The “right to privacy” was first established in

The federal Constitution does not explicitly protect privacy. However, several of the amendments in the Bill of Rights ensure and protect individual decision making and autonomy from governmental intrusion. Thus modern interpretations of the Constitution by the US Supreme Court have created a right to privacyThe Constitution’s protection of individual autonomy against government intrusion.. This right is considered fundamental and subject to strict scrutiny; only a compelling government interest can justify a statute encroaching on its protections. Many states include an explicit right to privacy in their state constitutions.

US Supreme Court precedent has held that the right to privacy comes from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. The First Amendment protects the right to speak freely, assemble peacefully, and worship according to individual choice. The Third Amendment prohibits the government from forcing individuals to quarter, house, or feed soldiers. The Fourth Amendment prevents the government from unreasonably searching or seizing an individual or an individual’s property. The Fifth and Fourteenth Amendments provide due process of law before the government can deprive an individual of life, liberty, or property. The Ninth Amendment states that rights not explicitly set forth in the Constitution may still exist. Taken together, these amendments indicate that the Constitution was written to erect a barrier between individuals and an overly intrusive and regulatory government. In modern society, this right to privacy guarantees the right to use birth control, the right to an abortion, and the right to participate in consensual sexual relations.

The right to privacy was first established in the US Supreme Court case of Griswold v. Connecticut, 381 U.S. 479 (1965). In Griswold, the defendants, Planned Parenthood employees, were convicted of prescribing birth control as accessories under two Connecticut statutes that criminalized the use of birth control. The Court found the statutes unconstitutional, holding that the First, Third, Fourth, Fifth, and Ninth Amendments created a “penumbra” of unenumerated constitutional rights, including zones of privacy. The Court stated that marital privacy, especially, deserved the utmost protection from governmental intrusion. The Griswold case set the stage for other fundamental privacy rights related to intimacy, including the right to an abortion and the right to consensual sexual relations.

The right to an abortion was set forth in the seminal US Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973). In Roe, which examined a Texas statute criminalizing abortion, the Court held that every woman has the right to a legal abortion through the first trimester of pregnancy. In the aftermath of the Roe decision, more than half of the nation’s state laws criminalizing abortion became unconstitutional and unenforceable. The Court held that state government has a legitimate interest in protecting a pregnant woman and her fetus from harm, which becomes a compelling interest when she has reached full term. However, during the first trimester, health concerns from abortion do not justify the erosion of a woman’s right to make the abortion decision. The Court thereafter struck down the Texas antiabortion statute as overbroad under the Fourteenth Amendment due process clause. Specifically, the Court held that during the first trimester of pregnancy, the abortion decision must be left to the pregnant woman and her attending physician. In a recent decision post-Roe, the Court upheld a federal statute criminalizing partial-birth abortion, on the grounds that it was not void for vagueness or overbroad under the Fifth Amendment due process clause.

Even in the aftermath of Roe v. Wade, courts were reluctant to interfere with states’ interests in enacting and enforcing statutes that criminalized sexual conduct. In Bowers v. Hardwick, 478 U.S. 186 (1986), the US Supreme Court upheld a Georgia statute that made it a crime to engage in consensual sodomy. The Court stated that there is no fundamental right to engage in sodomy and that the history of protecting marriage and family relationships should not be extended in this fashion. Many years later, the Court changed its stance and overruled Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, a Texas statute criminalizing homosexual sodomy was attacked on its face and as applied to two men who were discovered engaging in sex in their bedroom during a law enforcement search for weapons. The Lawrence decision rested on the due process clause of the Fourteenth Amendment. The Court held that intimate choices are a form of liberty protected by the due process clause, whether or not consenting individuals are married. The Court thereafter struck down the Texas sodomy statute because it was not justified by a sufficient government interest.

Most states have statutes criminalizing consensual incest, which is sexual intercourse between family members who cannot legally marry. If an individual attacks a consensual incest statute as unconstitutional under the right to privacy, the court will balance the state’s interest in preventing harm to an infant, such as birth defects, with an individual’s interest in having consensual sexual intercourse with a family member, using strict scrutiny. If the court finds that the government interest is compelling, it can uphold the statute as long as it is not vague or overbroad.

Figure 3.6 The Right to Privacy

Key Takeaways

• The constitutional amendments supporting the right to privacy are the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.
• The right to privacy in the Constitution protects an individual’s right to use contraceptives, to receive an abortion through the first trimester, and to engage in consensual sexual relations.

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. A state statute prohibits inmates in state prison from engaging in consensual sodomy. An inmate is prosecuted under the statute. How will a court determine whether this statute is constitutional? Read the statute on which this exercise is based: California Penal Code § 286(e), http://law.onecle.com/california/penal/286.html.
2. Read Planned Parenthood v. Casey, 505 U.S. 833 (1992). In Casey, Pennsylvania modified its abortion statute to include a twenty-four-hour waiting period and informed consent for minors. Did the US Supreme Court uphold the Pennsylvania abortion statute? The case is available at this link: http://www.law.cornell.edu/supct/html/91-744.ZS.html.

Privacy generally refers to an individual’s right to seclusion, or right to be free from public interference. Often privacy claims clash with First Amendment rights. For example, individuals may assert a privacy right to be “let alone” when the press reports on their private life or follows them around in an intrusive manner on public and private property. There is no explicit mention of privacy in the U.S. Constitution, but in his dissent in Gilbert v. Minnesota (1920), Justice Louis D. Brandeis, pictured here, nonetheless stated that the First Amendment protected the privacy of the home. In Griswold v. Connecticut (1965), Justice William O. Douglas placed a right to privacy in a “penumbra” cast by the First, Third, Fourth, Fifth, and Ninth Amendments. (Image via Library of Congress, circa 1916, public domain)

Privacy generally refers to an individual’s right to seclusion, or right to be free from public interference. Often privacy claims clash with First Amendment rights. For example, individuals may assert a privacy right to be “let alone” when the press reports on their private life or follows them around in an intrusive manner on public and private property.

Right to privacy found in the Constitution

Much like liberty, justice, and democracy, privacy appears to be an easy concept to understand in the abstract. Defining it in a legal context, however, is difficult and complicated by the fact that there are constitutional rights to privacy and also common law or statutory rights of privacy.

There is no explicit mention of privacy in the U.S. Constitution, but in his dissent in Gilbert v. Minnesota (1920), Justice Louis D. Brandeis nonetheless stated that the First Amendment protected the privacy of the home. In Griswold v. Connecticut (1965), Justice William O. Douglas placed a right to privacy in a “penumbra” cast by the First, Third, Fourth, Fifth, and Ninth Amendments.

Right to privacy found in common law

Initially, the common law upon which the U.S. Constitution, state constitutions, and state laws are based, protected only property rights. During the 1880s, however, legal scholars began to theorize that the common law of torts, which involves injuries to private persons or property, also protected against government invasion of privacy.

In the late 1880s, Judge Thomas Cooley wrote in A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract that people had a right to be let alone. Boston lawyers and former Harvard Law School classmates Samuel D.Warren and Louis D. Brandeis elaborated on this concept in their seminal 1890 article in the Harvard Law Review, “The Right to Privacy.” They argued that the common law’s protection of property rights was moving toward the recognition of a right to be let alone. Their article inspired some state courts to begin interpreting the civil law of torts to protect a right of privacy.

Later, Dean William Prosser, a torts law expert, in an influential 1960 article in the California Law Review wrote that there are four distinct types of privacy torts:

Sometimes privacy tort claims conflict with First Amendment free speech or free press claims. For example, the press may publish sensitive details of a person’s private life and be charged with a public disclosure of private facts tort.

Supreme Court has decided First Amendment privacy cases

The Court has rendered a number of decisions involving First Amendment freedoms and privacy. In Packer Corporation v. Utah (1932), Justice Brandeis suggested that the Court should consider the conditions under which privacy interests are intruded upon. His suggestion foreshadowed the Court’s later development of the distinction between privacy interests in the home and in public.

The First Amendment protection of privacy is greatest when the invasion of privacy occurs in the home or in other places where an individual has a reasonable expectation of privacy. For example, despite the fact that obscenity is not protected by the First Amendment, in Stanley v. Georgia (1969) the Court struck down a Georgia law prohibiting the possession of obscene materials in the home. Justice Thurgood 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.”

In Federal Communications Commission v. Pacifica Foundation (1978), the Court upheld a Federal Communications Commission ban on indecent speech on the radio, because radio broadcasts invade the privacy of the home, it is difficult to avoid them, and children have access to them.

Little First Amendment protection of privacy in public

In public, on the other hand, there is little or no First Amendment protection of privacy. In Cohen v. California (1971), the Court held that the privacy concerns of individuals in a public place were outweighed by the First Amendment’s protection of speech, even when the speech included profanity in a political statement written on a man’s jacket.

Freedom of association is strongest First Amendment protection for privacy

Court decisions involving privacy rights are sometimes based on more than one First Amendment provision, and it can be difficult to differentiate privacy cases on the basis of a specific First Amendment right. In general, the strongest First Amendment protection for privacy is in the right of freedom of assembly and, by judicial interpretation, freedom of association. That protection, however, is not absolute: organizations whose goals are unlawful are not protected.

In De Jonge v. Oregon (1937), the Court declared that the right of people peaceably to assemble does not extend to associations that incite violence or crime. The Court in NAACP v. Alabama (1958) ruled that freedom of assembly includes the right to freedom of association and acknowledged that individuals are free to associate for the collective advocacy of ideas. Compelled disclosure of the NAACP’s membership lists, which was at issue in the case, would in effect suppress the Association’s ability to do business and hinder the group’s members from expressing their views.

Privacy rights usually take back seat to media rights

Although the press does not have additional First Amendment rights that the public does not also enjoy, privacy rights ordinarily take a back seat to the media’s right to gather and publish truthful information that is available in public documents. For example, in Cox Broadcasting Corp. v. Cohn (1975) the Court ruled that freedom of the press interests in publishing publicly available information about the commission of a crime outweighed privacy rights. And in Bartnicki v. Vopper (2001), the Court upheld the right of a radio station to broadcast a private telephone conversation involving public persons and concerning political matters that was illegally intercepted by an anonymous third party.

Technology advances and national security interests are making privacy rights more complex

Advances in technology, including the ubiquity of the Internet, are far outpacing government’s ability to address privacy issues in these new and ever-changing contexts. To make matters even more complex, national security interests are now entangled in this web of technological sophistication.

National security concerns in the wake of the September 11, 2001, destruction of the World Trade Center led to passage of the USA Patriot Act. Parts of the act expand government power to conduct surveillance of Americans. Although it prohibits investigations of Americans’ activities that are protected by the First Amendment, some government actions have been challenged in the courts as violating First Amendment rights. Early cases involved the National Security Agency’s wiretapping practices and a gag order provision that prevented recipients of national security letters from revealing they had received such a letter. It will take future litigation to determine the proper balance between privacy and national security.

This article was originally published in 2009. Dr. Judith Ann Haydel (1945-2007) was a political science professor at the University of Louisiana-Lafayette and McNeese State University.

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In NAACP v. Alabama, 357 U.S. 449 (1958), the Supreme Court unanimously ruled that the First Amendment protected the free association rights of the National Association for the Advancement of Colored People (NAACP) and its rank-and-file members. When this case was decided, the NAACP was one of the few, if not only, active civil rights organizations in the South. Thus, this case allowed the only operative civil rights organization to exist in the South, with a minimum level of protection from intimidation. This image shows a Montgomery, Alabama branch, NAACP meeting, about 1947. (Image via Library of Congress)

In NAACP v. Alabama, 357 U.S. 449 (1958), the Supreme Court unanimously ruled that the First Amendment protected the free association rights of the National Association for the Advancement of Colored People (NAACP) and its rank-and-file members.

Alabama could probe organizations like NAACP that were not officially registered with the state

The case challenged Alabama’s foreign corporation statute, which gave state authorities the power to probe unincorporated organizations or organizations that were not officially registered with the state. Although the NAACP established a local affiliate in Alabama as early as 1918 and created a regional office in the state in 1951, it was officially incorporated at its national office in New York.

NAACP handed over business records but refused to provide names of rank-and-file members

Beginning in 1956, in response to Brown v. Board of Education (1954), Alabama authorities used the foreign corporation law aggressively to investigate the NAACP. The civil rights organization complied with the state’s initial request to hand over its business records, including its charter and list of organizational officers and staff. However, because of confidentiality and potential reprisal attacks, the NAACP refused to hand over its lists of rank-and-file members.

The NAACP’s legal team, led by Robert L. Carter, a future U.S. district court judge, argued that publicizing the lists would invite repression and economic reprisals against NAACP members. Civil rights activists believed this would dissuade present members and potential recruits from associating with the organization, which violated their constitutional rights of association and assembly. An Alabama circuit court levied a fine against the NAACP and threatened additional penalties if it continued to withhold the lists; Alabama’s Supreme Court first dismissed the NAACP suit on the basis that its allegations were insufficient and then rejected another appeal on procedural grounds.

Court ruled that First Amendment freedom of association applied to the states

Justice John Marshall Harlan II issued the opinion for the Court, explaining that the right of association and assembly, although spelled out in the First Amendment, “is [also] an inseparable aspect of the ‘liberty’ ” that is protected by the due process clause of the Fourteenth Amendment. Accordingly, the Supreme Court’s decision expanded the scope of the rights of association and assembly to prevent states such as Alabama from discouraging citizens from participating in groups that were engaged in lawful and ethical activities.

Prior to this case the Court supported efforts by federal and state governments to investigate organizations that were alleged to be involved in subversive and unlawful activities. In two decisions, New York ex rel. Bryant v. Zimmerman (1928) and Dennis v. United States (1951), the Court had ruled in favor of government efforts to curtail the rights of assembly and speech of the Ku Klux Klan (KKK) and the Communist Party.

Court said NAACP did not cause harm to government or society; allowed only civil rights organization in the South to exist

The NAACP case differed because the type of activities it was involved in did not cause harm to the government or society. Harlan stated that unlike the KKK in the Zimmerman case, the NAACP complied with much of the government’s request to hand over its business records. Membership lists, however, had to remain confidential to protect its members from unlawful attacks.

When this case was decided, the NAACP was one of the few, if not only, active civil rights organizations in the South. Thus, this case allowed the only operative civil rights organization to exist in the South, with a minimum level of protection from intimidation.

This article was originally published in 2009. Dr. Sekou Franklin is an Associate Professor in the Department of Political Science at Middle Tennessee State University. He is the author of After the Rebellion: Social Movement Activism and Popular Mobilization among the Post-Civil Rights Generation (NYU Press, 2014), co-author of Losing Power: African Americans and Racial Polarization in Tennessee Politics (University of Georgia Press, 2020), and editor of State of Blacks in Middle Tennessee (Urban League of Middle Tennessee, 2010/2011). Currently, he is the President of the National Conference of Black Political Scientists.

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Sweezy v. New Hampshire (1957) stands as the first U.S. Supreme Court case to expound upon the concept of academic freedom though some earlier cases mention it.

Most constitutional academic freedom issues today revolve around professors’ speech, students’ speech, faculty’s relations to government speech, and using affirmative action in student admissions. 

Although academic freedom is regularly invoked as a constitutional right under the First Amendment, the Court has never specifically enumerated it as one, and judicial opinions have not developed a consistent interpretation of constitutional academic freedom or pronounced a consistent framework to analyze such claims.