To Benno Schmidt Jr., there can be no free society without privacy

`PRIVACY is absolutely essential to maintaining a free society. The idea that is at the foundation of the notion of privacy is that the citizen is not the tool or the instrument of government - but the reverse.'' Speaking is one of the nation's leading constitutional scholars, Benno C. Schmidt Jr. The former Columbia University law dean and one-time clerk to United States Chief Justice Earl Warren recently became the 20th president of Yale University.

In an interview in his campus office, Dr. Schmidt talked about both concepts and specifics of privacy.

``I don't think one can have a society that rests on essentially democratic assumptions - that citizens control their government, that citizens have the obligation of civic participation and [of] determining their own destiny - unless one has at the core a notion of what it means to be a free human being ... [and that] there are limits to the power of society to make intrusions on the autonomy of the individual,'' he says.

The Yale president commented on the now classic definition of privacy by Supreme Court Justice Lewis Brandeis: ``the right to be let alone.''

``The way Brandeis puts it captures the notion of liberty that we derive from the Enlightenment philosophers as a kind of basic, intrinsic human right that will flourish if government will leave us alone,'' Schmidt says.

But he quickly adds that the Brandeis phrase is a ``nice epigram'' and ``does not begin to capture the variety and complexity'' of our notions of privacy today.

Schmidt specifies privacy in the bedroom, in the board room, in the public park, and information privacy.

``There is a whole variety of privacy that has to do with essentially private information about ourselves - that we [perhaps] want to hide or not hide, that suggests a shame or guilt about it - but we don't want to present it to public view,'' he says. These deal with intimate family matters, including parent-child relations.

The constitutional scholar says there is continuing dispute within the legal community and among the news media about ``what kinds of truthful information should nevertheless not be published because it is private.''

Schmidt insists that many things that are placed under the category of ``privacy'' are really mislabeled - and should be considered ``personal autonomy.''

Along these lines, ``there are certain kinds of decisions that we think government should not interfere with. ``To take one that is absolute - complete freedom with respect to religious convictions and beliefs,'' he says.

But Schmidt adds that what is sometimes claimed to be ``religious activity'' - such as human sacrifice and drug use as part of religious exercise - is not absolute and should not be protected as a privacy right. ``But I think one can be absolutely certain that government has no right to test religious convictions,'' he stresses.

The legal scholar allows that there are areas where it is necessary to balance the ``right to be let alone'' with the ``necessities of organized society and government.''

Here Schmidt might apply a standard of ``reasonableness.'' He points out that the Fourth Amendment to the Constitution - which deals with ``physical and geographical'' privacy - talks about the right of the people to be secure ``against unreasonable searches and seizures.''

In contrast, he stresses that the First Amendment makes no such equivocation. It does not say that Congress can make reasonable laws'' respecting establishment of religion or abridging freedom of speech.

Referring back to the Fourth Amendment, Schmidt uses the example of drug testing - which he says calls for reasonable legislative solutions. Schmidt is ambivalent about the practice.

``I would feel that my privacy was being invaded [if forced to be tested],'' he says. He allows, however, that if there were strong evidence that children or even adult workers were being exposed to addictive and dangerous drugs, he might be receptive to the idea of testing. ``But the purpose would have to be care and therapy ... not punitive,'' such as expelling from school or firing people who test positive.

The legal scholar stresses that these decisions, and others, must be predicated on a ``constitutional system which elevates the individual with respect to basic human rights over the government.

``It is all a seamless web that if you have no privacy, it will tend to follow that you have no political freedom, no religious freedom, no freedom of families to make their own decisions [regarding having children]. All these freedoms tend to reinforce one another.''

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