Civil Rights -- Privacy vs.

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).

A Conflict between Fundamental Rights -- Free Speech vs. Privacy

Free speech and freedom of religion are two of the most important foundational principles of this country. That does not necessarily mean that all types of speech enjoy the same protection, but the most highly-protected types of speech under American law are political speech and religious expression (Dershowitz, 2002). In Privacy rights and abortion outing: a proposal for using common-law torts (Clapman, 2003), explains the historical origin of a conflict over the respective exercise of rights in situations where radical anti-abortion protestors intruded into the private lives of women scheduled for elective abortions.

Typical examples included staking out parking areas of obstetricians who performed elective abortions to identify patients by their license plates. They would subsequently call them at home, leave literature and fetus dolls at their door, and even call families and distant relatives of the patients to inform them of the patients' plans to ask them to intercede. The Pro-Life advocates argued that they were lawfully exercising their right of free speech on public property (such as across the street fro doctors' offices) to verbally attack patients by name as they exercise their equally important right to personal physical autonomy under the recognized privacy penumbras.

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).