The Right to Privacy–Part 1

By: Dennis Bates

This may come as a shock to some of you, but there is no Constitutional Right to Privacy. Those words do not appear anywhere in the Constitution, and yet that phrase is given more reverence and awe than many rights there are actually part of our Constitutional guarantees. Ironic, to say the least.

Some studies have shown that the Bill of Rights would never survive a popular vote if it were not identified, and even then, it might have difficulty. Yet it is safe bet that the so-called right to privacy would have far less difficulty even though there would be heated discussions about what it means.

The right to privacy is  a product of the legally controversial penumbra doctrine that dates back to 1871. That doctrine basis it’s authority on powers and principles which are implied by the Constitution and statutory law. In other words, the authority is not specifically delineated in law or the Constitution, so the court created  what it wanted by analogy.

Justice Oliver Wendell Holmes, who is one of the few Justices to cite the doctrine, called it that “gray area where logic and principle falter.” For some reason he felt that gave him creative license to develop ubiquitous, illogical doctrines based upon faltering principles.

I’m being sarcastic.

Enter the right to privacy. It is a relatively recent creation, coming from a 1965 Supreme Court case. (Griswold v. Connecticut)  Whether you are a conservative or a liberal, it is no surprise that the majority decision was rendered by Justice William O. Douglas, one of the more controversial Justices in modern times.

Since 1965 several cases have refined and interpreted the privacy concept. One of the refinements has more and more application in today’s world of text messaging, Facebook, Twitter, and who knows what else? Briefly stated the court has ruled that this no right to privacy in situations where there is no right to expect privacy.

As if that isn’t enough, there are two different tests to determine whether that expectation exists. One is subjective and the other is objective. The same exact conduct may carry a reasonable expectation of privacy in some situations but not in others. In other words, it depends.

Tomorrow, I will elaborate slightly so that you can at least have some idea what you are subjecting yourself to when you have discussions on Facebook or other similar social networking Internet sites. It surprises me how little some people really know about what they are doing in some of those situations. You may be surprised too.

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