The Right to Privacy

Today , with society continually pushing in and with the shrinkage of inviolate places ,” says VANCE PACKARD, “the idea that one can . . . lead a private, unfettered life is losing much of its force. “ The following discussion of the individual’s constitutional right to privacy is taken from Mr. Packard’s new book, THE NAKED SOCIETY, to be published by David McKay.


MOST thoughtful Americans accept the fact that it is not feasible to try to be a recluse in a country now filled with 190 million people. An authentic recluse, in fact, is likely to be the subject of considerable curiosity. Still, it should be remembered that the Founding Fathers of the U.S.A. contemplated a society in which a man or woman could have a great deal of latitude about choosing his style of living.

It was assumed that you were free to lead your own life, if you were not an unpunished criminal, a certified maniac, or a conscripted soldier. You could go into solitude when you felt in the mood for contemplation. You could be footloose, even though it might endanger your own life in hostile Indian territory. You could, with general approbation, horsewhip anyone who pried unduly into your affairs simply to satisfy curiosity or to profit by feeding idle gossip. And you could live in dignity in any way that you conceived the term.

Today, with society continually pushing in and with the shrinkage of inviolate places, the idea that one can — or should try to — lead a private, unfettered life is losing much of its force.

Consider first as the most obvious invasion of our right to a private life the role of intruding noise. For example, there are early-morning garbage collectors with their clanking trucks and their slamming of metal cans, which suggest that they enjoy being unset alarm clocks. There are the seekers of public office who abuse their freedom of speech by multiplying their voices a hundredfold with the use of a sound truck. There are the tens of thousands of youngsters with transistorized bullhorns. The same company that has been mass-merchandising the Big Ear microphone for youngsters also mass-markets the Big Blast. (“Just squeeze the trigger and send your voice booming over long distances.'’) And there is the canned music in public places that comes at you without request, at the zoo, at the newer library reading rooms, in hospital rooms, in airplanes, in trains. One of tiie large new apartment buildings in New York advertises “Music by Muzak in lobby, elevators, laundry rooms.”

Finally, and worst, there are the more than ten million portable transistorized radios in the United States alone, and many millions more in at least fifty other countries. Some months ago I had the first opportunity in my life to make an awe-filled trip up the Acropolis of Athens to that most perfect of structures, the Parthenon. There on the steps of the temple sat a young man of unknown nationality with a transistor radio blasting out a Greek version of rock and roll. He seemed surprised when I politely suggested by hand motion that he turn down the volume, but he complied.

In an editorial of lament on the nation’s rising noise level, Norman Cousins wrote of a remarkable sight he had seen at a corner of Madison Avenue. Men were at work putting in some underground cables. “One of them was wearing a headband inside of which was a small radio set,” he reported. “On a small ledge was another radio, turned up full force. It had to be: it was competing with two pneumatic drills in full operation only a few yards away.”

The psychical and physiological damage being done by the fairly continual barrage of sound that reaches millions of us probably cannot be accurately assessed for at least a decade. But the surmises are beginning. Psychiatrists are suggesting that a heavy intake of noise can create the kind of tensions leading to emotional disturbance. Audiologist Joseph Krimsky has stated that the capacity of noise to annihilate privacy is not only aggravating life’s stresses but can produce pathological changes in the auditory system and reduce “sensitiveness to the nuances of sound and music.”

In a minor but annoying way the privacy of many people is being stripped away, too, by the prurient and by practical jokers armed with tape recorders, microphone-transmitters, and flash cameras. Stores in California advertise that you can be the life of the party if you buy one of their pocket recorders and play back at parties what people have been saying without knowing they were being recorded. At a leading bar in Oakland the bartender amuses his patrons by tuning in conversations and other sounds occurring in the washroom.

A nightclub owner in New York revealed inadvertently during union negotiations that he had a microphone installed in the ladies’ lounge to collect gossip that he could pass on to columnists, presumably in exchange for plugs for his establishment. There have been reports that concealed microphones are used extensively in Las Vegas to record embarrassing conversations purely to provide fun for others.

In Wisconsin a bartender snapped a picture of a woman while she was in the rest room of the establishment, and, thanks to the marvels of instant photography, he was soon distributing the picture among patrons of the bar. The lady in question was not amused and took the matter to court. She was denied any recovery because, the state supreme court ruled, there was no common-law right of privacy in Wisconsin that could be based on judicial precedent, and the state legislature had never bothered to enact a law protecting one’s right to privacy.

The use of tape recorders by professional consultants, though with far worthier motives, is tending to undermine the confidentiality of conversations in many settings. A number of psychoanalysts record their patients’ disclosures while on the couch, not only so that they can play back passages to search for insights but so that the tape of a puzzling case can be played for their control analysts or group meetings. In such meetings the patient is identified only by sex, age, and symptoms, but many remarks may be dropped in the discussion that could conceivably lead to the identification of the subject.

Attorney Samuel Dash reported that during his investigation of eavesdropping he encountered in Philadelphia a pocket-recorder representative who revealed that one woman had rented a small recorder from him at the suggestion of her psychiatrist. Her psychiatrist had asked her to record secretly her husband’s sexual advances, to help the doctor determine the source of her problems.

In a Western state the deliberations of a jury in a federal court were secretly recorded. This was done in the interest of research; the taping was part of a project of the University of Chicago Law School. The judge and opposing counsel had agreed to the secret recording, but the twelve guinea pigs on the jury, who assumed they were conducting a secret deliberation, were not consulted.

THE role played by some sections of the mass media (newspapers, magazines, broadcasters) must also be examined in any assessment of the extent to which individual privacy is being undermined today. The body of laws specifically protecting one’s right to privacy is still puny. It was only in 1890 that a general right to privacy, a right to be let alone, was first seriously discussed in U.S. legal circles. The now classic article “The Right to Privacy” by Samuel D. Warren and Louis D. Brandeis appeared in the December, 1890, issue of the Harvard Law Review. The Constitution does not establish any protection for privacy as such, but it does cover certain aspects of privacy. It prohibits unreasonable search and seizure; it states that a person should “not be deprived of life, liberty or property” without “due process of law”; it guarantees the right of freedom of speech.

On the other hand, the First Amendment guarantees that Congress will make no law abridging freedom of the press. This presumes the right of the public to have access to facts even if those facts are embarrassing to citizens who are the subjects of the disclosure. As Mr. Dooley commented: “What’s wan man’s news is another man’s throubles.”

A great deal of embarrassing information about the private affairs of individuals is publicized for profit, especially in gossip columns and the sensational magazines. Surely our forefathers did not have juicy pap in mind when speaking of “the press.” But judges have been extremely lenient about permitting dissemination of information as long as a charge of libel cannot be sustained.

An interesting symptom of our times has been the success of the television show Candid Camera, in which people are caught unawares in revealing and sometimes foolish behavior. At least one subject so caught has sued. He was in a subway episode in which a stranger (a television performer) tried to crowd him out of his seat. He claimed he had suffered public ridicule, mental anguish, and humiliation. Perhaps one reason there have not been more suits is that an aide assigned to the show ordinarily obtains on-the-spot written releases from the people photographed. Their usual first reaction, I am told, is one of being flattered to think they may appear before a national television audience. They may not realize until they see the show that they have been made to look ridiculous. Television reporters and cameramen have recently been criticized for pressing too hard for raw drama in covering some news events. Television is the most intimate of the media. When reporters and cameramen shove microphones into the faces of people suffering anguish or embarrassment and refuse to let the persons escape, they are going too far.

The people who are most likely to suffer from invasion of privacy through disclosures by the mass media, and who are legally most naked of defenses, are those who for one reason or another have been public figures. Alan Schwartz, an authority on the law of privacy, comments: “Do movie stars, governors, presidents, people who are in the public eye by choice most of their adult lives . . . ever get their privacy back? Thus far, the tentative answer seems to be ‘no.’ Short of using their picture to advertise soap suds or the like, the so-called public figure is fair game for the mass media.”

Broadway actors are usually shocked to find that they have less chance for privacy when they go to Hollywood. Helicopters fiy over their patios to shoot pictures of the stars. Certain of the screen magazines have sent photographers disguised as decorators into the homes of stars in order to obtain photographs of their bedrooms. Stars have complained in vain about photographers with telescopic lenses taking their pictures from nearby hilltops or treetops.

In one instance related to me by a lawyer in Hollywood a male and female star were photographed by a telescopic camera while they were in a bedroom engaged in the ultimate in intimate conduct. She was married to another man. Most of the pictures were too raw to be published, but at least one Hollywood periodical got advertisements in exchange for not printing material that invaded the privacy of the stars.

If a picture taken from beyond the borders of a famous person’s property is not libelous, there is apparently little that can be done to prevent its publication. Some years ago a majority opinion of the Supreme Court, in an aside on the On Lee case, stated: “the use of bifocals, field glasses or telescopes to magnify the object of the witness’s vision is not forbidden even if they focus without [the subject’s] knowledge or consent upon what one supposes to be private indiscretions.”

Maximilian Schell is one actor who has had the courage to assail photographers and reporters who invade the privacy of public figures. He protested that the laws of Europe and the United States were not adequate to preserve even a minimum of privacy. Mr. Schell said he has had to contend with treetop photographers outside his residences, especially in Europe.

Elizabeth Taylor is an actress whose life has been wrenched by people peeking at her. While she and Richard Burton were both married to other people they were photographed, by telescopic lens, in an exceedingly warm embrace. They thought they were alone offshore in a small craft. This photograph was widely reproduced around the world. I asked a lawyer familiar with her problems if she had considered suing anyone for invasion of her privacy. He shrugged. “A boat probably is not a private place. If this had been the first instance of intimacy with Burton, there might have been grounds for suit on invasion of privacy. But whom do you sue? Most of the photographers in Europe are freelance.” He added that while in Paris she was followed by at least twenty-five photographers trying to get pictures to peddle to magazines or syndicates. “When magazines buy pictures they often require a warranty of indemnification from the photographers, so that there is really little protection, and she is constantly annoyed,” he said.

Miss Taylor was encouraged to file a suit but in quite a different connection. She sued Hartfield Stores, Inc., for $1 million for selling “Elizabeth Taylor blouses” and other items that promised to give the wearer the “Liz Look.” While the invasion of privacy would seem to be involved, the stores were being charged with “unfair competition.”In essence Miss Taylor was defending a private property, her right to the publicity value of her name and likeness, which is about all a notable person has left of his privacy to defend.

Other celebrities, too, have brought suits. The motion-picture actor Kirk Douglas and his two sons were invited to producer Walt Disney’s home for what Mr. Douglas assumed was a purely private Sunday afternoon social visit. That may well have been the intent. But, in any case, during the afternoon Mr. Disney took home movies of Mr. Douglas and his sons on Mr. Disney’s toy train. Apparently the Douglases had a whale of a time on the train, and the film delighted Mr. Disney. Two years later a film of their train ride was televised nationally on the Disneyland show. Mr. Douglas objected and reportedly was assured the film would not be repeated, but somehow it was. Mr. Douglas became angry enough to sue. He claimed not only that his right to privacy had been invaded but also that his right to publicity of his image was invaded, and he demanded compensation for his services as an actor.

On the basis of the skirmishes of preliminary pleadings the judge favored Mr. Douglas’ argument, but apparently on the principle of his right to publicity value rather than on his right to privacy.

A troublesome question involving the boundaries of privacy for people who have achieved a spot in — or been thrust into — the public limelight arises from the practice of the mass media of retelling dramatic events of the past. Frequently these events have involved deep anguish for individuals involved. In two of the early, classic cases of suits being brought, the once public figures were told they had lost their right of privacy. In the 1930s a former child prodigy, William James Sidis, contended that the New Yorker magazine had invaded his privacy with a “Where Are They Now?” article. In adult life, twenty years after his early fame, Mr. Sidis had become a fanatical recluse. The court held for the magazine. In the early fifties, NBC, in its The Big Story series, re-created the heroic manner in which an intrepid lady reporter had sprung a man from a death cell more than a decade earlier by proving that his conviction was erroneous. He sued NBC for invading his privacy, even though his name was not specifically mentioned and even though the dramatization was not an exact recapitulation. Again the court held for the defendant.

During the sixties, however, protesting plaintiffs in similar cases seem to be getting a more sympathetic hearing. In 1962 a New York court awarded a family $175,000 in damages because of a photo story that Life magazine ran in the mid-fifties which purportedly re-created a dramatic news event that had occurred three years earlier. The family had been held captive in their home outside Philadelphia by three escaped convicts. When a play called The Desperate Hours opened, apparently based in part on the experiences of the family, Life used the occasion to present its story under the title “True Crime Inspires Tense Play.” The magazine took actors from the play to the actual house, which the family had vacated, and shot pictures from the play. The family contended that some of the depicted episodes from the play were at least partly fictional. But the heart of their contention was that the article was a commercial exploitation of their name rather than a legitimate news use. At this writing, a new trial that will be confined solely to the amount of the damages has been ordered, and the attorneys for the plaintiff are going on the assumption that the publisher will seek to appeal the whole issue of liability to a higher court.

The recent case that most frightened proprietors of the mass media, however, occurred in Chicago. It involved the retelling by two detective-story magazines of a crime only five and six months after its occurrence. Many magazines require three or four months to assign and get out an article on a subject. In this case a teen-age girl had been slain and disposed of in a gruesome manner. One of the magazines, Startling Detective, titled its story “Frozen Corpse in Lovers’ Lane.” The girl’s mother subsequently sued for libel. This suit was turned down because the statute of limitations had run out by the time she had launched her suit. But the U.S. Court of Appeals reversed that decision and ordered the case to go to trial on the grounds of invasion of privacy. The judge, speaking for the court, wrote: “When the news media have served their proper function in reporting the current events, private individuals involved therein sink back into the solitude which is the right of every person.”

However, a few weeks later the same court reversed itself upon being reminded that at the approximate time the articles appeared the murderer was coming up for trial. Thus, the murder was still newsworthy. It was a narrow escape for the two magazines, since they survive largely on the basis of retelling lurid crimes. But, more important, it was a narrow escape for the mass media generally, since the judge, in his defense of the right to solitude, had not confined himself to the retelling of lurid crimes or even crimes in general. He had used the test of whether or not the news was current and so reportable without danger of liability.

My own view is that the courts should indeed move to protect the right to solitude of people who had publicity thrust upon them by becoming involved in painful episodes that have generally been forgotten for at least a year. And this respect for privacy should especially be enforced in the case of gruesome crimes, the rehashing of which, in print or broadcast, is done primarily to entertain, shock, or titillate. But I also think that if time limits are to be set, the media should work to win legal sanction for greater latitude in alluding to episodes of a legitimate public interest, such as in reviewing or referring to “current events” of an earlier year. Otherwise, historians, biographers, and even lawyers offering citations of criminal cases settled many years ago might find themselves in trouble.

THE right of Americans to travel where they please as long as they can pay the fare is a traditional right that is being undermined by bureaucrats in the State Department, with the encouragement of xenophobic congressmen. The Supreme Court has observed that freedom to travel where one pleases is a “natural and constitutional right.” It has held that “the freedom to travel is a part of the liberty of which the citizen cannot be deprived without due process of law.”

Nonetheless, since 1940 there have been many efforts to qualify the right to travel. A number have succeeded, and the once clear legal right to travel, as implied in the First and Fifth Amendments, has become cloudy indeed. All of the most recent Presidents of the United States have called for an increase in travel and communication between countries, with a greater interchange of ideas as the competition of ideas replaces the competition of weapons. Yet the State Department has steadfastly sought to declare certain countries out-of-bounds to travelers. Russia, once out-of-bounds, is now open, but Americans are forbidden to travel to China, Albania, or Cuba unless it “is in the best interests of the United States” for them to do so. All are poverty-stricken, dictator-ridden countries that would appear to be in a weak position to convert travelers from free and affluent America.

One explanation the State Department gives for declaring entire countries out-of-bounds is that it cannot protect American citizens who might get into trouble in such countries. The U.S. government did not feel impelled to offer protection to pioneers who went through the Blackfoot country En route to the unsettled and disputed Northwest, or through Apache country to Spanish-controlled California. Further, today’s State Department has resolutely refused to permit citizens to waive any right to protection and take their chances.

In a few instances the State Department has felt impelled to make exceptions. A Greek scholar from New York City, a Mr. George Martin, was planning a tour of Greek ruins with a group oF British and European scholars. One of the greatest of all Greek ruins happens to be in the present-day Albanian city of Durres. The State Department decreed that Mr. Martin would have to remain aboard the ship while his European colleagues went down the gangplank to visit Durres. It was only after Mr. Martin’s congressman, Representative John V. Lindsay, waged a long fight to persuade the State Department of the preposterousness of its stand that the department relented and permitted Mr. Martin to join his fellow scholars on the one-day tour.

The State Department was sternly unforgiving, however, when fifty-seven Americans, mostly college students, visited Cuba recently without obtaining specially validated passports. Four of the leaders of the group were indicted.

In addition to general bans on travel to specific areas, the State Department has persistently forbidden certain Americans to travel anywhere beYond the nation’s borders. It has tried to deny a passport to anyone suspected of having, or having had, Communist affiliations. A challenge to the State Department’s arbitrary practice of deciding which Americans had a right to travel abroad reached ihe Supreme Court in 1958 (Kent v. Dulles), The Court held that the State Department had been acting without specific legislative authority.

Congressmen sought to give the State Department specific legislative authority to curtail the right of some Americans to travel, and at one point they had proposed twenty-three different bills, but Congress never could agree on a law.

Then the Supreme Court compromised its earlier strong stand in Kent v. Dulles by a decision that was not concerned directly with the issue of passports and travel. It upheld the provision of the 1950 Subversive Activities Control Act that requires members of Communist or Communist-front organizations to register under the act. Section 6a of this Control Act automatically bars anyone required to register under the act from either applying for a passport or seeking renewal of one. This section clearly seems unconstitutional, but the State Department has fallen back on it in order to withhold passports.

At first the State Department simply appended to each application for a passport a warning about the section’s provision. The department now has taken the more drastic stand of requiring all applicants for passports to state under oath that they have not been members, within the past twelve months, of any organization required to register under the act. the constitutionality of this question is being challenged in the courts, and the American Civil Liberties Union is supporting the challenge with a friend-of-thc-court brief. The present arrangement is considered especially objectionable since it eliminates a person’s right to confront the government’s confidential informants who claim that an organization to which he belongs has been a Communist front. If the applicant answers “yes" to the question whether he has belonged to the group labeled as a front, his answer automatically makes it a crime for him to apply for a passport. In case it is felt that a ban on travel must exist because of political belief, it should be based on a citizen’s current belief rather than on his belief at some earlier period.

If our government falls into the habit of assuming that it can prevent all Americans from traveling to certain places abroad, and can prevent certain Americans from traveling to all places, we shall all be in danger of losing a part of our freedom to lead our own lives. There would be much to gain, and little to lose, by practicing what we preach and telling all certified citizens of the United States to travel freely. The Communist countries have little to offer in the way of attractiveness when compared with the world’s free countries that are geographically near them.