of such roadblocks in Michigan Department of State Police v. Sitz in 1990, [FN431] at least four states had already tackled this privacy issue under their own constitutions, [FN432] paving a useful path of logic for the federal courts. In more recent forays into experimental brands of privacy, the Commonwealth Court of Pennsylvania, in Barasch v. Pennsylvania Public Utility Commission, [FN433] held that Bell Atlantic's caller ID, which enables telephone customers to identify the phone number of incoming calls and provides a limited blocking feature, violates state privacy rights. This decision sets the stage for yet another novel (and critical) national privacy issue. The California Supreme Court has held that its own constitution creates a fundamental right of privacy which requires no state action, a species with no precise federal counterpart. [FN434] The Washington Supreme Court has dealt with the perplexing issue of polygraph tests as a condition of employment. [FN435] A New York appellate *1431 court, in Callahan v. Carey, [FN436] has found that homeless persons possess a right to shelter under the New York Constitution; while the Connecticut Supreme Court in State v. Mooney [FN437] has suggested that some legitimate expectation of privacy may inhere in a homeless person's boxes in an abutment under a bridge.

 

All of the above cases confirm that one of the significant features of privacy in the next few decades will be that new technology and evolving social conditions will push more and more cutting‑edge issues into the states. Here they will be experimented with and refined under state constitutions with far greater frequency. Issues such as the rights of the homeless, invasions of solitude by telephones and computers, privacy rights of homosexuals and other leading issues of an ever‑evolving society will most likely find themselves hammered out in the context of fifty distinct, yet active state charters. Although state constitutional privacy is not, strictly speaking, an entirely separate species, it is sufficiently unique in this period of American history that it is improper to jumble it together with other brands. In some instances it mirrors species number one through number four, discussed above. In other instances it is a hybrid, a broader version, entirely novel.

 

In Brandeis's terminology, for the sake of consistency, the fifth species may be referred to as "the right to be let alone, with respect to a variety of private and governmental intrusions generally overlapping with species number one through number four above, yet frequently extending greater protections to the citizen by virtue of independent state constitutional provisions." Louis Brandeis would not have objected to this last‑minute twist of history in the twentieth century. This cross‑pollination of the strawberry geranium, with states serving as the constitutional laboratories, will most likely secure privacy's survival and expansion deep into the next century.

 

VII. EPILOGUE: ONE HUNDRED YEARS OF PRIVACY AND DEMOCRACY IN AMERICA

 

There are certainly types of privacy, not touched upon in this Article, that have made valiant starts in American law but have not (at least yet) *1432 established any independent identity of consistency or firmness. Fifth Amendment privacy, written about as early as 1886 in Boyd v. United States, [FN438] refers generally to the right to be free from governmental efforts to compel self‑incrimination. This privacy‑related notion embodied in the third clause of the Fifth Amendment has remained on the periphery of free‑standing privacy rights, occasionally working as an additional foundation to bolster the notion of search and seizure privacy under the Fourth Amendment, [FN439] but never quite coming into its own. Dean Erwin Griswold and others exerted an effort in the late 1950s and early 1960s to transpose the privilege against self‑incrimination into a new, toughened‑up incarnation of the "right to be let alone," primarily in response to the congressional hearings into un‑American and Communist activities which blackened the nation's soul during the 1950s. [FN440] However, perhaps because the nation felt it had expiated for its sins and did not view congressional witch‑hunts as an ongoing threat to American secrecy and solitude, an additional "tier" of privacy law atop the existing privilege against self‑incrimination never materialized.

 

Similarly, "associational privacy" under the First Amendment has shown flutterings of promise in recent years, with fits and starts of cases acknowledging such a right derived from the implied freedom of association linked to that amendment. [FN441] Beginning in 1958 with NAACP v. Alabama, [FN442] and most recently in Board of Directors of *1433 Rotary Int'l v. Rotary Club of Duarte [FN443] and New York State Club Association v. City of New York, [FN444] the Court alluded to the existence of a concept of privacy in one's associations protected by the First Amendment. However, in both of the latter cases it rejected the associational privacy claims and in essence did nothing more than reacknowledge the existence of a general freedom of association. [FN445]

 

It is not for want of importance that Fifth Amendment and associational privacy have, at least thus far, been flashes in the pan in American law. Rather, it is because history has not yet generated the spark of societal juice necessary to create a demand for an additional species atop existing law. The privilege against self‑incrimination and the freedom of association both inherently embody notions of "secrecy," "solitude" and "personhood" capable of being described as relatives of privacy, as do various other provisions of the Bill of Rights. Yet, new pockets of privacy have not yet developed in these spheres, primarily because the existing constitutional provisions have not broken down and proven inadequate under the weight of technological or social change.

 

Those types of privacy that have been durable enough to earn a solid niche in American law over the past hundred years, as the previous pages have shown, can be summarized in the following five categories:

*1434 Species #1: The right to be let alone, with respect to the acquisition and dissemination of information concerning the person, particularly through unauthorized publication, photography or other media. (Warren & Brandeis's original privacy tort).

Species #2: The right to be let alone, with respect to governmental searches and seizures which invade a sphere of individual solitude deemed reasonable by society. (Fourth Amendment privacy).

Species #3: The right to be let alone, when one individual's freedom of speech threatens to disrupt another citizen's liberty of thought and repose. (First Amendment privacy).

Species #4: The right to be let alone, with respect to fundamental (often unanticipated) decisions concerning the individual's own person, which are explicitly or implicitly reserved to the citizen (rather than ceded to the government) by the terms of the social contract. (Fourteenth Amendment privacy).

Species #5: The right to be let alone, with respect to a variety of private and governmental intrusions generally overlapping with species number one through number four above, yet often extending greater protections to the citizen by virtue of independent state constitutional provisions. (State constitutional privacy).

 

The behavioral patterns of these five brands of legal privacy, which are just as important as the heavily‑intertwined collection of "right to be let alone" definitions, reveal quite a bit about the depth and future path of Brandeis's creation. Each species has developed quite necessarily in order to assist the evolution of democracy in modern America and prevent democratic stagnation. Each species has been spawned to build a new wall of protection around the institutions and freedoms which lie at the core of American democracy, freedoms pre‑dating the written Constitution: family, work, religious expression, home life, contemplative thought, citizenship and community. Tort privacy became necessary with the industrialization and urbanization of America in the late 1800s, as the greater density of human beings and the invention of modern newspapers and photography created a new‑ found opportunity for citizens to pry into each other's lives. This threatened the ability of individuals to regulate *1435 and "reserve" information concerning themselves, an essential function if they were to help mold the perceptions society would form of them, the essence of individuality. Fourth Amendment privacy became necessary in the mid‑twentieth century in order to provide an antidote to inventions that permitted the government to gather up and observe more and more information about its citizens, particularly in the setting of the FBI's crusade against political dissidents. This intrusion was perceived as a force‑feeding of homogeneity, a destruction of the "home is your castle" barrier and a threat to the basic American ideal of individuality. First Amendment privacy, similarly, evolved after World War II to protect solitude and an opportunity for a tiny space of quietude in Frankfurter's world of noisy "human beehives"; [FN446] this time the American notion of "repose" and "sanctuary" was threatened by fellow citizens swarming across newly configured cities and suburbs, across hedges, front porches and apartment foyers, seeking to engage in putative free speech. Fourteenth Amendment privacy became a necessary adjunct of American democracy in the 1960s and 1970s, necessary if certain basic human choices suddenly made available through society's education and ingenuity were not to be defaulted wholesale to the state simply because gaps had become evident in the social contract. The essence of "liberty" was long understood to mean choice, and the essence of choice now came to include certain select decisions of a fundamental American stripe. State constitutional privacy, most recently, became inevitable as our federal system yawned to include and encourage experimentation with respect to individual rights at the state and local level, as species number one through number four underwent certain adjustments and curtailments as part of our general movement toward a New Federalism.

 

Privacy, as it has evolved in these five inter‑connected species, distinguishes American society from other types of societies, but not simply in the sense that it guards against "creeping totalitarianism," as Jed Rubenfeld and Carl J. Friedrich have suggested. [FN447] It is often facile to lump democracies into a single bin as if they are identical; yet this is counter to society's experience. American democracy‑‑thanks in part to the creeping growth of legal privacy‑‑now exists in sharp contrast with other types of real and imagined democracies, particularly the ancient Greek city‑state advanced by Plato and Aristotle. The ancient Greeks, as early as the Athenian polis in fifth century B.C., envisioned democracy as a much more complete surrender of the individual to the whole. Theirs was a "communitarian" and highly "participatarian" ideal; the *1436 greatest mark of freedom was participation in public activity, to the exclusion of individual identity as Americans know it. [FN448] The democratic state envisioned by the early Greeks was very small and very homogeneous. The ideal number of citizens was a mere 5,000 to 10,000, such that "every citizen could at least recognize by sight every other citizen." [FN449] Even Plato and Aristotle, who criticized democracies generally for resting too much power in the blind impulses of the masses, believed that a proper government of any sort‑‑whether democracy, oligarchy or aristocracy‑‑must remain extremely tiny. As Aristotle wrote in his Politics, "a very great multitude cannot be orderly." [FN450]

 

American democracy comprising fifty diverse states sprawling over 3.5 million square miles, necessarily looks far different than the ideal city‑state contemplated by the ancient Greeks. The birth of various species of privacy have kept it this way. The high level of individual privacy which has developed in American law distinguishes our society from totalitarian states such as the Russia of the 1950s, [FN451] but also from highly participatory forms of democracy, oligarchy or monarchy which bury individualism under a close‑knit emphasis on public life. [FN452]

 

Political theorist Robert Dahl has poignantly observed that the modern nation‑state, into which America has become transformed in this century, has necessarily brought with it re‑adjustments of our definition of democracy. Representative government has emerged, in place of direct participation by citizens. The geographic size of the democracy has become potentially unlimited because a physical assembly of all citizens is no longer necessary, having been replaced by an assembly of their representatives. The population has become increasingly diverse and non‑homogeneous in terms of religious and political beliefs, occupations, ethnic and local loyalties, and a host of characteristics which spread across the broad expanse of the large nation‑state. As a result, political conflict has been multiplied and the concept of shared beliefs about the "common good" have been necessarily diluted and generalized. Conflict has not only occurred, but is healthy. Our American society has *1437 increasingly become pluralistic, with social organizations and interest groups becoming more independent. Individual rights, particularly notions of liberty and political equality, have been expanded in this century in order to accommodate more heterogeneity. The political system has thus developed into a "polyarchy," a representative system whereby citizenship is extended to a high proportion of adults, in equal fashion, who have the power to oppose and vote out of office even the highest government officials, causing public officials to modify their conduct in order to be responsive and win elections. This translates into an extraordinarily diverse, individualistic and egalitarian American Democracy, [FN453] something quite new to the history of humankind.

 

These features of democracy as it has actually evolved in the United States, in contrast with many other conceivable types of government (including other versions of democracy), have virtually demanded the invention of new species of privacy over the past hundred years. In the sprawling, representative government which has developed in twentieth century America, the two hallmarks of American democracy‑‑individuality and equality‑‑would have been largely smothered and rendered second‑rate by changing events, were it not for the legal check imposed by successive brands of privacy. A rugged individuality and colorfulness of character have defined our nation's vision of itself, from Benjamin Franklin (the son of a Boston soap maker) to Abraham Lincoln to Mark Twain to Amelia Earhart to Harry Truman to Ronald Reagan. The characteristics that have become the trademark of American life would not have been possible without a constant adaptation of repose, sanctuary, autonomy and solitude‑‑ concepts which were important as early as William Penn's day [FN454] ‑‑all designed to ensure that the ordinary citizen could control the formulation of his or her personality, shape society's perception of that personality, build a sacred fortress around his or her home and person, and achieve whatever personal success he or she might strive toward.

 

*1438 Although this Article has not directly addressed the democratic ideal of equality‑‑tracing its roots to the "all men are created equal" language of the Declaration of Independence and back to the Magna Carta [FN455] ‑‑it has surely been a silent partner in privacy's advance. Louis Brandeis, the son of a Jewish immigrant from Prague, whose family settled on a tobacco farm in Kentucky because of the increasing government restrictions on their activities and freedoms in Europe, [FN456] was clearly cognizant of the dangers posed to racial and religious minorities if the government's intrusions into homes and personal property were allowed to grow unchecked with each new piece of technology. The Katz decision in 1967, not coincidentally, established Fourth Amendment privacy at a time when it was clear that many of the most egregious search and seizure abuses by police officers‑‑if left unchecked‑‑would be aimed at black citizens and other minority groups, a fact which scholarship has now borne out. [FN457]

 

Fundamental‑decision privacy has likewise maintained subtle links with equality. Throughout its lifetime, Fourteenth Amendment privacy has concerned itself at varying points with women (often poor) and minors who wished to obtain abortions, [FN458] families (often black or nontraditional) who wished to live in extended family situations, [FN459] parents (often ethnic or religious) who wished their children to attend unique schools, [FN460] homosexuals, [FN461] the homeless [FN462] and a host of other categories of citizens out of the mainstream of power and politics. The courts have remained alert to the harsh fact that bestowing fundamental decision‑making selectively, on certain citizens and not on others, is a particularly dangerous threat to personhood and individuality.

 

Chief Judge Emeritus A. Leon Higginbotham, Jr., of the Third Circuit Court of Appeals, has recently written that the newest African‑American member of the Supreme Court‑‑Justice Clarence Thomas‑‑was able to rise from poverty in Pin‑ Point, Georgia, receive an Ivy League *1439 education, marry a woman of the Caucasian race, live in a comfortable Virginia suburb and achieve his rare place in history, thanks in large part to a century of advances in equal protection, housing rights and privacy law. [FN463] This is hardly an overstatement. Given the strong notion of political equality in America, and the underlying assumption that the people are best capable of governing themselves, one is left with the conclusion that privacy is an essential ingredient if citizens are to be free to lead their day‑to‑day lives in a relatively even‑footed fashion, without constant disruption, in order to define themselves (and others' perceptions of them) as self‑made individuals and citizen‑participants.

 

Privacy has thus developed as an essential ingredient if the hulking, polyarchical organism is to remain vital. [FN464] As Robert Dahl has aptly observed: "Probably this strange hybrid, the normal American system, is not for export to others." [FN465] The same may be said of legal privacy in America which, as we have seen, has experienced a growth cycle closely linked with the changing contours of a unique American life, neither of which can be easily reproduced.

 

The most distinctive characteristic of privacy‑‑which can be gleaned from a hundred‑year examination of the cases‑‑is its heavy sensitivity to historical triggers. As has been discussed above, each type of privacy (with a somewhat lessened emphasis on First Amendment privacy) has been directly jolted into existence by transformations in American life and technology, which have created a societal mood powerful enough to incubate a new, legally protected right. This is significant because it means that future manifestations of privacy will be largely unexpected. Continued attempts to hunt down a single, precise definition will inevitably fail. The ability to determine what historical engines will drive privacy in America in future years will be as imprecise as guesses that jazz would be the music of the 1920s, swing the sound of the 1940s, and rock‑n‑roll the societally preferred beat of the 1960s. Jeremy Bentham once wrote that the aim of the law is to achieve a security in expectations, a predictability. [FN466] If this is true, new blossoms of the strawberry *1440 geranium will be predicted, if at all, only through careful observation of the silent cues provided by American history. Changes in American society and technology which threaten to invade the status quo and rearrange the line of demarcation between citizen and state, and citizen versus citizen, are prime candidates to generate new privacy rights. They must simmer over time, percolate and create a sense of societal urgency that the coveted trademarks of American individuality or equality are threatened. Only if such a mood is sustained over a period of time, with existing law failing to plug the gaps, will a new species of privacy take form to supplement the old.

 

Prediction is rarely prudent for scholars and others who commit their thoughts to print. However, it is possible to at least hazard a conjecture concerning areas of privacy law ripe for activity, as Warren and Brandeis's "right to let alone" enters its second century.

 

Continuing sophistication in the still‑not‑complete computer revolution is bound to jolt out new permutations of privacy, beyond those originally envisioned in the 1960s by Alan Westin and Arthur Miller. [FN467] As computers replace steel file cabinets for storing documents and fax machines replace the U.S. Post Office for transmitting mail, the potential for invading ideas, work product and personal communications grows dramatically greater in the 1990s. E‑mail (electronic mail) has already managed to tempt private employers and public officials who have dipped into computer systems to read private messages and confidential memos, the tip of a growing iceberg. [FN468] New technology in telephones, allowing a bombardment of mechanically dialled voices and solicitations to enter the home, and revealing the identity of the caller through "caller ID" screening mechanisms, [FN469] both present privacy concerns, as do recently perfected scanners which allow computer‑age gossips to eavesdrop on cordless telephone conversations and the drifting waves of baby monitors. [FN470] Micro computer chips in credit cards which allow the complete credit history of an individual to be laid open to scrutiny and video rental businesses which can generate a history of one's private taste *1441 in films [FN471] all pose super‑modern twists on the age‑old concern for secrecy and solitude. The Supreme Court has not found sexual orientation to fall within the right of privacy, but recently a panel of the Episcopal Church has recommended that homosexuals be permitted to be ordained priests by that church, a sign of a continuing societal shift in this area. [FN472] Issues concerning the epidemic of AIDS and the ability of blood banks to protect the identity and confidentiality of donors are already beginning to push unexpected privacy issues into the courts. [FN473] Likewise, the scope of the reputational interests of AIDS victims, even after death, has provided a haunting footnote to these issues. [FN474] The spiralling number of homeless citizens and the labyrinth of constitutional issues which surround their makeshift residences and personal possessions [FN475] raise new frontiers for the "home is your castle" doctrine never imagined by Louis Brandeis. The individual's "right‑to‑die" when terminally ill, and (simultaneously) the limitless new aspects of the right to live, as organ transplants, frozen tissue and previously unthinkable scientific advances, allow the American citizen to make more and more decisions about life and death, will inevitably confront the twenty‑first century as new species of privacy.

 

The possibilities are as limitless as the imagination of humankind. For it is human imagination that fuels technological and societal change, which in turn triggers privacy's accretion. There is no particular end‑point or cap on the creeping path of Warren and Brandeis' strawberry geranium. Other than to say that when it has ceased to creep, the delicate, sprawling polyarchical democracy of the United States, as we have come to know it, also will have ceased.

 

[FNa1]. Attorney, Cindrich & Titus, Pittsburgh, Pennsylvania; Adjunct Professor, University of Pittsburgh School of Law. B.A.1977, University of Pittsburgh; J.D.1980, Harvard Law School. This Article is dedicated to Professor Archibald Cox, the late Professor Paul A. Freund, Retired Justice William J. Brennan, Jr., President John E. Murray, Jr., Robert J. Cindrich, and Dr. Holbert N. Carroll‑‑all of whom contributed ideas, suggestions and guidance in helping the author complete this project, his "Poor Man's LL.M."

I would also like to thank Sean Sheridan, who provided valuable research assistance in the early stage of this sprawling undertaking.

Finally, my greatest appreciation goes to my beautiful wife, Laura, who encouraged me to rewrite this paper until it was the best thing I was capable of writing; and my children, Carolyn and Luke, who enticed me into jumping on the couch and reading Norman the Doorman in lieu of spending my entire life on the footnotes.

 

[FN1]. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV.L.REV. 193 (1890). The article itself was published on December 15, 1890, at a price of 35 cents, although volume IV of the Harvard Law Review containing the piece was not published and circulated until 1891.

 

[FN2]. ARTHUR E. SUTHERLAND, THE LAW AT HARVARD 197‑98 (1967); LEWIS J. PAPER, BRANDEIS 32‑33 (1983).

 

[FN3]. The phrase "right to be let alone" had been coined by Judge Cooley several years earlier. See THOMAS M. COOLEY, COOLEY ON TORTS 29 (2d ed. 1888).

 

[FN4]. Warren & Brandeis, supra note 1, at 193.

 

[FN5]. Roscoe Pound, Interests in Personality, 28 HARV.L.REV. 343 (1915).

 

[FN6]. Paul A. Freund, Privacy: One Concept or Many?, in PRIVACY 182 (J. Roland Pennock & John W. Chapman eds., 1971).

 

[FN7]. Erwin N. Griswold, The Right to Be Let Alone, 55 NW.U.L.REV. 216 (1960).

 

[FN8]. Carl J. Friedrich, Secrecy Versus Privacy: The Democratic Dilemma, in PRIVACY 105 (J. Roland Pennock & John W. Chapman eds., 1971).

 

[FN9]. William L. Prosser, Privacy, 48 CAL.L.REV. 383 (1960).

 

[FN10]. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW ch. 15 (2d ed. 1988).

 

[FN11]. Warren & Brandeis, supra note 1, at 193, 195.

 

[FN12]. See Milton R. Konvitz, Privacy and the Law: A Philosophical Prelude, 31 LAW & CONTEMP.PROBS. 272, 273 (1966) (suggesting that development of right to privacy is ultimately linked to the development of philosophy and theology); ALAN F. WESTIN, PRIVACY AND FREEDOM 7‑13 (1967) (tracing privacy notion to the ancient Greeks); MARGARET MEAD, COMING OF AGE IN SAMOA 82‑85 (1949) (illustrating anthropological origins of privacy as a universal in human society).

 

[FN13]. See Pound, supra note 5; Paul A. Freund, Address to the American Law Institute (May 23, 1975), quoted in 52 A.L.I.PROC. 574‑75 (1975); Tom Gerety, Redefining Privacy, 12 HARV.C.R.‑C.L.L.REV. 233, 236 (1977); J. Braxton Craven, Jr., Personhood: The Right to Be Let Alone, 1976 DUKE L.J. 699, 702‑ 03 (1976); Jeffrey Reiman, Privacy, Intimacy, and Personhood, 6 PHIL. & PUB.AFF. 26 (1976); Joseph W. Rebone, Note, Personhood and the Contraceptive Right, 57 IND.L.J. 579 (1982). See also TRIBE, supra note 10 (disclaiming any single, unitary definition of privacy, but identifying various areas in which personhood and the law intersect); Jed Rubenfeld, The Right of Privacy, 102 HARV.L.REV. 737, 784, 807 (1989). Rubenfeld's notion of privacy, despite his monumental effort to distinguish it from personhood, ultimately travels full‑circle and appears to be the flip‑side of personhood or personality. Specifically, he concludes that privacy is the right to be free from intrusion by the government, in those fundamental areas "where the government threatens to take over or occupy our lives‑‑to exert its power in some way over the totality of our lives." Id. at 787. In the end, this vision of privacy leans heavily on notions of personhood, although it approaches it from the back door, focusing upon the government's lack of a right to usurp certain fundamental choices and impose a definition of self on the individual in a democracy. For this reason, Rubenfeld's privacy fits most closely into the personhood cluster, although his definition is certainly distinctive and creative.

 

[FN14]. See Louis Henkin, Privacy and Autonomy, 74 COLUM.L.REV. 1410, 1425 (1974); Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideas in the Constitution?, 58 NOTRE DAME L.REV. 445 (1983); Daniel R. Ortiz, Privacy, Autonomy, and Consent, 12 HARV.J.L. & PUB. POL'Y 91 (1989); Michael J. Perry, Substantive Due Process Revisited: Reflections On (and Beyond) Recent Cases, 71 NW.U.L.REV. 417, 440 (1976).

 

[FN15]. WESTIN, supra note 12, at 7. See also Charles Fried, Privacy, 77 YALE L.J. 475, 477‑78 (1968) (Privacy is linked to respect, love, friendship and trust, and is the "oxygen" by which individuals are capable of building "relations of the most fundamental sort."); ANITA L. ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 11, 15 (1988) (Privacy relates to "inaccessibility of persons."); ARTHUR R. MILLER, ASSAULT ON PRIVACY 25 (1971) (Privacy is the individual's ability to control the circulation of information relating to himself.); Hyman Gross, The Concept of Privacy, 42 N.Y.U.L.REV. 34, 35‑36 (1967) ("Privacy is the condition of human life in which acquaintance with a person or with affairs of his life which are personal to him is limited."); Richard B. Parker, A Definition of Privacy, 27 RUTGERS L.REV. 275, 280‑81 (1974) ("Privacy is control over who can see us, hear us, touch us, smell us, and taste us, in sum, control over who can sense us.").

 

[FN16]. Ruth Gavison, Privacy, 89 YALE L.J. 421, 433 (1980); see also Gerald G. Watson, The Ninth Amendment: A Source of a Substantive Right of Privacy, 19 J. MARSHALL L.REV. 959, 961 (1986).

 

[FN17]. Gary L. Bostwick, Comment, A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 64 CAL.L.REV. 1447 (1976).

 

[FN18]. Gavison, supra note 16, at 426‑27, 433.

 

[FN19]. Henkin, supra note 14, at 1425.

 

[FN20]. Rubenfeld, supra note 13, at 807.

 

[FN21]. Freund, supra note 6.

 

[FN22]. Rubenfeld, supra note 13, at 740.

 

[FN23]. See Symposium, The Right to Privacy One Hundred Years Later, 41 CASE W.RES.L.REV. 643 (1991).

 

[FN24]. Prosser, supra note 9.

 

[FN25]. Gavison, supra note 16, at 460‑61. Professor Gavison argues that, by attempting to "reason backwards" from the case law to a concept of privacy, one is led to "misleading" conclusions because it assumes that one can actually discern a court's mental processes from its written opinions, and furthermore, that there are many cases in which recovery is not granted and no opinion results, which may be just as important to a true understanding of the court's reasoning. Id. However, this criticism could be leveled at law as an institution generally, particularly to the extent it relies on case law. Were scholars to share Professor Gavison's misgivings, we would be without legal treatises, casebooks and Blackstone's Commentaries, all of which seek to bring coherence to an otherwise incoherent collection of cases.

 

[FN26]. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881).

 

[FN27]. See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (1835).

 

[FN28]. See ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS (1989).

 

[FN29]. See GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW ch. 3 (10th ed. 1980); ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT ch. 6 (1960).

 

[FN30]. See GUNTHER, supra note 29, ch. 10.

 

[FN31]. See PAPER, supra note 2, chs. 1‑3.

 

[FN32]. Id. at 32‑33.

 

[FN33]. Samuel D. Warren, Jr., & Louis D. Brandeis, The Watuppa Pond Cases, 2 HARV.L.REV. 195 (1888); Samuel D. Warren, Jr., & Louis D. Brandeis, The Law of the Ponds, 3 HARV.L.REV. 1 (1889). See PHILIPPA STRUM, LOUIS D. BRANDEIS: JUSTICE FOR THE PEOPLE 37 (1984).

 

[FN34]. COOLEY, supra note 3, at 29.

 

[FN35]. JAMES F. STEPHEN, LIBERTY, EQUALITY, FRATERNITY 160 (1967, 1st ed. 1873). See Gerety, supra note 13, at 238.

 

[FN36]. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 292 (5th ed. 1984).

 

[FN37]. See JOHN DEMOS, A LITTLE COMMONWEALTH: FAMILY LIFE IN PLYMOUTH COLONY 152 (1970) (The author here remarks that "sustained privacy is hard to imagine, in any part of the Old Colony setting.").

 

[FN38]. For a discussion of the roots of privacy as an independent right in 17th century America, see Thomas H. O'Connor, The Right to Privacy in Historical Perspective, 53 MASS.L.Q. 101, 102 (1968). The most exhaustive work on the subject is DAVID H. FLAHERTY, PRIVACY IN COLONIAL NEW ENGLAND (1972). Flaherty demonstrates quite convincingly that, although there may have been no explicit right to privacy in colonial New England‑‑as that term is used today‑‑ there was a clear sensitivity to privacy in the laws of the day. For instance, a limited privilege against self‑incrimination existed under the Massachusetts Body of Liberties of 1641, id. at 232, which could be likened to privacy under the Fifth Amendment today. Courts were at times closed to the public for certain matters dealing with sexual offenses, id. at 219, a sort of accommodation to the privacy of the victim. Although life in colonial New England certainly differed from life in modern urban America, and involved far more intrusions upon personal privacy than we might tolerate today, Flaherty concludes that the colonists nonetheless enjoyed far more privacy rights (albeit described in different terms) than their counterparts in England during the same time period. Thus, Flaherty finds that there is ample support for an "unwritten" right of privacy in the history of the United States, constitutionalized in Griswold v. Connecticut, 381 U.S. 479 (1965). Id. at 248‑49.

 

[FN39]. These points are fully discussed in Flaherty's thorough work. See, e.g., FLAHERTY, supra note 38, at 25‑26, 70‑77.

 

[FN40]. Id. at 83.

 

[FN41]. Cotton Mather wrote: "[A] Godly man will sometimes Retire, that he may carry on the Exercises of Godliness." Id. at 1.

 

[FN42]. William Penn wrote a short poem in the 1690s, entitled Some Fruits of Solitude, which contained the following verses:

 

"Privacy"

 

325. Remember the Proverb, Bene qui latuit, bene vixit, They are happy that live Retiredly.

326. If this be true, Princes and their Grandees, of all Men, are the Unhappiest: For they live least alone: And they that must be enjoy'd by every Body, can never enjoy themselves as they should.

327. It is the Advantage little Men have upon them; they can be private, and have leisure for Family Comforts, which are the greatest Worldly Contents Men can enjoy.

328. But they that place Pleasure in Greatness, seek it there: And we see Rule is as much the Ambition of some Natures, as Privacy is the choice of others.

WILLIAM PENN, SOME FRUITS OF SOLITUDE 96‑97 (8th ed. 1749) quoted in FLAHERTY, supra note 38, at 13.

 

[FN43]. Warren & Brandeis, supra note 1, at 193.

 

[FN44]. Id. at 219.

 

[FN45]. Id. at 197.

 

[FN46]. Id. at 218.

 

[FN47]. Id. at 204‑05.

 

[FN48]. Id. at 200.

 

[FN49]. Id. at 205.

 

[FN50]. Id. at 197‑98. The authors pointed out that the Latin word for injury, "injuria," had the following meaning under Roman Law: "every intentional and illegal violation of honour, i.e. the whole personality of another." Id. at 198 n. 1, (quoting CARL SALKOWSKI, INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW 668 (E.E. Whitfield trans. & ed., 1886)). Thus, Warren and Brandeis envisioned that harm to one's "feelings" or "honour" would be actionable as a violation of privacy only where there was injury in the Latin sense, namely, injury to personality.

 

[FN51]. Id. at 198. Thus, the privacy of Warren and Brandeis is most closely aligned with those modern commentators who focus on the "informational" aspect of privacy. See, e.g., WESTIN, supra note 12; MILLER, supra note 15; Gross, supra note 15; Parker, supra note 15.

 

[FN52]. Warren & Brandeis, supra note 1, at 214‑15.

 

[FN53]. Id. at 199‑200.

 

[FN54]. The case apparently had not generated a reported opinion but had been commented upon in the New York Times on June 15, 18 and 21, 1890. See Warren & Brandeis, supra note 1, at 195 n. 7.

 

[FN55]. Id. at 195.

 

[FN56]. 40 Ch.D. 345 (Ch.1888).

 

[FN57]. Id. at 353.

 

[FN58]. 41 Eng.Rep. 1171 (1849).

 

[FN59]. Id. at 1179.

 

[FN60]. Warren & Brandeis, supra note 1, at 204.

 

[FN61]. Id. at 220.

 

[FN62]. There appears to be no generally recognized right of privacy at early English common law. Nonetheless, the notion of trespass vi et armiis in some ways developed a notion of personal privacy under tort law, in conjunction with property law concepts. See Watson, supra note 16, at 973. Moreover, there is certainly a recognition in early English trespass cases of the maxim "a man's home is his castle," which is the root of much of modern privacy in the United States. See Y.B. 21 Hen. 7, fo. 39, pl. 50 (1499), cited in 2 THE REPORTS OF SIR JOHN SPELMAN 316 n. 2 (J.H. Baker ed., 1978); Semayne's Case, 77 Eng.Rep. 194, 195 (1605).

 

[FN63]. Warren & Brandeis, supra note 1, at 196.

 

[FN64]. Prosser, supra note 9.

 

[FN65]. Id. at 383.

 

[FN66]. Id. (citing APLHEUS T. MASON, BRANDEIS: A FREE MAN'S LIFE 70 (1946)).

 

[FN67]. Id. at 423.

 

[FN68]. ALFRED LIEF, BRANDEIS: THE PERSONAL HISTORY OF AN AMERICAN IDEAL (1936).

 

[FN69]. Id. at 51.

 

[FN70]. PAPER, supra note 2, at 35.

 

[FN71]. Once was to report that Warren, Brandeis and others wished to announce that they were joining the Mugwumps political party. The second was in the June 7, 1890 edition of the Gazette, when Warren's cousin Katherine H. Clarke was married. The paper reported that "Mr. and Mrs. Samuel D. Warren, the former cousin of the bride, gave a breakfast for the bridal party...." Id. See also James H. Barron, Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890): Demystifying a Landmark Citation, 13 SUFFOLK U.L.REV. 875, 891‑907 (1979) (including original research concerning press coverage of Samuel D. Warren during that time period).

 

[FN72]. PAPER, supra note 2, at 35 n. 18 (citing Letter from Louis D. Brandeis to Samuel D. Warren, Jr. (April 8, 1905) in THE LETTERS OF LOUIS D. BRANDEIS 302 (Melvin I. Urofsky & David W. Levy eds., 1971)).

 

[FN73]. See generally FRANK L. MOTT, AMERICAN JOURNALISM, A HISTORY 1690‑ 1960 (3d ed. 1962).

 

[FN74]. Id. at 411‑12.

 

[FN75]. SIDNEY KOBRE, THE YELLOW PRESS AND GILDED AGE JOURNALISM 1 (1964). Thus, Sidney Kobre characterized the first revolution in American journalism as that period in the 1830s in which the penny presses cheapened newspapers and made them available to the average citizen, with individual copies sold on the streets. The second revolution took place in the 1870s and 1880s, after the Civil War, when the concept of the penny press was revitalized, this time allowing a massive popularization of the newspaper through new technology and sensationalism. Id. at iii.

 

[FN76]. EDWIN EMERY & MICHAEL C. EMERY, THE PRESS AND AMERICA: AN INTERPRETIVE HISTORY OF THE MASS MEDIA 349‑50 (3d ed. 1972).

 

[FN77]. KOBRE, supra note 75, at 1.

 

[FN78]. EMERY, supra note 76, at 351‑55.

 

[FN79]. Id. John A. "Colonel" Cockerill, the man Pulitzer brought with him to the St. Louis Dispatch (and later to the New York World) to serve as managing editor, is often regarded as the "father" of yellow journalism. MOTT, supra note 73, at 440. He possessed "a reputation for exploiting stories of murder, sin, and sex, and for sensationalizing accounts of violence, lynchings, public hangings, and dramatic death." EMERY, supra note 76, at 312.

 

[FN80]. WILLARD G. BLEYER, MAIN CURRENTS IN THE HISTORY OF AMERICAN JOURNALISM 328 (1927), quoted in EMERY, supra note 76, at 317.

 

[FN81]. The 1870s was a period of remarkable growth for the American newspaper. The number of newspapers almost doubled in this decade, reaching approximately 7,000, while population increased only 30% during the same time period. The 1890 census shows that by that year, there were over 12,000 newspapers in the United States, which experienced a continuing surge in growth. MOTT, supra note 73, at 411. Joseph Pulitzer purchased the New York World in 1883 for $346,000. By the mid‑1990's, it was housed in a $2,500,000 building and had an estimated worth of $10,000,000. EMERY, supra note 76, at 325. When the World's circulation skyrocketed to 100,000 on September 2, 1884, Pulitzer had 100 guns fired off in the New York City Hall Park and gave each one of his employees a tall silk hat. MOTT, supra note 73, at 435.

 

[FN82]. EMERY, supra note 76, at 350.

 

[FN83]. MOTT, supra note 73, at 444.

 

[FN84]. According to Mott, the incident with President Cleveland in 1886 was the most egregious example of "keyhole journalism." Indiscreet newspapermen followed the president and his bride on their honeymoon, prompting a Washington newspaperman to give this report of the first morning of the honeymoon: "When President Cleveland rose at 10 o'clock this morning and looked from the front windows of this cheerful little domicile upon the handsome vista of glade and green that stretched out before him, among the objects which met his astounded gaze was a small pavilion standing in the midst of a handsome cluster of tall trees, in and around this pavilion lounged the flower of Washington journalism, somewhat battered by lack of sleep and wrestling with county telegraph operators, but still experiencing a lively interest in the Chief Executive and his whereabouts." Several months thereafter, President Cleveland attacked the intrusive techniques of these "new journalists," accusing them of "silly, mean, and cowardly lies that every day are found in the columns of certain newspapers which violate every instinct of American manliness, and in ghoulish glee desecrate every sacred relation of private life." See DON R. PEMBER, PRIVACY AND THE PRESS: THE LAW, THE MASS MEDIA, AND THE FIRST AMENDMENT 16 (1972) (quoting Newspaper Espionage, FORUM, Aug. 1886, at 533).

 

[FN85]. Wrote Elbridge L. Adams in 1905, echoing the sentiment of Warren and Brandeis: "It will probably not be seriously questioned that the American newspaper press, with a few honorable exceptions, has far overstepped the bounds of decency and propriety in its betrayal by word and picture of the private life of individuals." Elbridge L. Adams, The Right of Privacy, and Its Relation to the Law of Libel, 39 AM.L.REV. 37, 50 (1905). See also Wilbur Larremore, The Law of Privacy, 12 COLUM.L.REV. 693 (1912). Arthur Schlesinger, Sr. wrote, in commenting upon this period of history in 1933: "Undoubtedly prying sensationalism robbed American life of much of its privacy to the gain chiefly of morbid curiosity." ARTHUR M. SCHLESINGER, SR., THE RISE OF THE CITY, 1878‑1898 at 194 (1933).

 

[FN86]. See Prosser, supra note 9, at 386‑87.

 

[FN87]. A number of these early cases involving the exploitation of pictures and quotations of individuals for commercial gain in newspaper advertisements are discussed in Larremore, supra note 85. See also Note, The Right of Privacy at Common Law, 8 MICH.L.REV. 221 (1909).

 

[FN88]. See Marks v. Jaffa, 26 N.Y.Sup.Ct. 908 (1893) (publishing of picture of an actor, without consent, in newspaper popularity contest enjoined); Mackenzie v. Soden Mineral Springs Co., 18 N.Y.S. 240 (N.Y.Sup.Ct.1891) (use of physician's name in advertising medicine, without consent, enjoined); Corliss v. F.W. Walker Co., 64 F. 280 (C.C.D.Mass.1894) (publishing biography and portrait of George H. Corliss, deceased inventor, not an invasion of privacy because he was a public figure; opinion may be read to suggest, however, that right to privacy exists).

 

[FN89]. 50 S.E. 68 (Ga.1905). There, the plaintiff brought suit against an insurance company for publishing his picture, without his consent, in a newspaper advertisement in the Atlanta Constitution next to a man who was poorly clothed, sickly and depressed‑looking. Above the photograph of the sickly man were the words: "Do It While You Can. The Man Who Didn't." The advertisement included an endorsement attributed to Pavesich, which stated: "In my healthy and productive period of life I bought insurance in the New England Mutual Life Insurance Co., of Boston, Mass., and to‑day my family is protected and I am drawing an annual dividend on my paid‑up policies." Id. at 68‑69. The Georgia Supreme Court overruled the trial court and held that the plaintiff had stated a valid cause of action for damages under both libel and privacy theories.

 

[FN90]. In 1899, the California legislature approved an amendment to the criminal libel statute which made it a misdemeanor to publish the portrait of any person in a newspaper or book or on a handbill or poster without the individual's consent. The law was apparently never invoked to prosecute a case and was repealed in 1915. See PEMBER, supra note 84, at 64.

 

[FN91]. Act of Apr. 6, 1903, ch. 132, 1‑2, 1903 N.Y.Laws 308. This statute, which became an amendment to the state's Civil Rights Law, prohibited the use of an individual's name or likeness, without consent, for advertising or trade purposes. N.Y.CIV.RIGHTS 50‑51 (McKinney 1976 & Supp.1988).

 

[FN92]. Act of May 12, 1903, 1903 Pa.Laws 265. This statute allowed civil actions for the recovery of damages arising from negligent but nondefamatory newspaper publications. Like the California statute, supra note 90, it was relatively unused until 1907, when it was repealed. See Act of May 1, 1907, 1907 Pa.Laws 124.

 

[FN93]. See Va.Code Ann. 8.01‑40 (1950). This law was similar to the New York statute, supra note 91.

 

[FN94]. See Utah Code Ann. 76‑4‑8 to ‑9 (1953). The Utah statute was also modeled after the New York legislation, supra note 91.

 

[FN95]. See discussion of the California and Pennsylvania statutes, supra notes 90, 92.

 

[FN96]. Dean Prosser wrote that the type of privacy which had prompted the Harvard Law Review piece, public disclosure of private facts by the press, "was rather slow to appear in the decisions." Prosser, supra note 9, at 392. Don R. Pember referred to the development of the law of privacy in the first twenty years after the Warren and Brandeis article as "sporadic at best." PEMBER, supra note 84, at 58. In later years, Judge Biggs of the U.S. Court of Appeals for the Third Circuit remarked that the state of privacy law in the year 1956 was "still that of a haystack in a hurricane." Ettore v. Philco Television Broadcasting Co., 229 F.2d 481 (3d Cir.1956).

 

[FN97]. 64 N.E. 442 (N.Y.1902).

 

[FN98]. Roberson was a celebrated case in which Franklin Mills Flour published the picture of Miss Abigail Roberson on thousands of posters, without her consent. Beneath her picture were the words "Flour of the Family." The New York Court of Appeals dismissed her claim, finding that a right of privacy did not exist under the common law of New York. The decision was highly criticized, leading one of the Judges on the Court of Appeals to write a law review article in an attempt to defend the court's holding. See Denis O'Brien, The Right of Privacy, 2 COLUM.L.REV. 437 (1902).

 

[FN99]. See, e.g. Mackenzie v. Soden Mineral Springs Co., 18 N.Y.S. 240 (N.Y.Sup.Ct.1891); Corliss v. F.W. Walker Co., 64 F. 280 (C.C.D.Mass.1894); Munden v. Harris, 153 Mo.App. 652 (1911) (merchants using plaintiff's portrait as part of advertisement for jewelry); Foster‑Milburn Co. v. Chin, 134 Ky. 424 (1909) (unauthorized use of photograph as part of advertisement); Edison v. Edison Mfg. Co., 73 N.J.Eq. 136 (July 1907) (unauthorized use of name as part of corporate title and use of picture as business advertisement).

 

[FN100]. RESTATEMENT OF TORTS 867 (1939).

 

[FN101]. Prosser, supra note 9, at 389. Prosser broke down the types of privacy cases that had emerged, by the year 1960, into four categories:

1) Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2) Public disclosure of embarrassing private facts about the plaintiff.

3) Publicity that places the plaintiff in a false light in the public eye.

4) Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Id.

 

[FN102]. See Marks v. Jaffa, 26 N.Y.S. 908 (N.Y.Sup.Ct.1893) (publication by Der Wachter, a New York City publication, of actor's picture in embarrassing popularity contest); Moser v. Press Publishing Co., 109 N.Y.S. 963 (N.Y.Sup.Ct.1908) (publication in New York World of picture and story about plaintiff, which was allegedly untrue; no violation of privacy found); Jeffries v. New York Evening Journal Publishing Co., 124 N.Y.S. 780 (N.Y.Sup.Ct.1910) (publication by New York Evening Journal of serialized biography of boxer; no violation of privacy); Pavesich v. New England Life Ins., Co., 50 S.E. 68 (Ga.1905) (publication of inane advertisement using plaintiff's picture in Atlanta Constitution; valid privacy claim); Henry v. Cherry and Webb, 73 A. 97 (R.I.1909) (publication of picture in Providence Evening Bulletin, by dry goods store, showing plaintiff seated in automobile with mohair coat; no violation of privacy); Munden v. Harris, 134 S.W. 1076 (Mo.Ct.App.1911) (jeweler used man's picture as part of an advertisement for Elgin watches; cause of action for violation of privacy existed); Peed v. Washington Times Co., 55 Wash.L.Rep. 182 (D.C.1927) (publication by Washington Herald of picture of woman nearly asphyxiated by gas at home of friend; acknowledges "right to be let alone"); Martin v. New Metropolitan Fiction, 248 N.Y.S. 359 (N.Y.App.Div.1931) (publication by True Detective Mysteries of picture of mother of murder victim, along with "lurid" quotes, held actionable), rev'd without opinion, 237 A.D. 863 (1932).

 

[FN103]. Prosser, supra note 9, at 386.

 

[FN104]. Id. at 388. At the time Prosser wrote his article, only Rhode Island, Nebraska and Wisconsin had rejected privacy rights under the common law. These states suggested the legislature would have to deal with the issue.

 

[FN105]. See WILLIAM L. PROSSER & W. PAGE KEETON, LAW OF TORTS 851‑854 (1984 & Supp.1988). See also Symposium, supra note 23.

 

[FN106]. PROSSER & KEETON, supra note 105, at 854‑56.

 

[FN107]. Id. at 856‑63.

 

[FN108]. Id. at 863‑66.

 

[FN109]. See, e.g., WESTIN, supra note 12, at 31‑32. "Reserve" refers to the ability of the individual to exercise control over what he or she communicates to others.

 

[FN110]. Hyman Gross, Privacy and Autonomy, in PRIVACY 169 (J. Roland Pennock & John W. Chapman eds., 1971). See also Arnold Simmel, Privacy Is Not an Isolated Freedom, in PRIVACY 71 (J. Roland Pennock & John W. Chapman eds., 1971).

 

[FN111]. In order to maintain an integrated personality, and determine how we are perceived by other individuals, "we must have a large measure of control over what of us is seen and heard, when, where, and by whom." Gross, supra note 110, at 173. Without this ability, we have little ability to determine our own individuality, which lays at the heart of the American democratic notion.

 

[FN112]. See, e.g., Rubenfeld, supra note 13, at 740 (drawing sharp distinction between fundamental decision privacy and other types of privacy); Fried, supra note 15 (focusing on search and seizure privacy to exclusion of other types).

 

[FN113]. 381 U.S. 479 (1965).

 

[FN114]. 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting).

 

[FN115]. 389 U.S. 347 (1967).

 

[FN116]. Paxton's Case, Superior Ct. 1761, reprinted in Quincy's Mass.Rep. 1761‑62, 51 (1865). This maxim derived from the early English case of Y.B. 21 Hen. 7, fo. 39, pl. 50 (1499), cited in 2 THE REPORTS OF SIR JOHN SPELMAN 316 n. 2 (J.H. Baker ed., 1978). See also Seymayne's Case, 77 Eng.Rep. 194, 195 (1605). For a discussion of early common law origins of the "home is your castle" maxim, see FLAHERTY, supra note 38, at 85‑88.

 

[FN117]. William Pitt, Speech on the Excise Bill, quoted in Frank v. Maryland, 359 U.S. 360, 378‑79 (1959) (Douglas, J., dissenting) (citing 15 HANSARD, PARLIAMENTARY HISTORY OF ENGLAND (1753‑1765) at 1307).

 

[FN118]. R.I. Rec., I, 168‑69 (1647), quoted in FLAHERTY, supra note 38, at 86.

 

[FN119]. LEGAL PAPERS OF JOHN ADAMS, I, 137‑38, quoted in FLAHERTY, supra note 38, at 88.

 

[FN120]. The Third Amendment provides: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." U.S. Const. amend. III.

 

[FN121]. See Boyd v. United States, 116 U.S. 616, 624‑29 (1886). The distinguished Boston lawyer James Otis, in condemning the writ of assistance, stated: "A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege." LEGAL PAPERS OF JOHN ADAMS, II, 142, quoted in FLAHERTY, supra note 38, at 87.

 

[FN122]. Boyd, 116 U.S. at 625‑26.

 

[FN123]. Id. at 630.

 

[FN124]. Justice Bradley's opinion rested upon both Fourth and Fifth Amendment principles, stating that "the Fourth and Fifth Amendment run almost into each other" where the government forcibly seizes a person's private papers and seeks to use them as evidence against him. Id. at 630. In finding a type of privacy buried in the Fourth Amendment, Justice Bradley invoked the early English case of Enrick v. Carrington, 19 Howell's State Trials 1029 (1765), in which Lord Camden had held that the use of general warrants violated common law trespass notions. Boyd, 116 U.S. at 626.

 

[FN125]. COOLEY, supra note 3, at 29.

 

[FN126]. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 299‑ 300 (1st ed. 1868).

 

[FN127]. 277 U.S. 438 (1928).

 

[FN128]. Id. at 471‑73 (Brandeis, J., dissenting). Olmstead involved a government wiretap on the home and office telephones of a group of men suspected of violating the National Prohibition Act by importing, storing and selling liquor. The wiretaps took place over a period of five months and generated 775 pages of notes.

 

[FN129]. The majority opinion in Olmstead, authored by Chief Justice Taft, ironically relied upon Boyd, 116 U.S. 616, to construct an argument that the Fourth Amendment was necessarily confined to those instances where the defendant had suffered "an official search and seizure of his papers or his tangible material effects or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure." Olmstead, 277 U.S. at 466. Here, since "those who intercepted the projected voices were not in the house of either party to the conversation" there was no search; and because the voices travelling over telephone lines were not "material effects," there was no seizure. Id. The cases cited by the majority to support a strict interpretation of the Fourth Amendment included Gouled v. United States, 255 U.S. 298 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Agnello v. United States, 269 U.S. 57 (1924); and Weeks v. United States, 232 U.S. 383 (1914).

 

[FN130]. Olmstead, 277 U.S. at 478‑79 (Brandeis, J., dissenting).

 

[FN131]. Id. at 473.

 

[FN132]. PAPER, supra note 2, at 307; STRUM, supra note 33, at 325.

 

[FN133]. PAPER, supra note 2, at 312.

 

[FN134]. Id.

 

[FN135]. 389 U.S. 347 (1967).

 

[FN136]. See WESTIN, supra note 12, at 173 (citing testimony of Attorney General Herbert Brownell, indicating that there were approximately 200 wiretaps in progress as of 1954).

 

[FN137]. WESTIN, supra note 12, at 175‑77.

 

[FN138]. Nardone v. United States, 302 U.S. 379 (1937); Nardone v. United States, 308 U.S. 338 (1939).

 

[FN139]. WESTIN, supra note 12, at 176‑77. In 1940, the Senate ordered an investigation of the alleged wiretap abuses, and the Interstate Commerce Committee issued a forceful report condemning the practice of wiretapping by both government agents and private parties, and proposing stronger federal legislation. Id. See also Hearings Before and Report of Subcomm. of the Senate Comm. on Interstate Commerce, Pursuant to Sen. Res. 224, 96th Cong., 3d Sess. (1940).

 

[FN140]. WESTIN, supra note 12, at 176‑77. Apparently, there was a dispute as to whether such a secret Executive Order was in fact issued. See Note, Congressional Wiretapping Policy Overdue, 2 STAN.L.REV. 744, 750 n. 42 (1950).

 

[FN141]. WESTIN, supra note 12, at 179‑80.

 

[FN142]. Id. at 180.

 

[FN143]. Id. at 178.

 

[FN144]. Id. at 191‑92.

 

[FN145]. See Wire‑Tapping: The Attorney General's Program, 1962: Hearings Before the Sen. Judiciary Comm., 87th Cong., 2d Sess. (1962). No such wiretap legislation was ever enacted during the short Kennedy administration, however.

 

[FN146]. WESTIN, supra note 12.

 

[FN147]. ARTHUR R. MILLER, THE ASSAULT ON PRIVACY: COMPUTERS, DATA BANKS AND DOSSIERS (1971).

 

[FN148]. For a collection of the significant volume of books and periodicals on this topic prior to 1971, see the selective bibliography contained in MILLER, supra note 147, at 261‑69.

 

[FN149]. WESTIN, supra note 12, at 198‑99.

 

[FN150]. Id. at 196‑98.

 

[FN151]. Id. at 206; Text of Message by President Johnson to Congress on State of the Union, N.Y. TIMES, Jan. 11, 1967, at A16.

 

[FN152]. 316 U.S. 129 (1942). In Goldman, the Court found no violation of the Fourth Amendment where federal agents planted a dictaphone in a partition wall, and were able to listen to conversations in an adjoining room. Because there had been no physical trespass into defendant's office, the Fourth Amendment had not been violated. It is interesting to note that the agents had originally planted a different device, a "dictaphone," inside defendant's office by entering upon the premises without a warrant. This device broke, and the "dictaphone" was then installed in the adjoining wall. The Court in Olmstead, true to its strict construction of the Fourth Amendment, suggested that evidence gathered by the first listening device‑‑which involved a physical trespass onto defendant's property‑‑would have violated the Constitution. Id. at 134‑35.

 

[FN153]. 343 U.S. 747 (1952). In On Lee, the Court found no violation of the Fourth Amendment where an undercover narcotics agent wore a concealed microphone, and his conversation with defendant in a Chinese laundry was monitored by a fellow agent. Again, there had been no physical trespass, since defendant voluntarily spoke with the wired agent.

 

[FN154]. Id. at 753‑54.

 

[FN155]. 365 U.S. 505 (1961).

 

[FN156]. The Court found that the contact with the heating duct constituted a physical invasion of the premises. Id. at 509.

 

[FN157]. Id. at 512. Justice Douglas, in his concurrence in Silverman, took an even more blunt approach. He suggested a departure from the crabbed "constitutionally protected areas" approach, which had been developed in Gouled, Olmstead, etc., and urged the Court to turn its attention to the more important issue of "whether the privacy of the home was invaded." Id. at 513. A smattering of cases in the next several years began to erode the notion of Olmstead that tangible personal property had to be involved in order to constitute a "search and seizure" under the Fourth Amendment. See Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); Osborn v. United States, 385 U.S. 323 (1966). In each of these cases, however, the claim to a constitutionally protected right to privacy under the Fourth Amendment was rejected.

 

[FN158]. 389 U.S. 347 (1967).

 

[FN159]. Id. at 351.

 

[FN160]. Id.

 

[FN161]. Id. at 360‑61 (Harlan, J., concurring). From Justice Harlan's concurrence evolved the two part "reasonable expectation of privacy" test under the Fourth Amendment, soon thereafter adopted by a majority of the Court in Terry v. Ohio, 392 U.S. 1, 9 (1968). According to Justice Harlan, a protected zone of Fourth Amendment privacy existed if: (1) the individual had an "actual" expectation of privacy, and (2) that expectation was "one that society was prepared to recognize as 'reasonable.' " Katz, 389 U.S. at 361.

 

[FN162]. In Berger v. New York, 388 U.S. 41 (1967), the Court stated that America has entered a new age in which "[s]ophisticated electronic devices have now been developed ... which are capable of eavesdropping on anyone in almost any given situation." Id. at 46‑47.

 

[FN163]. Bostwick, supra note 17, at 1456‑57. "Sanctuary" refers to the ability of the individual to prohibit other persons from seeing, learning and knowing them within a protected area.

 

[FN164]. Watson, supra note 16, at 960‑91; Gavison, supra note 16, at 433‑ 34. "Secrecy" refers to the ability of the individual to prevent himself and his activities from being known to others, generally.

 

[FN165]. "Solitude" refers to the ability of the individual to withdraw and be alone, and prevent access to his or her person. See Gavison, supra note 16, at 433‑34 n. 40.

 

[FN166]. See supra note 16.

 

[FN167]. Justice Bradley, in Boyd v. United States, 116 U.S. 616 (1886), had declared that the Fourth Amendment was designed to protect the "sanctity of a man's home and the privacies of life," id. at 630, and that "every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it as the true and ultimate expression of constitutional law." Id. at 626.

 

[FN168]. Warren & Brandeis, supra note 1, at 193.

 

[FN169]. See COOLEY, supra note 3.

 

[FN170]. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

 

[FN171]. Berger v. New York, 388 U.S. 41 (1967) (bugging devices placed in offices of individuals suspected of accepting bribes to issue liquor licenses); United States v. United States Dist. Court, 407 U.S. 297 (1972) (wiretaps conducted by the Attorney General, acting on behalf of the President, with respect to domestic organizations believed to pose a threat to national security).

 

[FN172]. See Camara v. Municipal Court, 387 U.S. 523 (1967) (inspection of residence for municipal fire code violations); G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (search of business office by IRS agents). See also Mancusi v. De Forte, 392 U.S. 364 (1968) (search of office by state officials).

 

[FN173]. United States v. Chadwick, 433 U.S. 1 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979). But see United States v. Ross, 456 U.S. 798 (1982).

 

[FN174]. Walter v. United States, 447 U.S. 649 (1980) (sealed boxes containing sexually explicit films).

 

[FN175]. United States v. Karo, 468 U.S. 705 (1984) (monitoring beeper signals once inside a private residence, not open to visual surveillance, violates justifiable expectation of privacy in residence). But see United States v. Knotts, 460 U.S. 276 (1983) (no violation of Fourth Amendment privacy when a similar beeper was placed in a drum of chemicals and used to track the movement of a suspect in his automobile, but was not used to monitor the drum inside the home).

 

[FN176]. United States v. Brignoni‑Ponce, 422 U.S. 873 (1975).

 

[FN177]. United States v. Ortiz, 422 U.S. 891 (1975).

 

[FN178]. Delaware v. Prouse, 440 U.S. 648 (1979). In that case, Justice White wrote:

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel ... Nor are they shorn of those interests when they step from the sidewalks into their automobiles.

Id. at 662‑63.

 

[FN179]. United States v. Miller, 425 U.S. 435 (1976).

 

[FN180]. United States v. Dionisio, 410 U.S. 1 (1973).

 

[FN181]. Smith v. Maryland, 442 U.S. 735 (1979).

 

[FN182]. United States v. White, 401 U.S. 745 (1971).

 

[FN183]. Chambers v. Maroney, 399 U.S. 42 (1970); South Dakota v. Opperman, 428 U.S. 364 (1976); Rakas v. Illinois, 439 U.S. 128 (1978); California v. Carney, 471 U.S. 386 (1985); United States v. Ross, 456 U.S. 798 (1982); New York v. Belton, 453 U.S. 454 (1981).

 

[FN184]. 462 U.S. 696 (1983). Although the Court found the "sniff test" did not unreasonably intrude upon the individual's privacy rights, and thus was not an unlawful "search" under the Fourth Amendment, the Court found that the seizure of the suspect's luggage for over 90 minutes constituted an unreasonable "seizure." Id. at 705‑07.

 

[FN185]. 486 U.S. 35 (1988).

 

[FN186]. 469 U.S. 325 (1985).

 

[FN187]. See Oliver v. United States, 466 U.S. 170 (1984) (narcotics agents walked around gate marked with "No Trespassing" signs, and located field of marijuana about one mile from defendant's homestead); California v. Ciraolo, 476 U.S. 207 (1986) (police flew over defendant's home in airplane at 1,000 feet, and photographed marijuana growing in backyard); Dow Chem. Co. v United States, 476 U.S. 227 (1986) (Environmental Protection Agency officials used precision aerial mapping camera to photograph industrial manufacturing complex, for suspected environmental violations, at altitudes of up to 12,000 feet); United States v. Dunn, 480 U.S. 294 (1987) (Drug Enforcement Agency agents crossed several fences to peer with a flashlight into barn located within 60 yards of a dwelling); Florida v. Riley, 488 U.S. 445 (1989) (aerial surveillance of a greenhouse, through missing panels in roof, using helicopter hovering at 400 feet). For criticism of the Court's approach in such cases, see Stephen A. Saltzburg, Another Victim of Illegal Narcotics: The Fourth Amendment (As Illustrated By the Open Fields Doctrine), 48 U.PITT.L.REV. 1 (1986); Seth H. Ruzi, Comment, Reviving Trespass‑Based Search Analysis Under the Open View Doctrine: Dow Chem. Co. v. United States, 63 N.Y.U.L.REV. 191 (1988); David E. Steinberg, Making Sense of Sense‑Enhanced Searches, 74 MINN.L.REV. 563, 586‑91 (1990).

 

[FN188]. 489 U.S. 602 (1989).

 

[FN189]. 489 U.S. 656 (1989).

 

[FN190]. As Justice Kennedy wrote in Von Raab:

The Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy of those who seek promotion to these positions, who enjoy a diminished expectation of privacy by virtue of the special, and obvious physical and ethical demands of those positions.

Id. at 679. Moreover, Justice Kennedy concluded that "a warrant would provide little or nothing in the way of additional protection of personal privacy," since the drug testing is a mandatory process applied to all covered employees, and thus there are "no special facts for a neutral magistrate to evaluate." Id. at 667.

 

[FN191]. 496 U.S. 444 (1990).

 

[FN192]. The Court once again employed a balancing test, as in Skinner and Von Raab, finding that the state's interest in eradicating drunk driving was a weighty one, while the intrusion on the motorist was "slight." Id. at 451. Chief Justice Rehnquist noted that the checkpoint at issue in that case, conducted by the Michigan State Police and the Saginaw County Sheriff's Department, was governed by explicit guidelines governing checkpoint operations, site selection and publicity, which ensured that the discretion of the official in the field was circumscribed. Unlike Delaware v. Prouse, 440 U.S. 648 (1979), there was at least some empirical evidence that the method employed here yielded positive results, in that approximately 1.5% of the drivers passing through the checkpoint were legally intoxicated. Sitz, 496 U.S. at 454‑55.

 

[FN193]. See Note, Protecting Privacy Under the Fourth Amendment, 91 YALE L.J. 313 (1981) (suggesting that Fourth Amendment rights have become improperly hierarchical, with certain interests being viewed as "lesser" simply because the warrant process is viewed as imposing some burden on law enforcement officers).

 

[FN194]. See, e.g., Friedrich, supra note 8, at 106‑07. In United States v. Place, 462 U.S. 696 (1983), the Court accurately summarized its job under the Fourth Amendment as follows: "We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. at 703.

 

[FN195]. 466 U.S. 170, 178 (1984) (citations omitted). See also O'Connor v. Ortega, 480 U.S. 709, 715 (1987); California v. Ciraolo, 476 U.S. 207, 215 (1986).

 

[FN196]. 486 U.S. 35 (1988).

 

[FN197]. William H. Rehnquist, Is An Expanded Right of Privacy Consistent With Fair and Effective Law Enforcement?, 23 KAN.L.REV. 1, 15 (1974).

 

[FN198]. Olmstead v. United States, 277 U.S. 438, 474 (1928) (quoting WILLIAM TUDOR, THE LIFE OF JAMES OTIS, OF MASSACHUSETTS 66 (1823)).

 

[FN199]. PENN, supra note 42.

 

[FN200]. 487 U.S. 474 (1988).

 

[FN201]. 254 U.S. 325 (1920).

 

[FN202]. Id. at 327.

 

[FN203]. Id. at 332.

 

[FN204]. Id. at 335‑36 (Brandeis, J., dissenting).

 

[FN205]. Id. at 335.

 

[FN206]. At several points, Brandeis seemed to focus on the fact that Gilbert was seeking to petition the government, and referred to a concept of "liberty" under the Fourteenth Amendment. Id. at 337, 343. Generally, however, he seemed to be concerned with the right of free speech under the First Amendment. Id. at 336. Whether Brandeis viewed this as the source of Gilbert's privacy right is not clear.

 

[FN207]. In Schneider v. State, 308 U.S. 147 (1939), otherwise known as the "Handbill Cases," the Court held that municipalities could not use anti‑ leafletting ordinances to prohibit Jehovah's Witnesses from engaging in political or religious speech, including door‑to‑door canvassing. This decision set the stage for cases pitting the rights of the door‑to‑door solicitor against the rights of the unwilling listener.

 

[FN208]. 319 U.S. 141 (1943).

 

[FN209]. Id. at 150 (Murphy, J., concurring).

 

[FN210]. 316 U.S. 129, 136 (1942) (Murphy, J., dissenting).

 

[FN211]. Martin, 319 U.S. at 150 (Murphy, J., concurring).

 

[FN212]. Justice Frankfurter wrote:

The habits and security of life in sparsely settled rural communities, or even in those few cities which a hundred and fifty years ago had a population of a few thousand, cannot be made the basis of judgment for determining the area of allowable self‑protection by present‑day industrial communities. The lack of privacy and the hazards to peace of mind and body caused by people living not in individual houses but crowded together in large human beehives, as they so widely do, are facts of modern living....

Id. at 152‑53 (Frankfurter, J., dissenting).

 

[FN213]. Id. at 154‑57 (Reed, J., dissenting).

 

[FN214]. 341 U.S. 622 (1951).

 

[FN215]. The ordinance in Green River, Wyoming, which served as a model for local municipalities throughout the country, had been held constitutional by a federal court of appeals. See Town of Green River v. Fuller Brush Co., 65 F.2d 112 (10th Cir.1933). No appeal was taken to the United States Supreme Court.

 

[FN216]. Breard, 341 U.S. at 644.

 

[FN217]. He likens the prohibition against door‑to‑door solicitation to a trespass law and finds that the state is able to protect its citizens from such disruption under its police powers. Id.

 

[FN218]. 285 U.S. 105 (1932).

 

[FN219]. The full quote is as follows:

"Advertisements of this sort [i.e., billboards and displays] are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard."

Id. at 110 (quoting State v. Packer Corp., 297 P. 1013, 1019 (Utah 1931)).

 

[FN220]. DAVID M. O'BRIEN, PRIVACY, LAW, AND PUBLIC POLICY 147 (1979).

 

[FN221]. 336 U.S. 77 (1949).

 

[FN222]. The defendant in Kovacs was broadcasting music from a truck on a public street near the municipal building, along with commentary, apparently airing his views on a labor dispute. Justice Reed authored the opinion finding that the "loud and raucous noises" language of the New Jersey statute was sufficiently definite to permit enforcement. Id. at 82‑83.

 

[FN223]. Id. at 86‑87.

 

[FN224]. Id. at 97 (Frankfurter, J., concurring).

 

[FN225]. 2 Joseph Story, Commentaries on the Constitution of the United States 1872‑84 (2d ed. 1851).

 

[FN226]. FRANCIS LIEBER, ON CIVIL LIBERTY AND SELF‑GOVERNMENT viii, 44‑47, 71‑75, 224 (1st ed. 1853).

 

[FN227]. 343 U.S. 451 (1952).

 

[FN228]. The Court seemed to acknowledge a right to privacy under the Fifth Amendment, but concluded that a citizen's right to privacy in a public conveyance is "substantially limited" compared to his or her right within the home. Id. at 463‑64. It is interesting to note that many of the early "home is your castle" privacy cases relied upon the Fifth Amendment, since that provision creates a privilege against self incrimination and provides a close analogue to the notion that one is free to live in one's home free from unwarranted governmental intrusions. See Boyd v. United States, 116 U.S. 616 (1886), which originally relied upon both the Fourth and Fifth Amendments in describing a right to privacy as early as 1886.

 

[FN229]. Pollak, 343 U.S. at 468 (Douglas, J., dissenting).

 

[FN230]. 394 U.S. 557 (1969).

 

[FN231]. Id. at 565.

 

[FN232]. 397 U.S. 728 (1970).

 

[FN233]. Specifically, the federal statute permitted homeowners to insulate themselves from advertisements "which the addressee in his sole discretion believes to be erotically arousing or sexually provocative." See 39 U.S.C. 4009(a) (1964 & supp. IV) (current version at 39 U.S.C. 3008(a) (1988)). The Postmaster General was authorized to order the sender to cease mailing further materials to the addressee. Chief Justice Burger, writing for the Court, invoked Pollak, 343 U.S. 451, to distinguish between "captive audiences" inside and outside the home. He concluded: "The asserted right of a mailer ... stops at the outer boundary of every person's domain." Rowan, 397 U.S. at 738.

 

[FN234]. Rowan, 397 U.S. at 736.

 

[FN235]. Id.

 

[FN236]. 403 U.S. 15 (1971).

 

[FN237]. 402 U.S. 415 (1971).

 

[FN238]. 422 U.S. 205 (1975).

 

[FN239]. 438 U.S. 726 (1978).

 

[FN240]. Id. at 748. The Court permitted the monologue to be banned based upon the commission's finding that it was "indecent" (not necessarily obscene) within the meaning of 18 U.S.C. 1464 (1976), a federal statute regulating broadcasts. Pacifica has been roundly criticized for taking into account the content of the speech involved. See O'BRIEN, supra note 220, at 153‑55.

 

[FN241]. 447 U.S. 455 (1980). The Illinois statute prohibited all picketing in residential neighborhoods except for labor picketing. Justice Brennan found the distinction between labor picketing and other forms of picketing violative of the Equal Protection Clause of the Fourteenth Amendment. He wrote: "Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual 'to be let alone' in the privacy of the home, 'sometimes the last citadel of the tired, the weary, and the sick.' " Id. at 471 (quoting Gregory v. Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring)).

 

[FN242]. Carey, 447 U.S. at 455.

 

[FN243]. 487 U.S. 474 (1988). The statute was enforced to prevent anti‑ abortion picketers from protesting in front of the residence of a doctor who performed abortions.

 

[FN244]. Id. at 484, (quoting Carey, 447 U.S. at 471).

 

[FN245]. Id. (quoting Gregory v. City of Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring)).

 

[FN246]. See Martin v. Struthers, 319 U.S. 141, 153 (1943) (Frankfurter, J., dissenting).

 

[FN247]. See supra note 41.

 

[FN248]. See Breard v. Alexandria, 341 U.S. 622, 626 (1951). Justice Reed wrote of the new door‑to‑door solicitors: " 'One follows another until the ringing doorbells disturb the quietude of the home and become a constant annoyance.' " Id. at 626 n. 3 (quoting Town of Green River v. Fuller Brush Co., 65 F.2d 112, 114 (10th Cir.1933)).

 

[FN249]. Ernest Van Den Haag has made a related point, explaining that an increasingly crowded society has inevitably placed burdens on society in the past few decades. He writes: "The chances of privacy diminish roughly (and unevenly) as crowding increases." Ernest Van Den Haag, On Privacy, in PRIVACY 149, 169 (J. Roland Pennock & John W. Chapman eds., 1971).

 

[FN250]. 376 U.S. 254 (1964). See also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Curtiss Publishing Co. v. Butts, 388 U.S. 130 (1967).

 

[FN251]. For a criticism of this intermingling, see O'BRIEN, supra note 220, at 162‑67. Professor O'Brien points out correctly that the torts of privacy and defamation historically were aimed at different purposes. Defamation suits were designed to protect the individual's reputation from unjust harm; thus, truth was an absolute defense under the theory that one's reputation was only as good as one's conduct. On the other hand, the tort of privacy was designed to prevent certain personal information from being exposed to the world, simply because it was of a private nature; consequently, truth was not a defense, because the information was protected from exposure regardless of truth or falsity.

Professor Bloustein has similarly noted that New York Times v. Sullivan and its offspring have blurred the distinction between privacy and defamation. See Edward J. Bloustein, The First Amendment and Privacy: The Supreme Court Justice and the Philosopher, 28 RUTGERS L.REV. 41, 91‑93 (1974). However, Professor Bloustein takes the more optimistic view that such intermingling has led to a stronger position for the tort of defamation because it has become associated with the increasingly revered right of personal privacy. Id. at 95.

 

[FN252]. For criticism of this approach, see O'BRIEN, supra note 220, at 162‑67. See also Peter B. Edelman, Free Press v. Privacy: Haunted By the Ghost of Justice Black, 68 TEX.L.REV. 1195 (1990).

 

[FN253]. 385 U.S. 374 (1967). In Hill, a family held hostage by escaped convicts sued Life magazine for invasion of privacy. Life had created the impression that a fictionalized play about the ordeal actually reflected the events endured by the Hill family, casting them in a false light. The Court suggested that although the Hills were private figures, the New York Times v. Sullivan test still applied because the falsehoods published involved "matters of public interest." Id. at 387‑88.

 

[FN254]. 419 U.S. 254 (1975). In Cantrell, a wife and son brought suit against Forest City Publishing Co. and a reporter, for invasion of privacy based on a "news feature" which described the funeral of their husband and father, killed in a bridge disaster on the Ohio River, and improperly portrayed the impact of his death on the family. The Supreme Court permitted the recovery by plaintiffs under a "false‑light" theory of invasion of privacy. However, it did so by finding that the trial court's charge, that liability could be imposed only if the false statements had been made "with knowledge of their falsity or in reckless disregard of the truth," satisfied the New York Times test. Id. at 249‑51. Justice Stewart, for the majority, specifically avoided the question of whether a state may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a "false‑light" theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applied to all false‑light cases. Id. at 250‑51. Having found that there was sufficient evidence of reckless untruth, the Court sidestepped this critical issue. As a result, the plaintiffs in Cantrell won the battle, but "false‑ light" privacy continued to lose the war.

 

[FN255]. 420 U.S. 469 (1975). In this "public disclosure" tort case, the father of a deceased rape victim sued a broadcasting company for televising a news report revealing the rape victim's name, despite a Georgia statute which made it a misdemeanor to do so. Justice White swept the privacy issue under the carpet, finding that the "interests in privacy fade when the information involved already appears on the public records made available to the reporter in the courtroom." Id. at 494‑95. The Court found no reason to directly address the privacy issue. In contrast, in the highly publicized case of Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976), the Court found that the erroneous interpretation of public records by the media would not shield the press from liability, particularly where the citizen involved was not a "public figure."

 

[FN256]. 430 U.S. 308 (1977). In Oklahoma Publishing, the Court unanimously held that a state court could not prohibit the publication of the "name or picture" of an 11‑year‑old boy accused of murder, when the information was "widely disseminated information obtained at court proceedings which were in fact open to the public." Id. at 310. The court relied heavily upon its decision in Cox Broadcasting, indicating that any privacy rights of the juvenile were outweighed by the First Amendment freedom of the press. Id. at 311‑12.

 

[FN257]. 435 U.S. 829 (1978). This case involved a Virginia statute which made it a crime for the news media to publish information concerning the confidential proceedings of the Judicial Inquiry and Review Commission, which heard complaints concerning judges' disability and misconduct. The Supreme Court found that the ability to truthfully report about public officials engaged in connection with their public duties "lies near the core of the First Amendment," id. at 838, and held unconstitutional the state's attempt to impose this legislative form of privacy. Id. at 841‑42.

 

[FN258]. 443 U.S. 97 (1979). In this case, the Court struck down a West Virginia statute which made it a crime to publish the name of an individual charged as a juvenile offender. Because matters of "public significance" were involved, the state could not constitutionally punish the truthful reporting of the accused juvenile's name obtained from the police radio and other sources "absent a need to further a state interest of the highest order." Id. at 103.

 

[FN259]. 491 U.S. 524 (1989).

 

[FN260]. Florida Star involved the reporting of the name of a rape victim, after a cub reporter copied down the information which had been inadvertently included in a sheriff's report. Florida law required that the identity of a sexual battery victim not be made part of any public record, and indeed signs were posted in the press room giving notice of the proscription to reporters. Id. at 546 (White, J., dissenting). The newspaper itself had an express policy against publishing the names of rape victims. Nonetheless, the report was printed, B.J.F.'s family received phone calls threatening her with rape again, and she was forced to move and obtain mental health counselling. Id. at 528.

 

[FN261]. Id. at 541 (emphasis added).

 

[FN262]. Id. One can at least wonder whether a state's interest would be more "weighty" if it relied directly upon a privacy right in the state constitution, rather than upon a state statute.

 

[FN263]. Edelman, supra note 252, at 1207, 1211‑18.

 

[FN264]. Diane L. Zimmerman, False Light Invasion of Privacy: The Light That Failed, 64 N.Y.U.L.REV. 364 (1989). See also Diane L. Zimmerman, Requiem For a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L.REV. 291 (1983).

 

[FN265]. "Associational privacy," also linked to the First Amendment in several notable cases, will be discussed in the Epilogue of this Article.

 

[FN266]. 381 U.S. 479 (1965). In Griswold, a Connecticut statute provided for fine or imprisonment or both for any person who used any drug, medicinal article or instrument for the purpose of preventing conception. The Executive Director of the Planned Parenthood League of Connecticut and its medical director (a physician and professor at Yale Medical School) were convicted for providing married couples with information concerning how to prevent conception and for prescribing a contraceptive for the wife's use. Judge Robert Bork has criticized Griswold as a contrived test‑case, involving an outdated and unenforced statute, orchestrated by Yale law professors who sought to "enlist the Court on the side of moral relativism in sexual matters." See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 95‑97 (1990).

 

[FN267]. Griswold, 381 U.S. at 485‑86.

 

[FN268]. Justice Douglas, writing for the Court, concluded that the right of privacy could be found in the "zones of privacy" or "penumbras" surrounding various other constitutional guarantees, specifically those in the First, Third, Fourth, Fifth and Ninth Amendments. Id. at 484‑85. Justice Goldberg, joined by Chief Justice Warren and Justice Burger, believed that "the right of marital privacy though ... not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court ... and by the language and history of the Ninth Amendment." Id. at 486‑87 (Goldberg, J., concurring) (footnote omitted). Justice Harlan sought to graft marital privacy directly onto the due process clause of the Fourteenth Amendment and concurred in the decision based upon his conclusion that the Connecticut statute violated "basic values 'implicit in the concept of ordered liberty.' " Id. at 500 (Harlan, J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Justice White believed that the Connecticut statute deprived appellants of a "liberty" interest under the Fourteenth Amendment and was not "reasonably necessary for the effectuation of a legitimate and substantial state interest." Id. at 502‑04 (White, J., concurring).

 

[FN269]. Id. at 484‑85. Justice Douglas's formulation was similar to the approach taken by the Griswold appellants in their brief, which embraced a shotgun approach and sprayed the right of privacy across the breadth of the Bill of Rights. See Brief for Appellants at 79‑89, Griswold v. Connecticut, 381 U.S. 479 (1965) (No. 496). Justice Douglas was clearly attempting to disassociate himself (and the Court) from a liberty grounded on the due process clause of the Fourteenth Amendment, largely because the Court's decision in Lochner v. New York, 198 U.S. 45 (1905) (holding that a person's "general right to make a contract in relation to his business" is protected by the Due Process Clause of the Fourteenth Amendment), had become vilified by 1965. Justice Douglas, creating an appearance of wide latitude between the Griswold decision and Lochner, wrote: "We do not sit as a super‑legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operated directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation." Griswold, 381 U.S. at 482.

 

[FN270]. 410 U.S. 113 (1973).

 

[FN271]. Justice Blackmun's majority opinion included this telling sentence: "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id. at 153.

 

[FN272]. Id. Roe involved a challenge to Texas criminal abortion laws by a pregnant unwed female who claimed rape but later admitted that she had contrived the story in her desperation to obtain an abortion. See DAVID M. O'BRIEN, STORM CENTER 23 (2d ed. 1990). The Texas statute prohibited abortions except to save the life of the mother. The Court held that given the "fundamental" nature of plaintiff's privacy right, only a "compelling" governmental interest could justify regulation by the state. Roe, 410 U.S. at 155. The Court found that the state's interest in the health of the mother became compelling only after the first trimester of pregnancy, at which point the risk of mortality for the mother met or exceeded the risks of childbirth. Id. at 163. Thus, after the first trimester, "reasonable regulations" relating to the protection of maternal health, such as requirements concerning the qualifications of those performing abortions and the facilities where they would take place, would be permitted. Id. With respect to the state's interest in the potential life of the fetus, the Court found that this became "compelling" after the second trimester of pregnancy, the point at which the fetus became viable (i.e., had the capability of "meaningful life outside the mother's womb"). Id. Only after the second trimester, therefore, could abortions be proscribed entirely. Id. at 164‑65.

 

[FN273]. 367 U.S. 497, 517‑19 (1961) (Douglas, J., dissenting).

 

[FN274]. Griswold, 381 U.S. at 499‑500 (Harlan, J., concurring).

 

[FN275]. Poe, 367 U.S. at 522 (Harlan, J., dissenting).

 

[FN276]. See Griswold, 381 U.S. at 484‑85 (citing Boyd v. United States, 116 U.S. 616 (1886); Mapp v. Ohio, 367 U.S. 643 (1961)).

 

[FN277]. The Griswold Court wrote:

The principles laid down in this opinion [by Lord Camden] affect the very essence of constitutional liberty and security.... [T]hey apply to all invasions ... of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property....

Griswold, 381 U.S. at 485 n. 1 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

 

[FN278]. Id. at 485 (citing Breard v. Alexandria, 342 U.S. 622 (1951); Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952)).

 

[FN279]. Id. at 486 (citing NAACP v. Alabama, 377 U.S. 288 (1964)).

 

[FN280]. 316 U.S. 535 (1942), cited in Griswold, 381 U.S. at 485.

 

[FN281]. 262 U.S. 390 (1923), cited in Griswold, 381 U.S. at 481‑82.

 

[FN282]. 268 U.S. 510 (1925), cited in Griswold, 381 U.S. at 481.

 

[FN283]. See Olmstead v. United States, 277 U.S. 438, 469 (1928) (Holmes, J., dissenting) ("While I do not deny it I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant, although I fully agree that Courts are apt to err by sticking too closely to the words of the law where those words import a policy that goes beyond them.").

 

[FN284]. Griswold, 381 U.S. at 494 (Goldberg, J., concurring).

 

[FN285]. Id. at 500 (Harlan, J., concurring).

 

[FN286]. Poe v. Ullman, 367 U.S. 497, 550, 552 (1961) (Harlan, J., dissenting).

 

[FN287]. Roe v. Wade, 410 U.S. 113, 152 (1973) (citing Stanley v. Georgia, 394 U.S. 557 (1969)).

 

[FN288]. Roe, 410 U.S. at 152 (citing Katz v. United States, 389 U.S. 347, 350 (1967); Boyd v. United States, 116 U.S. 616 (1886); Olmstead v. United States, 277 U.S. 438, 478 (1928)).

 

[FN289]. Id. at 152‑53 (citing Loving v. Virginia, 388 U.S. 1, 12 (1967); Skinner v. Oklahoma, 316 U.S. 535, 541‑42 (1942)).

 

[FN290]. Id. at 172 (Rehnquist, J., dissenting).

 

[FN291]. See John H. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973). Professor Ely wrote that the Roe decision "is not constitutional law and gives almost no sense of an obligation to try to be." Id. at 947 (emphasis in original).

 

[FN292]. ALEXANDER M. BICKEL, THE MORALITY OF CONSENT (1975). Professor Bickel described Roe as a "model statute" and quipped that is was "derived, not from Spencer's Social Statics, but from fashionable notions of progress." Id. at 27.

 

[FN293]. Harry H. Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 YALE L.J. 221 (1973). Dean Wellington viewed the Court's use of privacy rights, in the abortion context, as "Pickwickian." Id. at 303.

 

[FN294]. Id. at 301.

 

[FN295]. This distinction is made in Griswold v. Connecticut, 381 U.S. 479 (1965). Thus, some critics have commented that the Constitution was not meant to enact Herbert Spencer's (or anyone else's) theory of economics. Lochner was flawed, under this reasoning, because it sought to establish the Court as a super legislature, lording over the economic decisions of the Congress and the state legislatures. See, e.g., BICKEL, supra note 292, at 26‑ 27.

 

[FN296]. See Archibald Cox, The Court and the Constitution 130, 148 (1987).

 

[FN297]. See Monrad G. Paulsen, The Persistence of Substantive Due Process in the States, 34 MINN.L.REV. 91 (1950).

 

[FN298]. The wishy‑washiness of Lochner's liberty probably accounts for the inconsistent opinions of that era. For example, states were permitted to impose an eight‑hour day on miners, Holden v. Hardy, 169 U.S. 366 (1898), and for women, Muller v. Oregon, 208 U.S. 412 (1908), but not for men in a bakery. Lochner v. New York, 198 U.S. 45 (1905). States were permitted to forbid the sale of liquor, Mugler v. Kansas, 123 U.S. 623 (1887), but not the manufacture of cigars in a tenement. In re Jacobs, 98 N.Y. 98 (1885).

 

[FN299]. Ely, supra note 291.

 

[FN300]. Id. at 939.

 

[FN301]. See Laurence H. Tribe, Structural Due Process, 10 HARV.C.R.‑ C.L.L.REV.... 269 (1975).

 

[FN302]. Id. at 301.

 

[FN303]. See Elizabeth L. Beardsley, Privacy, Autonomy and Selective Disclosure, in PRIVACY 56 (J. Roland Pennock & John W. Chapman eds., 1971).

 

[FN304]. See MALCOLM POTTS & CLIVE WOOD, NEW CONCEPTS IN CONTRACEPTION 127‑ 28 (1972).

 

[FN305]. See John A. Robertson, Procreative Liberty and the Control of Contraception, Pregnancy, and Childbirth, 69 VA.L.REV. 405, 407 (1983). See generally CLIFFORD GROBSTEIN, FROM CHANCE TO PURPOSE: AN APPRAISAL OF EXTERNAL HUMAN FERTILIZATION (1981).

 

[FN306]. Christopher Tietze, The Current Status of Fertility Control, 25 LAW & CONTEMP.PROBS. 426, 429‑31 (1960).

 

[FN307]. ROSALIND P. PETCHESKY, ABORTION AND WOMAN'S CHOICE: THE STATE, SEXUALITY, AND REPRODUCTIVE FREEDOM 109, 116‑18 (1984).

 

[FN308]. Gregory Pincus et al., Fertility Control with Oral Medication, 75 AM.J.OBSTET. & GYNECOL. 1333 (1958); Tietze, supra note 306, at 432‑33.

 

[FN309]. Based upon a 1961 study conducted by the Office of Population Research of Princeton University, Dr. Tietze was able to calculate pregnancy rates per 100 woman‑years of exposure for traditional methods of birth control as follows: condom (13.8); diaphragm (14.4); douche (40.8). See Christopher Tietze, The Condom as a Contraceptive, in ADVANCES IN SEX RESEARCH 97 (Hugo G. Bergel ed., 1963). To compute the rate per "woman‑years of pregnancy," the investigator determines for each married couple the duration of the exposure to the risk of pregnancy, by deleting the aggregate months of married life during which conception is impossible because of pregnancy, separation or some other reason. The months of exposure and pregnancies of all couples who used the same methods are then added and the pregnancy rate per 100 woman‑years is computed.

After the introduction of the birth control pill in the United States, Dr. Tietze reported pregnancy rates with oral contraceptive tablets ranging from 0.4 to 2.7 per woman‑years. Christopher Tietze, Use and Effectiveness of Contraceptive Methods in the United States, in THE MANUAL OF CONTRACEPTIVE PRACTICE 131 (Mary S. Calderone ed., 1964). A similar study in 1963 showed the pregnancy rate of traditional methods of birth control to range from 12 to 31 per 100 woman‑years, while the rate for envoid (a popular oral contraceptive pill) was 1.2. Celso R. Garcia, Clinical Studies on Human Fertility Control, in HUMAN FERTILITY AND POPULATION PROBLEMS 63 (Roy O. Greep ed., 1963).

 

[FN310]. The American College of Obstetricians and Gynecologists and the House of Delegates of the American Medical Association were two of the prestigious bodies which adopted resolutions endorsing birth control. Brief as Amicus Curiae for Planned Parenthood Federation of America, Inc. app. B at 1b‑ 4b, Griswold v. Connecticut, 381 U.S. 479 (1964) (No. 496).

 

[FN311]. Peter Smith, Comment, The History and Future of the Legal Battle Over Birth Control, 49 CORNELL L.Q. 275, 277‑79 (1964).

 

[FN312]. "Only 11 percent were opposed, and 8 percent had no opinion." Brief as Amicus Curiae, at 48, Griswold (No. 496) (citing HARTFORD COURANT, Jan. 13, 1965).

 

[FN313]. KRISTIN LUKER, ABORTION AND THE POLITICS OF MOTHERHOOD 111 (1984).

 

[FN314]. POTTS & WOOD, supra note 304, at 125‑26.

 

[FN315]. See John H. Talbott, Lord Lister (1827‑1912), in A BIOGRAPHICAL HISTORY OF MEDICINE 755‑56 (1970) (citing Joseph Lister, On a New Method of Treating Compound Fracture, Abscess, etc., 1 THE LANCET 328 (March 16, 1867)).

 

[FN316]. See Roe v. Wade, 410 U.S. 113, 149 n. 44 (1973).

 

[FN317]. See generally POTTS & WOOD, supra note 304, at 185‑92.

 

[FN318]. Id. at 125‑26.

 

[FN319]. See Roe, 410 U.S. at 149 n. 44. Of the 9,722 therapeutic abortions studied in a 1963‑68 report of the Commission on Professional and Hospital Activities, only a single death of the mother "unequivocally resulted from the operation." See Christopher Tietze, United States: Therapeutic Abortions, 1963‑1968, in 59 STUDIES IN FAMILY PLANNING 5‑7 (1970).

 

[FN320]. Brief for Appellants at 31‑32, Roe (No. 70‑18) (citing Chase, Twelve Month Report on Abortions in New York City (Health Services Administration, City of New York, June 29, 1971)).

 

[FN321]. See JOHN T. NOONAN, A PRIVATE CHOICE; ABORTION IN AMERICA IN THE SEVENTIES 35 (1979). Specifically, the ALI adopted the hypothesis of Glanville Williams that abortion had been opposed by Christians because of their view that infants must be baptized. Therefore, to save the fetus' soul, the Christian church (according to Williams) was forced to oppose the practice of abortion, hardly a compelling justification for many modern Americans. See MODEL PENAL CODE 230 (Proposed Official Draft 1962). See also GLANVILLE WILLIAMS, THE SANCTITY OF HUMAN LIFE AND THE CRIMINAL LAW 193 (1957).

 

[FN322]. See MARY K. ZIMMERMAN, PASSAGE THROUGH ABORTION, THE PERSONAL AND SOCIAL REALITY OF WOMEN'S EXPERIENCES 19‑20 (1977). It was significant that Dr. Alan Guttmacher, the influential head of the Planned Parenthood Organization, suddenly switched to become a friend of abortion rights. NOONAN, supra note 321, at 37. Some physicians also expressed the view that the existing abortion laws made hypocrites of them because they were unable to advise patients seeking abortions with any degree of medical objectivity. See Harold Rosen, Psychiatric Implications of Abortion: A Case Study in Social Hypocrisy, in ABORTION AND THE LAW 72‑106 (David T. Smith ed., 1967).

 

[FN323]. See Roe 410 U.S. at 143.

 

[FN324]. By 1971, 12 states had adopted the ALI proposal. See generally Ruth Roemer, Abortion Law Reform and Repeal: Legislative and Judicial Developments, 61 AM.J.PUB. HEALTH 500 (1971).

 

[FN325]. See NOONAN, supra note 321, at 61‑62.

 

[FN326]. See PETCHESKY, supra note 307, at 121.

 

[FN327]. See PHYLLIS T. PIOTROW, WORLD POPULATION CRISIS: THE UNITED STATES RESPONSE, at vii (1973).

 

[FN328]. PETCHESKY, supra note 307, at 113; Lucinda Cisler, Unfinished Business: Birth Control and Women's Liberation, in SISTERHOOD IS POWERFUL: AN ANTHOLOGY OF WRITINGS FROM THE WOMEN'S LIBERATION MOVEMENT 277‑78 (Robin Morgan ed., 1970). For an excellent discussion of the effect of these and other factors upon the national abortion mood, see ZIMMERMAN, supra note 322, at 9‑ 12; Luker, supra note 313, at 115‑18; PETCHESKY, supra note 207, at 103.

 

[FN329]. See, Griswold v. Connecticut, 381 U.S. 479 (1964); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972). See also Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976) (holding a requirement that single women under the age of 18 receive parental consent before obtaining abortion violates privacy right under Roe); Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977) (invalidating the blanket prohibition of the distribution of contraceptives to minors, holding that the "constitutionally protected right to privacy extends to an individual's liberty to make choices concerning conception"); Bellotti v. Baird, 443 U.S. 622 (1979) (holding unconstitutional Massachusetts statute requiring unmarried minors to obtain consent for an abortion from both parents or authorization of court if parental consent was denied); Colautti v. Franklin, 439 U.S. 379 (1979) (invalidating Pennsylvania abortion statute requiring doctors to make a determination of viability prior to performing an abortion); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (striking down portions of Pennsylvania Abortion Control Act which required "reporting," "informed consent," "determination of viability," etc.).

 

[FN330]. Loving v. Virginia, 388 U.S. 1 (1967) (striking down Virginia statutory scheme which prohibited racially mixed marriages); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974) (invalidating requirement that pregnant teachers take maternity leave without pay at least five months before the expected delivery date, as a violation of the Due Process Clause which protected the "freedom of personal choice in matters of marriage and family life"); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion invalidating local ordinance that limited occupation of dwelling unit to members of a single family and limited "family" to only a few categories of related individuals, excluding grandchildren and cousins). See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down Oklahoma law authorizing sterilization of persons convicted of certain felonies involving moral turpitude more than twice, and stating that "[m]arriage and procreation are fundamental to the very existence and survival of the race"). Cf. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) (upholding local zoning ordinance limiting the number of unrelated individuals who could live together in a one‑ family dwelling, and refusing to extend the Loving logic to unmarried cohabitants).

 

[FN331]. Pierce v. Society of Sisters, 268 U.S. 510, 534‑35 (1925) (striking down Oregon statute which required virtually all children to attend public school, finding that it "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control"); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (striking down Nebraska law which forbade the teaching of foreign languages to children prior to passing eighth grade, holding that the word "liberty" in the Fourteenth Amendment included a freedom "to marry, establish a home and bring up children" as one saw fit); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (acknowledging a "private realm of family life which the state cannot enter").

Although none of the above cases used the word "privacy," having been decided in an earlier era, they are commonly cited by the Court as the foundations of fundamental‑decision privacy under the Fourteenth Amendment. See, e.g., Roe v. Wade, 410 U.S. 113 (1973). For other decisions relating to the liberty of child‑rearing and education, see Wisconsin v. Yoder, 406 U.S. 205 (1972); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

 

[FN332]. 424 U.S. 693 (1975).

 

[FN333]. Id. at 713. In Paul, the Court refused to find that the right of privacy under the Fourteenth Amendment provided a cause of action where flyers were circulated by a police department, listing plaintiff as an "active shoplifter," and containing his picture. This sort of intrusion into personhood, if there was one, fell outside the bounds of the new, fundamental‑ decision privacy.

 

[FN334]. See Craven, supra note 13, at 706‑07; Feinberg, supra note 14, at 455‑56; Gerety, supra note 13, at 280.

 

[FN335]. JOHN S. MILL, ON LIBERTY (David I. Spitz ed., 1975) (1859). See, e.g., Gerety, supra note 13; Feinberg, supra note 14; Craven, supra note 13. Mill wrote that "liberty" encompasses all of those individual decisions that are "self‑regarding," that is, all of those decisions that "directly" and "primarily" affect only the individual making the decision and do not impede important decisions of fellow citizens. Mill, supra, at 10‑11. For a good discussion of Mill's philosophy as it relates to privacy, see Feinberg, supra note 14.

 

[FN336]. See, for example, Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), which upheld a local zoning ordinance prohibiting most unrelated individuals from cohabitating in a one‑family dwelling, despite lack of any indication that others were being harmed by such co‑habitation.

 

[FN337]. See Feinberg, supra note 14, at 487‑92.

 

[FN338]. Rubenfeld, supra note 13, at 784.

 

[FN339]. See Friedrich, supra note 8, at 105, 114‑20 (suggesting that a curtailment of individual privacy marks the shift from a democratic to a totalitarian state).

 

[FN340]. These levels of specificity, at least the latter two, are similar to the types of noninterpretive review postulated by Professor Grey in discussing the foundation of unwritten constitutional guarantees. See Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN.L.REV. 843, 844‑45 n. 8 (1978).

 

[FN341]. The Thirteenth Amendment provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XII, 1.

 

[FN342]. 428 U.S. 153 (1976).

 

[FN343]. Id. at 169‑71.

 

[FN344]. Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

 

[FN345]. Id. at 179‑80 n. 23.

 

[FN346]. Id. at 169.

 

[FN347]. Brown v. Board of Educ., 347 U.S. 483 (1954).

 

[FN348]. The so‑called "orginalists" or "noninterpretavists" would seek to fit the entire Constitution into the First Level (or at most, the first two Levels) of specificity, for which language and history provide a certainty of linguistic definitiveness. See, e.g., Robert H. Bork, Original Intent and the Constitution, HUMANANITIES, Feb. 1986, at 22, 26‑27; JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977). The obvious problem with this literalist approach is that it ignores all of the less‑ specific language of the Constitution and treats it as surplusage, when history makes clear that the Framers took many of the most important rights‑‑including life, liberty and property‑‑and articulated them in broad terms for the very reason that resolving specific factual issues was not the goal of a written Constitution. See Laurence H. Tribe, The Holy Grail of Original Intent, HUMANITIES, Feb. 1986, at 23‑25.

 

[FN349]. Grey, supra note 340. See also Thomas C. Grey, Do We Have An Unwritten Constitution?, 27 STAN.L.REV. 703 (1975).

 

[FN350]. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (B.B. Macpherson, ed. 1980) (1690). The doctrine that society is founded upon a contract between the people and the government actually traces itself to medieval origin, re‑ emerging again in the writings of Grotius and Puffendorf in the 17th century, and later in the works of Locke and Rousseau. See JEAN J. ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSES, at xxii (G.D.H. Cole, ed., 1950).

Locke's Second Treatise of Government, published in 1690, is widely viewed as influencing the course of American legal thought at the time of the Revolution and ultimately the written Constitution, which set forth the basis of the understanding between citizen and government. See, e.g., JOHN C. MILLER, ORIGINS OF THE AMERICAN REVOLUTION 171 (photo. reprint 1966) (1943). John Miller writes, "It is not too much to say that during the American Revolution, the 'party line' was John Locke." Id. at 170. See also LEWIS HARTZ, THE LIBERAL TRADITION IN AMERICA (1955). Not all philosophers or historians, however, are as generous in crediting Locke's Second Treatise with having an impact upon American legal theory. See JOHN DUNN, THE POLITICAL THOUGHT OF JOHN LOCKE 7‑8 (1969). As Steven Dworetz has described it, by the late 1960s scholars had initiated an "essential historical shift away from Locke." STEVEN M. DWORETZ, THE UNVARNISHED DOCTRINE: LOCKE, LIBERALISM, AND THE AMERICAN REVOLUTION 6 (1990).

 

[FN351]. LOCKE, supra note 350, 4‑15, 95.

 

[FN352]. Id. 95, 130.

 

[FN353]. Id. 96‑97. The person who gives "express consent" to enter into a society becomes a "perfect member of that society, a subject of that government." Id. 98. Consequently, he or she is "perpetually and indispensably obliged to be, and remains unalterably a subject to it," and is never at liberty to leave it and rejoin the state of Nature unless the government is dissolved. Id. 121. The person who gives "tacit consent" to enter the society (e.g., by inheriting lands or enjoying the benefits of society (for instance, subsequent generations of citizens)) is "obliged to obedience to the laws of that government during such enjoyment." Id. 119‑22. One who has given tacit consent is always free to quit possession of such benefits and "is at liberty to go and incorporate himself into any other commonwealth, or agree with others to begin a new one in vacuis locis," in any part of the world that is free and unpossessed. Id. 121.

 

[FN354]. Id. 129. As John Wiedhofft Gough points out, Locke never tells us how much of his "natural liberty" a citizen must give up for the good, prosperity and safety of society. However, the common assumption is that a citizen retains certain liberties (e.g., a right of property, which for Locke includes a property in the person), which cannot be taken away without the citizen's consent. JOHN. W. GOUGH, JOHN LOCKE'S POLITICAL PHILOSOPHY 31‑32 (2d. ed. 1973). See also LOCKE, supra note 350, 138.

 

[FN355]. LOCKE, supra note 350, 222. As Professor Gough describes it, Locke equated the public good with the preservation of property (i.e., the lives, liberties and estates of individuals). GOUGH, supra note 354, at 38.

 

[FN356]. "Though the earth and all inferior creatures be common to all men, yet every man has a 'property' in his own 'person.' This nobody has any right to but himself." LOCKE, supra note 350, 26.

 

[FN357]. GOUGH, supra note 354, at 61, 77‑78.

 

[FN358]. See Grey, supra note 340, at 864.

 

[FN359]. LOCKE, supra note 350, 130‑34.

 

[FN360]. Id. 135.

 

[FN361]. Id. 168.

 

[FN362]. Id. 136 (emphasis added). It should be noted that for Locke, one of the very drawbacks of a state of Nature, in comparison with a society, is that "there wants a known and indifferent judge, with authority to determine all differences according to the established law." Id. 125 (emphasis added).

 

[FN363]. Id. 125, 136. Professor Grey has argued, however, that Locke wrote about "intrinsic limitations on legislative authority" as "political and moral limitations" only. Grey, supra note 340, at 860 n. 73.

 

[FN364]. 5 U.S. (1 Cranch) 137 (1803).

 

[FN365]. As Oliver Ellsworth (later Justice Ellsworth) of Connecticut stated in 1788 in addressing his constitutional ratifying convention: "If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void." ALPHEUS MASON & DONALD G. STEPHENSON, JR., AMERICAN CONSTITUTIONAL LAW 31 (9th ed. 1990). The very reason Thomas Jefferson insisted on a Bill of Rights, and later convinced Madison to propose such a Bill to Congress, was that he feared a tyranny of the legislature, which would be neither impartial nor particularly scholarly in its approach to interpreting the broad provisions of the Constitution. Jefferson wrote to Madison: "In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts in the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department, merits great confidence for their learning and integrity...." Letter of Thomas Jefferson to James Madison (Mar. 15, 1789) quoted in MASON & STEPHENSON, supra, at 323.

 

[FN366]. See Grey, supra note 340, at 844‑49.

 

[FN367]. 262 U.S. 390 (1923).

 

[FN368]. See id. at 400.

 

[FN369]. The Court concluded in Meyer that the word "liberty," as that word took on meaning under the Fourteenth Amendment, included "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Id. at 399.

 

[FN370]. See supra note 330. I would also place Skinner v. Oklahoma, 316 U.S. 535 (1942), in this category. Although it dealt with sterilization, and thus has a surface connection to the contraceptive cases like Griswold, etc., dealing with the ability to procreate, Skinner is quite different. Skinner dealt with the affirmative right to marry and have children, an existing fixture in American democracy. Id. at 541. Griswold and its progeny had to do with a newly perceived right to choose not to have children, something largely foreign to American tradition until that time.

 

[FN371]. See supra note 329.

 

[FN372]. 497 U.S. 261 (1990).

 

[FN373]. 478 U.S. 186 (1986).

 

[FN374]. Id. at 192. See also Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. MIAMI L.REV. 521, 525 (1986), cited in Bowers, 478 U.S. at 192.

 

[FN375]. See Developments in the Law‑‑Sexual Orientation And The Law, 102 HARV.L.REV. 1508, 1512‑19 (1989).

 

[FN376]. See David A. J. Richards, Constitutional Legitimacy and Constitutional Privacy, 61 N.Y.U.L.REV. 800, 856‑62 (1986); Rubenfeld, supra note 13, at 747‑50.

 

[FN377]. For instance, as early as 1943, the Court refused to get involved in the contraception issue. See Tileston v. Ullman, 318 U.S. 44 (1943); see also Poe v. Ullman, 367 U.S. 497 (1961). As has already been discussed, the Court avoided the privacy issue under the Fourth Amendment where wiretaps were involved for over forty years before its decision in Katz v. United States, 389 U.S. 347 (1967). See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J. dissenting).

 

[FN378]. Retired Justice Lewis F. Powell, Jr., who cast the deciding vote in Bowers, recently expressed his view to a group of New York University law students that "I think I probably made a mistake in that one." Ruth Marcus, Powell Regrets Backing Sodomy Law, WASH. POST, Oct. 26, 1990 (final ed.) at A3; Linda Greenhouse, Washington Talk; When Second Thoughts in Case Come too Late, N.Y. TIMES, Nov. 5, 1990 (late ed.‑final) at 14. Justice Powell, upon further reflection, concluded that the majority opinion in Bowers was "inconsistent in a general way" with Roe. Greenhouse, supra.

 

[FN379]. LEARNED HAND, THE BILL OF RIGHTS 70 (1958).

 

[FN380]. BORK, supra note 266, at 110, 118.

 

[FN381]. 492 U.S. 490 (1989). In Webster, a Missouri statute required that prior to performing an abortion on any woman whom a physician had reason to believe was 20 weeks pregnant or more, the physician must ascertain whether the fetus was viable by performing "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child." Additionally, the Act prohibited the use of public employees and facilities to perform or assist abortions not necessary to save the mother's life, and prohibited the use of public funds, employees, or facilities for the purpose of "encouraging or counseling" a woman to have an abortion not necessary to save her life. See id. at 501.

 

[FN382]. Id. at 520.

 

[FN383]. Id. at 555 (Blackmun, J., concurring in part and dissenting in part).

 

[FN384]. LAURENCE H. TRIBE, ABORTION, THE CLASH OF ABSOLUTES 23 (1990).

 

[FN385]. Not every instance of the Court "clarifying" (or some might say more skeptically "redefining") the social contract has led to a victory for fundamental‑decision privacy. In fact, in some instances the Court has been overly cautious. Thus, in cases like Bellotti v. Baird (Bellotti II), 443 U.S. 622 (1979), H.L. v. Matherson, 450 U.S. 396 (1981) and Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), the Court lent its approval to state laws which required parental consent or judicial approval prior to a minor obtaining an abortion, rejecting the competing privacy claim. Likewise, in Maher v. Roe, 432 U.S. 464 (1977) and Harris v. McRae, 448 U.S. 297 (1980), the Court found that the acknowledged right to privacy in the abortion decision did not prevent the government from barring Medicaid funding to indigent women desiring abortions, holding that such laws did not place a "governmental obstacle" in the path of women who chose to terminate their pregnancies.

The "right‑to‑die" and homosexuality cases discussed above, also reflect a conservative approach in declaring new fundamental privacies before the Court is satisfied as to their contours and permanency.

 

[FN386]. As Justice Douglas explained: "We deal with a right of privacy older than the Bill of Rights, older than our political parties...." Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

 

[FN387]. Much has now been written about the explosion of state constitutional law which began in the 1970s, and has continued into the 1990s. For a sampling of the most influential literature on this subject, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV.L.REV. 489 (1977); Developments in the Law‑‑The Interpretation of State Constitutional Rights, 95 HARV.L.REV. 1324 (1982); Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U.BALT.L.REV. 379 (1980); Stanley Mosk, State Constitutionalism: Both Liberal and Conservative, 63 TEX.L.REV. 1081 (1985); Earl M. Maltz et al., Selected Bibliography On State Constitutional Law, 1980‑1989, 20 RUTGERS L.J. 1093 (1989).

 

[FN388]. See, e.g., Project Report: Toward An Activist Role for State Bills of Rights, 8 HARV.C.R.‑C.L.L.REV. 271 (1973). See also Donald E. Wilkes, Jr., More on the New Federalism in Criminal Procedure, 63 KY.L.J. 873, 873‑75 (1975); Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY.L.J. 421 (1974); Earl M. Maltz, The Dark Side of State Court Activism, TEX.L.REV. 995 (1985).

 

[FN389]. The state constitutions of at least 11 of the original 13 colonies were drafted and adopted during the fight for independence, well before the U.S. Constitution, which was not ratified until 10 years later. New Hampshire, South Carolina, New Jersey, Delaware, Pennsylvania, Maryland and North Carolina adopted constitutions in 1776. Georgia, New York and Vermont followed suit in 1777. Massachusetts ratified its constitution in 1780 after receiving the approval of its electorate. Connecticut and Rhode Island did not formally adopt new constitutions until 1818 and 1842, respectively. Prior to that time, these two colonies relied upon their colonial charters. For a complete list of the dates on which each of the 50 states adopted its own constitution, see COUNCIL OF STATE GOVERNMENTS, THE BOOK OF THE STATES 14 (1986‑87). For an excellent discussion of the unique history of the state constitutions, see WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS (1980).

 

[FN390]. Justice Stanley Mosk of the California Supreme Court has observed: "[S] ome of the more aggressive conservative political and legal groups have demanded a return to basic federalism. They have taken seriously the philosophy expressed by President Reagan, when he was Governor of California, that the closer government is to the people at the state and local level, the more effective it is in representing the people's viewpoint." See Mosk, supra note 387, at 1092. For examples of decisions in which the U.S. Supreme Court limited individual rights at the federal level, in the name of returning power to the states, see, for example, Oregon v. Haas, 420 U.S. 714, 719 (1975) ( "[A] State is free as a matter of its own law to impose greater restrictions on police activity than those the Court holds to be necessary upon federal constitutional standards."); Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980); Stone v. Powell, 428 U.S. 465, 495 (1976) ("State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law."). See also San Antonio v. Rodriguez, 411 U.S. 1, 41‑44, reh'g denied, 411 U.S. 959 (1973) (suggesting that issue of equality of public school funding is better left to the states).

 

[FN391]. The Supremacy Clause of the U.S. Constitution has long been interpreted to permit states to provide "greater" protections than those afforded by the federal Bill of Rights. See Special Project, State Constitutions and Criminal Procedure: A Primer for the 21st Century, 67 OR.L.REV. 689, 696‑98 (Ken Gormley ed., 1988). As Justice Pollock of the New Jersey Supreme Court recently explained this basic tenet of state constitutional decision‑making: "The first ten amendments (to the U.S. Constitution) establish a foundation for the protection of human liberty. A state may not undermine that foundation, but its constitution may build additional protections above the federal floor." Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 TEX.L.REV. 977, 980 (1985).

 

[FN392]. The phrase "New Federalism" appears in much of the literature. See, e.g., Shirley S. Abrahamson & Diane S. Gutmann, The New Federalism: State Constitutions and State Courts, 71 JUDICATURE 88 (1987); Ellen A. Peters, State Constitutional Law: Federalism in the Common Law Tradition, 84 MICH.L.REV. 583 (1986).

 

[FN393]. Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), wrote this oft‑quoted sentence concerning the role of states as laboratories: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Id. at 311 (Brandeis, J., dissenting).

 

[FN394]. Wash. Const. art. I, 7; Ariz. Const. art. II, 8. These provisions read: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

 

[FN395]. See supra text accompanying note 158.

 

[FN396]. Haw. Const. art. I, 7, was amended to read:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to searched and the persons or things to be seized or the communications sought to be intercepted.

(emphasis added).

 

[FN397]. Ill. Const. art. I, 6 provides:

The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizure, invasions of privacy or interceptions of communications by eaves‑dropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

(emphasis added).

 

[FN398]. S.C. Const. art. I, 10 reads as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized and the information to be obtained.

(emphasis added).

 

[FN399]. La. Const. art. I, 5 provides that:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason or reasons for the search. Any person adversely affected by the search shall have standing to raise its illegality in the appropriate court.

 

[FN400]. Mont. Const. art. II, 10 provides that: "The right of individual privacy is essential to the well‑being of a free society and shall not be infringed without the showing of a compelling state interest."

 

[FN401]. Alaska Const. art. I, 22 states: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."

 

[FN402]. Cal. Const. art. I, 1 provides that "All people are by their nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

 

[FN403]. Haw. Const. art. I, 6. The privacy right of the Hawaii Constitution reads as follows: "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right."

 

[FN404]. Fla. Const. art. I, 23 provides: "Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public right of access to public records and meetings as provided by law."

 

[FN405]. In Louisiana and Hawaii, these new provisions have been judicially interpreted to expressly incorporate the principles enunciated in Griswold, Roe and their progeny. See Hondroulis v. Schumacher, 546 So.2d 466, 473 (La.1989); State v. Karr, 748 P.2d 372, 378 (Haw.1988).

 

[FN406]. See, e.g., Commonwealth v. Sell, 470 A.2d 457 (Pa.1983).

 

[FN407]. See, e.g., Murphy v. Pocatello School Dist., 480 P.2d 878 (Idaho 1971) (right of privacy in hair length, based upon "penumbras" of federal and state constitutional provisions); Moe v. Secretary of Administration, 417 N.E.2d 387 (Mass.1981) (implied right of privacy in decision whether to bear or beget a child); State v. Gray, 413 N.W.2d 107 (Minn.1987) (right of privacy does not include right to engage in commercial sex); In re Quinlan, 355 A.2d 647 (N.J.1976) (unwritten right of privacy encompassing patient's right to decline medical treatment under certain circumstances); In Re B, 394 A.2d 419 (Pa.1978) (right of privacy protects psychotherapist‑patient relationship); Texas State Employees Union v. Texas Dept. of Mental Health, 746 S.W.2d 203 (Tex.1987) (implicit zone of privacy protecting right of public employees to refuse to submit to polygraph test).

 

[FN408]. See State v. Opperman, 247 N.W.2d 673 (S.D.1976); State v. Sawyer, 571 P.2d 1131 (Mont.1977); State v. Daniel, 589 P.2d 408 (Alaska 1979). See also State v. Goff, 272 S.E.2d 457 (W.Va.1980).

 

[FN409]. South Dakota v. Opperman, 428 U.S. 364 (1976). Indeed, South Dakota rejected the decision on remand in Opperman itself. See Opperman, 247 N.W.2d 673.

 

[FN410]. See People v. Beavers, 227 N.W.2d 511 (Mich.), cert. denied, 423 U.S. 878 (1975); State v. Ayres, 383 A.2d 87 (N.H.1978); State v. Brackman, 582 P.2d 1216 (Mont.1978); State v. Glass, 583 P.2d 872 (Alaska 1978), modified sub nom., City of Juneau v. Quinto, 684 P.2d 127 (Alaska 1984); State v. Sarmiento, 397 So.2d 643 (Fla.1981).

It should be noted that in Florida, six years after Sarmiento was decided, the electorate approved a constitutional provision requiring Florida courts to construe the state constitutional prohibition against unreasonable searches and seizures in conformity with the federal Fourth Amendment. See Fla. Const. art. 1, 12. Thus, Sarmiento was effectively nullified.

 

[FN411]. 401 U.S. 745 (1971) (plurality opinion).

 

[FN412]. 456 U.S. 798 (1982).

 

[FN413]. For courts rejecting Ross based upon their own heightened notions of privacy, see State v. Benoit, 417 A.2d 895 (R.I.1980); People v. Ruggles, 702 P.2d 170 (Cal.1985); State v. Camargo, 498 A.2d 292 (N.H.1985); State v. Ringer, 674 P.2d 1240 (Wash.1983). See also State v. Stroud, 720 P.2d 436 (Wash.1986).

 

[FN414]. State v. Thompson, 760 P.2d 1162 (Idaho 1988).

 

[FN415]. Smith v. Maryland, 442 U.S. 735 (1979).

 

[FN416]. 468 U.S. 897 (1984).

 

[FN417]. Commonwealth v. Edmunds, 586 A.2d 887 (Pa.1991); State v. Marsala, 579 A.2d 58 (Conn.1990); State v. Carter, 370 S.E.2d 553 (N.C.1988); State v. Novembrino, 519 A.2d 820 (N.J.1987); People v. Bigelow, 488 N.E.2d 451 (N.Y.1985).

 

[FN418]. See, e.g., Woods & Rohde, Inc. v. State, 565 P.2d 138 (Alaska 1977) (rejecting United States v. Biswell, 406 U.S. 311 (1972), relating to warrantless search of business premises); State v. Simpson, 622 P.2d 1199 (Wash.1980) (retaining "automatic standing" rule despite contrary federal ruling in United States v. Salvucci, 448 U.S. 83 (1980)); Commonwealth v. Sell, 470 A.2d 457 (Pa.1983) (same); State v. Caraher, 653 P.2d 942 (Or.1982) (rejecting rule of United States v. Robinson, 414 U.S. 218 (1973), relating to search of person incident to arrest). For a detailed discussion of state constitutional decisions rejecting the approach of the U.S. Supreme Court in the area of criminal procedure, see Special Project, supra note 391; Developments in the Law‑‑The Interpretation of State Constitutional Rights, 95 HARV.L.REV. 1324 (1982); Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 TEX.L.REV. 1141 (1985). See also Gerald B. Cope, Jr., Note, Toward a Right of Privacy as a Matter of State Constitutional Law, 5 FLA.ST.U.L.REV. 631 (1977); John M. Devlin, State Constitutional Autonomy Rights in an Age of Federal Retrenchment: Some Thoughts on the Interpretation of State Rights Derived from Federal Sources, 3 Emerging Issues in St. Const.L. 195 (1990).

 

[FN419]. Cruzan v. Missouri Dep't. of Health, 497 U.S. 261, 110 S.Ct. 2841 (1990). See supra text accompanying note 372.

 

[FN420]. Cruzan, 110 S.Ct. at 2852. As a result, the Court found no violation of the Due Process Clause when Missouri law required "clear and convincing evidence" of Ms. Cruzan's wishes before her family could make a life‑extinguishing decision for her.

 

[FN421]. Id., 110 S.Ct. at 2859. (O'Connor, J., concurring) (citing New State Ice Co. v. Leibmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).

 

[FN422]. See id., 110 S.Ct. at 2847‑51.

 

[FN423]. 355 A.2d 647 (N.J.1976).

 

[FN424]. A later New Jersey case, In re Farrell, 529 A.2d 404 (N.J.1987), held that the right to refuse life‑sustaining treatment applied whether the patient was being treated in a medical institution, or remained at home, so long as the patient made a rational decision to forego life‑sustaining medical assistance.

 

[FN425]. See Rasmussen ex rel. Mitchell v. Fleming, 741 P.2d 674 (Ariz.1987). Here, the Arizona Supreme Court relied upon both federal and state constitutional privacy notions in protecting the decision to remove a naso‑ gastric tube from a nursing home patient in a vegetative state, holding that it amounted to neither murder nor suicide under state law.

 

[FN426]. See Bartling v. Superior Court, 209 Cal.Rptr. 220 (Cal.Ct.App.1984). In Bartling, a California appellate court held that the right to refuse medical treatment under the privacy language of Article 1, Section 1 of the California Constitution, applied not only to terminally ill patients but to all adult patients of sound mind, even when the illness was not definitively diagnosed as terminal.

 

[FN427]. These cases are discussed supra notes 188‑89.

 

[FN428]. Horsemen's Benevolent and Protective Ass'n v. State Racing Comm'n, 532 N.E.2d 644 (Mass.1989). But cf. Pullin v. Louisiana State Racing Comm'n, 477 So.2d 683 (La.1985) (holding that in a closely regulated industry like horse racing, a warrantless search of race track barn was not unreasonable).

 

[FN429]. 768 P.2d 1123 (Alaska 1989).

 

[FN430]. Id. at 1136‑37. The Court in Luedtke concluded that there was no violation of this common law right of privacy because (1) the private drug tests were conducted at a time reasonably contemporaneous with the employees' work time, and (2) the employees had received notice. Id.

 

[FN431]. Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990). In this case, the Court held that Michigan's sobriety checkpoint program‑‑which had specific guidelines limiting police officers' discretion‑‑was consistent with the Fourth Amendment.

 

[FN432]. See State v. Record, 548 A.2d 422 (Vt.1988) (DUI roadblocks upheld because compelling state interest at stake, and objective guidelines existed to guide police); State v. Parms, 523 So.2d 1293 (La.1988) (DUI roadblocks invalidated because involved significant intrusion into privacy, too much discretion on part of police officers and no showing of compelling state interest); State v. Henderson, 756 P.2d 1057 (Idaho 1988) (same; no showing that less restrictive alternative would not be equally effective); City of Seattle v. Mesiani, 755 P.2d 775 (Wash.1988) (same).

 

[FN433]. 576 A.2d 79 (Pa.1990), aff'd sub nom., Barasch v. Bell Tel. Co., 605 A.2d 1198 (Pa.1992).

 

[FN434]. See White v. Davis, 533 P.2d 222 (Cal.1975); Chico Feminist Women's Health Ctr. v. Scully, 256 Cal.Rptr. 194 (Cal.Ct.App.1989).

 

[FN435]. See O'Hartigan v. State, 821 P.2d 44 (Wash.1992). For an excellent discussion of the development of privacy in this novel area, see Justice Utter's concurrence/dissent in this case.

 

[FN436]. Callahan v. Carey, No. 42582/79 (N.Y.Sup.Ct.), cited in Eldredge v. Koch, 98 A.D.2d 675 (N.Y.App.Div.1983).

 

[FN437]. 588 A.2d 145 (Conn.1991) cert. denied, 112 S.Ct. 330 (1991). The Connecticut Court did not agree that Mooney possessed a reasonable expectation of privacy in the makeshift home under the bridge. However, it found that he had a reasonable expectation of privacy in his duffel bag and cardboard box, which contained his personal possessions. The holding apparently rested upon the Fourth Amendment, although Article 1, Section 7 of the Connecticut Constitution had also been raised.

 

[FN438]. 116 U.S. 616 (1886).

 

[FN439]. Boyd, 116 U.S. 616; Olmstead v. United States, 277 U.S. 438 (1928) (Holmes, J., dissenting). See also Couch v. United States, 409 U.S. 322 (1973) (rejecting privacy claim under the Fourth and Fifth Amendments); Fisher v. United States, 425 U.S. 391 (1976) (same).

 

[FN440]. See Griswold v. Connecticut, 381 U.S. 479 (1965); Paul A. Freund, The Supreme Court and Fundamental Freedoms, speech before the New Jersey Harvard Law School Association 9 (1957) quoted in Griswold, supra note 7, at 221 n. 14.

 

[FN441]. The First Amendment freedom of association is most directly derived from the freedom "peaceably to assemble" under that Amendment, although the Court has held that it flows implicitly from the guarantees of speech, press, petition and assembly, in combination. See NAACP. v. Claiborne Hardware Co., 458 U.S. 886, 911‑15 (1982).

 

[FN442]. NAACP. v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). In that case, which took place at the inception of the civil rights movement, the Attorney General of Alabama attempted to compel the N.A.A.C.P. to hand over its membership lists. The Supreme Court overturned a contempt judgment against the N.A.A.C.P., finding that such compelled disclosure violated the First Amendment. Justice Harlan wrote: "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." Id. at 462. See also Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 91 (1982) (holding that compelled disclosures of campaign contributors and disbursements, as applied to Socialist Workers Party under Ohio campaign law, "can seriously infringe on privacy of association and belief guaranteed by the First Amendment").

 

[FN443]. 481 U.S. 537 (1987). In that case, the Court found that the application of California's Unruh Act to require California Rotary Clubs to admit women did not violate the associational rights of the members. Although the Court confirmed, per Justice Marshall, that there is a "freedom to enter into and carry on certain intimate or private relationships" under the First Amendment, it concluded that "the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection." Id. at 546.

 

[FN444]. 487 U.S. 1 (1988). Here, the Court upheld a New York City Human Rights Law which prohibited discrimination by certain private clubs with more than 400 members. Although acknowledging a freedom to form associations to exchange "public or private viewpoints," the Court found that the local law did not pose a barrier to this right but simply prevented associations from using improper criteria for determining membership.

 

[FN445]. For a thorough discussion of the freedom of association cases, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 12‑26 (2d ed. 1988). Professor Tribe similarly suggests that the right of association under the First Amendment has shared only a shaky alliance with privacy. Id. at 12‑16, 15‑17. For some, including Tribe, cases like Moore v. City of East Cleveland and Griswold are a type of associational privacy in a "communal" sense. However, these cases have been treated by the Court, in hindsight, primarily as Fourteenth Amendment fundamental‑decision privacy cases, and they establish no firm ground for associational privacy under the First Amendment.

 

[FN446]. See Martin v. City of Struthers, 319 U.S. 141, 152‑53 (1943) (Frankfurter, J., dissenting).

 

[FN447]. See Rubenfeld, supra note 13; Friedrich, supra note 8.

 

[FN448]. See DAHL, supra note 28, at 13‑14; W.L. Weinstein, The Private and the Free: A Conceptual Inquiry, in PRIVACY 27, 29 (J. Roland Pennock & James W. Chapman eds., 1971).

 

[FN449]. JOHN V.A. FINE, THE ANCIENT GREEKS, A CRITICAL HISTORY 52 (1983).

 

[FN450]. ARISTOTLE, POLITICS bk. VII, ch. 4 (Richard McKeon ed., 1941).

 

[FN451]. See generally ALEX INKELES & RAYMOND BAUER, THE SOVIET CITIZEN‑ DAILY LIFE IN A TOTALITARIAN SOCIETYYY (1959).

 

[FN452]. Of course, this type of surrender of individual privacy in return for a public existence often occurs by choice in the American system, most commonly at the local community level. Thus, citizens in a small town may know much more about each other's affairs and participate much more openly in local governance than they are willing or able to do in a broader societal context.

 

[FN453]. DAHL, supra note 28, at 213‑24. Dahl's term "polyarchy" is meant to be descriptive in the sense that it defines one characteristic of the United States and certain other large democracies as they have actually come to exist. For Dahl, the two most significant traits of a polyarchy are: (1) citizenship is extended to a relatively high proportion of adults, and (2) rights of citizenship include the opportunity to oppose and vote out of office the highest officials in government, thus causing them to act a certain way in order to maintain their positions and gather votes. Id. at 220‑21. For a fuller discussion of those countries in which a polyarchy has developed and the reasons for such development, see id. at 232‑64.

 

[FN454]. See PENN, supra note 42.

 

[FN455]. MAGNA CARTA para. 2, 63 (1215).

 

[FN456]. See PAPER, supra note 2, at 6‑13.

 

[FN457]. See Robert L. Bogomolny, Street Patrol: The Decision to Stop a Citizen, 12 CRIM.L.BULL. 544 (1976); John M. Burkoff, Non‑Investigatory Police Encounters, 13 HARV.C.R.‑C.L.L.REV. 681 (1978); Sheri L. Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983); Tracey Maclin, "Black and Blue Encounters" Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL.U.L.REV. 243 (1991).

 

[FN458]. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

 

[FN459]. See Moore v. City of East Cleveland, 431 U.S. 494 (1977).

 

[FN460]. See Meyer v. Nebraska, 262 U.S. 390 (1923).

 

[FN461]. See Bowers v. Hardwick, 478 U.S. 186 (1986).

 

[FN462]. See State v. Mooney, 588 A.2d 145 (Conn.1991).

 

[FN463]. A. Leon Higginbotham, An Open Letter to Justice Clarence Thomas From a Federal Judicial Colleague, 140 U.PA.L.REV. 1005, 1007 (1992).

 

[FN464]. For other discussions and definitions of the modern polyarchy, see JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (2d ed. 1947); ROBERT DAHL, POLYARCHY: PARTICIPATION AND OPPOSITION (1971); ROBERT DAHL, A PREFACE TO DEMOCRATIC THEORY (1956); P. SVENSSON, THE DEVELOPMENT OF DANISH POLYARCHY‑‑OR HOW LIBERALIZATION ALSO PRECLUDED INCLUSIVENESS IN DENMARK (1987).

 

[FN465]. DAHL, A PREFACE TO DEMOCRATIC THEORY 151 (1956).

 

[FN466]. JEREMY BENTHAM, THEORY OF LEGISLATION 142 (Charles Atkinson ed., 1914), cited in Harry Jones, An Invitation To Jurisprudence, 74 COLUM.L.REV. 1023, 1026‑28 (1974).

 

[FN467]. See WESTIN, supra note 12; MILLER, supra note 15.

 

[FN468]. See E‑Mail Privacy Not Guaranteed: Some Systems Still Unprotected Legally, MACWEEK, Mar. 12, 1991, at 12; Electronic‑Mail Security is Hot New Issue, WASH. POST, Oct. 22, 1990, at F35; John Markoff, In Colorado, a Furor over Computer Mail, N.Y. TIMES, May 4, 1990, at A12.

 

[FN469]. See Barasch v. Pennsylvania Pub. Util. Comm'n, 576 A.2d 79 (Pa.1990).

 

[FN470]. See Elsa Arnett, A Little Snooping, Courtesy of Your Neighbor's Phone, BOSTON GLOBE, Oct. 23, 1990, at 29; Tyler v. Berodt, 877 F.2d 705 (8th Cir.1989), cert. denied, 110 S.Ct. 723 (1990).

 

[FN471]. See Is Selling Video Data an Invasion of Privacy?, PITTSBURGH PRESS, Jan. 6, 1991, at E1.

 

[FN472]. See John Dart, Sexuality Reports Back Presbyterian, Episcopal Changes, L.A. TIMES, Mar. 2, 1991, at F16. Similarly a decision authored by the Kentucky Supreme Court as this Article was going to print, Commonwealth v. Wasson, No. 90‑SC‑558‑TG, 1992 WL 235412 (Ky. Sept. 24, 1992) (Leibson, J.), explicitly rejected Bowers v. Hardwick under its own state constitution. This decision provides an eloquent examination of the shifting societal winds on this issue.

 

[FN473]. See Stenger v. Lehigh Valley Hosp. Ctr., 563 A.2d 531 (Pa.1989), aff'd, 609 A.2d 796 (Pa.1992).

 

[FN474]. See John Doe v. Puget Sound Blood Ctr., 819 P.2d 370 (Wash.1991).

 

[FN475]. See, e.g., State v. Mooney, 588 A.2d 145 (Conn.), cert. denied, 112 S.Ct. 330 (1991).

 

END OF DOCUMENT


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AU(GORMLEY) & PRIVACY

 

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Copr. West 2002 No Claim to Orig. U.S. Govt. Works

 

1992 WILR 1335

(Cite as: 1992 Wis. L. Rev. 1335)

 

Wisconsin Law Review

1992

 

*1335 ONE HUNDRED YEARS OF PRIVACY

 

Ken Gormley [FNa1]

 

Copyright 1992 by the University of Wisconsin; Ken Gormley

 

ARTICLES

 

In this Article, Professor Ken Gormley examines the evolution of privacy law in the United States one hundred years after Samuel Warren and Louis Brandeis authored their seminal piece in the Harvard Law Review in 1890‑91. Professor Gormley argues that scholars have been unable to agree upon a one‑size‑fits‑all definition of legal privacy because it actually consists of five distinct species:

1) The Privacy of Warren and Brandeis (Tort Privacy)

2) Fourth Amendment Privacy

3) First Amendment Privacy

4) Fundamental‑Decision Privacy

5) State Constitutional Privacy

 

Professor Gormley demonstrates that these five species are heavily interrelated, with historical jolts or "catalysts" producing new brands of privacy when existing law is incapable of dealing with unexpected societal and technological changes. Thus, he argues, seeking a simple definition of privacy is a misguided quest. Rather, privacy will remain extremely sensitive to historical triggers, and new permutations of this "right to be let alone" will inevitably develop as American democracy itself evolves.

 

I. INTRODUCTION

 

As the year 1990 was retired into the discarded calendar‑books of history, the United States celebrated a birthday that came and went in appropriate silence. It was one hundred years ago, in the winter of 1890‑91, that Samuel Warren and Louis Brandeis published their now‑famous article in the Harvard Law Review, entitled simply: The Right to Privacy. [FN1] In that compact twenty‑ seven‑page work, appearing four years *1336 after the Law Review had been established at Harvard through the efforts of Brandeis and others, [FN2] the authors argued that the common law had nurtured a new right, known simply as privacy, which demanded acceptance in American jurisprudence. [FN3] "Political, social, and economic changes entail the recognition of new rights," wrote Warren and Brandeis "and the common law, in its eternal youth, grows to meet the demands of society." [FN4]

 

In the hundred years after those ambitiously unsupported words were written in December of 1890, and gained widespread attention when volume IV of the Harvard Law Review was published in 1891, there have been literally hundreds of books and articles written about the notion of privacy in the United States. Many of the foremost legal scholars and philosophers of the twentieth century‑‑ Roscoe Pound, [FN5] Paul Freund, [FN6] Erwin Griswold, [FN7] Carl J. Friedrich, [FN8] William Prosser, [FN9] Laurence Tribe [FN10]‑‑have at one time or another attempted to wrestle down this evanescent concept. Much of the literature has devoted itself to defining, with excruciating precision, exactly what this "right to privacy" means once it is hard‑boiled and peeled out of its shell of disjointed case law. Warren and Brandeis themselves defined it as a "right to be let alone." [FN11] More recently, commentators and scholars of the twentieth century have invoked a barrage of philosophy, sociology, theology and anthropology to devise definitions which are endlessly varied, creative and elaborate. [FN12]

 

*1337 The definitional urge which has accompanied privacy during its century‑long existence has only become intensified as the different manifestations of privacy, and the importance of this talismanic word in American law, have grown to looming proportions in recent years. With the zeal of astronomers seeking to name a previously evasive star in the constellation, legal theoreticians walking in the footsteps of Warren and Brandeis have searched mightily for a single definition, a satisfying string of words, to pin down privacy on the revolving map of jurisprudence, in order to give it certainty of location and a degree of predictability. Looking back with one hundred years' worth of perspective, it is possible to conclude that the definitions have tended to cluster into four major categories.

 

First, many scholars, dating back to Roscoe Pound in 1915 and Paul Freund in 1975, have viewed privacy as an expression of one's personality or personhood, focusing upon the right of the individual to define his or her essence as a human being. [FN13] Second, closely akin to the "personhood" cluster, are those scholars such as Louis Henkin who have marked privacy within the boundaries of autonomy‑‑the moral freedom of the individual to engage in his or her own thoughts, actions and decisions. [FN14] A third cluster, typified by Alan Westin and Charles *1338 Fried, have seen privacy‑‑at least in large part‑‑in terms of citizens' ability to regulate information about themselves, and thus control their relationships with other human beings, such that individuals have the right to decide "when, how, and to what extent information about them is communicated to others." [FN15] Finally, a fourth cluster of scholars have taken a more noncommittal, mix‑and‑match approach, breaking down privacy into two or three essential components, such as Ruth Gavison's "secrecy, anonymity and solitude," [FN16] and the "repose, sanctuary and intimate decision" of a California Law Review commentator. [FN17]

 

The method de rigueur in legal scholarship has been for the author to examine the previously‑favored definition of privacy, tear it down to its bones, expose its fallacies, and establish a new contender for the crown. Thus, Professor Gavison in the Yale Law Journal in 1980 sought to refute those before her (including Fried and Westin) who had labelled privacy as a form of control over information, and advanced a putatively neutral definition of privacy bottomed on secrecy, anonymity and solitude. [FN18] Louis Henkin, writing in the Columbia Law Review in 1974, exploded the prevailing notion of privacy as "freedom from official intrusion," and gave us a privacy bottomed on a "zone of prima facie autonomy." [FN19] In a recent Harvard piece, Professor Jed Rubenfeld gunned down "autonomy" and "personhood" as definitions, and set up privacy as a form of "anti‑totalitarianism," concluding that the right of privacy is "the right not to have the course of one's life dictated by [a progressively normalizing] state." [FN20]

 

*1339 This Article will show that each of these definitions of privacy is sensible and useful, and adds to the understanding of that concept as it has evolved in American law. Yet standing alone, none of these definitions tells the century‑long story in a fashion that Warren and Brandeis would find satisfying, or particularly helpful in predicting the future course of American privacy law.

 

Commentators have stumbled over privacy, and have failed to agree upon an acceptable definition, because they have generally focused on privacy as a philosophical or moral concept‑‑which allows for multiplicitous definitions, as seen above‑‑while wholly ignoring privacy as a legal concept. The latter encompasses a number of different species in American law all of which were seeded by Warren and Brandeis in 1890, and now entitle an individual to very concrete but different protections and remedies in twentieth century American law. To the extent commentators in search of theoretical definitions of privacy‑‑such as Fried and Gavison and Rubenfeld‑‑have intimated that such definitions are the Holy Grail which will lead us to the ultimate meaning of privacy in a legal sense, their crusade is somewhat misplaced. Although helpful in refining our understanding of various subsets of privacy opinions and case law, single one‑size‑fits‑all definitions of privacy have proven to be of limited value. The harsh reality is: legal privacy consists of four or five different species of legal rights which are quite distinct from each other and thus incapable of a single definition, yet heavily interrelated as a matter of history, such that efforts to completely sever one from another are (and have been) disastrous.

 

This Article, unlike most others which have preceded it (other than the original Warren and Brandeis piece, and Prosser's classic work in 1960) focuses heavily upon the legal face of privacy. How has privacy actually developed in American law in the past 100 years, and how can we predict the corridors of jurisprudence into which it might develop in the next hundred? The late Professor Freund was correct to advance the query whether privacy is "one concept or many," [FN21] for in the practical evolution of American law, it is certainly many. It is only by pulling privacy apart, and acknowledging the many threads which bind it together, that we can begin to explore the intriguing historical interrelationships between these distinct species of legal privacy and make use of scattered theoretical definitions, which assist us in predicting privacy's future course only when applied to the proper species and genus.

 

More important than seeking a unitary definition of legal privacy, which does not (and most likely never will) exist, this Article will *1340 segregate the subsets of privacy and explore the patterns, characteristics and interrelationships of the various species of privacy as they have grown up as a legally protected pile of rights in a hundred years of upheaval, expansion and colorful United States history. This Article will examine five dominant species of legal privacy which have developed (with the help of Louis Brandeis) and have become intertwined since the year 1890. These five species are:

1) Tort privacy (Warren and Brandeis's original privacy);

2) Fourth Amendment privacy (relating to warrantless governmental searches and seizures);

3) First Amendment privacy (a "quasi‑constitutional" privacy which exists when one individual's free speech collides with another individual's freedom of thought and solitude);

4) Fundamental‑decision privacy (involving fundamental personal decisions protected by the Due Process Clause of the Fourteenth Amendment, often necessary to clarify and "plug gaps" in the original social contract);

5) State constitutional privacy (a mish‑mash of the four species, above, but premised upon distinct state constitutional guarantees often yielding distinct hybrids).

 

A number of interesting characteristics are discerned, once one segregates the various species of privacy and examines their common points of intersection in American law. Each species amounts to a new layer built atop some other pre‑ existing body of law, designed to keep pace with basic notions of democracy‑‑ not in a theoretical vacuum, but as democracy has actually unfolded in twentieth century America.

 

The key to understanding legal privacy as it has developed over 100 years of American life, it will be argued, is to understand that its meaning is heavily driven by the events of history. What constitutes an engine of privacy in the year 1890, is not necessarily the same thing which formulates a societal notion of privacy in the United States in 1939, or 1968 or 1973. Rather, like a strawberry geranium‑‑saxifraga sarmentosa‑‑which creeps and sprouts new shoots at unexpected intervals throughout its lifetime, privacy in the United States has led a similar vine‑like existence, creating a variety of different offshoots depending upon the particular climate of American life.

 

Since privacy is a creature of American history, it is impossible to predict with any precision new permutations of this right, any more than *1341 one can predict the events of American history itself. This is one of the reasons authors have been forced to focus upon one type of privacy or another in seeking definitions, and discard the rest as unrelated. For example, Professor Rubenfeld begins his genealogy of privacy in the Harvard Law Review by offering this disclaimer: "The right to privacy discussed here must not be confused with the expectations of privacy secured by the Fourth Amendment, or with the right of privacy protected by tort law." [FN22] More recently, the Case Western Reserve Law Review has published a lengthy symposium to celebrate the hundred year anniversary of the Warren and Brandeis piece, and has noted that the 1890 privacy article "pervades the law;" [FN23] yet the symposium goes on to examine with virtual exclusivity the tort aspects of privacy, as if these can be removed in a husk with little or no bearing on the remainder of twentieth century privacy law. This is unfortunate; although legal privacy does not admit to a single definition, each species is best understood in conjunction with the rest. The patterns of privacy, once linked together, are the only certain clue as to the path of privacy in future decades. The cases viewed as a whole reveal an intriguing "right to be let alone" which has thus far travelled down a number of quite identifiable routes, with a number of common characteristics.

 

Attempting to discern these characteristics, in the practical world of case law in which five species of privacy have taken root, is just as critical as ascertaining privacy's philosophical and moral status. Professor Gavison has generally criticized the approach of starting with the cases and working backwards‑‑an approach similar to that undertaken by William Prosser on a different scale in 1960 in classifying privacy torts [FN24]‑‑as a vain attempt to impose coherence on an incoherent body of case law. [FN25] However, Oliver Wendell Holmes, Jr., would answer with *1342 the same retort he gave in 1881: "[T]he life of the law has not been logic: it has been experience." [FN26]

 

The tiger has chased its tail with respect to the ongoing quest for a single philosophical definition of privacy only because privacy (inherently) is not a static concept, any more than democracy or American life are static conditions. In the year 1992, democracy in America looks different than it did in 1835 to Alexis de Tocqueville. [FN27] And in the year 2092, it will doubtlessly look different than it does today to Robert Dahl. [FN28] One hundred years later, Warren and Brandeis's definition of privacy as simply the "right to be let alone," is still as good as any other. The question we have forgotten to ask, however, is "with respect to what?" For Warren and Brandeis in 1890, it meant the right to be let alone with respect to prying newspapers and photographers. For subsequent generations of Americans, it has meant new and different things: a still‑growing collection of species, a boundary of individualism safeguarded by the force of law, but only when, and to whatever extent, history dictates that it shall be.

 

One hundred years after Warren and Brandeis presented the term to American jurists for their consideration, privacy has become a central player in American law. To the extent one can say that constitutional law was dominated by Commerce Clause issues in the 1930s and 1940s; [FN29] to the extent that one can say the 1960s and early 1970s were a time defined in large part by equal protection and due process issues; [FN30] it is equally fair to say that the 1990s have entered a time of privacy. Abortion issues, the right‑to‑ die, drug testing in the workplace, AIDS, homosexuality, drunk‑driving roadblocks, all of these issues central to our society involve, at least in part, an investigation of the legal concept of privacy, as that term has gained variegated meaning by the year 1992.

 

Thus, we will now turn to a historical examination of the hundred‑year evolution of the right to privacy in the United States, in its various offshoots, in order to understand the role of history in providing a lattice upon which it has crept.

 

*1343 II. THE PRIVACY OF WARREN AND BRANDEIS (TORT PRIVACY)

 

Samuel Warren and Louis Brandeis did not cross paths as collaborators in the Harvard Law Review in 1890 by mere happenstance. Classmates at Harvard Law School between 1875 and 1877, and partners in a small firm of their own creation in Boston, the two men had been long‑time friends. [FN31] They also shared an interest in establishing the Harvard Law Review, Brandeis becoming one of its first Trustees in 1889. [FN32] Warren and Brandeis had collaborated on two less‑celebrated articles for the Review in 1888 and 1889, entitled "The Watuppa Pond Cases" and "The Law of the Ponds," which drew upon their own experiences in practice but left no enduring mark upon legal scholarship. [FN33] When the two authors turned their attention to the issue of privacy the following year, however, the challenge was more novel‑‑there existed no coherent notion of privacy at all in American law. Judge Thomas Cooley had mentioned a "right to be let alone" in passing in his treatise on Torts published in 1888; [FN34] Sir James Fitzjames Stephen briefly discussed privacy in a treatise in 1873, in response to John Stuart Mill's On Liberty. [FN35] However, other than such fleeting references, no tort or constitutional notion of privacy could fairly be regarded as part of the jurisprudence of the United States.

 

This is not to suggest that notions of privacy were entirely foreign to early American law. Common law trespass notions‑‑including trespass to land and chattels‑‑long protected property from invasion by others, a sort of privacy‑ related concept. [FN36] Criminal law safeguarded individuals from the most blatant assaults on person, another concept by definition linked to the notion of privacy. Basic kernels of privacy thus were infused in early American common law, albeit indirectly. Although certain writers have incorrectly suggested that privacy was a nonexistent concept in colonial America, [FN37] it certainly took on forms different, and *1344 more abstruse, than those which have become familiar in American hornbooks today. [FN38] In homes where family and lodgers often shared beds for warmth and household members moved freely from room to room in order to light candles and pipes, where small towns were set up on linear grids around town greens so that citizens knew each others' collective business, the opportunities for solitude and anonymity in the modern sense were greatly diminished. [FN39] At the same time, privacy of the family apart from the rest of society was highly valued, and early American colonists had easy retreat to the outdoors, the darkness and self‑ imposed quietude through silence and meditation, the early predecessors of modern privacy. [FN40] Early Americans, like the Puritan minister Cotton Mather [FN41] and the settler William Penn, [FN42] wrote of privacy in the earliest *1345 days of the country's history, but in terms then suited to the early American experience.

 

In short, there was nothing resembling an explicit notion of privacy in tort law in 1890, when Warren and Brandeis committed to collaborating on a short article for the Harvard Law Review. What Warren and Brandeis pieced together was a patchwork of cases‑‑mostly from English and Irish courts‑‑which purported to demonstrate that a tort‑like notion of privacy had come of age in America through the natural evolution of the common law. What they did, in fact, was to serve as a catalyst for the evolution of the process themselves. An examination of The Right To Privacy reveals a piece of scholarship light on hard precedent, but full of optimism with respect to the ability of the law to expand in synchronization with society's development: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." [FN43] These were not words of legal commentators, but of jurisprudential architects.

 

The "right to be let alone," which Warren and Brandeis went on to introduce to American jurisprudence, was a basic tort notion. Their concluding section on remedies confirms this point, as the authors propose: "An action of tort for damages in all cases," wherever a violation of the right to privacy was found. [FN44] It is not surprising, then, that the right to privacy as contemplated in December of 1890 had nothing to do with birth control, abortions or drunk‑driving roadblocks. An examination of volume IV of the Harvard Law Review indicates that the privacy of Warren and Brandeis had the following characteristics:

1) It bore a "superficial resemblance" to an action for defamation. [FN45] However, unlike a suit for slander or libel, it did not require proof of actual monetary damages flowing from the wrong. Moreover, truth was not a defense. [FN46]

2) The right of privacy was not, strictly speaking, based upon a right of property; [FN47] nor was it based upon copyright. [FN48] *1346 Rather, the principles at work were designed to protect the individual's "inviolate personality." [FN49] A plaintiff could recover strictly based upon injury to his or her "feelings" or "honor," which in turn were linked to his or her "personality." [FN50]

3) The right of privacy was built upon common law notions that each individual possesses a right to determine "to what extent his thoughts, sentiments, and emotions shall be communicated to others." [FN51]

4) There were limitations upon the right of privacy. It did not apply to matters of "public or general interest," such as political campaigns. [FN52] Furthermore, the right was lost when the individual possessing the right made the information part of the public domain. [FN53]

 

The cases upon which Warren and Brandeis drew to mold their privacy tort were both colorful and varied. One highly publicized case of the day which apparently symbolized, in their minds, the growing need for a privacy right was Marion Manola v. Stevens & Myers, [FN54] a decision issued by the New York Supreme Court in June of 1890. The plaintiff in that case was a starlet who had appeared in a Broadway play wearing tights and was photographed surreptitiously by two individuals in the theatre, one holding a "flash light." She brought an action in the New York trial courts to restrain the defendants from publishing the *1347 photograph (most likely in the newspapers) and a preliminary injunction was issued. For Warren and Brandeis, the issue was a critical one: "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house‑tops.' " [FN55]

 

Warren and Brandeis produced a string of English cases to show that, in fact, the common law had already begun to creep toward a notion of privacy. Significantly, courts were beginning to recognize that although one might not have a property interest, strictly speaking, in one's likeness, one's artwork or one's thoughts, there was nonetheless something akin to a "breach of trust" when these were purloined and thrown into the public domain. For instance, in Pollard v. Photographic Co., [FN56] a woman was able to obtain an injunction in the Court of Chancery to prevent a photo studio from selling Christmas cards with her picture on it, even though she had no copyright; this holding was based upon a loose notion of "breach of contract" or "breach of faith." [FN57] In Prince Albert v. Strange, [FN58] another leading case cited heavily by Warren and Brandeis, a printer was prohibited from displaying and publishing etchings made by Prince Albert and Queen Victoria, based primarily on standard property law. However, Lord Cottenham wrote in passing that "privacy is the right invaded." [FN59] For Warren and Brandeis, the Prince Albert case stood for a "principle broader than those [issues] which were mainly discussed." [FN60]

 

If one takes the time to dust off and read the rather colorful hodgepodge of English, Irish and American cases assembled by Warren and Brandeis, one is singularly impressed with the fact that a right to privacy clearly did not exist in any of those jurisdictions in the year 1890. Although the authors concluded the article by poetically suggesting that this new right had been "forged in the slow fire of the centuries," [FN61] the truth was that there were shreds and ribbons of privacy adorning the jurisprudence of England and America, but nothing big enough to wrap up and place in a package. [FN62] Warren and Brandeis were not presenting *1348 a picture of the law as it was, but of the law as they believed (or hoped) it should be.

 

In order to understand the unique inter‑meshing between privacy and history in America, we are next led to the important question: "What motivated Warren and Brandeis to construct this new right? What accounts for its creation and acceptance in the year 1890? " Thus far, attempts to answer this question have been rather superficial. It is obvious that the excesses of newspapers and photographers, in large part, prompted the article. This much is clear from the often‑quoted words of the authors themselves:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. [FN63]

 

But what lay behind this assault upon the "modern invention" of newspapers and photography, such that a "right to be let alone" was so critical? Dean William Prosser, in his authoritative study of the newly‑evolved privacy tort in 1960, [FN64] suggested that Samuel Warren had been piqued at the Boston newspapers for reporting his wife's elite social functions in "highly personal and embarrassing detail." [FN65] The matter came to a head, reported Prosser, "when the newspapers had a field day *1349 on the occasion of the wedding of a daughter, and Mr. Warren became annoyed." [FN66] Dean Prosser concluded that the young Ms. Warren "must have been a very beautiful girl," since hers was "the face that launched a thousand lawsuits." [FN67]

 

This general explanation of Warren's distaste for the press as the impetus for the privacy article gathered momentum from various quarters, although the legend tended to differ with the writer. Alfred Lief, in his biography of Brandeis, [FN68] told yet a different story:

Sam [Warren] was married to Mabel Boyard, daughter of the ambassador to Great Britain, and editors thought his affairs belonged to the public eye, and in the camera's eye. He was outraged when photographers invaded his babies' privacy and snapped perambulator pictures. Instead of turning to the courts for redress he turned to Louis. [FN69]

 

These stories, unfortunately, appear to be apocryphal. Warren's daughter was only six years old at the time the privacy article appeared, [FN70] making it unlikely that her wedding launched a thousand lawsuits. Although the Boston papers did cover social affairs, The Saturday Evening Gazette‑‑generally credited with infuriating Warren‑‑only mentioned his name twice between the years 1883 and 1890, [FN71] both times regarding innocuous matters. Thus, the old wives' tale (or "young lady's tale") that has generally been circulated to explain the privacy article appears as fatuous as the newspaper gossip which Warren and Brandeis chided.

 

It is true, however, that Samuel Warren was displeased with the Boston press and requested Brandeis to work with him on the privacy article‑‑this much is confirmed by Brandeis's own correspondence to *1350 Warren fifteen years later. [FN72] Nonetheless, any explanation of the emergence of privacy in the early 1890s requires more than an ill‑defined legend of quarrels between Warren and the Boston press. It is here that history provides the missing clue with respect to the incubation and acceptance of privacy‑‑specifically "informational" privacy‑‑at this particular juncture of American life. Any understanding of what the "right to be let alone" meant, in the context of American jurisprudence in 1890, requires an understanding of the historical catalyst that produced privacy. That historical jolt had to do with the explosion of mass‑media in the United States.

 

The late nineteenth century in which Warren and Brandeis wrote, it must be remembered, was the high‑point of "yellow journalism" in the United States. Not only had newspapers adopted startling new practices to sell papers on the street, but journalism as a business had been completely overhauled and transformed in the 1870s, 1880s and 1890s. [FN73] In the decades following the Civil War, as the United States entered the age of industrialism, the nation moved from a rural to an urban emphasis, producing a new working class which swarmed into the cities anxious to know about the new world around them. Prior to the Civil War, newspapers had been small and expensive, and largely served as appendages of local political parties. [FN74] In the 1870s, however, a major change took place in American journalism. With the growing market of barely‑educated, immigrant, inquisitive masses in the large cities, newspapers jettisoned their political moorings and revamped the idea of the old penny press of the 1830s, seeking mass circulation. [FN75]

 

Along with this overhaul came a surge of new technology. Linotypes and faster presses were available by the 1870s, along with more striking typography, color printing, cartoons and photographs. [FN76] Format changed dramatically from the pre‑Civil War papers, allowing two, three and even *1351 eight‑column banner headlines to be spread across the front page. [FN77] The first newspaper "chains" sprung up, with Joseph Pulitzer building an empire through purchasing the debt‑ridden St. Louis Dispatch and New York World, and William Randolph Hearst taking control of the San Francisco Examiner and the New York Journal. [FN78]

 

It was in the context of this newspaper revolution that "yellow journalism" or "new journalism" swept onto the scene in the United States. The trademark of Pulitzer, Hearst and others who followed in their footsteps was to emphasize the curious, dramatic and unusual, providing readers "a palliative of sin, sex, and violence." [FN79] Thus, in the 1880s, the New York World ran such headlines as "Death Rides the Blast," "All for a Woman's Love," "A Bride but not a Wife" and "Baptised in Blood." [FN80] By the late 1880s, the enormous size and success of "yellow journalism" publications [FN81] caused other papers like the Philadelphia Record and the Boston Globe to follow suit. [FN82]

 

The result of this upheaval in American journalism, as it relates to privacy, is apparent. By the time Warren and Brandeis published their piece in the Harvard Law Review, as the calendar flipped from 1890 to 1891, the intrusions of the press and photographers upon the privacy of the home and person had become legendary. Frank Luther Mott, in his treatise on American journalism, explains that this era of "keyhole journalism" had obvious ramifications: "Closely connected with sensationalism ... was the invasion of privacy by prying reporters." [FN83] *1352 Indeed, stories of the press spying on President Grover Cleveland and his bride on their honeymoon were notorious and well‑documented. [FN84]

 

Thus, there is little doubt that the significant upheaval in American journalism and photography between 1870 and 1890‑‑and the concomitant abuses of the press and photographers in culling and disseminating information‑‑was the historical force which propelled Warren and Brandeis toward publishing The Right to Privacy in late 1890. Indeed, the writings of other turn‑of‑the‑ century authors support this link. [FN85]

 

This underscores the first lesson about privacy, if a meaningful understanding of that term is to be derived from its hundred‑year evolution in American law. The privacy of Warren and Brandeis was a tort notion, but it was meant to reflect a deeper instinct in the common law. It was meant to preserve an individual's "inviolate personality," a fragile and intangible thing, quite different than one's property or person, but essential to preserve a "civilized" and "cultured" society, particularly in an evolving American democracy which placed a premium on the individual. Humankind's own inventiveness had created a new threat to solitude. The law, as it existed, was not equipped to deal directly with this new clash between citizen and environment. When the problem *1353 became acute enough, when society as a whole had been steeped in the consequences of its own ingenuity, a jolt occurred which was strong enough to create a new layer of law atop the old. The precise catalyst which thus introduced an explicit right of privacy in 1890, and thereafter led to its slow‑but‑steady acceptance throughout the United States, [FN86] was the transformation of the American press, photography and the ability to engage in mass‑circulation of information in a newly‑ urbanized society. Not only was the printing of scandal and gossip a concern, but also the surging ability of the media to capitalize upon private individuals' pictures, likenesses and endorsements for the purposes of making money through advertisement. [FN87] Individuality was threatened in both instances. Privacy came into being in order to keep American democracy in step with its own inventiveness. It seems fair to say that if Warren and Brandeis had not invented a right of privacy in December of 1890, somebody else would have had to invent a similar legal concept, by whatever name, in short order.

 

The development of an unmistakable privacy tort in the years following the Warren and Brandeis article bears out this assertion. Although the initial blossoming occurred in fits and starts, it occurred nonetheless. Volume IV of the Harvard Law Review, containing the privacy piece, was published in 1891 and received immediate attention by scholars and courts. A trickling of cases first emerged in New York, Massachusetts and Georgia. [FN88] The most well‑known of these cases, Pavesich v. New England Life Insurance Co., [FN89] decided by the Georgia *1354 Supreme Court in 1905, declared the existence of a right of privacy where an insurance company published the picture of a well‑ known artist in the Atlanta Constitution next to the picture of a sickly and depressed man, along with a contrived endorsement for New England Mutual life insurance.

 

Around the same time, a number of other states gradually moved to enact privacy statutes, directed primarily at abuses by newspapers and advertisers who published the names or pictures of individuals for trade purposes without consent. California (1899), [FN90] New York (1903), [FN91] Pennsylvania (1903), [FN92] Virginia (1904), [FN93] and Utah (1909), [FN94] all adopted legislation reflecting the theme of Warren and Brandeis, although some of these statutes proved to be short‑lived. [FN95]

 

It is true, as a number of commentators have noted, that the development of a privacy tort in the United States after the initial bang of the Warren and Brandeis article was anything but swift, organized or universal in its acceptance. [FN96] A number of state courts, most notably New York in Roberson v. Rochester Folding Box Co., [FN97] prior to the adoption of a New York privacy statute in 1905, specifically found that *1355 such a right did not exist under common law. [FN98] It is also true that many of the decisions which ultimately embraced a tort notion of privacy, as the case law picked up steam, had nothing to do with newspapers, photographers or the specific ills which had been on the minds of Warren and Brandeis. [FN99]

 

However, this much can be said: A right of privacy did develop and gather general acceptance, such that the first Restatement of Torts in 1939 vouchsafed for its existence. [FN100] Although the cases were a hodgepodge of different types of privacy torts, as later placed into categories and tidied‑up by Dean Prosser, [FN101] many of the early cases, both accepting and rejecting privacy, dealt with issues of newspapers, unscrupulous photographers, unauthorized advertisements and the same types of informational privacy that initially sparked Warren and Brandeis to craft their article. [FN102]

 

*1356 Despite its erratic gestation period, a privacy tort was well in place by the time Prosser commented on it in his California Law Review article in 1960. The "overwhelming majority" of the American courts, he wrote, had recognized such a right in one form or another, [FN103] with only a handful of states rejecting it entirely. [FN104] Since Prosser's assessment, the tort of privacy has continued to expand, with scholars of tort law continuing to sub‑divide Brandeis's "right to be let alone" into various causes of action now recognized in the United States. These consist (in Prosser's categorization) of the following: 1) unlawful appropriation of an individual's name or likeness; [FN105] 2) unreasonable intrusion into the solitude or seclusion of another; [FN106] 3) public disclosure of truthful (but embarrassing) facts; [FN107] and 4) publicity that places a plaintiff in a "false light" in the public eye. [FN108]

 

Thus, the first stage of privacy was in place, jarred into existence not haphazardly, but by a precise set of historical facts in turn‑of‑the‑ century America. Despite its many different permutations, the original privacy tort of Warren and Brandeis generally matches the description of those legal philosophers who relate privacy to "control of information" or "reserve." [FN109] Such a privacy tort was essential to the maintenance of democracy as it had come to be known in America because control of information about oneself is critical in determining how and when (if ever) others will perceive us, which is in turn essential to maintaining our individual personalities. As Professor Hyman Gross has explained it, it is through this delicate process of "editorial privilege" that we establish *1357 our identities in a social setting, [FN110] thus maintaining control over how society views us: as parents, brothers and sisters, employers, employees, neighbors, citizens, all of the different roles and perceptions which collectively establish our identity, and individuality, within a modern American democracy. [FN111] As a legally protected right, the original species of privacy introduced by Warren and Brandeis can be defined as the "right to be let alone, with respect to the acquisition and dissemination of information concerning the person, particularly through unauthorized publication, photography or media."

 

This offshoot of the plant having blossomed, the right to privacy‑‑like a strawberry geranium‑‑continued to creep.

 

III. FOURTH AMENDMENT PRIVACY

 

By 1916, President Woodrow Wilson had appointed Louis D. Brandeis to the United States Supreme Court, and with Brandeis came his percolating notion of privacy. Many commentators have attempted to sever the "expectation of privacy" which has evolved in American jurisprudence under the Fourth Amendment, [FN112] from the tort of privacy created by Warren and Brandeis in 1890, the "fundamental‑decision privacy" later introduced in Griswold v. Connecticut, [FN113] and other forms of privacy which have concurrently taken shape in American law. Such a sharp division is unfortunate, however, because history confirms that the various offshoots of privacy are deeply intertwined at the roots, owing their origins to the same soil. In the case of the Fourth Amendment, the same soil was Louis Brandeis, who laid the groundwork for the constitutionalization of his notion of privacy in Olmstead v. United States. [FN114]

 

Before examining Brandeis's dissent in Olmstead and considering the historical forces which converged to forge an explicit Fourth Amendment *1358 right of privacy in the 1967 decision of Katz v. United States, [FN115] it is worth first exploring the underpinnings of "search‑and‑ seizure" privacy in the United States. If privacy was explicitly acknowledged anywhere in the early contours of American law, it was within the folds of criminal procedure, where even in the early days of colonial life there existed a strong principle, inherited from English law, that a "man's house is his castle; and while he is quiet, he is well guarded as a prince in his castle." [FN116] William Pitt the Elder declared in his Speech on the Excise Bill:

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail‑‑its roof may shake‑‑the wind may blow through it‑‑the storm may enter, the rain may enter‑‑but the King of England cannot enter‑‑all his force dares not cross the threshold of the ruined tenement! [FN117]

 

This notion carried over with a nearly‑sacred resolve to the American colonies. The Rhode Island Code of 1647 provided that "a man's house is to himselfe [sic], his family and goods as a castle." [FN118] John Adams addressed a jury in 1774 with the following admonition: "An Englishman's dwelling House is his Castle. The law has erected a Fortification round it." [FN119]

 

Such a fierce protection of the inner sanctum of the home therefore made its way into the U.S. Constitution in the fashions most relevant to citizens of the early American period. A prohibition against the quartering of soldiers was placed in the Third Amendment; [FN120] after all, such an invasion of privacy had been specifically alleged against King George III in the Declaration of Independence. A requirement of *1359 particularized warrants to guard against unreasonable searches and seizures was embodied in the Fourth Amendment, largely in response to the use of general warrants and writs of assistance by the British, by which customs officials and soldiers conducted wide‑roaming searches of colonists' homes and private affairs for contraband. [FN121] Privacy was far from a lost concept in the context of colonial life. It was, rather, a subtle notion which lay behind other safeguards relevant in the 18th century.

 

The case of Boyd v. United States, [FN122] decided in 1886, first specifically wed the notion of privacy to the guarantee against unreasonable searches and seizures in the Fourth Amendment. In that case, Justice Bradley spoke of the "sanctities of a man's home and the privacies of life" [FN123] when he condemned the seizure of thirty‑five cases of polished plate glass by federal authorities at the port of New York. The defendants had been forced to produce an invoice which was later used to prosecute them for violations of the customs laws. [FN124] This link between the privacy‑laden notion of "home is your castle" and the Fourth Amendment had already been made by Judge Thomas Cooley‑‑the same Judge Cooley who had written about a "right to be let alone" in his treatise on Torts, prior to Warren and Brandeis adopting that phrase as their own. [FN125] Cooley, in his 1868 treatise on Constitutional Law, described the criminal procedural aspect of privacy as:

[the] maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers even against the process of law, except in a few specified cases. The maxim that "every man's house is his castle" is made a *1360 part of our constitutional law in the clause prohibiting unreasonable searches and seizures. [FN126]

 

When Brandeis moved from Harvard Law School to the Supreme Court in 1916, he made use of this rich history to solidify the link between the Fourth Amendment and a constitutional version of privacy. His 1928 dissent in Olmstead v. United States [FN127] took aim at newly‑invented technology which allowed wiretapping of telephone lines by federal officers, and vehemently contended that such an interception of communications‑‑even without a physical trespass or seizure of tangible property‑‑constituted an illegal "search and seizure" under the Fourth Amendment. [FN128]

 

Most forceful was Brandeis's argument that the Fourth Amendment embraced a "right to be let alone," of the same cast and character as that formulated in his article in the Harvard Law Review thirty‑seven years earlier. In rejecting the five‑person majority's holding that the Fourth and Fifth Amendments were not abrogated since there had been no "search" (in terms of physical trespass) and no "seizure" (of tangible property), [FN129] Justice Brandeis borrowed heavily from his Harvard piece and wrote this evocative passage, weaving the "right to be let alone" into a Fourth Amendment concept of privacy relating to searches and seizures:

The protection guaranteed by the [4th and 5th] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of *1361 happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone‑‑the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. [FN130]

 

Justice Brandeis was keenly aware of technological change in arguing that a right of privacy had come of age under the Fourth Amendment, particularly with respect to wire communications. "Subtler and more far‑reaching means of invading privacy have become available to the Government," he wrote. "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet." [FN131] It was this change in society's technological arsenal which enabled the government to intrude upon an individual's personal sphere (like the change in the ability of newspapers and photographers to invade the individual's personal space in the 1890s), prompting Brandeis to advocate the creation of a new offshoot of privacy.

 

It is interesting to note that Brandies's perception of technology's impact upon privacy was even deeper than the opinion itself reflects. Brandeis's working file on Olmstead included an Associated Press clipping dated January 13, 1928, which announced the perfection of a new invention known as the television. [FN132] According to the late Henry Friendly, who was then Brandeis's law clerk, the original draft of the Olmstead dissent included a passage which warned of the dangers that television posed to privacy. That now‑ forgotten passage read: "Through television, radio and photography, ways may soon be developed by which the Government can, without removing papers from secret drawers, reproduce them in court and by which it can lay before the jury the most intimate occurrences of the home." [FN133] Friendly believed that television *1362 had no direct relevance to government spying and convinced Brandeis to omit that passage in his final dissenting opinion. [FN134] Yet it is clear that Brandeis sensed a direct clash between such new inventions‑‑ including radio, television and bugging devices‑‑and the "right to be let alone" under the Fourth Amendment.

 

What Brandeis foresaw when he viewed the Constitution as being flexible enough to include new forms of Fourth Amendment privacy, which could never have been envisioned when early Englishmen spoke of "home is your castle," was a vision not shared by society as a whole in 1928. Like other shoots on the privacy vine, it was not until the events of history coalesced to make this a matter one of fundamental concern on a societal scale, deeply sensed after years of experiencing the effects of humankind's own inventiveness, that Fourth Amendment privacy took shape in American jurisprudence. That, of course, did not fall into place until Katz v. United States [FN135] was decided by the Supreme Court in 1967.

 

The precise historical catalyst which prompted the acceptance of an explicit Fourth Amendment privacy, well after Brandeis's death in 1941, was relatively looming in its presence. Like the original privacy tort of 1890 which was jolted into existence by technological advance in America‑‑relating to prying newspapers and mass media‑‑Fourth Amendment privacy took shape as a result of a different explosion in gadgetry. This involved the perfection and widespread availability of electronic surveillance devices, making it possible for the government (and private citizens) to pose a previously unimagined threat to personal solitude‑‑a new encroachment upon the old but central "home is your castle" precept.

 

Although wiretapping had been possible two decades earlier, surveillance technology underwent a boom in terms of both availability and sophistication in the 1940s and 1950s. J. Edgar Hoover, in his high‑profile tenure as director of the Federal Bureau of Investigation, made public the government's extensive use of wiretaps in "national‑security" matters. [FN136] Particularly notorious was the use of wiretapping by the federal government during the course of, and in the aftermath of, World War II, primarily for purposes of detecting Communist sympathizers and foreign government informants. [FN137] Although the Supreme Court had *1363 declared in Nardone v. United States [FN138] that wiretaps were illegal by statute, pursuant to the ambiguous Federal Communications Act of 1934, Congress heatedly debated the issue throughout 1941 and 1942 but failed to gather a consensus or to produce more forceful legislation. [FN139] As a result, government agents continued to judiciously ignore the Supreme Court's ruling in Nardone, instead abiding by a purported secret Executive Order issued by President Roosevelt to Attorney General Jackson, which authorized the use of wiretapping by the FBI "when necessary in situations involving national defense." [FN140]

 

By the 1950s, the technology that enabled government surveillance had grown by exponential leaps. Parabolic microphones, transmitters the size of cigarette packs, induction‑coil devices and miniature television transmitters made it possible for government agents, police, private investigators and average citizen snoopers to watch, listen and record virtually any sound or movement. [FN141] Accompanying this perfection in technology came the growing use of private detectives as surreptitious information‑gatherers in business and family disputes, extending the intrusive scope of eavesdropping to the private sector. [FN142] Attempts by the states to curb or prohibit wiretapping were largely ineffective. The state statutes tended to create broad exceptions for police conducting eavesdropping, as well as for citizens who agreed to have their own phones tapped, making them less than air‑tight. As well, the language of the statutes was rarely drafted to keep up with the swiftly‑changing technology, rendering them quickly obsolete. [FN143] By the time the United States entered the 1960s, most of the attempts to protect individual privacy by curbing electronic surveillance at the state level had failed. [FN144]

 

The 1960s soon witnessed a national uproar over the unchecked ability of government and private investigators to eavesdrop. Attorney General Robert Kennedy appeared before the Senate Judiciary Committee *1364 in 1962 in support of new legislation which would ban private wiretaps entirely and authorize government interceptions only with court orders. [FN145] Influential scholars, including Alan Westin [FN146] and Arthur Miller, [FN147] produced volumes of literature detailing the threat of surveillance technology to individual privacy. [FN148] Newspapers and periodicals throughout the country, including the New York Post and U.S. News and World Report, featured articles and editorials decrying the runaway use of electronic surveillance and calling for reforms. [FN149] The Senate Subcommittee on Administrative Practices and Procedures, chaired by Senator Edward V. Long (D.Mo.), held lengthy hearings between 1964 and 1966 on the surveillance activities of the FBI, the Department of Treasury and other branches of the U.S. government, with the Subcommittee exposing shocking stories to the public. [FN150]

 

In his State of the Union address in 1967, President Lyndon B. Johnson stood before the United States Congress and delivered the following message, amidst bipartisan applause:

We should protect what Justice Brandeis called the "right most valued by civilized men"‑‑the right to privacy. We should outlaw all wiretapping‑‑ public and private‑‑wherever and whenever it occurs, except when the security of the nation is at stake‑‑and only then with the strictest governmental safeguards. And we should exercise the full reach of our Constitutional powers to outlaw electronic "bugging" and "snooping." [FN151]

 

It was during this time that Fourth Amendment law underwent a similar, gradual shift towards an increased role for privacy, as American society itself became slowly, intensely aware of the dangers posed to personal solitude by this new hardware. Olmstead had been followed by *1365 a string of cases‑‑ most notably Goldman v. United States [FN152] and On Lee v. United States [FN153] ‑‑which reinforced the notion that violations of the Fourth Amendment took place only where there was a physical trespass on property or seizure of material goods, thus allowing government agents to employ dictaphones and microphones as long as a defendant's person or property was not touched. [FN154] It was not until 1961, in the decision of Silverman v. United States, [FN155] that a unanimous Court began to budge towards a pro‑ privacy posture, disallowing the use of a "spike mike" driven into the wall of a row house, where it tapped into a heating duct and allowed officers to monitor conversations within the defendant's entire house. The Court in Silverman continued to cling to its notion of physical trespass. [FN156] At the same time, Justice Stewart's majority opinion presaged a shift in the Court's Fourth Amendment philosophy toward a greater solicitude for privacy flowing from the person. Justice Stewart noted that although it was not appropriate to re‑examine the rigid approach of Goldman at that moment, "we decline to go beyond it, even by a fraction of an inch." [FN157]

 

*1366 By the time Katz v. United States [FN158] was scheduled for oral argument on October 17, 1967, Brandeis's dissent in Olmstead had finally caught up with the times, or vice‑versa. Charles Katz was arrested by federal authorities in Los Angeles, after an electronic listening device attached to the outside of a telephone booth was used to record his conversations, as he ran bookmaking activities through Boston and Miami. The Supreme Court, again in an opinion authored by Justice Stewart, found that this mode of gathering evidence ran afoul of the Fourth Amendment, even though the physical property of defendant had never been violated. The Fourth Amendment, wrote Justice Stewart, "protects people, not places." [FN159] After jettisoning the niggardly "constitutionally protected area" approach of Olmstead, Justice Stewart went on to embrace an explicit privacy concept under the Fourth Amendment: "[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected...." [FN160] Justice Harlan's concurrence in Katz, of course, eventually won the day and left an indelible mark on the history of privacy under the Fourth Amendment by offering a notion of "reasonable expectations of privacy" which can now be recited by every first year law student as the standard for search and seizure analysis in criminal procedure. [FN161]

 

Brandeis may have foreseen, in 1928, the need for a "right to be let alone" to guard against electronic eavesdropping, television and other untested forms of technological wizardry, but such a fear for the individual's personal space was not commonly shared by society, it seems fair to say, until Katz's telephone booth was bugged in the mid‑1960s. [FN162] Prior to Katz, the nation had collectively grappled with this new electronic threat to personal solitude for several decades. Like the original privacy tort concocted by Warren and Brandeis in 1890‑‑prompted by unexpected encroachments upon personal solitude *1367 posed by technological advances in newspapers and photography‑‑history once again fashioned a new plantlet on the strawberry geranium.

 

This type of "search and seizure" privacy is most closely aligned with those scholars who offer definitions of privacy as "sanctuary" [FN163] "secrecy," [FN164] "solitude" [FN165] or some combination containing those elements. [FN166] It is not a wholly new concept in American law, but a variation of the "home is your castle" notion held fundamental by the English forebears and colonists, [FN167] now subsumed under the "privacy" rubric in order to encompass more modern threats to the same old castle.

 

What bond does Fourth Amendment privacy share with tort privacy, discussed in the previous section? First‑‑and most obvious‑‑both were introduced into American law by Louis Brandeis, drawing upon many of the same raw materials. The Olmstead dissent borrowed unabashedly from the theme of the Warren and Brandeis article of 1890 because, in Brandeis's mind, tort and Fourth Amendment privacy were not dissimilar. Both involved a "right to be let alone," one from other citizens (i.e., newspapers, etc.), the other from an intrusive government. Neither tort law nor Fourth Amendment jurisprudence was equipped to deal‑‑as Brandeis originally found them‑‑directly with these new threats to individuality and solitude wrought by society's inventiveness. So he set about to build a new lawyer atop each. After all, a basic notion of privacy and protection of individuality ran through the common law; some of it made its way into the Constitution, some of it blossomed into civil tort law, but all of it was central to the idea of American democracy. And so it was perfectly natural for Brandeis to look towards the same pool of resources to construct these two different species of privacy. In the Harvard Law Review piece of 1890, the justification for a privacy tort flowed from "a principle as old as the common law," which included a *1368 "recognition of man's spiritual nature, of his feelings and his intellect." [FN168] In the Olmstead dissent, the justification for Fourth Amendment privacy was the same. The makers of the Constitution had incorporated the "home is your castle" maxim‑‑a common law principle [FN169]‑‑into the Constitution because they recognized "the significance of man's spiritual nature, of his feelings and intellect." [FN170] The identical language was used by Brandeis because the two privacies came from the same swath of common law, both designed to assure individual liberty within American society.

 

The other bond shared by these two species of privacy relates to their modes of development. Both were initially jarred into existence by technological change, yet in each case it is noteworthy that several decades elapsed before the new species of privacy was brought into the mainstream of American law. Both tort privacy and Fourth Amendment required time to percolate through the system. The threat to individuality and solitude posed by new technology reached acute and obvious levels, with society wallowing in the drawbacks of its own ingenuity, before the notion of privacy reached a level of general societal acceptance sufficient to trigger acceptance by the courts, a microcosm of American society. Both species of privacy thus required a period of coalescence following the initial technological jolt before the law was ready to lend its imprimatur.

 

How have the courts fared in maintaining this constitutionally‑based privacy under the Fourth Amendment since Katz? The twenty‑odd years following the Katz decision have witnessed a roller‑coaster ride up peaks and down valleys, yet Fourth Amendment privacy has remained surprisingly well‑entrenched in American law. This species of the "right to be let alone" is certainly broader and more durable than the original proscription against government‑sponsored bugging devices which originally spawned it.

 

Although this Article does not seek to provide an absolute treatise on search and seizure law, a review of the cases dealing with "reasonable" and "unreasonable" expectations of privacy certainly provide a flavor for the mixed results in the aftermath of Katz. On the pro‑privacy side of the equation, the Court over the past two decades‑‑in many different contexts‑‑has protected individual solitude from governmental intrusion, within the castle of the home and beyond. A "reasonable" expectation of privacy has been found, sufficient to ward off governmental intrusion, *1369 with respect to the use of myriad bugging devices; [FN171] administrative searches of homes and businesses; [FN172] searches of closed luggage and footlockers; [FN173] sealed packages; [FN174] beepers placed by DEA agents inside drums of chemicals; [FN175] roving border patrols searching for illegal aliens; [FN176] traffic checkpoints searching for concealed aliens; [FN177] and random spot‑ checks for automobiles to inspect drivers' licenses and vehicle registrations. [FN178]

 

On the negative side of the privacy equation, an equally varied list can be drawn up in which no "reasonable" expectation of privacy has been found under the Fourth Amendment, within the context of a wide array of governmental efforts to ferret out criminal activity. The Court has found no reasonable expectation of privacy in an individual's bank records; [FN179] in voice or writing exemplars; [FN180] in phone numbers *1370 recorded by pen registers; [FN181] in conversations recorded by wired informants; [FN182] and in a growing list of cases involving automobiles, trunks, glove compartments and closed containers therein, [FN183] particularly where police are perceived to be in need of clear‑cut rules.

 

What is most telling about the recent Fourth Amendment privacy cases, however, is that the Court seems to be especially heavy‑handed in discounting the "reasonableness" of the citizen's expectation of privacy where the individual's claim to secrecy or solitude collides with the government's war on drugs and alcohol. Put in other terms, the existence or non‑existence of Fourth Amendment privacy now appears to be dependent (to some extent) upon the subject‑matter of the case. No violation of Fourth Amendment privacy, for instance, has been found where drug‑sniffing dogs discovered cocaine after subjecting luggage to a "sniff test" in United States v. Place; [FN184] where an individual's garbage was searched by police for evidence of narcotics use in California v. Greenwood; [FN185] where a high school student's purse was searched for marijuana by an assistant vice principal in New Jersey v. T.L.O.; [FN186] and in a host of "open fields" and "overflight" cases in which airplanes, helicopters and high‑powered photographic equipment have been used to swoop, hover and snap pictures in search of illegally grown marijuana and other (often drug‑related) activity. [FN187] In line with this anti‑ drug‑*1371 and‑alcohol trend, Skinner v. Railway Labor Executives' Ass'ns [FN188] and National Treasury Employees Union v. Von Raab, [FN189] together, held in 1989 that the government was permitted to conduct mandatory drug testing of certain federal employees (railroad engineers involved in accidents; customs agents carrying firearms), under a theory that the "special governmental needs" at stake outweighed the individual's privacy expectations. [FN190] Most recently, Chief Justice Rehnquist, in 1990, authored the politically‑charged opinion in Michigan Department of State Police v. Sitz, [FN191] upholding the use of "sobriety checkpoints" to detect drunk drivers under a theory that the "brief intrusion" upon individual privacy occasioned by DUI roadblocks was outweighed by the state's significant interest in eliminating alcohol‑related deaths on the highways. [FN192]

 

Several observations can be made about the Court's determination of "reasonableness" and "unreasonableness" undergirding Fourth Amendment privacy in the years since Katz. First, it is true, as some commentators have charged, that the concept of privacy under the Fourth *1372 Amendment has become somewhat hierarchical. [FN193] The "reasonableness" of expectations is often a function (in the eyes of the Court) of the type of property or activity secreted by the individual. Particularly where drug and alcohol crack‑downs motivate the search, individual "expectations" become quickly minimized in the name of society's massive stake in eradicating drug traffic and drunk driving. However, such a trend should come as no great surprise. Fourth Amendment privacy is by definition a hierarchical creature. In order to determine which searches and seizures are "unreasonable," within the indeterminate language of the Constitution, the Court must balance the intrusion upon the individual's solitude against the societal interest at stake. Such a balancing exercise has been carried out quite overtly in cases like Skinner, Von Raab and Sitz. More subtle balancing, however, goes on in each Fourth Amendment privacy case. A form of prioritizing is inevitable under Fourth Amendment privacy law, frankly, because the individual's interest in maintaining solitude and secrecy necessarily tugs against society's goal of identifying and prosecuting criminal conduct, both legitimate concerns in applying the Fourth Amendment. [FN194] This feature sharply distinguishes Fourth Amendment privacy from tort privacy. Unlike tort privacy, which deals with purely private conduct, Fourth Amendment privacy deals exclusively with government conduct, constantly pitting the individual against society, often (as in the drug and alcohol cases) with massive odds stacked in favor of the state.

 

What is perhaps most interesting to observe about the Court's balancing act in Fourth Amendment privacy cases, however, is that the entire Court‑‑including the conservative wing‑‑has displayed little difficulty in interpreting and applying unwritten principles in the Constitution. Nowhere is the word "privacy" mentioned in the Fourth Amendment. Nowhere does the Constitution speak of "reasonable expectations" of privacy, nor define how society in its collective wisdom is to arrive at a determination of "reasonableness" or "unreasonableness" in twentieth century America. Yet the Court has applied these concepts with no apparent difficulty, using the precise judicial tools‑‑unspecific text, constitutional history, evolving case law, modern societal *1373 norms‑‑which have generated so much controversy in other areas of privacy law, particularly in the abortion and fundamental‑ decision privacy cases. Thus, in Oliver v. United States, [FN195] the conservative bloc of the Court joined in a Fourth Amendment privacy opinion which drew upon the "intention of the Framers" and "our societal understanding" of protected areas, in concluding that there existed no reasonable expectation of privacy in an open field marked with "No Trespassing" signs. California v. Greenwood [FN196] reveals the same conservative members of the Court relying upon "common knowledge," Fourth Amendment precedent, federal and state court trends, and other traditional tools of judicial interpretivism, in order to provide the textually unspecific notion of Fourth Amendment privacy with a sensible application in the context of twentieth century life.

 

The interesting upshot of such cases is that the Court has quite successfully balanced and created hierarchies in Fourth Amendment privacy matters, true; but it has done so using the same tools of judicial interpretivism which have drawn so much fire in the context of fundamental‑decision privacy (e.g. abortion and contraception, discussed in Part V).

 

The scholarly criticism of the Court's perceived retrenchment in Fourth Amendment privacy jurisprudence has become increasingly loud and sustained. A youthful Justice Rehnquist was certainly correct in 1974, when he predicted that "the government will (inevitably) know more about each of us than it did 50 years ago," resulting in "much less privacy." [FN197] To a certain extent this has become a self‑fulfilling prophecy. Yet in the broader historical sense, Fourth Amendment privacy has become a quite healthy species of the "right to be let alone" in the past thirty years. It is hardly surprising that American society, and the judicial branch which feels its pulse, have been less prepared to embrace a strong notion of individual solitude and secrecy when it gives the appearance of colliding with the war on drugs or the battle against alcohol, two of the most symbolic issues of our time. As privacy percolates through society, it often does not percolate with absolute equanimity. Yet it is a fact of American law that the "reasonable expectation of privacy" has now become permanently embedded in Fourth Amendment jurisprudence, with frequent victories against improper government searches and seizures, along with occasional set‑backs as the delicate balance between individual solitude and state intrusion is *1374 constantly defined and re‑defined. This is not a bad achievement, considering that Louis Brandeis was unable to convince a majority of the Court that any such serious balance should take place at all in the relatively recent history (1928) of American law.

 

Brandeis's vision of Fourth Amendment privacy set down in Olmstead, curiously intertwined with his original privacy tort, is now a fixture of American criminal procedure. It is built atop the fiercely guarded principle of "home is your castle," transferred into the Fourth Amendment from the common law, an expression of the very essence of American democracy.

 

Rather than controlling the flow of information about oneself in order to preserve individuality (the function of tort privacy), the Fourth Amendment species of privacy is designed to preserve "secrecy" or "sanctuary" or "solitude" vis‑a‑vis the government, allowing one to carry on one's activities in life‑‑working, praying, interacting with family, owning property, reading, relaxing, thinking‑‑without unjustified interference from the body politic. Such solitude was viewed as a core aspect of individual liberty at the time American democracy took shape, for otherwise, as James Otis put it, the liberties of every person would be placed "in the hands of every petty officer." [FN198] As early as 1690, William Penn wrote a verse entitled Some Fruits of Solitude, which contained the following observation: "Remember the Proverb, Bene qui latuit, bene vixit, They are happy that live Retiredly.... It is the Advantage little Men have upon them; they can be private, and have leisure for Family Comforts, which are the greatest Worldly Contents Men can enjoy." [FN199]

 

In legal terms, the species of privacy now secured under the Fourth Amendment may be defined as the "right to be let alone, with respect to governmental searches and seizures which invade a sphere of individual solitude deemed reasonable by society."

 

The strawberry geranium, once having taken root, develops strongholds as its climate dictates.

 

IV. FIRST AMENDMENT PRIVACY

 

Perhaps the most curious, and least settled, offshoot of privacy to develop in the hundred years since Warren and Brandeis put pen to paper is that intertwined with the First Amendment. Many scholars have ignored this species of privacy altogether or attempted to gloss over its *1375 height, weight and measurements; for good reason‑‑it is the most muddled and difficult to classify. Yet the fact remains that the Supreme Court, as recently as 1988, in Frisby v. Schultz, [FN200] continues to refer to privacy as if it has a tentacle of the vine intertwined with free speech under the First Amendment, albeit in a somewhat elusive fashion which will (hopefully) be sorted out in the following pages.

 

It is first important to distinguish between two types of cases in which privacy and the First Amendment wash into each other. First, there are those cases in which privacy intersects with free speech‑‑for instance, where a door‑ to‑door religious solicitor may seek to convey a message to an unwilling listener in the home. It is here, it will be argued, that privacy has evolved into a third species, quasi‑constitutional in nature. Quite distinct, although often jumbled together, are those cases in which privacy collides with free press under the First Amendment‑‑for instance, where a newspaper seeks to publish the name of a rape victim who wishes to remain anonymous. The latter cases, it will be shown, involve privacy as a mere tort. In such cases, privacy enjoys no preferred status in the law and is routinely flattened when it comes into conflict with the First Amendment.

 

The species of privacy linked to free speech under the First Amendment, which will be discussed in the following pages, is unique for several reasons. It is first and foremost a parasite, deriving its importance not from any direct or consistent source in the Constitution, but as a counterweight which has latched itself onto, in order to restrict, free speech under the First Amendment. Thus, one person may have a right to knock on doors or deliver sermons through loudspeakers in the park‑‑arguably protected "speech" under the First Amendment‑‑but there is a competing notion of privacy inherent in the audience which at some point overtakes the free speech interest. Unlike tort privacy or Fourth Amendment privacy which have developed in American law in their own right, to protect important spheres of individuality and solitude, First Amendment privacy has developed primarily to moderate, balance out, another constitutional right; namely, that of free speech.

 

The term "First Amendment privacy" is perhaps a misnomer. It is far from clear whether the privacy being described here flows from the First Amendment at all (in some cases it appears so), or whether it is more accurately a hybrid of "home is your castle" privacy derived from the Fourth Amendment, or perhaps a common law tort of privacy with super‑tort‑like powers, or a combination of all the above. Although the Supreme Court has in essence institutionalized this species of privacy by routinely balancing it against the right of free speech under the First *1376 Amendment‑‑often with the victory going to privacy‑‑ the precise parameters of this "right to be let alone" are anything but self‑ evident. An examination of its history and evolution reveal a privacy starkly similar to other species, but with ambiguous moorings both inside and outside the Constitution.

 

The origins of First Amendment privacy are largely ignored, but unfortunately so. Not only is it historically significant that Justice Brandeis (once again) helped introduce the concept to modern American jurisprudence, but it is particularly noteworthy that this occurred in 1920, well before his famous dissent in Olmstead sought to link privacy to the Fourth Amendment. First Amendment privacy, then, was actually the first brand which Brandeis attempted to constitutionalize. Indeed, the Supreme Court cases acknowledging this unusual link between the right to privacy and the First Amendment in the 1940s pre‑dated the acceptance of Fourth Amendment privacy in Katz by two decades.

 

Gilbert v. Minnesota [FN201] was the first case in which Justice Brandeis, in dissent, sought to graft his notion of a "right to be let alone" onto First Amendment principles, albeit in a circumlocutious fashion. Gilbert involved a Minnesota statute, enacted during World War I, which made it unlawful to "discourage" the enlistment of men in the military, or to teach or advocate that citizens not assist the United States against its public enemies. When Gilbert spoke out against the war in Europe at a public meeting of the Nor‑ partisan League, suggesting "we had better make America safe for democracy first," [FN202] he was criminally prosecuted under the Minnesota statute.

 

A majority of the Court rejected Gilbert's assertion that his anti‑war speech was protected by the First Amendment. The Court declared that such freedom of speech "is natural and inherent, but it is not absolute." [FN203] Justice Brandeis, on the other hand, took sharp issue with the majority, condemning the fact that the Minnesota statute prohibited citizens from articulating views against the war, even in the sanctity of their own homes: "Father and mother may not follow the promptings of religious belief, of conscience, or of conviction, and teach son or daughter the doctrine of pacifism." [FN204] This sort of extreme regulation of dissident speech, wrote Brandeis, "invades the privacy and freedom of the home." [FN205]

 

It is not particularly clear where Brandeis found this right of privacy of the home‑‑whether as a corollary of free speech under the First *1377 Amendment or connected to the notion of "liberty" under the Fourteenth Amendment, both of which he mentioned. [FN206] Nevertheless, it is clear that Brandeis was attempting to introduce a notion of privacy which was connected in some fashion to the Constitution (unlike his original tort privacy) and which worked in tandem with the First Amendment to assure a freedom of speech within the four brick walls of the citizen's residence. Unfortunately, the Gilbert dissent has, for the most part, been lost to history. Yet Brandeis's underlying notion that privacy has some place among the shade of the First Amendment was swiftly resurrected in the 1940s.

 

A. Privacy and Free Speech

 

It was in the door‑to‑door solicitation cases of the World War II era that First Amendment privacy began to take root in its uncertain soil. [FN207] In Martin v. City of Struthers, [FN208] the Court forbade the city of Struthers, Ohio, from prohibiting the door‑to‑door distribution of leaflets by Jehovah's witnesses, advertising the group's Theocratic Convention. Although the free speech rights of the Jehovah's Witnesses prevailed in that case, a widely divergent set of separate opinions brought privacy to the forefront. Justice Murphy, concurring, believed that there were narrower ways to protect the homeowners' solitude in this case short of an out‑and‑out ban on door‑to‑ door speech. At the same time, he explicitly acknowledged a right of privacy in the home, stating: "[F]ew, if any, believe more strongly in the maxim, 'a man's home is his castle,' than I." [FN209] After citing his own dissent in the Fourth Amendment case of Goldman v. United States, [FN210] in which he extolled the virtues of Fourth Amendment privacy, as well as the Warren and Brandeis article of 1890 and various cases adopting privacy torts, Justice Murphy concluded of privacy in the home that: "If this principle approaches a collision with religious freedom, there should be an accommodation, if at *1378 all possible, which gives appropriate recognition to both." [FN211] Justice Frankfurter, in dissent, launched an impassioned attack upon the "lack of privacy and the hazards to peace of mind and body caused by people living not in individual houses but crowded together in large human beehives," [FN212] concluding that the steel town's ordinance banning the distribution of handbills and door‑to‑door solicitation was appropriate. Likewise, Justice Reed (also dissenting) believed that the "assurance of privacy" in the home was broad enough to restrict the First Amendment rights of the speaker. [FN213]

 

Admittedly, Martin cannot be viewed as an open‑and‑shut endorsement of privacy linked to the First Amendment. However, it certainly represents an implicit acknowledgment that some curious privacy species (of imprecise origin) existed which might be used to counterbalance the First Amendment freedom of speech.

 

It was in Breard v. City of Alexandria, [FN214] decided in 1951, that the court gave its first victory to privacy in the clash between the undaunted solicitor and the unwilling homeowner. Breard involved a prosecution in Alexandria, Louisiana under a so‑called "Green River" ordinance [FN215] of the sort which came into vogue in the 1930s and 1940s as Fuller brushmen and other entrepreneurs flocked door‑to‑door. Breard had solicited the sale of subscriptions to popular magazines like the Saturday Evening Post and Ladies' Home Journal, and was convicted under the ordinance which prohibited "solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise" from soliciting private residences without being invited by the owner or occupant. Justice Reed, now able to persuade a majority of the Court, invoked his dissenting theme in Martin and found that the homeowner's right to privacy properly limited the huckster's right to free speech under the First Amendment: *1379 "[T]he constitutionality of Alexandria's ordinance turn[s] upon a balancing of the conveniences between some householders' desire for privacy and the publisher's right to distribute publications in the precise way that those soliciting for him think brings the best results." [FN216]

 

In the evolution of privacy, Breard is significant in providing the first solid link between First Amendment freedom of speech and a competing privacy in the homeowner. Admittedly, Justice Reed's version of privacy can be viewed as a basic tort notion in this case. [FN217] However, its precise origin is far from clear, and it seems to have a preferred status, potent enough to outweigh the First Amendment, which is no small task.

 

This central ambiguity, involving the origin of this right to privacy which counterbalances the First Amendment freedom of speech, only becomes more apparent and complex in later cases, as privacy seems to establish an uncertain parasitic relationship with that provision of the Bill of Rights, even moving outside the sanctuary of the home. Any doubt that Brandeis had a hand in developing this, like other species of privacy, can be resolved by examining the related "captive audience" cases. One of the earliest of these was the 1932 case of Packer Corporation v. Utah [FN218]‑‑authored by Justice Brandeis‑‑ which upheld a Utah statute prohibiting the advertisement of cigarettes and other tobacco products on billboards, street car signs and placards, throughout the state. Justice Brandeis, writing for a unanimous Court, rejected a challenge to the statute under an equal protection theory (the statute did not ban such advertising in newspapers) and then turned his attention to the privacy rights of the unwilling observer. In words borrowed from the Utah Supreme Court, Brandeis endorsed a broad concept of the "right to be let alone" powerful enough to defeat the First Amendment, even where the "captive audience" was on the street rather than within the home. "The radio can be turned off," wrote Brandeis, "but not so the billboard or street car placard." [FN219]

 

*1380 Brandeis's rather extreme notion of privacy articulated in Packer, which could be used to curtail speech virtually any time an unwilling viewer or listener indicated that he or she wished to be free from the speaker's message, has properly been dismissed as an "unacceptable political ideal." [FN220] It would ultimately collapse into a boundless bundle of privacy rights, allowing an individual to claim a right to solitude in almost every setting in which he or she wished not to hear or see a message. Nevertheless, Packer successfully introduced the germ of privacy linked to "captive audiences," which continued to grow.

 

Kovacs v. Cooper, [FN221] handed down in 1949, gave the right to privacy its successful debut in a traditional "captive audience" case, beating out the right to free speech under the First Amendment. [FN222] In upholding a Trenton, New Jersey, statute which made it unlawful to use sound trucks and loudspeakers emitting "loud and raucous noises," Justice Reed stressed that the captive listener‑‑faced with music and labor‑dispute speeches broadcast from a truck on a public street‑‑should not be forced to suffer a loss of privacy:

The unwilling listener is not like the passer‑by who may be offered a pamphlet in the street but cannot be made to take it. In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality. [FN223]

 

Justice Frankfurter went even further, in Kovacs, decrying the diminishing opportunities for "serenity and reflection" in American life, and stating: "Without such opportunities freedom of thought becomes a mocking phrase, and without freedom of thought there can be no free society." [FN224]

 

Thus, privacy was not only recognized as a counterbalance to free speech within the sacred confines of the citizen's home, but in Kovacs and later "captive audience" cases, it managed to sneak outside the home and *1381 become bigger than life. Although the origin of the privacy right at issue was still murky, it did not look or smell exactly like a tort. It was pushing the odd symbiotic relationship between privacy and the First Amendment a step further, beginning to give it constitutional muscle as Brandeis originally envisioned.

 

The easiest way to explain this odd permutation of privacy is therefore to say that the First Amendment came to be viewed as possessing two distinct hemispheres. The first was the familiar freedom to speak and express views in public without governmental interference. The second was the less familiar freedom of the citizen to think and engage in private thoughts, free from the clutter and bombardment of outside speech. The latter concept, if indeed it was seeping into the free speech cases, was not a concept entirely new to American law. Justice Joseph Story, in his classic Commentaries on the Constitution of the United States, wrote in 1833 that the First Amendment included the protection of "private sentiment" and "private judgment." [FN225] Francis Lieber, a leading scholar on the Constitution prior to the Civil War, included within his definition of the First Amendment a notion of "freedom of communion" and "liberty of silence." [FN226] It was a variation of such less familiar notions of "privacy of thought," then, which was beginning to creep into this odd species of privacy linked to the First Amendment.

 

One obvious problem, of course, was that in most of these free speech cases in which privacy of the listener was being balanced against the speaker's First Amendment rights, there was no state action. Purely private conduct was involved (albeit with regulations promulgated by the state or local municipality, creating a tangential governmental involvement). Thus, the "privacy of thought" belonging to the listener could not technically flow from the First Amendment, because that Amendment dealt only with transgressions by the body politic. As a result, this species of privacy continued to grow; but it was forced to draw upon multiple sources‑‑both inside and outside the Constitution‑‑in order to save itself from the state action quandary.

 

Thus from the 1950s forward, species number three of the right to privacy came to be recognized as a valid counterweight to free speech under the First Amendment, yielding varying results. In Public Utilities Commission v. Pollak, [FN227] the Court rejected a privacy attack by passengers on a street railway in Washington D.C., who found broadcasts *1382 of music and radio programs to be distracting and offensive. Although the majority seemed to acknowledge the existence of a right of privacy grounded in the Fifth Amendment, [FN228] it found no such right encroached where an individual rode in a public conveyance. Justice Douglas, in a vigorous dissent, would have created a "liberty of silence" based upon the First Amendment. He argued that: "The First Amendment in its respect for the conscience of the individual honors the sanctity of thought and belief. To think as one chooses, to believe what one wishes are important aspects of the constitutional right to be let alone." [FN229]

 

Nearly two decades later, Stanley v. Georgia [FN230] added a powerful boost to the notion that the First Amendment included a second hemisphere which protected freedom of thought and solitude in the home. In overturning a conviction for possession of obscene materials found in appellant's bedroom, Justice Marshall spoke of a "fundamental" right to be free from governmental intrusions into one's privacy, citing Brandeis's dissent in Olmstead. In case there was any doubt where this fundamental right originated, Justice Marshall wrote:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. [FN231]

 

The following year, in Rowan v. United States Post Office, [FN232] the Burger Court shored up the notion of First Amendment privacy in the home, upholding a federal statute which permitted homeowners to insulate themselves from mail which they believed to be "erotically arousing" or "sexually provocative." [FN233] After making explicit that the "right to be *1383 let alone" must be placed on the scales and balanced against free speech under the First Amendment, [FN234] Chief Justice Burger concluded that "a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail." [FN235]

 

What was going on, then, was a metamorphosis of this awkward species of privacy into a creature of the First Amendment itself. Neither Stanley nor Rowan involved state tort laws. Stanley was a criminal action and Rowan involved regulations of the federal government. Yet both of these cases found a distinct brand of privacy in the home: Stanley specifically located this right in the First Amendment; Rowan remained ambivalent.

 

This is not to suggest that First Amendment privacy, even to the extent it was becoming quasi‑constitutionalized, was invincible. In a number of familiar cases, the Court found that the privacy rights of the unwilling listener or observer, particularly outside the home, lost out to the freedom of speech under the First Amendment. Thus in Cohen v. California [FN236] (war protester wearing "Fuck the Draft" jacket in Los Angeles County Courthouse), Organization For a Better Austin v. Keefe [FN237] (peaceful distribution of leaflets advocating racial equality) and Erznoznik v. City of Jacksonville [FN238] (showing of R‑rated movie in drive‑in theatre, in which female buttocks and breasts could be observed) privacy claims were all defeated by free speech. Yet what is most important about these cases is that in each one, the privacy rights of the viewer or listener were recognized as valid, a legitimate right to be reckoned with under the First Amendment. This led to a further solidification of privacy in its curious, watchdog role with respect to the First Amendment. Whether it was derived from the First Amendment "liberty of conscience," or the Fourth Amendment "home is your castle" principle, or state tort laws of a preferred stock, or (most likely) a swirl of all of the above, it was becoming a bona‑fide species in American law.

 

The modern result has been that the Court seems to automatically balance the right to privacy against the freedom of speech in First *1384 Amendment cases, essentially regularizing this symbiotic relationship. In FCC v. Pacifica Foundation, [FN239] for instance, the Court permitted the FCC to ban comedian George Carlin's monologue, Filthy Words, from the public airwaves, finding that "the individual's right to be left alone [in the home] plainly outweighs the First Amendment rights of an intruder." [FN240] In Carey v. Brown, [FN241] a residential picketing case, the Court struck down an Illinois statute which impermissibly drew a line between labor picketing and other peaceful picketing. At the same time, the Court acknowledged that "the State's interest in protecting the well‑being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." [FN242]

 

The concept of "residential privacy" continued to crystallize in 1988 in Frisby v. Schultz, [FN243] a case in which a majority of the Court upheld a Brookfield, Wisconsin statute which established a flat ban on residential picketing. Justice O'Connor undertook a lengthy review of the privacy cases enmeshed with the First Amendment, painting a generous picture of "residential" or "family" privacy in upholding the statute. Not only was the State's interest in protecting tranquility in the home "of the highest order," as stated in Carey, but the sanctity of the home was "the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits" [FN244] and "the last citadel of the tired, the weary, and the sick." [FN245]

 

What can be said of this species of privacy, after its lengthy but herky‑jerky evolutionary period? Is it legitimate and proper that the *1385 Court should continue to recognize such a legal concept in free speech cases, without addressing, with some honesty, its source and parameters? Probably not. The fairest way to describe this odd species of privacy is to acknowledge that it was originally built as an amalgam of the two species discussed in the previous sections, but has now moved towards an increasingly strong link with the First Amendment itself. Like Brandeis's original privacy tort and Fourth Amendment privacy, it flows from common law principles underlying and predating the Constitution and tort law notions of solitude and individuality upon which American democracy was built. Where state action is present, such privacy flows directly from the First and Fourth Amendments and is thus quasi‑constitutional in nature. Where no state action is present and one individual's solitude is threatened by another private citizen engaging in free speech, such privacy necessarily flows from the highest priorities of tort law, as well as common law notions underlying tort and constitutional concepts of solitude. In either case, it is frequently powerful enough to outweigh competing First Amendment interests of other citizens.

 

The historical impetus which produced this offshoot of the strawberry geranium is perhaps less sharp and focussed than others. Since this species of privacy evolved, despite Brandeis's broader intentions in Gilbert and Parker, primarily as an adjunct to the First Amendment freedom of speech, it is difficult to say it evolved on its own, with its own catalyst, in the same fashion as tort privacy at the turn of the century or Fourth Amendment privacy in the 1970s. Part of the reason that First Amendment privacy was born in the 1940s is attributable to a societal need to protect solitude in a new fashion at that time, but part of it is attributable to American history as it worked to temper the evolution of free speech, as well. By the time Martin and Breard were decided in the 1940s and 1950s, the urbanization of America was virtually complete, and the "suburbanization" of America had begun. In the cities and steel mill towns, like Struthers, Ohio, of the Martin case, houses were crowded on top of each other, and people were living in "large human beehives," in the words of Justice Frankfurter. Men were working 24‑hour swing shifts, such that any time of the day or night might be essential time for sleep and solitude. [FN246] At the same time, the suburbs were developing. Increased crowding in the cities, along with the advent of automobile traffic as an everyday fact of life, as well as increasingly crowded industrial work environments, created an urge in Americans to withdraw from the crowd and distance themselves from the perpetual mental clatter which emanated from the cities. The Puritan Cotton Mather, in the 18th *1386 century, had stressed the importance of solitary thoughts‑‑"a Godly man will sometimes Retire, that he may carry on the Exercises of Godliness" [FN247]‑‑and this instinct continued to run strong in America. By the middle of the twentieth century, when First Amendment privacy made its debut, such simple retreats into solitude were becoming much more difficult for the average American citizen. Coupled with the growing feeling of isolationism which settled upon the United States after World War II, an increased yearning took hold for a home and family untainted by the hubbub of modern city life. Added to this was the fact that door‑to‑door canvassing dramatically increased as a method of speech and commercial solicitation, feeding upon the greater concentration of housing, [FN248] which resulted in a strong push for legally protected solitude both in the city and the suburbs. This led to a new emphasis on "residential" or "family" privacy, as the door‑to‑door solicitation cases of the 1940s and 1950s concurrently tested the limits of free speech. [FN249]

 

Towns such as Brookfield, Wisconsin, which form the backdrop for more modern cases like Frisby, represent the continuing retreat of middle‑class America into the quiet sanctuary of small town or suburban life, insulated homes with backyards and hedges as tiny barriers, places to grow old and raise families without the constant bombardment of commercial solicitation and religious or political proselytizing. First Amendment privacy, like the previous species of privacy discussed, was shaken into existence by major changes in American life and quite identifiable historical forces. At the same time, this species is equally a creature of the forces which shaped First Amendment law, upon whose stalk it has become permanently affixed.

 

B. Privacy v. Free Press

 

Proof that privacy, as it has been spun into a third species out of the free speech cases, is something more than an ordinary tort concept can be found in the quite distinct body of cases relating to free press. Here, although many commentators have jumbled the case law together with *1387 previous speech cases, privacy does not flow from the Constitution whatsoever. The two are fierce competitors. Nor does it come from preferred stock. The privacy at stake is an ordinary state‑created right embodied in tort law (Brandeis's original privacy tort), vying against the First Amendment freedom of press, as the press attempts to publish information, however truthful, which invades an area of secrecy or solitude the individual has an arguable right to safeguard. Privacy in the free speech area, as we just saw, frequently wins out in its battle against the First Amendment, particularly where the privacy interest of the listener is the strongest (i.e., in the home). But the privacy tort that appears in the free press area, devoid of constitutional underpinnings or special status, is no match for the weighty guns of the First Amendment.

 

The cases themselves illustrate the wide divergence between these two distinct types of privacy settings, which are (unfortunately) often heaped together when discussing the First Amendment's relationship to privacy law. The New York Times v. Sullivan [FN250] line of cases established a standard in defamation cases extremely favorable to the press under the First Amendment, sharply curtailing the states' ability to permit libel suits against newspapers and media defendants unless "actual malice" is proven. Having thrashed out this approach in the defamation setting, the Court mechanically applied the same standard in the realm of privacy torts when quite distinct "false light" and "public disclosure" privacy cases reached the docket. [FN251] The result has been that state privacy tort actions have been effectively squashed in nearly every *1388 instance when they have come into conflict with the constitutional guarantee of free press. [FN252]

 

This downhill spiral for Brandeis's privacy tort, as it battled against freedom of the press, began in Time, Inc. v. Hill [FN253] and continued in Cantrell v. Forest City Publishing Co. [FN254] and Cox Broadcasting v. Cohn. [FN255] In those "false‑light" and "public disclosure" cases, the Court allowed the First Amendment freedom of the press to perfunctorily extinguish state privacy tort claims, simply as a result of plugging them into the New York Times equation. The track record became increasingly hopeless in Oklahoma Publishing Co. v. District Court, [FN256] Landmark *1389 Communications, Inc. v. Virginia [FN257] and Smith v. Daily Mail Publishing Co., [FN258] cases handed down in the late 1970s, all of which stamped out the plaintiffs' privacy claims by applying the New York Times standard, emphasizing that the media must be able to print information lawfully obtained through public sources.

 

The most recent blow to privacy in its unsuccessful battle against free press was the Court's 1989 decision in Florida Star v. B.J.F. [FN259] In that case, the Court took the further leap of allowing free press to prevail over a state privacy statute, even though the newspaper printed information improperly disclosed in public records, and both the statute and internal newspapers rules specifically forbade such publication. [FN260] Despite a successful verdict in the Florida courts, utilizing an invasion of privacy tort as well as a Florida non‑disclosure statute, the Supreme Court (per Justice Marshall) once again flattened the privacy interest under a rubble of First Amendment language, stressing that the newspaper reporter had "lawfully obtained" the information, albeit through mistakenly‑released public records. The Court fell short of holding that there is "no zone of personal privacy within which the state may protect the individual from *1390 intrusion by the press." [FN261] Justice Marshall acknowledged that there might be times when a statute is "narrowly tailored to a state interest of the highest order" and is thus sufficiently weighty to counteract the First Amendment freedom of the press. [FN262] But nowhere does the Court tell us when this might be. The clear upshot of Florida Star, as it relates to the history of privacy, is that it does not leave much breathing room for privacy torts in the air space of the First Amendment, at least where free press is concerned.

 

These cases, above all else, illustrate the radical difference in approach taken by the Court when it perceives itself to be stacking an ordinary state‑ created privacy tort against the First Amendment (in the free press cases), compared to the free speech cases where, it was argued, the privacy interest at stake has been quasi‑constitutionalized. In the free press cases, as Professor Edelman points out, there has been no serious balancing between the First Amendment and the right asserted. [FN263] This is precisely why, in recent years, the "false light privacy" has been dubbed "the light that failed." [FN264] In the free speech cases, on the other hand, where privacy of the listener has been cemented to the First or Fourth Amendment, or derived from common law principles of the "highest order," a serious balancing does take place as a routine matter, and privacy frequently wins the bout.

 

This latter type of privacy‑‑the only true brand of privacy with a hard link to the First Amendment, with the possible exception of "associational privacy" discussed in the Epilogue [FN265]‑‑can properly be characterized as the "right to be let alone, where one individual's freedom of speech threatens to disrupt another individual's freedom of thought and solitude."

 

Like Fourth Amendment privacy, this odd permutation of Brandeis's original privacy tort is concerned with what legal philosophers describe as "repose," "sanctuary" and "solitude." Yet, unlike Fourth Amendment privacy, it does not always involve solitude vis‑a‑vis governmental action, but can leap the fence into purely private conduct, such as door‑to‑door *1391 solicitation. Particularly as American society has moved away from farms to cities, from cities to suburbs, from apartments to small homes with front yards and hedges, this branch of quasi‑constitutional privacy has become much more significant. It safeguards the ability of citizens to engage in religious, political, artistic, domestic, or introspective thought and activity‑‑all the grist of individualism in American democracy‑‑without a constant bombardment of "free speech," knocking doors, ringing bells and preachers‑saving‑the‑world from the outside.

 

Because it assumes a watchdog role, however, possessing no tangible meaning except as a guardian against over‑zealous expressions of First Amendment freedoms of speech, this branch of the strawberry geranium is likely to continue to experience an identity crisis, until scholars and courts become more honest about its status and acknowledge that it has become something quite different than an ordinary privacy tort. It has elevated itself close to the constitutional status which Louis Brandeis originally envisioned for it.

 

V. FUNDAMENTAL‑DECISION PRIVACY

 

The most controversial, boldly‑constitutional species of privacy began to take form out of bits and shreds in 1965, with the decision of the Supreme Court in Griswold v. Connecticut. [FN266] Griswold exploded the world of individual liberties wide open by holding that an 80‑year‑old Connecticut law forbidding the use and distribution of contraceptives violated the right of "marital privacy" [FN267] embodied‑‑somewhere‑‑in the Constitution. Six members of the Court agreed that the privacy was a fundamental right. Yet where this right took up residence in the text of the Constitution was a source of splintered opinions. [FN268] Justice *1392 Douglas, who authored the opinion for the Court, offered his now‑famous explication that the "right to privacy" could be found drifting amidst the "penumbras" of the First, Third, Fourth, Fifth and Ninth Amendments. [FN269] Other Justices quarrelled over its source, but a majority of the Court found a fundamental right of privacy broad enough to protect the ability of married couples to decide what to do in the privacy of their marital bedrooms, without the intruding nose of the state of Connecticut.

 

In the single most noteworthy and (simultaneously) notorious decision of the twentieth century, the Court extended its privacy logic in 1973 in Roe v. Wade [FN270] and created a species of privacy unattached to specific guarantees of the Bill of Rights, now burrowed in the single word "liberty" appearing in the Fourteenth Amendment. [FN271] This substantive right of privacy inhering in the Due Process Clause was "broad enough to encompass a woman's decision whether or not to terminate her *1393 pregnancy." [FN272] Thus, the Court directly flirted with the Lochner bugaboo that Justice Douglas had so assiduously sought to sidestep in Griswold and Poe v. Ullman, [FN273] suggesting that substantive due process was alive and well in the form of a privacy safeguarding certain profound human choices.

 

The leap from Griswold to Roe, which solidified this new species of privacy, was profound. Griswold had played it safe by straddling the line between familiar, constitutionally based notions of privacy‑‑such as privacy in the home (Fourth Amendment privacy), privacy in disclosure of personal information (tort privacy) and privacy in the associational relationship of marriage (First Amendment privacy)‑‑with mere overtures towards a more revolutionary concept of privacy dealing with individual liberties of choice. Because the Connecticut statute at issue had prohibited the "use" of contraceptives, among other things, the Court was able to avoid plummeting into the abyss of Lochner and substantive due process by stacking together all the privacies recognized as legitimate under the Constitution and painting an attractive picture of a natural, amalgamated privacy which protected the sanctity of the home and the marital bedroom.

 

The leap to Roe was a difficult and dangerous one. It could not rely upon the crutch of tried‑and‑true forms of Constitutional privacy, at least not directly. Roe involved the individual decision‑making process itself, not confined to physical boundaries such as homes and bedrooms which were the usual repositories of secrecy and solitude. Although Roe invoked every type of explicit privacy known to the Bill of Rights, it was forced to rest‑‑in the end‑‑squarely upon the Due Process Clause of the Fourteenth Amendment, the single word "liberty" its only claim to a *1394 constitutional mooring. This was the position originally advocated by Justice Harlan in his concurring opinion in Griswold, [FN274] as well as in his impassioned dissent in the earlier contraceptive case of Poe v. Ullman. [FN275] The two‑step leap‑frog from Griswold to Roe thus became the single most significant burst in the history of twentieth century privacy. It was no less dramatic than the original patching together of tort privacy by Warren and Brandeis in 1890, by which bits and scraps of English and Irish common law were assembled together to justify the existence of a right which, before the assembly work, did not exist at all.

 

The privacy of Griswold and Roe is far more intertwined with other types of privacy (previously discussed) than one would suspect from the sharply divided walls of legal literature. To confirm this, one need only re‑read the same standard cases with a different eye. Where did Griswold look for its right of "marital privacy?" Toward Fourth and Fifth Amendment privacy cases such as Boyd v. United States and Mapp v. Ohio, [FN276] as well as the "home is your castle" decision of Lord Camden in Entick v. Carrington. [FN277] Toward First Amendment privacy cases dealing with repose, such as Breard v. Alexandria and Public Utilities Commission v. Pollak. [FN278] Toward associational privacy decisions under the First Amendment, such as NAACP v. Alabama. [FN279] These were blended together with a dormant collection of Fourteenth Amendment "liberty" cases which had escaped the scourge of Lochner‑Skinner v. Oklahoma, [FN280] Meyer v. Nebraska [FN281] and Pierce v. Society of Sisters [FN282]‑‑and from this odd mixture of penumbral guarantees came a right of marital privacy.

 

*1395 It is interesting that Justice Douglas's now‑famous concept of "penumbras," used to build this amalgamated privacy, was not really a novel creation. If one turns to the largely‑unknown dissent of Justice Holmes in Olmstead, directly following the dissent of Justice Brandeis, one can see that Justice Holmes spoke of "penumbras" in describing the locus of Fourth and Fifth Amendment privacy. [FN283] One can at least intelligently infer that Justice Douglas was reading the Brandeis and Holmes dissents in Olmstead, relating to Fourth and Fifth Amendment privacy, at the time he formulated his "penumbral" approach in Griswold, another tribute to the meshing of the species.

 

There were other inter‑connections. Justice Goldberg, who concurred in Griswold to suggest that marital privacy flowed from the Ninth Amendment, relied directly on Brandeis's dissent in Olmstead, stating that Brandeis had "comprehensively summarized" the principles underlying the constitutional guarantee of privacy. [FN284] Even Justice Harlan, the lone member of the Court who sought to hinge Griswold directly on the Due Process Clause of the Fourteenth Amendment, referred back to his dissent in Poe v. Ullman for support. [FN285] That opinion in turn linked due process to those fundamental rights "implicit in the concept of ordered liberty," which in turn‑‑according to Harlan‑‑included Fourth Amendment privacy (citing Brandeis's dissent in Olmstead) and First Amendment privacy (citing Brandeis's dissent in Gilbert v. Minnesota). [FN286] Thus, Griswold was very much an admixture of the species of privacy previously discussed, although rarely viewed this way.

 

Similarly, Roe contained open links to other types of privacy. This was inevitable, really, because it was necessary to seal the gulf between the old "liberty" cases and the new "liberty of choice" which now centered around intimate decisions. Justice Blackmun came to the punch‑line in Roe by invoking constitutional privacy drawn from the First Amendment via Stanley v. Georgia, [FN287] and from the Fourth and Fifth Amendments a la Katz, Boyd and Olmstead, [FN288] and integrating dormant *1396 Fourteenth Amendment liberty cases, including Loving and Skinner. [FN289] Thus, a fourth species was born, with Justice Rehnquist vehemently objecting that this new brand of privacy was not even "a distant relative of the freedom from searches and seizures protected by the Fourth Amendment" upon which the majority partially relied. [FN290] Ironically, the Court had accomplished precisely this sort of hereditary merger.

 

The ingenious thing about Griswold and Roe, in retrospect, was that they succeeded in blending well‑respected constitutional privacy notions‑‑primarily drawing from Fourth and First Amendment cases‑‑with forgotten turn‑of‑the‑ century "liberty" cases under the Fourteenth Amendment and swirled these together to produce a completely new form of privacy dealing with "liberty of choice."

 

The significant questions which present themselves, then, if we are to place species number four of privacy into the framework with other types of previously‑discussed privacy are: What historical forces generated this new species of privacy?; Was it (and is it) constitutionally legitimate?; and What are its distinguishing features such that one can predict the path of its future growth, in conjunction with other species of privacy?

 

It will be argued that, more than any other form of privacy born of the twentieth century, this new brand of privacy (which will be called fundamental‑ decision privacy) was the direct by‑product of technological advance, which created a sphere of personal choice never before imagined by earlier generations of Americans. The result was a pitched battle between citizen and state, as the issue turned into something different than a mere quest for secrecy or solitude; rather, it became a search for a missing piece of the original social contract, with the question being framed: "Who gets to make this fundamental decision; is it me or is it the government?" This significant question mark is what led to anguished battles over issues formerly dormant or noncontroversial in our society, relating to contraception, abortion, homosexuality, the "right‑to‑die" and other volatile subjects. Unlike previous sorts of privacy, which dealt primarily with the ability of citizens to maintain peace and tranquility in their domiciles or regulate the flow of information others might receive about them, privacy under the Fourteenth Amendment dealt much more directly with the subject of American individuality. It required an immediate reassessment, a clarification of the existing social contract embodied in the Constitution, as citizens and government sought to *1397 determine for the first time whether certain fundamental decisions‑‑ never specifically contemplated by humankind, let alone by the Framers of the Bill of Rights in 1791‑‑fell within the sphere of personal autonomy protected by the word "liberty" in the Constitution. Fundamental‑decision privacy was simultaneously the strongest and the weakest because it relied directly upon the pivot of American democracy‑‑i.e., liberty‑‑thus entering the realm of substantive due process, one of the most vilified doctrines in American constitutional law.

 

It was the latter characteristic which immediately raised a cry of "foul" among influential scholars, including John Hart Ely, [FN291] Alexander Bickel [FN292] and Harry Wellington, [FN293] who viewed Roe and its newfangled privacy as a form of social legislation, dredging up long‑ discarded notions of substantive due process which they thought had been discarded with the fall of Lochner. As Professor (later Dean) Wellington of Yale Law School wrote: "The Court could have put it better had it been candid enough to quote Lochner...." [FN294]

 

Was the fundamental‑decision privacy of Roe (and subsequent cases) a re‑ enactment of Lochner? Yes and no, but to the extent Lochner is a pejorative term, mostly no. Both Roe and Lochner located substantive rights (not mere procedural guarantees) within the word "liberty" of the Fourteenth Amendment Due Process Clause. However, there were noteworthy differences. The most obvious was that Lochner dealt with economic rights, while Roe dealt with liberties of a more personal nature. [FN295] This common explanation, however, only scratches the surface. Lochner dealt with economic rights of a specific sort‑‑labor, working hours, health and safety‑‑which traditionally occupied the core *1398 of state police powers. Also, Lochner had collided with the Depression and the New Deal, adding a political spin to its decline. [FN296] Most importantly, however, the 1910 bakery case viewed "liberty" as a repository for virtually every freedom an individual could assert, big or small. It drew no distinction between "economic" or "noneconomic" rights, where such a distinction made a difference. It constructed no wall between garden‑ variety rights, which citizens enjoyed or traded away to society each day, and certain rights that American society deemed basic, irrevocable or fundamental. It can hardly be said that the bakers of Lochner possessed no liberty interest. Indeed, if the issue in Lochner had been whether a citizen has a right to hold a job as a baker at all, the answer might have been different. [FN297] What can be said, in the end, was that the liberty of contract at stake in Lochner was relatively picayune in the overall scheme of the Constitution. [FN298]

 

John Hart Ely, writing in the Yale Law Journal shortly after the decision in Roe, [FN299] concluded that Roe and Lochner were two peas in the same pod, both of them fatally defective because they could point to no mooring in the words of the Constitution. For Ely, the distinction between economic and noneconomic rights was irrelevant; both Roe and Lochner sought to "grant unusual protection to those 'rights' that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them." [FN300]

 

Laurence Tribe, on a different end of the spectrum, was quick to argue that Roe was a legitimate expression of society's morality, which was constantly in a state of flux. [FN301] The Constitution, for Tribe, was a document of an "organic and evolving sort." The new form of privacy introduced in Roe came as a result of the Court "giving structure to the evolution, or rather participating in the structure of the evolution, of *1399 social norms and understandings as they come to find expression in the law." [FN302]

 

In hindsight, the truth about fundamental‑decision privacy is somewhere between the original visions of Ely and Tribe. The new privacy proved not to be a return to Lochner, to the extent that case may be viewed as carte blanche for the Court to invent and insert "liberties" into the text of the Fourteenth Amendment; nor has it amounted to an open‑ended repository for the collective morality of society, as religion and morality spin through a constant state of flux in America. Rather, it will be argued, the fundamental‑ decision privacy developed in Griswold and Roe has become a narrow species designed to clarify and "plug gaps" in the existing social contract. It comes into play, and becomes necessary, where purposely broad constitutional language comes face‑to‑face with unforeseen decision‑making capabilities of citizens‑‑ generally due to unexpected inventions or dramatically altered societal conditions‑‑and the Constitution must inform us whether the government or the citizen possesses the final say.

 

Like the previous three species of privacy discussed, including Brandeis's original privacy tort advanced in 1890, a precise historical catalyst can be identified which jolted fundamental‑decision privacy into existence at that particular juncture of American history. Indeed, it is so obvious that we often ignore the depth and significance of the role of medical technology in shifting American society, during the 1950s and 1960s, in preparing our jurisprudence for a new brand of privacy. The specific technological catalyst, of course, was the unprecedented development of medical sophistication in the area of contraception and abortion. This opened up whole new vistas of choice with respect to the most private of all castles: the body, the human reproductive machinery. In turn was born a "right to be let alone" which shared no counterpart in the earlier campaign of Louis Brandeis. It was a form of "autonomy," as legal philosophers refer to it, the ability of an individual to determine whether or not he or she "will perform act A or undergo an experience E." [FN303] It was a right to be let alone with respect to certain basic life decisions, many of which were not decisions at all in earlier American life.

 

The use of contraceptives in the United States and elsewhere, was certainly nothing new. Crude birth control methods had existed as early as the ancient Chinese, Greek and Egyptian civilizations, when drugs, herbs and camel sputum were used to prevent conception or induce *1400 abortion. [FN304] But progress was slow, and methods were primitive, even into the twentieth century. It was not until 1944‑‑very recent history in terms of civilized society‑‑that scientists first observed the union of a human sperm and ovum under a microscope. [FN305] On the heels of this breakthrough, a rapid succession of medical advances revolutionized the production and success‑rate of contraceptives.

 

In the late 1950s, the pharmaceutical industry in the United States developed spermacides that could be used with or without a diaphragm with a respectable success‑rate. [FN306] More significant was the introduction of contraceptives‑‑such as the 19‑nor steroid, chemically related to the female sex hormone (progesterone)‑‑which were first tested in the United States in the mid‑1950s and officially approved for commercial distribution by the Food and Drug Administration in 1960. [FN307] A widely‑acclaimed study by Gregory Pincus and others in 1958 quickly confirmed the success of this simple revolutionary pill. [FN308] Pregnancy rates with new oral contraceptives were shown to range from 0.4 to 2.7, an almost negligible risk compared to the old methods of birth control. [FN309]