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.