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Date: Sun, 12 Mar 2000 11:57:34 -0500
From: Robert Ellis Smith <ellis84@...>

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.

Order this engaging book now at $24.50, plus $4 for shipping. PRIVACY
JOURNAL accepts all major credit cards. Call or write PRIVACY JOURNAL,
PO Box 28577, Providence RI 02908 USA, 401/274-7861

privacyjournal@...

http://www.townonline.com/privacyjournal/


Excerpt:

THE CONSTITUTION

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.

Rehnquist's elevation to Chief Justice ironically marked the end
of his influence on privacy matters. The turning point was perhaps
a razor-thin 5-4 opinion in June of 1986 finding no constitutional
right to privacy in homosexual acts done in a person's own home. That
the decision was so close, at the height of the AIDS epidemic, was
remarkable. The person who cast the deciding vote, Lewis F. Powell,
Jr., said that he could easily have gone the other way, and probably
would have, had the challengers raised the complaint that prison time
for having sodomy in private is cruel and unusual punishment, under
the Eighth Amendment to the Constitution. Instead, the Court ruled
simply that this conduct was outside of its previous perimeters for
the right to privacy. In his concurrence Powell refused to condemn
gay sex, as the other four Justices in the majority had. After he
retired from the Court, Powell said that he had made a mistake in
voting the way he did. On second thought, he confessed, he should
have ruled that gay sex was protected by the Constitution. That would
have created a 5-4 majority for that view.

Justice Blackmun -- who was at the very same time desperately trying
to protect his pro-privacy opinion in Roe v. Wade - wrote a dissent
in the 1986 homosexuality case that made sense of the previous Court
rulings on privacy. He saw a duality. The privacy cases protect
"decisional" aspects of a person's life, like the right to terminate
a pregnancy, and they protect "spatial" interests, like freedom from
electronic surveillance and unreasonable searches. Compare this to
Rehnquist's view that the privacy cases had been "not particularly
helpful" and lacked any unifying principle. Blackmun said that both
"decisional" and "spatial" interests were compromised by the police
arresting a man in his home for engaging in gay sex in his bedroom.

Eleven days earlier, Blackmun had collected five votes on the Court
to continue to protect the right to an abortion and to endorse the
constitutional right to privacy. This time Powell was the fifth vote.
Rehnquist could no longer count on a majority on the Court to narrow
the constitutional right to privacy.

Blackmun had the narrowest of "victories". In his dissent in the gay
rights case, he quoted -- with great approval, of course -- his own
language in the pro-abortion majority opinion 11 days earlier:

"Our cases long have recognized that the Constitution embodies a
promise that a certain private sphere of individual liberty will be
kept largely beyond the reach of government."

There were more challenges to the right to an abortion coming, and
consequently to the constitutional right to privacy that provides
its basis. In 1992, Justice O'Connor co-authored the Supreme Court's
decision invalidating some and accepting some of Pennsylvania's
restrictions on abortions. She appeared to usurp leadership on
privacy issues from the Chief Justice, who bitterly dissented.
O'Connor did not use the word privacy at all, perhaps to appease
the two conservative judges who joined her slim 5-4 opinion in the
case of Planned Parenthood of Southeastern Pennsylvania v. Casey.
She found protected zones of privacy in the Constitution, just as
Justices Douglas and Blackmun had, and called them liberty. The
decision of a married or single person as to whether to have a child
and the "private realm of family life" are clearly protected by the
Constitution, she wrote with Justices Anthony M. Kennedy and David
H. Souter. This opinion was a relief of many Americans who thought
that the constitutional right to privacy as well as the right to an
abortion would be eliminated by the Court in its decision in the
Pennsylvania case. "These matters, involving the most intimate and
personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by
the Fourteenth Amendment". The three justices wrote:

"At the heart of liberty is the right to define one's own concept of
existence, of meaning of the universe, and of the mystery of human
life. Beliefs about these matters could not define the attributes
of personhood were they formed under compulsion of the State."

Griswold was alive and well, O'Connor made clear. But she said
further to the anti-Griswold doubters among her colleagues, if you
don't believe in a constitutional right to privacy, you have to
recognize that the original Roe v. Wade decision has an "affinity"
to prior Court decisions limiting governmental involvement in medical
treatments. Here she was surely thinking of one of the very first
privacy cases decided by the Court, just a few months after the
Warren-Brandeis Harvard Law Review article appeared in 1890. In that
case, the Court ruled on the appeal of a woman who objected to being
compelled to disrobe and submit to a surgical examination without her
consent, as a condition of continuing her lawsuit against the Union
Pacific Railway to collect damages for a physical injury. The Supreme
Court proclaimed,

"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, free from all restraint or interference
of others, unless by clear and unquestionable authority of law."

Rehnquist did not take on O'Connor on the privacy/liberty issue.
But he must have felt burned. Associate Justice Harry Blackmun, the
author of Roe v. Wade who had fully expected that it would be reversed
in 1992, wrote in an opinion concurring with O'Connor (and praising
her "personal courage"), "The Chief Justice's criticism of Roe follows
from his stunted conception of individual liberty [Blackmun's and
O'Connor's code word for privacy?]. While recognizing that the Due
Process Clause [in the Fourteenth Amendment] protects more than simple
physical liberty, he then goes on to construe this Court's personal-
liberty cases as establishing only a laundry list of particular
rights, rather than a principled account of how these particular
rights are grounded in a more general right of privacy".

O'Connor seemed to be moving the Court away from Chief Justice
Rehnquist's restrictive "laundry list" towards a "more general right
to privacy". This gave lawyers in future cases the leeway they needed
to widen the Constitutional recognition of privacy. At about the same
time, lawyers for gay persons began to expand the notion of family
so that their claims for privacy protection would fit even within the
"laundry list".

Was O'Connor's opinion for a bare 5-4 majority in the Casey case an
extremely narrow viewpoint of privacy (or liberty), standing only
for the proposition that one's belief about abortions is a totally
personal decision? (This is a narrow reading, because, after all, it
is not a radical thought to say that a person's beliefs are protected
against government intrusion. That has never been challenged. Nor
does it have much to do with the right to an abortion, which involves
acting on those beliefs.) Or is a more expansive interpretation
warranted? Was a slim Supreme Court majority, with O'Connor leading
the way, now extending the constitutional right to privacy -- a tiny
bit - to all of the intimate attributes of personhood, including
sexuality, family life, personal health care and education,
spirituality, intellectual activities, and possibly how one earns and
spends one's personal resources? This broader view may be warranted
because Justice O'Connor chose to use the world personhood, an
expansive, not limiting, synonym for privacy that only permissive
appellate judges and liberal commentators had dared use in the past.

Or, was this language the contribution of Justice Kennedy, who was
the teetering deciding vote to uphold the constitutional right to an
abortion in 1992? It sounds like him. An insider report by Jeffrey
Rosen in The New Yorker in 1996 said unequivocally that the words were
Kennedy's. After Judge Bork's appointment to the Court was rejected
by the Senate, President Reagan nominated Kennedy, a federal appellate
judge from California who seemed a less strident substitute. At his
confirmation hearing in 1987, Judge Kennedy said that Americans have
a "shared vision" that includes "the idea that each man and woman has
the freedom and the capacity to develop to his or her own potential".
Since then, Justice Kennedy seems to have disappointed conservatives
because he has declined to join the conservative wing of the Court.

Fans of symmetry will notice that the Supreme Court's momentous 1992
decision preserving the right to an abortion and the constitutional
right to privacy begins and ends with the word liberty. Justice
Kennedy wrote both sentences and worded them intentionally, according
to Rosen's inside report. It is the word that is central to the
narrow majority opinion. Is it the new code word among the Court's
moderates for privacy?

In a subsequent book, Bork has said that he would have voted the other
way on the abortion case, refusing to find a right to privacy in the
U.S. Constitution. That one vote would have made a huge difference.
Thus, the Court's recognition of a constitutional right to privacy was
extremely close to dissipating during the years between 1986 and Bill
Clinton's election in 1992.

Clinton, as a one-time constitutional law teacher and savvy
political candidate for President in 1992, recognized immediately the
precariousness of the situation. The day after the Court announced
its decision in Planned Parenthood v. Casey, Clinton vowed, "I would
appoint judges to the Supreme Court with a long history of advocacy
for the Bill of Rights, especially the right to privacy". While that
turned out to be not totally accurate, Clinton did appoint to the
Court two judges who have held the line on this issue.

By the beginning of Clinton's term in office, there could be no doubt
that Sandra Day O'Connor had assumed leadership on the Court for
privacy issues. It was she who authored an opinion for a splintered
Court in 1987 finding that when government employers search employees'
desks or offices this "requires balancing the employee's legitimate
expectation of privacy against the government's need for supervision,
control, and the efficient operation of the workplace". The Court's
ruling was equivocal, essentially a 4-4 tie, with Justice Antonin
Scalia barely agreeing to make it a 5-4 majority. Without O'Connor's
pro-privacy vote and her assertion on this issue, the Court would have
required no consideration of the worker's privacy interest.

In two opinions in 1995, Justice O'Connor reaffirmed her appreciation
of privacy -- and she even used the word. In a majority opinion on
a very contentious issue within the Court, O'Connor stood up for the
interests of aggrieved accident victims who are assaulted by zealous
lawyers seeking clients. The Court upheld a Florida rule that lawyers
must wait 30 days before soliciting business by advertising directly
by mail to an accident victim. She said that a previous decision
by the Court that appeared to be contradictory was decided against
regulating lawyers' advertising in grief situations only because the
Court did not fully consider the privacy interests of the targets
of the advertising! Immediate advertising by lawyers was "invasive
conduct" and direct mail can create "outrage and irritation" in
persons who have stressful or delicate conditions, she wrote, for the
Court.

It was in dissent five days later that O'Connor reaffirmed her support
for the constitutional right to privacy that the Court had recognized
since the Griswold decision. She refused to join the majority of
Americans who apparently did not regard urinalysis tests of employees
and students as unreasonably intrusive. O'Connor led two moderate
colleagues in objecting to the Court's approval of random urinalysis
testing for high school athletes. A seventh grader in Oregon named
James Acton brought the challenge after he was disqualified from
playing football because he declined to submit to mandatory drug
testing.

The six-member majority determined that the testing would not be
arbitrary because everyone could be subjected to it and because
athletes had little expectation of privacy. But O'Connor responded,
"In making these policy arguments, of course, the Court sidesteps
powerful, countervailing privacy concerns". She pointed out that the
Court in 1987 had ruled that blanket searches pose a greater threat
to liberty than individualized searches. O'Connor's dissent stated:

"But whether a blanket search is 'better' than a regime based on
individualized suspicion is not a debate in which we should engage.
. . . For most of our constitutional history, mass suspicionless
searches have been generally considered per se unreasonable within
the meaning of the Fourth Amendment. And we have allowed exceptions
in recent years only where it has been clear that a suspicion-based
regime would be ineffectual. [The framers chose to curb the abuses
of general warrants not by being evenhanded but by raising the level
of suspicion required to conduct a search.] Protection of privacy,
not evenhandedness, was then and is now the touchstone of the Fourth
Amendment."

In a criminal context, she said, universal searches not based on
suspicion are clearly unconstitutional, regardless of how "evenhanded".
In a non-criminal context, they are certainly "intrusive".

Sandra Day O'Connor's assertion in the 1992 abortion rights case that
any attempt "to define one's own concept of existence" is entitled to
constitutional protection remains the current standard for the Supreme
Court in the new century. Already the Ninth Circuit Court of Appeals,
the court on which Justice Kennedy formerly sat, has invoked this
language to support a finding of a constitutional right to determine
the time and manner of one's death. This is an issue that courts
will be asked to consider increasingly in the new century. Will a
new majority of the Court seize on this and expand the constitutional
recognition of a right to privacy, especially in a new era in which
the government's resources for collecting personal information and
checking private conduct have become staggering?

Copyright 2000 Robert Ellis Smith