What Are the Basic Issues in Right to Privacy, and Are There Privacy Laws?

Over 150 constitutions across the globe have mentioned the right to privacy, and the United Nations adopted the Universal Declaration of Human Rights in 1948, with many people interpreting article 12 of the international document as the right to privacy. But our Due Process clause recognizes that government power must be curtailed and that all citizens have a universal, constitutionally protected, reasonable expectation of privacy.

The “right to privacy” protections has a long history in the United States, with the Supreme Court recognizing it in 1965 in Griswold v. Connecticut. However, even before Griswold v. Connecticut, Louis Brandeis (before he became the Supreme Court justice) wrote an article about the right to privacy, published in Harvard Law Review, where he showed strong support for it.

Basic Law Pertaining to the Right to Privacy

There are two aspects of the right to privacy and includes the following:

• The basic law of privacy that allows victims to pursue damages for unlawful privacy invasion

• The constitutional right to privacy allows citizens protection from unlawful governmental invasion.

There is a basic or general law of privacy that includes the following:

• Right to be free from unwarranted publicity

• Right to be free of exploitation of personality

• Right to be free of private affairs made public

• Right to be free of wrongful intrusion that could cause mental suffering or humiliation.

Under the common law, an aggrieved party can pursue a lawsuit against a person who unlawfully invades their private affairs, publicizes their confidential information, portrays them in a false light, or appropriates their name for personal gain.

Some states do not have common law right of privacy but statutes that protect their citizens from invasion. These statutes punish others for using another’s name or picture for advertisements without their consent.

In such states, the statutes offer injunctive relief, and a victim may be able to recover damages from individuals who use their name and picture for advertising or trade purposes without consent.

US Constitution and Privacy Protection

Although no specific law pertains to privacy rights in the United States Constitution, the Supreme Court has found several Amendments that imply rights to privacy.

These sovereign, “God-granted rights,” include:

• First Amendment: The First Amendment allows anyone to choose any religion without coercion or influence from others.

• Third Amendment: It forbids the forcible housing of military personnel in a citizen’s home and protects the citizen’s privacy on private property.

• Fourth Amendment: Also known as the privacy amendment, this protects people in their personal autonomy, and from unreasonable searches and seizures by the government.

• Fifth Amendment: It protects private information by guaranteeing the right to refuse to answer questions to avoid incriminating oneself.

• Ninth Amendment: Part of the Bill of Rights, the Ninth Amendment negates the expansion of governmental powers and protects citizens’ right to privacy.

• Fourteenth Amendment: The first thirteen amendments preserve a person’s autonomy. The Fourteenth Amendment prevents states from introducing laws that would abridge the privileges or immunities of citizens of the United States.

Violation of the Right to Privacy

Invasion of privacy translates to revealing something private to the public and is an intrusion. Under the law of privacy, there are four types of invasion, and these include:

• The unreasonable intrusion of solitude
• Public disclosure of private facts
• Appropriation of another’s name
• Unreasonable publicity of a person placing them in a false light.

Unreasonable Intrusion of Solitude

The act must be offensive to a reasonable person to constitute an invasion of privacy.

In Melvin v. Burling, the defendant ordered goods and had them delivered to the plaintiff’s home, resulting in creditors asking Melvin to pay for the goods he had not ordered. Melvin sued Burling for the unreasonable intrusion of solitude, as the intrusion caused Melvin pain and suffering.

The court ruled in favor of Melvin, stating that the defendant violated the plaintiff’s expectations of privacy and the intrusion was highly offensive, causing Melvin anguish and suffering.

Public Disclosure of Private Facts

Public disclosure of another person’s private life is an invasion of privacy if it is offensive and is not a legitimate public concern.

A person may be able to take legal action against someone who publicizes their private life if they can establish the following three elements:

• The private facts or affairs must be a public disclosure.
• The disclosed facts should be private and not public facts.
• The facts made public must be offensive to a reasonable person.

In the case of Peterson v. Moldofsky, the defendant, who previously was involved in a sexual encounter with the plaintiff, recorded the plaintiff having sexual activities with other individuals and sent the videos and pictures to the plaintiff’s mother, current lover, and office colleagues.

The plaintiff sued the defendant based on invasion of privacy, and the court ruled in favor of the plaintiff, stating that the defendant invaded the plaintiff’s privacy as they published information about the plaintiff’s private life to the public and is not a legitimate concern to the public.

Appropriation of Another’s Name

One who uses another’s name or likeness to their advantage is an invasion of the other person’s privacy. However, using certain characteristics of the person does not create grounds for action. 

In the case of Allen v. National Video, Inc., the actor Woody Allen sued National Video for creating a video ad with a celebrity impersonator, Phil Boroff, that looked like Woody Allen, claiming Boroff violated his statutory right to privacy. 

However, the court ruled that there must be three elements that the plaintiff must satisfy:

1. Use of the name, picture, or portrait
2. For commercial or trade purposes
3. Without the plaintiff’s permission.

In Allen v. National Video, Inc, the judge ruled in favor of National Video, stating that merely suggesting certain characters of a person is not actionable under the law.

Mere incidental use of a person’s name or picture is also not actionable, as the name must be meaningful use to create grounds for a cause of action.

Unreasonable Publicity in False Light

A person may be able to pursue legal action for unreasonable publicity in a false light by proving the following elements:

• A publication made to a third party
• The publication misrepresents the person
• The misrepresentation is offensive to a reasonable person.

In the case of Cantrell v. Forest City Publishing Company, a local reporter, Joseph Eszterhas, covered the funeral of Melvin Cantrell, one of the 43 people killed after a bridge collapsed in 1967.

Five months after the incident, Joseph Eszterhas did a follow-up interview with the surviving children of the Cantrell family without the mother, Margaret Cantrell, present. The article published had several inaccuracies about the family and their living status, prompting Margaret Cantrell to sue the publishing company under the “false light” theory of invasion of privacy.

The Supreme Court ruled that the defendant depicted the plaintiff in a false light in the public eye by reporting inaccuracies in the plaintiff’s mental health and well-being. According to the court, the defendant made inaccuracies about the plaintiff from a follow-up interview without the plaintiff present.

Cases Where the Court Extended the Right to Privacy

Let’s look at the three most prolific cases where the court extended the right to privacy.

Eisenstadt v. Baird (1971)

A Massachusetts law prevented the distribution of contraceptives to unmarried people to prevent pregnancy. At Boston University, a lecturer, William Baird, distributed contraceptives to an unmarried teacher, making it a crime under state law.

Baird was convicted but filed an appeal resulting in a partial overturn. Baird still faced conviction for distributing contraceptives, so he filed a petition which the Federal District Court refused, forcing Baird to appeal once again.

In Eisenstadt v. Baird, the Supreme Court knocked down the state law, stating that it violated the Equal Protection Clause. The apex court’s decision extended individuals’ right to privacy, established the unmarried individual’s right to purchase contraceptives, and effectively legalized pre-marital sex in the country.

Lawrence v. Texas

In 1988, John Geddes Lawrence Jr was at his apartment partaking in sexual activity with another man when his ex-boyfriend called the Sheriff Department and reported a man with a weapon at the apartment. 

When Sheriff reached the apartment, they saw the two men conducting sexual activities, which was against the state’s sodomy laws at the time. The Sheriff charged both men with a misdemeanor, but Lawrence appealed the sentences stating that the sodomy laws were unconstitutional.

In Lawrence v. Texas, the Supreme Court extended the right to privacy through the Fourteenth Amendment, stating that the state cannot control the individual’s private lives and their right to liberty gives them the full right to engage in private sexual conduct without government intervention.

Roe v. Wade

In 1969, a woman, Jane Roe, was pregnant with her third child, but she wanted an abortion. However, Texas law at the time did not allow for one, prompting Roe to file a lawsuit against the local district attorney stating that the Texas law was unconstitutional. 

In 1973, the Supreme Court upheld that the Fourteenth Amendment’s concept of personal liberty provides a fundamental right to privacy, which ensures the protection of a pregnant woman’s right to abortion. However, in 2022, the court overruled the Roe decision in Dobbs v. Jackson Women’s Health Organization, stating that the constitution does not confer a right to abortion.

The right to privacy is continuously evolving, and many attorneys believe that the case law will evolve with the recent Supreme Court decisions. However, our constitutional heritage rebels against the idea of giving the state and federal government the right to control our minds and actions.

Whatever decision the courts make will always revolve around the constitution, whether it is the first amendment, the fourteenth amendment, or any amendment in between. There is no particular federal legislation pertaining to the right to privacy which can make such cases difficult to fight.

National Security Interests Conflicting with the Right to Privacy

National security interests conflict with the citizen’s right to privacy, especially after the 9/11 incident that led to the USA Patriot Act, which expanded the government’s power to conduct surveillance of Americans. Some governmental intrusion acts have been challenged in court for violating First Amendment rights.

California was the first state to introduce data protection laws that led to the California Consumer Privacy Act. Although there are laws that pertain to the rights of privacy, the evolution of technology makes it challenging to understand what type of private information can be collected and used.

Supreme Court Landmark Case for Seizing Cell Phone During Arrests

In the landmark case Riley v. California, the United States Supreme Court found that it is unconstitutional to search and seize digital content on cell phones during arrests without a warrant. Before Riley v. California, there was a case, Chimel v. California, where the court ruled that the police had the authority to search areas close to the arrested person without a warrant if they arrested them.

In the case of Riley, the Supreme Court judge ruled that the contents of a person’s cell phone do not threaten an officer’s safety and therefore concluded a need for a warrant if the officers wish to search the phone.

Schedule a Free Consultation with Ehline Law

Are you an individual or member of the general public who has had your rights curtailed by state actors or politicians supported by enemies of the U.S. driven by blackmail or influence peddling? In cases where a person injures you by invading your privacy, you may be able to hold them responsible under tort law.

If you suffered harm due to an invasion of privacy, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation.