Malcolm Rivera
The right to privacy is an important element of various legal traditions, aiming to protect individuals from governmental and private actions that may invade their privacy. While the US Constitution does not explicitly mention the right to privacy, it is inferred from the First, Third, Fourth, Fifth, and Ninth Amendments. The Fourteenth Amendment has also been used by the Supreme Court to extend the right to privacy in cases such as Roe v. Wade, Eisenstadt v. Baird, and Lawrence v. Texas. The right to privacy is a complex and evolving concept, influenced by the rise of new technologies and societal changes. It is recognised in over 185 national constitutions and continues to be a subject of international debate, especially in the context of government surveillance and national security.
| Characteristics | Values |
|---|---|
| Number of national constitutions mentioning the right to privacy | Over 185 |
| Privacy in the US Constitution | Not explicitly mentioned |
| Privacy in the First Amendment | Mentioned in Justice Louis D. Brandeis' dissent in Gilbert v. Minnesota (1920) |
| Privacy in the Fourth and Fifth Amendments | Mentioned by Justice Brandeis in Olmstead v. United States (1928) |
| Privacy in the Thirteenth Amendment | Implied by Justice William O. Douglas in Griswold v. Connecticut (1965) |
| Privacy in the Fourteenth Amendment | Mentioned in Roe v. Wade, Eisenstadt v. Baird (1971), and Lawrence v. Texas (2003) |
| Right to privacy in New Zealand | Recognized in Hosking v. Runting (2003) and C v. Holland (2012) |
| Right to privacy in India | Recognized in 2018, decriminalizing homosexuality |
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What You'll Learn
Privacy rights and the First Amendment
The right to privacy is an element of various legal traditions that aims to restrict governmental and private actions that threaten the privacy of individuals. While the US Constitution does not explicitly mention a right to privacy, the Supreme Court has interpreted it to include certain privacy rights.
In Griswold v. Connecticut (1965), the Supreme Court found a right to privacy, derived from the penumbras of other explicitly stated constitutional protections. Justice William O. Douglas placed this right to privacy in a "'penumbra' cast by the First, Third, Fourth, Fifth, and Ninth Amendments". The Court used the personal protections expressly stated in these amendments to find that there is an implied right to privacy in the Constitution. The Court's ruling created a "'zone of privacy' that protects against government intrusion.
In Eisenstadt v. Baird (1971) and Lawrence v. Texas (2003), the Supreme Court extended the right to privacy by relying on the Fourteenth Amendment, rather than penumbras. In Eisenstadt, the Court held that the right to privacy "inheres in the individual, not the marital couple", and extended the right to purchase contraceptives to unmarried couples. In Lawrence, the Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in ... sexual conduct."
In Roe v. Wade, the Supreme Court used the right to privacy, derived from the Fourteenth Amendment, to recognize an individual's right to have an abortion. However, this decision was later overturned by the Court in the Dobbs case, removing abortion rights from the broader right to privacy.
Privacy rights often clash with First Amendment rights. For example, individuals may claim a privacy right to be "let alone" when the press reports on their private life or follows them in an intrusive manner. In Federal Communications Commission v. Pacifica Foundation (1978), the Court upheld a ban on indecent speech on the radio, as it invaded the privacy of the home. On the other hand, 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.
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The right to privacy in the US Constitution
The right to privacy is an important element of various legal traditions, including the US Constitution. While the US Constitution does not explicitly mention a right to privacy, the Supreme Court has inferred this right from the language of the First, Third, Fourth, Fifth, and Ninth Amendments.
In the 1880s, legal scholars began to argue that the common law of torts, which deals with injuries to private persons or property, also protected against government invasion of privacy. This idea was further developed in the 1890 article "The Right to Privacy" by Samuel D. Warren and Louis D. Brandeis, who later became a justice on the US Supreme Court. They argued for a right to privacy, or as Brandeis defined it, "the right to be let alone." This concept inspired some state courts to interpret the civil law of torts as protecting the right to privacy.
In the 1920s, the Supreme Court began to consider a constitutional right to privacy. In the case of Olmstead v. United States (1928), Justice Brandeis disagreed with the majority decision that wiretapping did not require a warrant, arguing that the framers of the Fourth and Fifth Amendments intended to protect Americans' privacy and their right "to be let alone." The Supreme Court's ruling in this case established that privacy was a constitutionally protected right.
In Griswold v. Connecticut (1965), Justice William O. Douglas placed a right to privacy in the "'penumbra' cast by the First, Third, Fourth, Fifth, and Ninth Amendments. The Court found that these Amendments created a "'zone of privacy.'" This right to privacy was initially narrowly applied to married couples' right to purchase contraceptives. However, in Eisenstadt v. Baird (1971), the Court extended this right to unmarried couples, finding that "the constitutionally protected right of privacy inheres in the individual, not the marital couple."
The right to privacy has also been used to protect individuals' private lives, as in Lawrence v. Texas (2003), where the Court extended the right to privacy to "persons of the same sex [who choose to] engage in ... sexual conduct." Additionally, in Roe v. Wade, the Court used the right to privacy derived from the Fourteenth Amendment to protect an individual's right to have an abortion. However, this decision was later overturned in Dobbs, removing abortion from the broader right to privacy.
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Privacy rights and the Fourth Amendment
The right to privacy is an important element of legal traditions, aiming to restrict actions by governments and private entities that may threaten an individual's privacy. Notably, the right to privacy is not explicitly mentioned in the US Constitution, but it has been inferred from the language of several amendments, including the Fourth Amendment.
The Fourth Amendment, part of the Bill of Rights, protects people from unreasonable searches and seizures by the government. It requires that any search warrant be based on probable cause and be accompanied by a specific description of the items to be seized and the location to be searched. Over time, the interpretation of the Fourth Amendment has evolved to address new technologies, such as wiretapping and electronic surveillance, which can pose significant threats to privacy.
In the 1928 case of Olmstead v. United States, Justice Brandeis disagreed with the majority decision that wiretapping did not require a warrant as it involved no physical trespass. He argued that the Fourth Amendment was intended to protect Americans' privacy and their thoughts, beliefs, emotions, and sensations. Brandeis asserted that the government had the potential to invade privacy through modern means, such as wiretapping, which could reveal intimate details without physical intrusion. His dissent in this case helped establish the concept of a ""right to be let alone,", recognising privacy as a constitutionally protected right.
The Supreme Court has continued to interpret the Fourth Amendment in a way that safeguards privacy rights. In Katz v. United States (1967), the Court ruled that wiretapping without a warrant violated the Fourth Amendment, as it interfered with an individual's reasonable expectation of privacy. This decision extended privacy protections beyond physical spaces and recognised the importance of safeguarding private communications.
While the Fourth Amendment provides a foundation for privacy rights, the Supreme Court has also relied on other amendments, such as the Fourteenth Amendment, in landmark cases involving privacy. For example, in Roe v. Wade, the Court used the Fourteenth Amendment to protect an individual's right to abortion, citing the right to privacy and personal liberty. Additionally, in Eisenstadt v. Baird (1971), the Court extended the right to privacy to unmarried couples' decisions regarding contraceptives. These cases demonstrate how the Supreme Court has interpreted and expanded privacy rights through various amendments, including the Fourth Amendment.
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Privacy rights and the Fifth Amendment
The right to privacy is an element of various legal traditions that aims to restrict governmental and private actions that threaten the privacy of individuals. This right is inherently intertwined with information technology. In the United States, the Supreme Court has interpreted the right to privacy as deriving from the Fourteenth Amendment, which guarantees due process and personal liberty.
The Fifth Amendment protects the right to private property in two ways. Firstly, it states that a person may not be deprived of their property by the government without "due process of law", or fair procedures. Secondly, it sets limits on the government's power of eminent domain, requiring that any taking of private property for public use must be accompanied by "just compensation" at market value.
In addition to the Fifth Amendment, the Supreme Court has also relied on other amendments to protect privacy rights. In Griswold v. Connecticut, the Court found an implied right to privacy in the Constitution by interpreting the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments together to create a “zone of privacy".
The right to privacy has been used in several important Supreme Court cases. In Eisenstadt v. Baird (1971), the Court extended the right to purchase contraceptives to unmarried couples, finding that "the constitutionally protected right of privacy inheres in the individual, not the marital couple." In Lawrence v. Texas (2003), the Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in ... sexual conduct." And in Roe v. Wade, the Court used the right to privacy to protect an individual's right to have an abortion, though this was later overturned in Dobbs.
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Privacy rights and the Fourteenth Amendment
The Fourteenth Amendment (Amendment XIV) to the United States Constitution, adopted on July 9, 1868, is considered one of the most consequential amendments. It addresses citizenship rights and equal protection under the law at all levels of government. The amendment was a response to issues affecting freed slaves following the American Civil War. The most frequently litigated part of the amendment is its first section, which formally defines United States citizenship and protects various civil rights from being denied or abridged by any state law or state action.
The Fourteenth Amendment has been used by the Supreme Court to extend privacy rights in several landmark cases. In Griswold v. Connecticut (1965), the Court found a right to privacy, derived from the penumbras of other explicitly stated constitutional protections. While the Court's decision in Griswold narrowly established a right to privacy for married couples regarding contraceptive sales, Justice Harlan's concurring opinion found a right to privacy derived from the Fourteenth Amendment.
In Eisenstadt v. Baird (1971), the Supreme Court extended the right to purchase contraceptives to unmarried couples, finding that "the constitutionally protected right of privacy inheres in the individual, not the marital couple." This decision was based on the Fourteenth Amendment's guarantee of due process.
In Roe v. Wade (1973), the Supreme Court recognized a substantive due process right to abortion, derived from the Fourteenth Amendment's concept of personal liberty and restrictions on state action. However, this holding was later overturned in Dobbs v. Jackson Women's Health Organization (2022).
In Lawrence v. Texas (2003), the Supreme Court used the Fourteenth Amendment to extend privacy rights to "persons of the same sex [who choose to] engage in... sexual conduct." This decision decriminalized homosexuality and legalized same-sex sexual intercourse between two consenting adults in private.
Privacy rights are inherently intertwined with information technology, and violations of privacy depend on context. The right to privacy has been recognized in various international declarations, such as the Universal Declaration of Human Rights and the tort of privacy in New Zealand's Privacy Act 2020.
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Frequently asked questions
Although the US Constitution does not explicitly mention a right to privacy, two rights have been inferred from the language of the First, Third, Fourth, Fifth, and Ninth Amendments. These are the right to privacy in the home and the right to privacy of personal information.
In the 1920 case of Gilbert v. Minnesota, Justice Louis D. Brandeis stated in his dissent that the First Amendment protected the privacy of the home. In 1965, Justice William O. Douglas placed a right to privacy in a “penumbra” cast by the First, Third, Fourth, Fifth, and Ninth Amendments in Griswold v. Connecticut. In this case, the Supreme Court found a right to privacy for married couples regarding the right to purchase contraceptives.
In Eisenstadt v. Baird (1971), the Supreme Court extended the right to privacy to unmarried couples' right to purchase contraceptives. The Court found that "the constitutionally protected right of privacy inheres in the individual, not the marital couple." In Roe v. Wade, the Court used the right to privacy derived from the Fourteenth Amendment to extend the right to encompass an individual's right to have an abortion.
