privacy (2024)

Overview:

There is a long and evolving history regarding the right to privacy in the United States. In the context of American jurisprudence, the Supreme Court first recognized the “right to privacy” inGriswold v. Connecticut(1965). BeforeGriswold, however, Louis Brandeis (prior to becoming a Supreme Court Justice) co-authored aHarvard Law Review article titled "The Right to Privacy," in which he advocated for the "right to be let alone."

Griswoldand the Penumbras

​InGriswold, theSupreme Courtfound a right to privacy, derived frompenumbrasof other explicitly stated constitutional protections. The Court used the personal protections expressly stated in theFirst,Third,Fourth,Fifth, andNinthAmendments to find that there is an implied right to privacy in theConstitution. The Court found that when one takes the penumbras together, the Constitution creates a “zone of privacy.”The right to privacy established inGriswold was then narrowly used to find a right to privacy for married couples, regarding the right to purchase contraceptives.

JusticeHarlan's Concurrence inGriswold

Additionally, it is important to note Justice Harlan's concurring opinion inGriswold, which found a right to privacy derived from theFourteenth Amendment. In his concurrence, he relies upon the rationale in his dissenting opinion inPoe v. Ullman(1961). In that opinion, he wrote, "I consider that this Connecticut legislation, as construed to apply to theseappellants, violates the Fourteenth Amendment. I believe that astatutemaking it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life."

In privacy cases post-Griswold, the Supreme Court typically has chosen to rely upon Justice Harlan's concurrence rather than Justice Douglas's majority opinion.Eisenstadtv Baird(1971),andLawrence v. Texas(2003) are two of the most prolific cases in which the Court extended the right to privacy. In each of these cases, the Court relied upon the Fourteenth Amendment, not penumbras.

Extending the Right to Privacy

InEisenstadt, the Supreme Court decided to extend the right to purchase contraceptives to unmarried couples. More importantly, however, the Court found that "the constitutionally protected right of privacy inheres in the individual, not the marital couple."

InLawrence, the Supreme Court used the Fourteenth Amendment to extend the right to privacy to "persons of the same sex [who choose to] engage in . . . sexual conduct." Relying upon the Fourteenth Amendment's guarantee of due process, the Court held: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Roe’s Overturning

When the Supreme Court first decidedRoe v. Wade, the Court used the right to privacy, as derived from the Fourteenth Amendment, and extended the right to encompass an individual’s right to have an abortion: "This right of privacy . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy." However, after the Dobbs decision, the Court overturned both Roe and Casey. Consequently, the right to abortion no longer falls under the broader right to privacy. Additionally, the Dobbs opinion mentioned potentially examining Griswold and Eisenstadt in the future. While it is unclear to what extent that may have on the right to privacy in the current time; it is likely that the case law around this right will continue to evolve with more recent Supreme Court decisions.

Further Reading

These distinct rights of privacy are examined separately on the following pages:

• The Right of Privacy: Access to Personal Information
• The Right of Privacy: Personal Autonomy
• The Right of Publicity

Federal Material

U.S. Constitution

• CRS Annotated Constitution:
  • Fourth Amendment: Search and Seizure
  • First Amendment: Invasion of Privacy

Federal Judicial Decisions

• U.S. Supreme Court:
  • Recent Right toPrivacy Decisions

State Material

• State Judicial Decisions
  • N.Y. Court of Appeals:
    • Commentary from liibulletin-ny
    • Search N.Y. Court of Appeals Decisions
• Appellate Decisions from Other States

Other References and Resources

• American Library Association
• Good Starting Points in Print:
  • J. Thomas McCarthy;The Rights of Publicity And Privacy, West Group (2005)
  • Richard Turkington & Allen-Castellitto;Privacy Law:Cases & Materials, West Group (2002)
  • Anupam Chander, Lauren Gelman & Margaret Jane Radin; Securing Privacy in the Digital Age, Stanford University Press (2008)

​[Last updated in June of 2022 by the Wex Definitions Team]