The Failure of Privacy

To most Americans, the right to privacy is a cornerstone in the grand constitutional
structure, a right that guarantees a wide range of freedoms. We invoke
it romantically in our self-righteous claims to freedom from social or
legal intrusion (“What I do in my bedroom is my own business”); freedom
of belief (“My religion—or lack of it—is my own business”); freedom of
association (“This is a private club—we can decide who can join”); and
freedom within our families and other personal relationships (“I’ll raise
my kids the way I want to”). We also invoke it ignorantly: there is no
right to privacy in the Constitution. The concept is a relatively new one
cobbled together through a handful of Supreme Court decisions, the two
most recent of which were handed down in June.

In Troxel v. Granville, the Court ruled that grandparents have no legal
standing to visitation rights with their grandchildren over the parents’
objections. Justice Sandra Day O’Connor argued in a plurality opinion that
“there will normally be no reason for the state to inject itself into the
private realm of the family to further question the ability of that parent
to make the best decisions concerning the rearing of that parent’s child.”
In United States v. Hubbell, the court ruled that Whitewater independent
counsel Kenneth W. Starr violated his immunity agreement with Webster L.
Hubbell by issuing a subpoena so far-reaching that it produced more than
13,000 pages of financial records. Starr then used old tax returns to charge
Hubbell with tax evasion, even though this was not the misconduct alleged
in the original inquiry. Echoing an earlier appeals-court decision that
called Starr’s actions “the quintessential fishing expedition,” the Court
ruled that if the government has “no prior knowledge of either the existence
or whereabouts” of business or private papers, using subpoenas to search
for evidence violates the Fourth and Fifth Amendment protections against
“unreasonable search and seizure” and self-incrimination.

Both rulings appear to be good news. The decision on grandparents’ visitation
rights seems like common sense: indeed, it’s been hailed by legal experts
who want to limit biological-family intrusion into gay families. (The most
controversial of these cases was that of Sharon Bottoms, an open lesbian
who lost custody of her son to her mother, who objected to Bottoms’s homosexuality.
In a bitter irony, the mother’s second husband was a convicted child abuser:
so much for the best interests of the child.) The judgment on the Hubbell
case, meanwhile, looks like simple fairness, another well-deserved rebuke
of Inquisitor Starr.

But is a legal concept of privacy the best way to negotiate these issues,
especially issues of sexuality and family? Especially homosexuality. As
the world becomes increasingly complicated, have we retreated into “privacy”
as a way of avoiding broader public discussion of what it means to be human?
Has privacy become an easy one-size-fits all solution to social problems?
Arguing for privacy is always defensive, never fully assertive. If we truly
want to defend our freedoms, we need solutions that are more effective—and
more radical. We need to find new concepts, and maybe even new language,
to express and protect our most basic needs and desires. Insisting on privacy
simply removes us from the public world.

We tend to think of privacy as a way to escape the intrusive, unlawful
power of the state or society: protecting the little people. But, too frequently,
privacy has protected and strengthened the powerful. The legal and social
concept of privacy took root after the fall of feudalism, when newly freed
serfs at last attained some measure of liberty from the formerly all-powerful
monarchy. They could now own property and had greater rights to personal
and social independence. They could be private—that is, not part of the
monarch’s public realm. Under this system, the family now became an important
social unit. But in many ways, this new structure simply replicated the
older power system.

British jurist Sir Edward Coke noted in 1623 that “et domus sua cuique
est tutissimum refugium” —“a man’s [sic] home is his castle.” Yet this
concept of privacy was quite narrow. It set up the home, and by extension
the family, as a private social entity. But within that realm the man,
like the king, had the power. Wives and children were literally—legally—
“owned” by their husbands or fathers. The “man” in Coke’s declaration was
not another word for “person.” With the rise of private enterprise, similar
ideas held true outside the home: owners had more rights than workers.
The idea of private property was also new, and highly problematic. A series
of enclosure acts in Britain in the 16th and 17th century—which privatized
commonly held forests and pastures—radically altered not only citizenship,
but also the very sense of the traditional commonly held land. This eradication
of the “common”—a physical manifestation of a broadly held sense of community
interests and responsibilities—still lives with us today. The idea that
communities might function under a model of cooperation rather than competition
is foreign to many in the U.S. This maligning of the common, is with us
today even in phrases like “commonplace” which are used to disparage, rather
than value objects and actions. While privacy provided some independence
from regal authority, it generally helped and protected those with power.

We see this even in the modern era. When democracy replaced the divine
right of kings, “privacy” took on new meanings, forms, and abuses. Often
the state had to intervene. A “man’s” business interests, for instance,
were his private concern. Yet as business owners abused this privacy, the
government was forced to adopt regulations to protect workers (remember,
the five-day work week is relatively new) and even other businesses.

The privacy of the home has had to be modified in similar fashion. Just
three decades ago, physical child abuse and spousal battering were ignored
and tolerated by both legal authorities and the public: they were seen
as “private” actions that occurred in the sanctity of the home. In many
states, a man could not be convicted of raping his wife because sex within
marriage was legal—whether it was consensual or coerced. Here “privacy”
was a cover for domination and violence. As society has become more sensitive
to these issues, courts have been forced to balance this traditional concept
of privacy with an equally strong intolerance of violence against individuals.
It is now not okay to beat your wife, although you may still spank your
kids, but no longer with belts or wire hangers.

Yet the romance of privacy as a safeguard for personal freedoms still runs
strong. Nowhere is this more evident than in the past 25 years of Supreme
Court rulings addressing social and sexual relations. In 1964, the Court
ruled in Griswold v. Connecticut that married couples could buy and use
contraceptives; the state could not intrude on the privacy of a marriage.
In 1969 the same argument was used in Loving v. Virginia to overturn centuries-old
miscegenation laws. In 1972 Eisenstadt v. Baird extended the right of privacy
in marriage to all adult heterosexual relationships: unmarried couples
now had the right to buy and use contraceptives. And, most controversially,
in 1973’s Roe v. Wade the Supreme Court decreed that a woman’s right to
privacy included her right to have an abortion.

Each of these decisions expanded the concept of personal freedom and helped
create a society that values the integrity of the individual. But was the
legal concept of privacy the best route to this destination? By falling
back on privacy to secure individual rights, the courts—both appellate
and Supreme—may have avoided issues that are more difficult and more controversial.

Rather than expanding a constitutional right to privacy, for example, would
it not have been better—more honest and direct—for the Supreme Court to
rule that adults have the right to do with their bodies what they choose?
To espouse a standard of corporeal and sexual freedom that was a basic
right of being human. Such a decision would have expanded personal freedom,
celebrated the dignity of the individual, and helped create a society in
which all people are created equal and the pursuit of happiness is a little
easier. More important, however, is the harsh reality that the privacy
model has profound limitations—limitations that in the long run may be
disastrous. The freedoms granted by Roe v. Wade, for example, have been
steadily chipped away over the past two decades, and many of these attacks
have been aimed at its insecure definition of privacy.

If Roe v. Wade points to the frailty of the privacy model, the 1984 Bowers
v. Hardwick decision attests to its complete failure. At first glance Bowers
v. Hardwick
looked like a no- brainer, a sure win. Michael Hardwick, a
gay man, was arrested and convicted on charges of breaching Georgia’s sodomy
law by having oral sex with another man in his bedroom with the door closed.
Gay advocates and attorneys argued that the arrest violated Hardwick’s
right to privacy.

Yet the Supreme Court ruled that—in spite of the precedents set by Griswold,
Loving, and Roe—there was no constitutional right to privacy when it came
to consensual sodomy, for it had no relationship to the privacy of choice
that had been established for marriage and reproduction. If those earlier
cases had been argued, and won, on the right to bodily integrity, Michael
Hard- wick’s conviction might well have been overturned, along with Georgia’s
sodomy law.

This Monday morning adjudicating might seem simplistic. Individual Supreme
Court cases are decided on the arguments put forward by opposing attorneys
and shaped by both legal precedent and historical context. But what’s clear
is that privacy arguments remain persistent and relatively unquestioned.
In Troxel v. Granville the Court stated that “family privacy” legally outweighed
the competing concept of “the best interests of the child.” In its extreme,
this is exactly the same notion that allowed and encouraged domestic violence.

Legal experts have suggested applying this ethos of privacy to other social
problems. In the June 12 issue of the New Republic, Jeffrey Rosen proposed
that sexual harassment in the workplace might better be addressed through
an expanded concept of “invasion of privacy” rather than the now-accepted
(although problematic) “hostile work environment” model. He argues that
the “indignity and humiliation” caused by sexual harassment could be understood
as an invasion of personal privacy and “an injury to dignity.” This argument
does acknowledge that sexual harassment violates the integrity of the harassed
body. But, like the other “privacy” solutions, it addresses the problem
by constructing a buffer zone that separates one person from another, the
self from society.

That, at heart, is what is wrong with the privacy argument. It continually
seeks to find security and personal freedom by removing the individual
from society. Rather than asserting that sexuality or sexual relations
are good and positive, it seeks to “protect” them by moving them from the
public sphere into the private. Such protection by retreat is never going
to establish a firm and inviolable right to our basic autonomy. Shouldn’t
we all be moving to a place where privacy can be an option, not a requirement
for personal freedom? Shouldn’t we move to a place where we have the right
to “be”—not the right to “be private?”                        Z

Michael Bronski is author of numerous books and a regular contributor to
Z Magazine.