The Green Party pin on the left was given to me by the San Bernadino County Greens that stayed at my place when San Mateo County hosted the Green Party of California meeting. The Swedish coin is there to honor the fact they are one of the few European states that hasn't joined the Euro.


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Date: Sun, 12 Mar 2000 11:57:34 -0500

From: Robert Ellis Smith <>

PRIVACY JOURNAL announces the publication of BEN FRANKLIN'S WEB SITE:

PRIVACY AND CURIOSITY FROM PLYMOUTH ROCK TO THE INTERNET by Robert Ellis Smith, publisher of PRIVACY JOURNAL. This new book explores the hidden niches of American history to discover the tug between Americans' yearning for privacy and their insatiable curiosity. The book begins with privacy and monitoring in Colonial New England, then shows how the attitudes of the founders placed the concept of privacy in the Constitution. This panoramic view continues with the coming of tabloid journalism in the Nineteenth Century, and the reaction to it in the form of a new right -- the right to privacy. The book includes histories of wiretapping, of credit reporting, of sexual practices, of Social Security numbers and ID cards, of modern principles of privacy protection, and of the coming of the Internet and the new challenges to personal privacy it brings.

"Robert Ellis Smith's expose of privacy invasion will be one of the sleeper best-selling books in the year 2000," wrote columnist William Safire in The New York Times, December 1999. "His numerous books are required reading for anyone concerned about the ongoing threats," said Simson Garfinkel in Database Nation, 2000. "Smith's practical advice and cool exterior belie his passion. Some have called him 'the Ralph Nader of privacy'", according to Dana Hawkins in U.S. News and World Report, October 1999.

ISBN 0-930072-14-6 (407 pages, paper, with illustrations, index, bibliographic references, and table of cases).

Ideal for classroom use.

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The Supreme Court looks to the impetuous liberal William O. Douglas on privacy, then to the impetuous conservative William H. Rehnquist, then to the impetuous moderate Sandra Day O'Connor.

A quite different Richard M. Nixon emerges in the story of the constitutional right to privacy, in contrast his role in privacy development in tort law. That story begins in the Sixties, just before Nixon's Second Coming into the nation's politics and public policy. It culminates in the Nineties, when his most successful appointee to the Supreme Court, William Rehnquist, could no longer sustain their joint campaign to chip away at the right to privacy. It was a campaign -- ironically, like Nixon's in favor of privacy on the tort side of the law -- that he very nearly won.

The constitutional right to privacy is generally regarded as stemming from a Supreme Court decision in 1965 invalidating Connecticut's laws that had made it a crime to use birth control devices or to give information or instructions on their use. (Nixon had no role in this; he was practicing law in New York City, preparing his argument in Time v. Hill, the pivotal privacy case in tort law). Estelle Griswold, executive director of the Connecticut Planned Parent League, and Dr. C. Lee Buxton, its medical director, were arrested in 1961 for dispensing information about contraceptives to married couples. "The pill" had just come on the market. State courts twice upheld their criminal convictions and $100 fines. They appealed to the U.S. Supreme Court, arguing that the statutes infringed upon a fundamental right to privacy inherent in the marital relationship.

In the Court's majority opinion, Associate Justice William O. Douglas reviewed the previous Supreme Court decisions that had found "peripheral rights" emanating from specific rights in the Constitution, even if they were not specifically mentioned in the Constitution itself. Justice Douglas, then the longest serving member of the Court, had replaced Justice Louis D. Brandeis in 1939 and was equally contemptuous of government intrusions into individual rights as Brandeis had been. In the Griswold case, Douglas wrote:

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment. . . . The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace. . . . The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause [protects the right to remain silent]. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"

Douglas wrote the opinion for a 7-2 majority of the Court, but no other member of the Court fully concurred in his innovative formulation. They simply voted in favor of the outcome, to invalidate Connecticut's anti-contraception laws.

Three justices who concurred in the result would have rested the decision on the catch-all Ninth Amendment written by James Madison. It says in essence, "If it's not stated in the Constitution, then it's a right reserved by the people". This valuable concurring opinion was researched and drafted by the law clerk to Justice Arthur J. Goldberg, 27-year-old Stephen G. Breyer. Three decades later, Breyer himself would be sitting on the high court. While the Ninth Amendment is a logical place to look for a constitutional right to privacy, or a right to autonomy, or a right of "personhood", it is usually overlooked in legal arguments. Too broad and open-ended for conservative jurists perhaps. Too risky for lawyers trying to get a court to reinforce the constitutional right to privacy. How many of them know that one of the members of the current Supreme Court drafted the most important endorsement of the Ninth Amendment as a protector of individual privacy?

Associate Justice Hugo L. Black, Douglas's liberal friend on the Court, could not see any penumbra, emanating or otherwise, in the Bill of Rights. Nor did he appreciate the value of the Ninth Amendment. He dissented in the Griswold case. Nor could he see any prohibition against wiretapping in the Fourth Amendment, as he said in his dissent in the Court's Katz decision in 1967. "I like my privacy as well as the next one", Black said, "but I am nonetheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision".

The previous cases that Douglas relied on to construct his "penumbra" included Pierce v. Society of Sisters in 1926, in which the Court determined that parents' rights to select a religious education for their children is constitutionally protected; Meyer v. Nebraska in 1923, finding that the Constitution protects the right of pupils in a private school to learn languages other than English; NAACP v. Alabama in 1958, in which the court said that a state's demand for the membership list of the National Association for the Advancement of Colored People would threaten the "freedom to associate and privacy in one's associations"; and NAACP v. Button in 1963 in which the Court recognized "the right to express one's attitudes or philosophies by membership in a group".

The Court's recognition of privacy rights predates even those cases. In 1886, before Louis Brandeis or Samuel Warren set pen to paper, the Court in Boyd v. U.S., found that the Fourth Amendment right against unreasonable searches and seizures and the Fifth Amendment right to remain silent "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property." (The Boyd case actually involved compelled disclosure of business records, not personal papers; "privacy" to nineteenth century courts often meant protecting businesses against governmental intrusions.) In practice, of course, the Fourth Amendment right against unreasonable searches applies only to citizens confronted with a criminal prosecution, not to all the affairs of one's life. The same is true of the Fifth Amendment right to remain silent, according to a Supreme Court ruling also in 1886.

In 1891, in a case not involving the constitutional right, the Court gave a ringing endorsement to the concept of personal privacy -- "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person. . . ."

In 1914, in Weeks v. U.S., the Court established that the Constitution would not permit the use of evidence seized in an illegal search or seizure to be used in a federal criminal trial ("the exclusionary rule").

After the Griswold decision and the second-guessing from legal scholars that followed it, the Court in 1969 paid homage to the sanctity of one's private residence, in a decision that is commonly grouped with the Court's decisions on obscenity, not those on privacy. Even though it had upheld laws against distributing pornography, the Court took a dim view of a criminal prosecution of a man for possessing obscene materials. The Court rejected what it called a state's attempt "to control the moral content of a person's thought". Executing a search warrant for evidence of alleged bookmaking, federal and state agents in Robert Eli Stanley's bedroom had found three reels of dirty movies in a desk drawer in an upstairs bedroom. They took a look at the films with Stanley's home projector, then arrested him. The Court said:

"The right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Moreover, in the context of this case - a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home -- that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy. . . ."

Although lower courts have embraced the "penumbra" theory for a constitutional right to privacy and Douglas' talk of "emanations", the theory has been severely criticized in subsequent years, notably by Chief Justice William H. Rehnquist and former U.S. Circuit Court of Appeals Judge Robert H. Bork. Despite the strong criticism, the Griswold opinion formed the basis for the Supreme Court's later decisions upholding a right to an abortion. In fact, the Griswold decision attracts such attacks precisely because it has been the basis for opinions upholding the right of a woman to control her own body.

The Griswold ruling was colored by Justice Douglas' proclaimed respect for the institution of marriage -- "a right of privacy older than the Bill of Rights". "Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred", wrote Douglas, who himself had troubles making his own first three marriages endure.

Consequently, it wasn't clear to what extent Douglas' constitutional right to privacy protected activities outside of marriage. Then, in 1972, the Court made clear that the right to contraception extended to non-married persons. In Eisenstadt v. Baird, it invalidated the conviction in Massachusetts of a birth-control advocate, William Baird, who lectured on contraception to college students and exhibited birth-control products. Relying on the language in Griswold and saying that a marriage, after all, is made up of individuals, who are entitled to constitutional rights, the Court said:

"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

It was not a great stretch for the Court to conclude that this right to privacy also embraces the right of a pregnant woman, whether married or single, to terminate a pregnancy. And that is exactly what it did one year later in the landmark case of Roe v. Wade. Justice Harry Blackmun, for the Court, wrote:

"The Constitution does not explicitly mention any right of privacy. In a line of decisions however, going back perhaps as far as Union Pacific v. Botsford, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the Court or individual Justices have indeed found at least the roots of that right in the First Amendment; in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education."

This was music to the ears of Justice Douglas, then 75 years old and in his record-breaking thirty-fourth year on the Court. It certainly sounded as if the full Court had endorsed his penumbra theory. Still, the Court seemed to limit the borders of the constitutional right to privacy to getting married or having kids -- or aborting kids.

For himself, Douglas could not resist the opportunity to "add a few words" to the Roe v. Wade opinion. In his "few words", the always concise Douglas developed a hierarchy of privacy values under the Constitution that serves as a valid guide today:

"First is the autonomous control over the development and expression on one's intellect, interests, tastes, and personality.

These are rights protected by the First Amendment and in my view they are absolute, permitting of no exceptions. . . .

Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.

These ["fundamental"] rights, unlike those protected by the First Amendment, are subject to some control by the police power. . . .

Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.

These rights, though 'fundamental,' are likewise subject to regulation on a showing of 'compelling state interest.' . . ."

Warming up for Roe v. Wade, Douglas a year earlier had written another opinion, this time a majority opinion invalidating a vague anti-vagrancy ordinance in Jacksonville, Fla. The ordinance was similar to the strictures in Colonial New England villages; it criminalized "rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly person neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children". That kind of local ordinance was no longer permissible under the U.S. Constitution, a unanimous Court said. Speaking of the casual activities of sitting on a park bench or strolling in a city, Justice Douglas wrote:

"These activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.

Much earlier, in a 1967 dissent, Douglas had written:

"Privacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses. . . .

Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstances when he will share his secrets."

The Jacksonville case may have marked a pinnacle in the Court's recognition of an individual's right to exercise "the amenities of life" free from government intrusion.

Six weeks prior to the announcement of the decision, William H. Rehnquist, age 48, had joined the Court. President Richard M. Nixon, when he nominated Rehnquist, had described the conservative Arizonan as his "lawyer's lawyer". Rehnquist was the assistant attorney general who provided the intellectual and legal theorizing to support the Nixon Administration's invasions of privacy in order to subdue or infiltrate dissident political groups in the 1970s. As assistant attorney general, Rehnquist assured the White House that the President could engage in illegal activities, under implied powers in the Constitution. (In an interview in 1977, after he had been driven from office, Nixon said, "When the President does it, that means that it is not illegal".) In fact, Rehnquist chaired a special White House task force on the declassification of sensitive documents that was comprised, in total, of the four men later convicted of the 1971 break-in into the office of a Los Angeles psychiatrist in search of damaging information about Daniel Ellsberg, the man who had disclosed the classified Pentagon Papers to the press. Rehnquist's legal theorizing would have justified the break-in under the President's inherent constitutional powers, and it is logical to believe that he had knowledge of it in advance.

While his White House colleagues were planning the Los Angeles break-in, Rehnquist testified before Senator Sam Ervin of North Carolina, chair of the Senate Judiciary Subcommittee on Constitutional Rights, to defend the Nixon theory of presidential powers. Rehnquist testified that the President had virtually unlimited powers to investigate private citizens before crime happens, under Article IV, Section 4 of the Constitution, which provides, "The United States shall guarantee every State in this Union a Republican form of Government and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence".

"Does this mean that the government may conduct domestic surveillance where there is no probable cause of criminal activity?" Ervin wanted to know.

Yes, under the government's responsibility to prevent crime as well as punish it, Rehnquist testified. He went on:

"It would be scarcely surprising if there were not isolated examples of abuse of this investigative function. Such abuse may consist of the collection of information, which is not legitimately related to the statutory or constitutional authority of the executive branch to enforce the laws, or it may consist of the unauthorized dissemination of information which was quite properly collected in the first instance. I know of no authoritative decision holding that either of these situations amounts to a violation of any particular individual's constitutional rights. I think the courts have been reluctant, and properly so, to enter upon the supervision of the executive's information-gathering activities so long as such information is not made the basis of a proceeding against a particular individual or individuals. But the fact that such isolated executive excesses may not be a violation of constitutional rights does not mean that they are proper, and it does not mean that appropriate steps should not be taken to prevent their recurrence."

Rehnquist may have had an intellectual underpinning for his assertion, but his underestimate of the extent of abuses within the bureaucracy bordered on the naive. Most of the abuses in 1971 were taking place right under his nose -- using his legal memoranda as support!

At the time, it was not the law of the land that the existence of a domestic surveillance operation does not violate civil liberties unless a person is directly affected adversely. The issue had been hotly debated since 1970 when anti-war activists including many Quakers discovered that they were the target of a vast intelligence- gathering effort by the U.S. Army. None of them had been arrested or otherwise overtly affected by the surveillance, but they filed a lawsuit claiming that the whole point of the military's program was to intimidate them and deter them from exercising their rights of political expression. In the process, they said, it violated their privacy. Within a year of Rehnquist's comments before Senator Ervin's subcommittee, the issue reached the Supreme Court. Rehnquist was then a brand-new member of the Court, able to provide the deciding vote. The Court rejected, by a narrow 5-4 margin, arguments that Senator Ervin had made personally to the Court on behalf of religious groups that were the target of the surveillance.

The parties who brought the case to the Court had demanded that Rehnquist disqualify himself from participating, but he refused to do so. And so he cast the deciding vote. Rehnquist's refusal to disqualify himself was outrageous. He had testified before Ervin, in essence, that the dissidents' claim had no merit, he had been the custodian of the evidence in the case at the Department of Justice, and he was part of the leadership group at Justice that argued for the continuance of the program when some Army personnel began to have second thoughts about it. All of this happened only a few months before Nixon put Rehnquist on the Court.

A former Army intelligence officer who blew the whistle on the spying, Christopher H. Pyle, pointed out, "Had Rehnquist recused himself, the plaintiffs would have been allowed to conduct pre-trial discovery into the Army's surveillance records -- an inquiry which might have uncovered, before the Watergate scandal of 1972, both Rehnquist's role in continuing the surveillance and the Nixon Administration's secret 'Huston Plan' for illegal surveillance operations against opponents of the war in Vietnam".

In his Senate testimony before Ervin, Rehnquist had uttered an expectation that has been quoted ever since by dissident groups victimized by an overkill of government information-gathering:

"I think it quite likely that self-discipline on the part of the executive branch will provide an answer to virtually all of the legitimate complaints against excesses of information-gathering."

Those words even appear on a coffee mug the groups distributed. Is there any question that President Nixon would want a man like William Rehnquist on the U.S. Supreme Court?

Rehnquist's testimony was on March 9, 1971. To realize how misleading was his faith in the "self-discipline" of the government, consider what happened shortly afterwards:

* On September 3, 1971, Rehnquist's colleagues on the declassification task force broke into the office of the psychiatrist of former Pentagon staffer Daniel Ellsberg and took documents.

* That year, the White House ordered wiretaps installed in the offices or homes of 13 government officials and four news reporters.

* During 1971 a special unit at the Internal Revenue Service was covertly gathering information about American citizens whom the Nixon Administration considered politically distasteful, targeting them for audits and forwarding information about them to other federal agencies.

* On June 17, 1972, White House operatives supervised a break-in of the offices of the Democratic National Committee in the Watergate Office Building and took documents.

* Just eight months before Rehnquist spoke, the President had approved a wide-ranging plan by an assistant named Tom Huston to conduct unauthorized wiretaps, mail openings, and infiltrations to keep tabs on unrest among African-American, student, and anti-war dissidents.

Was this the kind of "self-discipline" that Rehnquist had in mind?

Just 48 days after the Ellsberg break-in, President Nixon nominated Rehnquist to the Supreme Court. Shortly after Rehnquist joined the Court (over the objections of 26 of the 100 members of the Senate), it decided to hear rearguments in the challenge it was considering to state prohibitions against abortions. He became one of only two dissenters in the Roe v. Wade decision finally announced January 23, 1973. The newest member of the Court wanted no part of penumbras. He wasn't sure any right to privacy existed under the Constitution.

In the same way that Douglas, the Court's senior member, had done, Rehnquist, the youngest member and its "Lone Ranger", now took a special interest in the issue of privacy.

What Rehnquist objected to was the loose use of the word "privacy" to cover a variety of things, such as the right to know what kinds of information are kept about you, or the right to get a job despite a prior arrest that did not result in a conviction; or, especially, the right to control your own body. None of these involve privacy in the true sense, Rehnquist believed.

Outside the courts, what was known as "privacy" was taking on new meaning. In an age of newly asserted individual and group rights, it came to include the right to control your own body and self, as well as the traditional "right to be let alone". Thus, "privacy" was used to justify defiance of codes restricting types of dress and hairstyles a growing area of conflict now that graduates of the Vietnam War protests and survivors of the permissive Sixties were reaching the workplace.

Furthermore, in an age of computers and sophisticated surveillance devices, "privacy" came to include the right to know what information was kept on you in a databank and the right to correct that information. This notion of "informational privacy" also included an element from the traditional concept of privacy -- a right of confidentiality.

Rehnquist wanted no part of this new meaning for privacy. He drafted a "strict constructionist" view of the right to privacy and took it out of town for a try-out.

The place was the University of Kansas Law School in Lawrence, Kansas, in the fall of 1974, a couple of months after President Nixon had been forced from office because of abuses that Rehnquist had sanctioned as assistant attorney general. Rehnquist called his two-part lecture there, "Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement? Or: Privacy, You've Come a Long Way, Baby". Clearly, Rehnquist's answer was that an "expanded right of privacy" was inconsistent with fair and effective law enforcement and that privacy had come quite far enough, baby. Rehnquist's whimsical title was based on a slogan in Virginia Slims cigarette advertisements aimed at women.

Announcing himself as a "devil's advocate", because "no thinking person is categorically opposed to 'privacy' in the abstract", the justice spelled out why he felt that "if the balance is struck in favor of 'privacy' some other societal value will suffer".

Some advocates of informational privacy had argued that records of arrests, where the individual had not been convicted, ought not be released by police so that employers, credit grantors, and neighbors could stigmatize an individual. Rehnquist responded in his Kansas lecture by saying, "To speak of an arrest as a private occurrence seems to me to stretch even the broadest definitions of the idea of privacy beyond the breaking point". Rehnquist conceded that this "does not mean an individual has no interest in limiting disclosures or dissemination". But he said even "if the fact of an arrest is by no means conclusive evidence of wrongdoing, it is considered a relevant factor by law enforcement authorities".

Thus, Rehnquist said, he would reject any privacy challenges to a centralized computer file of arrests maintained by the Federal Bureau of Investigation or local police. Instead of limiting disclosure of arrest records (when a conviction had not resulted), why not educate employers not to discriminate on grounds of an arrest, he suggested. Rehnquist actually thought that a personnel officer -- once "educated" would nobly decline to take into account an arrest record concerning an applicant because it may be inaccurate or it may not have resulted in a conviction.

Not only were privacy enthusiasts hampering law enforcement, Rehnquist said, they are sloppy in their thinking. They were including all manner of other interests under William O. Douglas' penumbras. Rehnquist preferred the dictionary meanings of privacy -- "the quality or state of being apart from the company or observation of others" and "freedom from unauthorized oversight or observation". To him that sounded like interests that were adequately protected by the Fourth Amendment restriction against unreasonable searches and seizures by the government. And no more.

That was fair enough. But then Rehnquist went on to the flights of fancy that lawyers before the Court have come to expect from him. He said that he did not know what the right to privacy had to do with an abortion since a doctor is present during the procedure and therefore it isn't a total secret.

He asked his audience to imagine the need for the Secret Service to photograph all persons attending political rallies. (The man who shot Presidential candidate George Wallace in 1968, after all, had attended rallies just prior to the shooting.) Citizens attending a political rally have no privacy interest, Rehnquist asserted. What's wrong with the government photographing everyone at a political rally -- or photographing everyone doing anything else in public, Rehnquist wondered. Surely he was aware that the Supreme Court had ruled in 1958 that it was unconstitutional for the government to demand a membership list of the NAACP; was he saying that it would be constitutional for the government to photograph everybody at a public NAACP rally and to store the photographs?

After that bold assertion, Rehnquist promised the students and professors more for the next day. He delivered. He complained that "the government is present in the lives of all of us today in a way that would have been inconceivable even 50 years ago". Rather than regulate the personal data collection necessary for government programs, why not discontinue the programs, asked the jurist.

"The applicant [for government benefits] who objects to submitting the information required retains the option to decline participation in the program, although in the real world this may not be a very meaningful option", Rehnquist said. Indeed. And what kind of an option does the individual have to resist providing personal information -- or do without the benefit - when filing a government tax return or applying for a driver's license?

Alert constitutional lawyers knew that it was only a matter of time before Rehnquist would have a significant impact on the growth, or more accurately the curtailment, of the constitutional right to privacy.

One civil libertarian who had several police surveillance cases pending before the Supreme Court, Frank Askin of Rutgers Law School, countered with his own lecture at the University of Tennessee Law School 18 days later. The Court had recognized in the past, Askin asserted, "a First Amendment right of privacy -- a right to keep government agents from prying into your political activities and associations, even those which appear in a public place". It's important, Askin continued, "for courts and judges to understand what psychologists already know -- that the right to control information about oneself is an essential ingredient of a secure personality".

Evidently pleased with the reception to his trial run in Kansas (although the lecture received no notice at all in national news reports), Rehnquist returned to Washington to win over a tougher audience -- his eight colleagues, including Douglas, on the U.S. Supreme Court.

They had ceased looking to the senior Douglas for guidance on privacy. He had been alone in dissent in the spring of 1974 when the Court rejected a privacy challenge to the so-called Bank Secrecy Act, which requires banks to keep a copy of the front and back of customers' checks and deposit slips for five years so that government agents may have access to the information later. In November of 1974 -- one month after the Kansas road show -- Rehnquist joined his colleagues in debating the merits of U.S. v. Bisceglia, in which Internal Revenue agents were able to issue a "John Doe" summons (without the name of any target individuals) to rummage through a bank's files to discover the identity of an individual who had deposited an unusual amount of cash and therefore may have incurred an unreported tax obligation.

With only a slight acknowledgment that the privacy concerns were not "trivial", the Nixon-appointed Chief Justice, Warren E. Burger, upheld the intrusion into bank records, with Justice Rehnquist and six others agreeing. Only Justices William J. Brennan and William O. Douglas dissented, finding this "a breathtaking expansion of the summons power". They said, "Any private economic transaction is now fair game for forced disclosure". And they proved to be right. In the years to come the disclosures came in massive loads of computerized data, not just in cumbersome manual records.

On New Year's Eve 1974, William O. Douglas had a debilitating stroke and was forced to retire. Within two years, Justice Rehnquist had his chance to take up Douglas' mantle on privacy issues. At issue before the Court was whether it was a violation of privacy for the police department in Louisville, Kentucky, to circulate a flyer of "active shoplifters". The flyer included the photograph of a young professional named Edward Charles Davis III, who had been arrested on a shoplifting charge that was dismissed shortly thereafter. The words preceding the Court's decision in Paul v. Davis were to become more and more familiar on privacy cases in the 1970s: "Justice Rehnquist delivered the opinion of the Court". (President Gerald Ford's choice to succeed Douglas on the Court, John Paul Stevens, took no part in the consideration of the case, but later in his tenure he proved to be no fan of the constitutional right to privacy.)

Rehnquist now made good on the vow he had made at the University of Kansas Law School in 1974. He shot down Davis' claim that due process had been violated, calling the claim of an invasion of privacy "far afield". He must have relished reciting the "zones of privacy" theory of the late Associate Justice Douglas, and saying that the Court's privacy decisions defy "categorical description". But he credited the "zones of privacy" to the Roe v. Wade decision, not the original Griswold v. Connecticut. He must have relished even more saying, for a majority of the Court now in 1976, that Davis' case "comes within none of these areas". He could have, of course, found that protecting an innocent man from the stigma of a misleading public police report falls within the area of the Ninth Amendment or the liberty in the Fourteenth Amendment. This argument would have been bolstered by the fact that Davis was among a segment of the population most victimized by records of arrests that are later dismissed - young African-American males. Davis' interest certainly fell within the interests at stake in the Papachristou case, the right of innocent persons to walk the streets freely.

That would have been enough of a blow to civil libertarians like Frank Askin had not Rehnquist added what lawyers who dislike the language call "mere dictim". Dictim is language that a judge includes in a decision although it is not essential to a court's ruling in a case. Rehnquist wrote:

"The activities detailed as being within this definition [of privacy in Roe v. Wade] were ones very different from that for which [Davis] claims constitutional protection -- matters relating to marriage, procreation, contraception, family relationships and child rearing and education. In these areas it has been held that there are limitations on the states' power to substantially regulate conduct."

Rehnquist had hammered his point. He had completed his coup at the Supreme Court. He had taken the privacy language of Griswold and Roe v. Wade and frozen it in place. Henceforth, for the next 20 years and more, Rehnquist's "privacy" -- and therefore the U.S. Supreme Court's -- would be limited to marital sex matters and the subsequent responsibility of raising children. His limits were deliberately drawn. At the same time, the Court was rejecting the view that a state's criminal punishment for acts of sodomy conducted between consenting (straight) adults in private was an unconstitutional invasion of privacy. It was acceptable for a state to impose prison time on a man and woman caught committing sodomy, even in a private place, the Court ruled. Heterosexual, conjugal, non-oral, straight missionary-type sexual matters fall within Rehnquist's definition of privacy, but not private homosexual activity, extramarital activity, or even marital activity that William Rehnquist, but certainly not Alfred Kinsey, would regard as "uncommon".

To be sure we got the message, Justice Rehnquist came back two weeks later with the Court's opinion upholding regulations that prescribe the length of hair that may be worn by police officers in Suffolk County, New York. He again cited the privacy decisions before he was named to the court, and wrote:

"Each of those cases involved a substantial claim of infringement on the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life."

This language further limited Rehnquist's vision of the right to privacy. (What happened to the notions that selecting education for your children and using birth control were included in the right to privacy? Rehnquist left them out.) And the statement conveniently overlooked that the Court's 1972 decision in Papachristou v. City of Jacksonville involved a liberty interest unrelated to sex or marriage at all. As Privacy Journal newsletter, then in its second year, reported, "Justice Rehnquist had waited a year and a half to get that limited view of privacy into the Court's majority opinions".

Not surprisingly, on April 21, 1976, with Rehnquist in the majority, the Court proclaimed, "We perceive no legitimate 'expectation of privacy'" in a citizen's bank balance, nor in the names of those to whom the customer writes checks, nor in background information about loans and other bank transactions.

In still another case considered in the fall of 1976, members of the Court seemed to defer to Rehnquist as their expert on privacy. It was Rehnquist who peppered both sides with probing questions about privacy versus the need for effective law enforcement. The others simply listened, as attorneys argued the merits of New York State's law requiring all pharmacists to send to a central computer in Albany a carbon copy of personal prescriptions for certain drugs subject to misuse. "Computers are not unconstitutional machines", said the representative of the State of New York. Simply because you automate a process doesn't make it more threatening, he argued. Picking up on this theme, Rehnquist told the attorney for drug store customers challenging the reporting requirement, "Your argument is that if it's made easier through new technology to enforce a law, then it's unconstitutional". He didn't see any need for the state to justify every new computerized information system to the courts. When the attorney for the challengers objected to the trend towards a mechanized society in which every citizen is numbered, catalogued and compiled, Rehnquist shot back, "What about the requirement that we have a birth certificate?"

Sure enough, before the year had ended, the Court upheld New York's mandatory reporting of retail-drug records. Justice Stevens, President Ford's new appointee to the Court, delivered the unanimous opinion:

"Disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community does not automatically amount to an impermissible invasion of privacy".

And so, before the computer revolution had really begun, the Supreme Court had shut off the possibility that electronic data collection by the government, because of its ease and massive volume, could constitute an unconstitutional invasion of personal privacy.

Associate Justice William J. Brennan went along with the new conservative majority on the Court, but added a caution:

"What is more troubling about this scheme is the central computer storage of the data thus collected. . . . [This] vastly increases the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology."

This timid language is the closest the Court or any of its members had come in the intervening two and one-half decades between 1976 and the end of the century to declaring that modern electronic collection of personal information by government agencies might raise threats to constitutional rights.

Under Rehnquist's leadership the Court has declined to extend the constitutional right to privacy to extramarital sex, homosexual activity in private, personal financial information in the hands of a third party, or the choice of one's hairstyle.

In 1985, Rehnquist said from the bench, "I don't know why two-way mirrors in a restroom would be a violation of privacy". On the other hand, two years later, he wedged in to one of his dissenting opinions the observation that the right of privacy includes the right to be free of door-to-door solicitors, even if this limits free speech. "To protect citizens' privacy [is a] legitimate government objective", Rehnquist wrote (at a time when his endorsement had absolutely no consequence at all). Go figure! Actually, the way to figure is that William Rehnquist and his conservative colleagues on the Supreme Court can easily find a privacy interest if that is the way to uphold a government regulation or to support the government's attempt to keep information away from public view. The decisions in the past 20 years show that pattern. A good example is one of the few majority opinions ever written by Justice Thomas -- and certainly the only one in which Thomas, Rehnquist, and Scalia stood foursquare for personal privacy. The opinion stated that a federal agency may refuse to disclose lists of home addresses of its employees to a labor union seeking to organize them, because of an "interest that individuals have in preventing at least some unsolicited, unwanted mail from reaching them at home". What the conservative jurists were really doing was not defending personal privacy. Each of them believes that no right to privacy provides access to abortions or protects a person reluctant to urinating in front of another person at work -- intrusions most of us would find more significant than getting unwanted mail at home. What the trio was doing was defending the prerogative of the government not to disclose certain information in its possession.

Consequently, the Court has created a supreme irony: giving some privacy recognition to personal information that is far less intimate than the areas excluded by the Court. In the Rehnquist years, the Court has found a privacy interest in the results of personality tests administered in the workplace, in pupil records at school, in arrest information compiled in law enforcement data systems (tell that to unfortunate Edward Davis in Louisville!), and in the home addresses of federal employees.

In 1986, President Ronald Reagan appointed William Rehnquist Chief Justice of the U.S. Supreme Court. During a confirmation hearing by the Senate Judiciary Committee that questioned Rehnquist's suitability (on the grounds of his "reactionary" views on the civil rights of women and minorities), there was not a word of testimony about his constriction of the constitutional right to privacy nor of the support he had provided on and off the bench to the Nixon Administration's massive invasions of privacy.

On the other hand, a refusal to entertain any recognition of a right to privacy in the Constitution -- whether in a penumbra or anywhere else -- cost one nominee for a Supreme Court seat his opportunity for promotion. The day after the Senate Judiciary Committee in 1987 voted to reject the nomination of Judge Robert Bork to the U.S.Supreme Court, The New York Times Court correspondent Linda Greenhouse reported:

"The issue that jelled for the opposition, surprisingly, was privacy. . . . Indeed, the privacy issue underwent a fascinating transformation during the course of this confirmation debate. Before the hearings began the word 'privacy' in political discourse was widely understood as a metaphor for abortion, a politically dangerous topic that politicians of both parties shied away from. During the hearings privacy became another metaphor entirely. It came to stand for the whole theme of fundamental rights, the concept of an expansive constitution in contrast to Judge Bork's view that the Constitution was limited by its precise language and the intent of its eighteenth century framers."

In the 1980s, Sandra Day O'Connor, then the Court's new youngest member, assumed the Rehnquist role of privacy expert, although she dared not use the term. By now it had been tainted in the minds of many as a code word for the right to abortion. There can be no doubt that since the Court's controversial abortion decisions, Supreme Court justices have avoided the unfettered rhetorical appreciation of personal privacy that their predecessors expressed in their opinions.

Two years after President Reagan appointed O'Connor as an Associate Justice, the Supreme Court considered one of the more unusual appeals it had heard in many years. It involved the simplest "amenity" of life, yet struck at the heart of the freedoms that the founders intended to protect in the Bill of Rights. Justice O'Connor was assigned to write the Court's majority opinion, in which Justice Rehnquist did not join.

A 36-year-old California gentleman brought the case to the U.S. Supreme Court on his own behalf. Edward Lawson simply liked to walk the sidewalks of San Diego, often in the most affluent white neighborhoods. Lawson is an African-American who wears deadlocks, and so he was frequently arrested or detained for exercising this simple amenity - 15 times in a 22-month period. He was never violating any law. He simply "appeared suspicious", police officers would say. Each time, he refused to comply with a California law that punished a person "who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested. . . ". Twice he was prosecuted for this misdemeanor; once the charge was dismissed and once he was convicted. By himself, without a lawyer, he then sued the police, seeking a declaratory judgment by a federal court that the state law was unconstitutional and should not be used to detain him in the future. The court in California agreed with him, saying that "a person who is stopped on less than probable cause cannot be punished for failing to identify himself". A federal appeals court upheld the trial court's ruling, noting that a California court had ruled earlier that the law requires any person requested by police to produce "credible and reliable" identification.

Because in the U.S. there really is no such thing as "credible and reliable" ID, this places too much discretion in the hands of a police officer on the beat, O'Connor said, for the Supreme Court. In ruling that California's ID requirement was unconstitutional because of its vagueness, the Court mentioned the previously unmentioned Papachristou case of 1972 and said:

"Our Constitution is designed to maximize individual freedom within a framework of ordered liberty. Statutory limitations on those freedoms are examined for substantive authority and content as well as for definiteness or certainty of expression."

Some call it "privacy", others call it "the pursuit of happiness", still others call it "autonomy". O'Connor, like some of her predecessors on the Court, termed this freedom of action "liberty". (Although O'Connor did not mention this, the Court has affirmed on more than one occasion the existence also of a "right to travel" in the Constitution. In 1958, it stated, "Freedom to travel is, indeed, an important aspect of the citizen's liberty", and in 1964 it said that this right may not be restricted by the government "too broadly and indiscriminately". The Court could have used this right as the basis for ruling in favor of Edward Lawson.)

Lawson's courageous challenge in the U.S. Supreme Court won for all Americans the right not to have to present identification upon demand. Exactly ten years after that, Edward Lawson was arrested and spent three nights in jail. His offense? Failure to present a driver's license while he was strolling the streets of Los Angeles.

Copyright 2000 Robert Ellis Smith