Privacy Rights/Conflicts with other Rights/Other fundamental
Are there other specific fundamental rights that tend to conflict with this right? Can you identify specific examples of this?
As Warren & Brandeis suggest in The Right to Privacy (1890) , the right to privacy directly conflicts with freedom of the press and speech. They wanted to protect people from writings beyond what defamation and publishing law covered. However, by proposing privacy protections that extended beyond these laws, they were inherently limiting what could be published. While this limitation was intentional, it was sure to be contentious as the First Amendment had been in place and protected for nearly 100 years and privacy rights were not prominent in any part of the world before this time. The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (US Constitution, 1787, Amd. 1).
The United States Supreme Court Cases offer plenty of examples of press and privacy rights conflicting, as “the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy” (Briscoe v. Reader’s Digest Association, Inc., 1971) . In some cases, privacy prevails, in others, the First Amendment. One of the cases was New York Times Company v. United States (1971) in which the New York Times published the Pentagon Papers but the Nixon administration argued that those should be kept private for national security concerns. In a 6-3 decision, the Court claimed that these were not to be considered private or secure and that the freedom of the press prevailed (NYT v. US, n.d.). Also in 1971, the Court ordered Branzburg to reveal his sources to a grand jury, despite the sources explicitly asking to not be revealed in Bransburg v. Hayes. Had secrecy been maintained, the press would have more rights than individuals during the grand jury (Branzburg v. Hayes, n.d.). Additionally, other cases such as Cox Broadcasting Corporation v. Cohn (1975) and Florida Star v. BJF (1989) held that freedom of the press overtakes privacy rights when the information is lawfully and publicly available. Cohen v. Cowles Media Company (1991) granted privacy to press informants if they had been promised confidentiality with promissory estoppel because the principle applies generally not just to the press (Cohen v. Cowles Media Company, n.d.). The contrast of Branzburg and Cohen shows how interpretive and circumstantial privacy rights are, while NYT v. NASA (1991) reveals that privacy rights are dependent on the media used to publish the information. In this instance, the US District Court for the District of Columbia allowed for transcripts of the Challenger astronauts’ last words to be published by the Times, but not the voice recordings (Mills, 2008, 36).
Privacy rights also conflict with the right to information. The government recognized this right with the Freedom of Information Act in 1966 (FOIA). This act granted anyone the ability to request access to federal agency records but not the records of private companies. The goal of having public records is to keep the government accountable, but this risks people’s privacy based on the nature of the information agencies collect (Mills, 2008, 50). However, nine exemptions and three exclusions in FOIA limit access to these records. The exclusions are narrow and related to law enforcement and ongoing intelligence investigations and are unaffected by FOIA. The exemptions authorize government agencies to withhold information from those requesting it (Freedom of Information Act, n.d). Luckily, the exceptions and exemptions and the Privacy Act of 1974 considered the right of privacy and aimed to prevent the collision of these rights (Mills, 2008, 51).
Privacy is also put aside when considering public security and health (Mills, 2008, 227). In the United States, this lack of priority became clear with the 1978 Foreign Intelligence Surveillance Act (FISA) and PATRIOT Act of 2001, which both expanded the ability of the FBI to have access to information on individuals that may or may not be a threat to the nation’s security. Many courts have upheld acts that place public security over personal privacy rights. To use an example less severe than terrorism, such is the case with the release of sex offenders (Mills, 2008, 224). While it hurts one’s reputation to have their name released in connection with this crime, it protects the greater community and their neighbors by alerting them.
References:
Branzburg v. Hayes. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1971/70-85
Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html
Cohen v. Cowles Media Company. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1990/90-634
Cox Broadcasting Corporation v. Cohn. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1974/73-938
Florida Star v. B. J. F. (n.d.). Oyez. Retrieved November 15, 2021, from https://www.oyez.org/cases/1988/87-329
Freedom of Information Act, The. (n.d.). Department of State. Retrieved Sept. 14, 2021, from https://foia.state.gov/learn/foia.aspx
Mills, J.L. (2008). Privacy: The lost right. Oxford University Press.
New York Times Company v. United States. (n.d.). Oyez. Retrieved November 12, 2021, from https://www.oyez.org/cases/1970/1873
U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript
Warren, S. & Brandeis, L. (1890, Dec. 15). The right to privacy. Harvard Law Review 4(5), 193-220. http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C