Study Guide

Right to Privacy - FAQ

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What is the legal basis for our privacy rights?

The courts currently recognize three legal bases for privacy rights: privacy torts, the explicit guarantees of certain aspects of privacy in the Bill of Rights, and the broader privacy rights implied by the Bill of Rights and further protected by the Fourteenth Amendment.

What is a privacy tort?

A tort is a wrong or injury caused by an individual for which the victim can seek compensation. Privacy torts, more specifically, provide individuals with the legal tools they need to seek damages when they feel that someone or something has violated their privacy. They are established by statutory and common law.

Are there different types of privacy torts?

Legal scholars generally break privacy torts into one of four types: private facts, intrusion, false light, and appropriation. A private facts tort involves the public disclosure of private facts about an individual that the public has no right or need to know. An intrusion tort involves the highly offensive intrusion upon the privacy or solitude of a person. The intrusion can be physical—for example, an uninvited entry into a person's home. But wiretapping and eavesdropping have also been recognized as forms of intrusion. False light torts involve the publication of false and offensive representations of people. And appropriation torts involve the use of someone's name or image without their approval.

Which aspects of privacy are protected by the Constitution?

The courts have suggested that a right to privacy of belief is guaranteed by the First Amendment and a right to privacy within our homes is guaranteed under the Third Amendment. The Fifth Amendment protects the privacy of certain types of information, and the Fourth Amendment protects certain privacy for our persons and possessions.

Why do some say that the Ninth Amendment protects a privacy right?

The Ninth Amendment emphasizes that the rights expressly listed in the Bill of Rights are not the only rights we possess. Many argue that privacy is one of those fundamental rights protected, but not expressly mentioned, by the Bill of Rights.

What role does the Fourteenth Amendment play in protecting privacy rights?

The due process clause of the Fourteenth Amendment says that no state can deny a person life, liberty, or property without due process of law, and in a series of cases the Court has held that privacy is one of the fundamental liberties subject to this protection. This means that the federal government is charged with protecting the privacy rights of individuals against violation by the states.

What Supreme Court case was most important in defining the right to privacy?

During the 1920s, the Court held that certain child-rearing decisions belonged exclusively to parents. In Meyer v. Nebraska and Pierce v. Society of Sisters, the Court denied the authority of the government to intervene in certain private family matters. But the Court developed this reasoning most fully in 1965 in Griswold v. Connecticut. In that case, the Court struck down a Connecticut law that forbade counseling for and use of contraceptives. In a 7-2 ruling, the Court held that the Connecticut law violated a "right to marital privacy." In the opinion, Justice William Douglas argued that, in addition to the expressed guarantees of the Bill of Rights, other rights were contained within the "penumbras," or shadows, existing along the margins of the Bill of Rights. These penumbras were "formed by emanations from those guarantees that help give them life and substance. " In other words, the First, Third, Fourth, Fifth, and Ninth amendments, Douglas argued, protected more than the specific rights contained with each of them, they also established "zones of privacy" that the government was equally bound to protect.blank" rel="nofollow">Fourth Amendment. The Supreme Court has held that students are protected from unreasonable searches, but they have also established a lower standard for conducting warrantless searches. While police officers usually need to have "probable cause" that a crime had been committed in order to conduct a warrantless search, school officials must only meet a standard of "reasonableness, under all of the circumstances" before searching students and their possessions. In practice, this has meant that school officials only need a reasonable suspicion that a school rule or law had been broken before conducting a search, and that the search itself must be reasonably conducted.

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