4.3 The Right to Privacy, Self-Determination, and the Freedom of Ideas

The Right to Privacy

Merriam-Webster’s Dictionary of Law defines the right to privacy as “the right of a person to be free from intrusion into or publicity concerning matters of a personal nature.”³² Another way to define the right to privacy is “the right to be left alone.”³³ In a liberal democratic system, privacy is a space separate from public life, allowing individual personal autonomy. Privacy is the ability to think, speak, and behave without being monitored or surveilled by another person or the government. Are you permitted to decide whether to have children and how many? To choose whom you marry? Decisions concerning what to wear, what to study in school, what career to pursue, and what religious beliefs to instill in one’s children are all privacy issues. They are all personal decisions or decisions about which there is debate on whether governments can restrict or require certain conduct.

In their influential article “The Right to Privacy,” attorney Samuel Warren and US Supreme Court justice Louis Brandeis define privacy as the “right of the individual to be let alone.”³⁴ The right to privacy has been used to assert that liberty exists in a wide range of civil liberties cases in the United States. In Pierce v. Society of Sisters, the Supreme Court found that the 14th Amendment prevents the state from interfering with parents’ choices regarding their child’s education.³⁵ In Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas, the court struck down several laws criminalizing sexual and reproductive decisions between consenting adults in private activities, citing a right to privacy.³⁶ In Lawrence, Justice Anthony Kennedy wrote:

“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”³⁷

Most countries explicitly recognize a right to privacy. For example, the UK Human Rights Act of 1998 states:

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.³⁸

The US Constitution does not explicitly mention a right to privacy, but the right to privacy is an essential idea behind several of the rights it specifies.³⁹ The US Supreme Court has recognized the right to privacy as a fundamental right.⁴⁰ As Justice Brandeis wrote in the wiretapping case of Olmstead v. United States (1928), “the right to be let alone [is] the most comprehensive of rights, and the right most valued by civilized men.”⁴¹

The First, Third, Fourth, Fifth, Ninth, and 14th Amendments do explicitly state, in what are referred to as enumerated rights, instances for which the US Supreme Court has affirmed that a right to privacy exists.⁴²

Implicit in the First Amendment protections of free speech, peaceful assembly (association), and free exercise of religion is the right to participate or not participate as an individual decides,⁴³ and the Ninth Amendment states that rights not explicitly outlined in the Constitution may still exist.

Like many national constitutions, the Universal Declaration of Human Rights includes an express right to privacy. Article 12 of the declaration states:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.⁴⁴

Even though member countries have endorsed the UDHR, how each government enacts the right to privacy it contains varies greatly. The UN has appointed a special rapporteur (a person appointed by an organization to report on its meetings) to monitor and report annually on how countries comply with the UN declaration of a right to privacy expressed in the UDHR, especially as it relates to digital surveillance.⁴⁵

When viewed as a civil liberty, the right to privacy erects a barrier between individuals and an overly intrusive government. But when is government intrusion permitted?

When Does the Government Restrict Individual Privacy Rights?

Restrictions on the right of privacy or personal autonomy vary widely by country. In the United States, same-sex relations are considered private and protected by the US Constitution. In most of Africa, LGBTQ+ relations or orientation are illegal and considered a detriment to the welfare of the community.⁴⁶

Figure 4.6 In most of Africa, same-sex relationships are considered a detriment to the community, and that detriment to the community is deemed to outweigh the importance of protecting the individual right to privacy. (credit: “Laws regarding same-sex sexuality in Africa” by Haha 169/Wikimedia Commons, Public Domain)

Personal privacy boundaries often change as society’s views of personal liberty change. Under a democratic government, it is a society that interprets what is acceptable and if there is a compelling reason for government restrictions on personal decisions. For example, until 1967, many states had laws that declared interracial marriage a crime. In Loving v. Virginia, the US Supreme Court interpreted that due process and a right to privacy require that the choice of whom to love and marry be a personal, private one.⁴⁷ It was not until 2015 that this same right was interpreted to include same-sex marriage.⁴⁸ As society’s interpretation of what is personal and individual and what is necessary for the good of the community changes, the interpretation of the right to privacy changes. Authoritarian governments force the people to acquiesce to the government’s interpretation of personal private conduct.

Where Can I Engage?

Civil Liberties around the World

You can use one of the following online resources to compare which liberties different countries recognize. Can you spot any trends? How do different countries interpret similar types of liberties in different ways?

Explore civil liberties around the world at the National Constitution Center.

Compare statistical data about human rights at Our World in Data.

Read up-to-date reports on the state of human rights at Human Rights Watch.

Track trends in freedom using the Cato Institute’s yearly Human Freedom Index.

Monitor levels of freedom according to the human rights and rule of law index at TheGlobalEconomy.com.

The degree to which governments recognize the right to make personal, private decisions varies widely around the world. In China, the government restricts the number of children couples may have.⁴⁹ In some countries, forced marriages are still common.⁵⁰ In some countries, girls are banned from attending school or even suffer violence for attending, and the government does not protect their right to an education, even if their parents want them to attend school.⁵¹ Many countries have laws that require women to wear specific clothing in public or prohibit women from wearing certain items of clothing, restricting a woman’s right to make a personal decision.⁵² Thus, even in countries that declare that they will protect privacy and individualism, society’s interpretation of what is necessary to create a community can lead to restrictions intended to contribute to the common good.

What about privacy in areas where security issues arise? The growing prevalence and sophistication of cyber technologies place increasing pressure on the right to privacy in the context of freedom from surveillance.

Freedom of Expression of Ideas

Another area of ongoing tension between individuals and the government is the freedom of expression of ideas. This freedom includes the right to free speech and the right to the free exercise of religion. Article 19 of the UDHR states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”⁶⁴ Article 18 provides that “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”⁶⁵

The UDHR is not itself legally binding, but the principles it sets out were implemented among UN member countries through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), both of which were adopted by the UN General Assembly in 1966. Member countries agree to be monitored on their activities under the provisions of the covenants, which echo much of the language of the UDHR, although some provisions are new. Article 27 of the ICCPR, for example, states that members of “ethnic, religious or linguistic minorities . . . shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”⁶⁶ Together, the UDHR, the ICCPR, and the ICESCR make up what is known as the International Bill of Human Rights.⁶⁷

However, freedom of expression and religion is not absolute. Even in countries with extensive speech protections, certain types of speech are never protected. These include libel, slander, obscenity, fighting words or threats, incitement to lawless conduct, breach of national security or classified information, disclosures that impact the right of privacy, and perjury. Some examples of these were discussed earlier in this chapter.

In liberal democracies, the state agrees to tolerate free expression of ideas, and restrictions on expression are minimal; however, many of these countries place restrictions on the expression of specific ideas that do not meet the limited exceptions to protected speech set forth above. This is referred to as the paradox of tolerance. People who hold intolerant ideas argue that the state and society only tolerate those ideas that align with their own viewpoint and that therefore, the government and society are not tolerant of personal ideas and do not respect that degree of personal liberty.

What Can I Do?

Civil Liberties and Social Responsibility

Figure 4.7 While smoking is not illegal in the United States, because secondhand smoke can be damaging to all members of the community, the government can regulate where smoking is allowed. (credit: “No Smoking Sign” by Jonathan Rolande/Flickr, CC BY 2.0).

Many people who hear the term civil liberties think about limits on government interference in individuals’ lives, and they may see government acts that limit or direct their behavior as infringements of their liberties. In these instances, it is important to remember that people live in diverse communities made up of many individuals who may have different perspectives, traditions, beliefs, and needs. Each person’s actions have the potential to affect other individuals in the community and the community as a whole. As discussed in this chapter, members of a community have responsibilities to that community. Understanding the differences between groups within a society is often referred to as intercultural competence, and it is a key component of social responsibility.

Different countries adopt a variety of strategies to address the varying needs of different groups. Within the United States, the corporate world has recently taken up the banner of “social responsibility.” Whether looking at an issue from a corporate position, an advocacy position (such as from the perspective of an interest group), the position of an attorney representing someone whose rights have been violated, or the position of a concerned citizen, linking the ideas of civil liberties with the larger concept of social responsibility allows one to appreciate how the rights of individuals and the larger community are intertwined and how government actions often seek to balance the freedom of the individual with the needs and desires of the community.

For example, in Germany, it is illegal to support the Nazi Party or to deny the Holocaust.⁶⁸ Section 130 of the German criminal code “bans incitement to hatred and insults that assault human dignity against people based on their racial, national, religious or ethnic background.” Violations of this code carry a five-year prison sentence. Germany has used section 14 of the law, which bans defiling the memory of the dead, to prosecute Holocaust deniers.⁶⁹ The German Basic Law provides that “every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.”⁷⁰ Thus, many argue that the restrictions on expressing particular viewpoints show limited tolerance of ideas in Germany, and a paradox of tolerance exists.⁷¹In the United States, hate speech laws encounter the same objection. However, in the United States, speech enjoys broad protections, and hate speech laws are limited to instances where speech involves violence, intimidation, and direct threats.⁷²

While in Germany particular viewpoints on politics are regulated, in some other countries, all opposition to the government is suppressed. In Belarus, political opponents have been sentenced to prison for opposing the ruling government.⁷³ Other countries are taking steps to open up the free exchange of ideas, even those ideas that challenge traditional religious and cultural norms. For example, at a recent international symposium on philosophy in Saudi Arabia, the speakers and audience openly discussed ideas that are usually restricted in the country.⁷⁴

The paradox of tolerance is a frequent issue when it comes to religious expression. The expression of religious beliefs has received special consideration throughout history. Freedom of religion involves two interrelated issues: the free exercise of religion and the government establishment of religion. While it is impossible to separate the two completely, they can be distinguished for learning purposes.

The US Constitution contains two separate clauses about religion: one, that “Congress shall make no law respecting an establishment of religion,” known as the establishment clause; and two, that Congress shall make no law “prohibiting the free exercise thereof.”⁷⁵ The complicated relationship between religion and the government in the United States is a subject worthy of study in itself; the following is an outline of some of the primary issues.

In Everson v. Board of Education, a landmark case with regard to the interpretation of the establishment clause, the US Supreme Court observed that in the United States, no government should aid or hinder any religion.⁷⁶

In Everson, the court considered whether a city allowing all K–12 students to ride public transit buses for free was an unconstitutional establishment of religion because some of the students receiving free rides attended parochial schools operated by religious groups. It was argued that this amounted to an establishment of religion because, in addition to regular school classes, these students took classes in religion and were thus taught particular religious beliefs. According to this argument, the government assisted in the religious indoctrination by providing free transportation, thus putting a stamp of approval on the religious instruction. The court found that the bus rides did not violate the establishment clause because the law was neutral and beneficial for all K–12 students. If the law had only given free rides to parochial school students, it probably would have been found to violate the establishment clause, as the government would have been treating a religious institution differently and preferentially. Conversely, suppose that free rides had been denied to parochial school students and given only to students attending schools that did not teach religion. In that case, the action could be interpreted as a violation of the free exercise of religion and parental privacy in children’s education. It would violate free exercise because it would explicitly target and place restrictions on schools based on religion. This example illustrates the degree of complication in this area of the law. One must look at specific government action and ask whether it is neutral and general or explicitly benefits or intrudes on a religion.

Not all religious practices are acceptable, even in an individualist government. For example, in the United States, religious practices that are deemed abusive to children are prohibited.⁷⁷ Those who hold views anathema to most of society, such as White supremacist churches, are allowed to operate as long as they keep the expression of their opinions nonviolent and within the church. An area of controversy arises when a person running a business refuses to comply with a customer request because it violates their personal religious views, thus putting into direct conflict the constitutional protection of the free exercise of religion and the constitutional requirement for equal treatment of all persons. The US Civil Rights Act of 1964 prohibits any business that is open to the public from engaging in discrimination on the basis of race, sex, or religion. When the Civil Rights Act went into effect, some for-profit businesses argued that it violated their personal and religious principles of White supremacy by prohibiting them from barring minorities from their business or refusing to hire employees based on their race. In the early years after the act was passed, courts across the United States upheld the act against the religious arguments for White supremacy. They found a more significant community good in supporting nondiscrimination than in this view of the free exercise of religion. Today, controversies continue, with some business owners complaining that serving LGBTQ+ customers violates their religious beliefs and that to require them to serve LGBTQ+ customers would violate their right to free exercise of religion. This controversy is ongoing in the United States and around the world.⁷⁸

In western European countries, similar issues arise. All have constitutional provisions similar to the US Constitution’s religious clauses, but some have officially recognized state religions. Anglicanism, as represented by the Church of England, is the official religion of England. Up until the 20th century, people were persecuted for not adhering to the official doctrine; however, now individuals are free to practice any religion they want as long as it complies with England’s generally applicable neutral laws.⁷⁹ Around the world, restrictions on religion have been increasing. These restrictions can take two forms: government preference for a particular religion and government restriction on religious practices. Many Islamic majority countries limit freedom of religion and require residents to adhere to an established religion. A Pew Research study noted:

“Government restrictions have risen in several different ways. Laws and policies restricting religious freedom (such as requiring that religious groups register in order to operate) and government favoritism of religious groups (through funding for religious education, property and clergy, for example) have consistently been the most prevalent types of restrictions globally and in each of the five regions tracked in the study: Americas, Asia-Pacific, Europe, Middle East-North Africa and sub-Saharan Africa. Both types of restrictions have been rising; the global average score in each of these categories increased more than 20% between 2007 and 2017.”⁸⁰ (emphasis in original)

The growing tendency toward government restrictions on religion may be in opposing directions. For example, French law prohibits women from wearing certain items of clothing that express their religious beliefs, and the government disfavors religion.⁸¹ In contrast, in Qatar, Islam is the official state religion, and laws require women to wear religious dress in public. Additionally, Qatar has enacted laws that restrict non-Islamic faiths by limiting worship services and prohibiting the display of non-Islamic religious symbols.⁸² In China, specific religious groups have been subjected to severe restrictions, even internment in prison reeducation camps, as religious practices are considered detrimental to the country’s communist goals.⁸³ Thus, in both impairing religion and fostering an established religion, some countries have opted to observe localized interpretations of civil liberties with regard to religion, rather than aligning with the norms described in the Universal Declaration of Human Rights.