When U.S. Sen. Larry Craig of Idaho was caught in flagrante delicto at the Minneapolis-St. Paul airport, the ACLU jumped to his defense, claiming an "expectation of privacy" in a public restroom stall.

Troy Maben, Associated Press - Ap

Jason Lewis: Privacy rights being found in funny places

  • Article by: JASON LEWIS
  • October 29, 2011 - 3:30 PM

"The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not."


When most people think of the debates over privacy rights, abortion and same-sex marriage eventually come to mind. Both have been upheld by federal and state courts on the basis of 'privacy,' but the flimsy legal precedents established on those contentious issues are proving just as problematic for a variety of others.

Two recent cases illustrate the point. When U.S. Sen. Larry Craig of Idaho was caught in flagrante delicto at the Minneapolis-St. Paul airport, the ACLU jumped to his defense, claiming an "expectation of privacy" in a public restroom stall. And just this week, a federal judge voicing similar concerns blocked a Florida law requiring drug tests as a condition of welfare benefits.

Though not originally mentioned in the Constitution, the "rights to privacy" would be discovered much later amid the "penumbras" of the document. And ever since, federal jurisprudence has been on a collision course with the inherent power of the states to police the criminal law. Remember, the Constitution was written to protect the people and the states from consolidated power, while various state governments were to protect us from one another.

Unfortunately, most states, instead of defending their legitimate role in public safety, have jumped on the privacy bandwagon as well. For all the talk of bullying in school these days, just try to get any information on juvenile playground predators -- or worse -- and you will assuredly run up against a stonewall of privacy laws from school administrators.

In Arizona, Pima Community College officials suspended Jared Loughner after repeated outbursts -- at one point informing his parents that the Tucson shooter would not be readmitted without a mental evaluation -- but failed to inform the public for fear of running afoul of federal and state privacy laws. Even the county sheriff's department kept a lid on its run-ins with Loughner in the months prior to the shooting of U.S. Rep. Gabrielle Giffords and others, blaming talk radio for the tragedy instead.

The sad irony is that while authorities are loathe to release information that might actually help inform the public, prosecutors seem ready at the draw to prosecute any suspected violation of the ever-evolving expectation of privacy.

A February trial is now set for college student Dharun Ravi, accused of "bias intimidation'"and "invasion of privacy" for using a webcam to record fellow Rutgers University roommate Tyler Clementi's gay romantic liaison. Clementi would later commit suicide, prompting a national orgy of antibullying legislation around the country. The appropriately named Bully Police USA is now passing judgment on the myriad laws in 47 states aimed at preventing "bullycide."

Our legal tradition has always prohibited behavior that would cause distress out of fear or intent to terrorize; however, these newfound privacy claims appear broad enough to ban emotional distress due to the mere opinions of others. And though the Supreme Court soundly rejected the subordination of the most offensive of speech last March in the Westboro Baptist Church case, that hasn't stopped a flurry of specious lawsuits.

Indeed, the Southern Poverty Law Center (along with the National Center for Lesbian Rights and local law firm Faegre & Benson) has filed suit on behalf of six current and former gay students in Anoka-Hennepin schools over the district's failure to repeal its "neutrality policy," which neither condemns nor endorses homosexuality.

Genuine rights to privacy rest upon other established liberties -- primarily property and contract. Property rights will decide whether, say, placing a GPS device on the bottom of your car (a case to be heard by the highest court next month) without a warrant constitutes an invasion of privacy. I think it does.

On the other hand, a society whose inhabitants voluntarily reveal the most intimate of detail about their lives via Facebook hardly seems credible when feigning outrage over a lack of privacy.

Jason Lewis is a nationally syndicated talk-show host based in Minneapolis-St. Paul and is the author of "Power Divided is Power Checked: The Argument for States' Rights" from Bascom Hill Publishing. He can be heard from 5 to 8 p.m. weekdays on NewsTalk Radio (1130 AM) or online at

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