The Right of Privacy and Freedom of the Press, Thomas I. Emerson

However, as pointed out in this article for the Harvard Civil Rights-Civil Liberties Law Review, the first and fourth amendments are only really in conflict under the circumstances of privacy tort (when there is an illegal breach of privacy by the press, such as trespass) or in cases where privacy trumps the right to public knowledge (such as the identity of rape victims). Unfortunately there has been no agreed definition of privacy by the Supreme Court. The paradoxical issues are clear:

The constantly increasing scope of governmental intercession in most areas of national life, the development of modern technology for ferreting out and monitoring everyone’s affairs from womb to tomb, the closing in of physical and psychic space for the average person, all make the need for creation of an adequate law of privacy imperative for the future health of our society. (p 331)

On the other hand:

There are, of course, manifest dangers in this undertaking, because governmental interference with freedom of expression in any form inevitably poses a threat to the system of individual rights. (p 331)

The fact that this article dates from 1979 is an indicator of how urgent the issue was even at that time. If the government has final say in what is deemed to be permissibly expressed in the public sphere, we no longer have freedom of expression but a system of authoritarian censorship.

The article also points out:

Publication of true facts about a person, even though they are critical or embarrassing, is a core feature of the freedom of the press. (p 333)

Which is where we the muckrakers and paparazzi come in; on the other hand, if there weren’t a market for such stories, the tabloids who publish them wouldn’t sell. And, furthermore:

truthful statements derived from public records may be published even though they may impinge on areas of privacy. (p 337)

But this is surely part of the reason why some people pay to have things removed from the Internet – youth criminal records or arrests made on suspicions that were later proved to be unfounded. Privacy has been defined as:

Professor Tom Gerety, in what is perhaps the most successful effort to date, postulates three elements as comprising privacy: “autonomy, identity, and intimacy.” (p 338)

Which is still a fairly loose description, and it could be argued that one’s identity is tied up with issues of category and control as exercised by the state. The point then raised is whether any kind of legislation would in fact constitute governmental controls on the press (censorship etc), which includes forced self-censorship.

The issue of invasion of privacy is likened to issues surrounding contraception or abortion, where the individual’s right to choose is under constraint; the individual should be protected from publication of any material held by the government (clinical and psychological records, for instance).

It all seems clear cut – any information that is already in the public records cannot be protected under fourth amendment, while the first amendment prevents uninvited entry and thus revelation of private information. My point is this – if the US with all its jurisprudence and promotion of the rights of the individual citizen cannot even define the concept of privacy, where does the rest of the world stand?

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