The constitutional right to privacy and free speech conflict

CIVIL RIGHTS -- PRIVACY vs. FREE SPEECH

The Right to Privacy

Contrary to what many people believe, there is no constitutional right to privacy per se (Dershowitz, 2002). The modern right to privacy first came to be recognized in connection with a series of U.S. Supreme Court cases that were decided during the civil rights era. Specifically, in the principle case Griswold v. Connecticut (1965), the Supreme Court struck down a state law prohibiting the use of contraceptives, ruling that the Constitution did protect a right of privacy despite the fact that no such white was actually described (Dershowitz, 2002; Friedman, 2005).

To reach that conclusion, the court decided that the Due Process Clause of the 14th Amendment was the source of an umbrella or "penumbra" of protections that emanated from the Constitution to protect fundamentally private matters such as the choice by a married couple to use contraceptives (Dershowitz, 2002). This concept was also instrumental in the later landmark decision in Roe v. Wade (1973) that established that states could not prohibit elective abortions within the first trimester or during the second trimester except with respect to regulating certain medical issues (Clapman, 2003; Dershowitz, 2002; Friedman, 2005).

Autonomy over One's Body -- The Most Fundamental of all Privacy Rights

It is difficult to imagine a more important personal right than the autonomous control over one's physical person. In fact, the principal basis of the justification for government authority is as the most effective way of ensuring that individuals do not violate one another's rights. In that regard, it is appropriate for the government to regulate all forms of "personal" choices and actions that unjustly interfere with the identical rights of other people. It is relatively obvious why government should be entitled to regulate individual behavior that harms others; however, it is not as clear what (if any) is the basis of any right of government authorities to regulate or proscribe purely private choices that do not impose at all on the right of any other person. That argument applies to refusing life-saving medical treatment, physician-assisted suicide, and elective abortion.

All Pro-Choice advocates recognize that a fetus becomes a person at some point before birth. Secular ethicists also argue for erring on the safe side, but they recognize earlier periods of gestation (such as when the fetus is not even recognizably formed) when a fetus should not yet be considered a person with moral and civil rights. In a practical sense, the Roe decision already allows states to regulate abortion during the period of human gestation where the fetus can reasonably by said to have the rights of a person by objective scientific criteria. Therefore, the philosophical and ethical basis of argument over abortion is not objective or scientific but religious, because its fundamental issue if the religious belief that a human being is created at the moment of conception (Dershowitz, 2002).

The Value of the Legal Approach Suggested by the Article

The Yale Law Journal article (Clapman, 2003) explained various ways that the general right of free speech is limited by more important privacy rights. For example, truth is ordinarily an affirmative defense to defamation. However, existing law already recognizes that certain statements, despite being truthful, serve no valid purpose besides injuring another person, such as by purposely publicizing tremendously embarrassing (but true) information about another. The author outlines several different legal justifications for other types of exceptions to general free speech principles. She then suggests that:

"So far, however, advocates have largely overlooked common-law privacy rights as a possible source of protection. This may be a serious mistake. Two common-law torts, in particular, are well suited to the specific harm of abortion outing: the intrusion tort, which covers wrongful intrusions into a person's physical seclusion or personal affairs, and the publication tort, which covers wrongful publication of private facts."

Since the first legal challenges generated by the clash of privacy and free speech rights outside of medical clinics, several states and local governments have implemented legislation that prohibited demonstrations within specific distances of private property and the misuse or malicious publication of private information (Schmalleger, 2008).

The Argument for Protecting Privacy over Free Speech in this Context

There is a legitimate ethical and legal justification for protecting the rights of unborn fetuses that corresponds to a certain stage of human gestation beyond which a fetus becomes a sentient entity that may also be capable of surviving outside of the womb. However, the principal opposition to abortion is not predicated on humanistic or constitutional principles but strictly on religious grounds: namely, the belief that human life begins at conception (Dershowitz, 2002). Medical patients have a private right to obtain lawful medical services without suffering intentional infliction of emotional distress and trauma. Pro-Life advocates have a free speech right to express their opposition to abortion, including objections based in religious beliefs and definitions. In simple terms, the right to personal privacy and freedom from unwanted verbal confrontations about highly private personal matters outweighs any free-speech right to verbally abuse or publicly embarrass medical patients who do not share the protestors' opinions and beliefs.

Ultimately, in certain contexts, the right of free speech ends where it conflicts with the simultaneous rights of others to privacy in their personal affairs and their right to be free from malicious harassment that happens to be implemented through the medium of "speech."