Privacy and Personal Freedoms. Balancing the trade offs. From seat-belt laws to abortions, Americans are having a tough time deciding which private activities the Constitution protects and which ones government needs to control.
WHEN Massachusetts voters fooled the pollsters last month and defeated a 10-month-old mandatory seat-belt law, radio talk-show host Jerry Williams said: ``The message is [that] we want to be free to make our own decisions. ``We use seat belts but we don't want to be forced, coerced by police,'' said Mr. Williams, who heads his state's anti-seat-belt drive. ``It's a freedom issue.''
But Paul Carey, campaign director of the Staying Alive With Seat Belts Committee, countered: ``It's a safety issue. It's simply a matter of safety.''
As the United States enters the bicentennial of its Constitution, issues of personal freedom - particularly the right of choice and individual privacy - are flowing into the courts, legislatures, and other public forums with increasing frequency.
But there is little agreement over what is, and should be, private. The concept of personal privacy takes on not only legal connotations but is now also being defined in moral terms.
In 1928, US Supreme Court Justice Lewis D. Brandeis characterized privacy as ``the right to be let alone.'' Commenting on this, social scientists Herbert McClosky and Alida Brill in their recent book, ``Dimensions of Tolerance: What Americans Believe About Civil Liberties,'' explain: ``Actually ... the right is broader than this, for it includes not only the inviolability of a person's thoughts against unwarranted probes, but protections against goverment interference with certain forms of conduct considered personal and beyond the reach of the state.''
Of late, privacy considerations have pervaded public debates on issues ranging from seat belts and sex to school strip searches and government surveillance.
The late Supreme Court Justice William O. Douglas, in 1965, firmly attached privacy protections to the Bill of Rights. Turning to Bill of Rights
The case, Griswold v. Connecticut, involved a challenge to a Connecticut law that banned the use of contraceptives in the home. Writing with the majority in overturning the law, Justice Douglas held that while the Constitution does not specifically spell out the right to be let alone, it in effect does so through such guarantees as ``the rights of association and expression protected by the First Amendment, the Third Amendment prohibition on the quartering of soldiers in private houses in times of peace, the Fourth Amendment's protection against unreasonable searches and seizures, and the Fifth Amendment's protection against self-incrimination.''
The 1965 ruling underpins many modern privacy decisions, says former Supreme Court Justice Arthur J. Goldberg.
Thorny privacy-related questions facing the courts, state legislatures, and the public include:
Should relations between consenting homosexuals get the same protections as those between heterosexuals, especially those of a husband and wife in a family setting?
Does the state's right to regulate abortions invade a woman's privacy?
May an individual or his immediate family reject extraordinary means to prolong human life, such as medically designated support systems, without government interference?
Are restraints on pornography an abridgment of individual freedom?
When is police surveillance an intrusion on liberty?
Does government curtailment of drug and alcohol use constitute a clampdown on personal freedom?
Are driving safety measures, which allow police roadblocks or mandated seat-belt use, a crib on privacy?
Ms. Brill, who is writing a book on the ``paradox of privacy,'' insists that ``to preserve privacy is to preserve freedom.'' She laments recent court decisions and government actions that, among other things, limit the distribution of obscene materials and uphold state laws that outlaw sodomy or sexual relations between those of the same sex.
``I'm less concerned with protecting society from itself than in protecting privacy,'' Brill says. ``What we are hearing is a fearful America, [thinking that] dangerous things and dangerous people are going to hurt them. We must ask the questions: `At what cost freedom? At what cost control?'''
But Brill and others agree that there must be a delicate balance between an individual's right of action and public safety and protection.
David A.J. Richards, a New York University law professor, says that there are limits to privacy in family relations. ``There would be no constitutional objection,'' he says, ``to the application of neutral criminal statutes to intrafamilial murders, or wife or husband beatings, or child abuse, no matter how rooted they are in family life and sexuality; nor should there be any objection to rape laws applicable to married or unmarried sexual initimacies.'' `Balance' - a moving target?
Over the past year, the US Supreme Court, in a series of narrowly decided rulings, has tried to balance the implied constitutional right of privacy with other considerations. In some highly publicized cases, the justices:
Reinforced the landmark Roe v. Wade ruling of 1973, which struck down state laws forbidding abortion. In reaffirming that ruling, the justices held that the due-process clause of the Constitution guarantees women the right to reproductive freedom - at least during the first six months of pregnancy. The court, however, has allowed state restrictions on abortion that are not overly intrusive on women's privacy rights.
Refused to invalidate a Georgia antisodomy statute, which outlaws sexual relations between those of the same gender, even in private. The court left open the legality of pre- or extramarital relations between heterosexuals.
Ruled in two cases that police and other government investigators may conduct aerial surveillance and take detailed pictures from the air without a warrant. The cases involved inspection of a chemical plant for possible violations of environmental laws and surveillance of a private home and property where people were suspected of growing marijuana.
Privacy is multifaceted in American society. Court rulings and legislative action tend to differ from issue to issue and from community to community. Recent actions illustrate this:
-In what have been called ``death-with-dignity'' cases in Massachusetts and New Jersey, families of patients diagnosed as terminally ill have, after lengthy suits, gotten the courts to stop extraordinary life-support means. Several states are weighing legislation allowing mercy killing, or euthanasia, in these situations. But in most jurisdictions, it is still a crime. More than 30 states have adopted so-called ``living will'' laws, which respect the wishes of comatose persons without court hearings.
-In a so-called fetal-neglect case, a young woman who lost her baby soon after it was born is being prosecuted in California for not following doctor's orders during her pregnancy. At issue: privacy and freedom of choice vs. the state's responsibility toward children.
-Parents of a New Jersey girl, who attends a private boarding school for troubled teens, are suing school neighbors for ``invasion of privacy, libel, and slander'' after they contended that the girl is being mistreated. The mother charges interference in family matters and an attempt to ``impose their [the neighbors] values on me.''
-The Florida Legislature has passed a law that prohibits localities from requiring itinerant workers to register, submit to a background check, and carry an identification card. This action was aimed at Palm Beach, which had an ordinance requiring registration and ID cards until a federal court invalidated it.
-Bucking a national trend, a New York federal court has permitted the strip search of a person detained for a misdemeanor.
-School trustees of Marlboro Township in New Jersey have approved partial strip searches of students from kindergarten through eighth grade for drugs, alcohol, and weapons if administrators have ``reasonable grounds'' to suspect such a search will yield illegal items. New Jersey's Supreme Court and the US Supreme Court have disagreed on what constitutes reasonable cause for searching student lockers and possessions. Civil liberties groups charge that such searches are an invasion of privacy.
First of three articles. Tomorrow: Privacy in the workplace.