State Constitution, Privacy Provisions

The words ‘‘privacy’’ and ‘‘private’’ do not appear in the text of the United States Constitution. Accordingly, the Supreme Court in Griswold v. Connecticut had to rely on ‘‘penumbras, formed by emanations’’ from other constitutional provisions to establish a basis for the federal constitutional right of privacy. The absence of an explicit textual foundation for the federal privacy right has engendered a continuing debate regarding the propriety of its recognition. But, under the constitutions of ten states, no such debate exists. These states—Alaska, Arizona, California, Florida, Hawaii, Illinois, Montana, Louisiana, South Carolina, and Washington—have adopted state constitutional provisions explicitly guaranteeing an individual’s ‘‘privacy,’’ ‘‘private life,’’ or ‘‘private affairs.’’

These state privacy provisions were ratified in two separate eras, taking three basic forms. The first ones appeared in the Washington and Arizona constitutions during the Progressive movement in the late nineteenth and early twentieth centuries. Washington Constitution article I, section 7, and Arizona Constitution article II, section 8, both guarantee in identical language that ‘‘[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.’’ The motivation behind these provisions, as the Washington Supreme Court noted in Kelleher v. Minshull, was ‘‘to protect individuals in the sanctity of their homes and privacy of their books and papers’’ from unreasonable governmental searches and seizures.

Eight other states ratified their privacy provisions between 1968 and 1980, in the years after the Supreme Court recognized a federal right of privacy in Griswold. Yet, despite their common temporal relationship, provisions adopted during this period are of two distinct types. Five states separated their guarantees from constitutional clauses regarding searches and seizures, thereby carefully enumerating an individual autonomy and

informational privacy

right. Although none of these five state constitutional provisions are identical—Alaska recognizes a ‘‘right of the people to privacy’’ that ‘‘shall not be infringed,’’ California merely lists ‘‘privacy’’ as one of the ‘‘inalienable rights’’ protected by its state constitution, Florida guarantees a ‘‘right to be let alone and free from governmental intrusion into the person’s private life,’’ and Montana protects a ‘‘right of individual privacy,’’ and Hawaii a ‘‘right of the people to privacy’’ that both cannot ‘‘be infringed without the showing of a Compelling State Interest’’—each of these state privacy rights has been granted a textual status divorced from the search and seizure context.

However, the other states that added privacy provisions between 1968 and 1980—Illinois, Louisiana, and South Carolina—incorporated such rights within their constitutional protections against unreasonable searches and seizures. Illinois Constitution article I, section 6, is representative of these clauses, guaranteeing the people a ‘‘right to be secure in their persons, houses, papers, and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications.’’ Although it now has a freestanding privacy right as well, Hawaii’s constitution contains a similar clause, now at article I, section 7, to protect the people’s right to ‘‘be secure . . . against unreasonable searches, seizures and invasions of privacy.’’

Three separate protections—against unreasonably invasive governmental investigations and detentions, interference with personal autonomy, and collection and disclosure of private information—are evident in the text of these various state constitutional provisions. Nevertheless, courts do not always limit their interpretation to the component or components that a particular guarantee seems to address. As an illustration, although South Carolina embedded its privacy text within its prohibition against unreasonable searches and seizures, the South Carolina Supreme Court in Singleton v. State held that this section protected the individual autonomy right of an inmate to refuse to take medication that would render him competent for execution.

Thus, the text of these provisions alone does not define their scope, but an examination of precedent is also necessary for each of the privacy components.

Protection against Searches and Seizures Invading Private Affairs

Most states with explicit privacy guarantees proclaim that their state constitutions provide additional protections from governmental searches and seizures than that provided by the Fourth Amendment. However, although some states have, indeed, established an independent analysis on the basis of their privacy provisions, the supposed difference in others is more often an empty promise.

Washington and Hawaii have used their privacy rights to develop the most independent search and seizure jurisprudence. Washington has rejected the Fourth Amendment’s touchstone of a reasonable expectation of privacy, instead analyzing, under its constitutional text, whether the state unreasonably intruded into a defendant’s private affairs. Hawaii has opined that its explicit privacy guarantee establishes that a primary purpose of the state exclusionary rule is to protect privacy rights, not merely to deter governmental misconduct as under the Fourth Amendment. These distinct rationales underlying Washington and Hawaii’s search and seizure jurisprudence has led both states to frequently deviate from federal standards. For instance, Washington in State v. Boland and Hawaii in State v. Tanaka both determined that a warrantless search of a person’s garbage constituted an unreasonable privacy intrusion, although the Supreme Court held in California v. Greenwood that there is no reasonable expectation of privacy in garbage. Both states, in State v. Gunwall (Washington) and State v. Rothman (Hawaii), held that the use of a pen register without a warrant violated their state constitutions, despite Smith v. Maryland’s holding that this device did not implicate the federal Constitution. Both states have also rejected the Supreme Court’s holdings in a number of other contexts, typically using their privacy guarantees to explicate these results.

Two other states, Alaska and Montana, have also frequently relied on their privacy clauses to broaden the protection against unreasonable searches and seizures. These states essentially reason that their explicit guarantees correlate into their citizens possessing a heightened reasonable expectation of privacy. Hence, Montana invalidated a warrantless search of an open field in State v. Bullock contrary to the Supreme Court’s holding in Oliver v. United States, declined in State v. Sawyer to follow South Dakota v. Opperman allowing automotive inventory searches, and placed additional limitations on using drugsniffing dogs in State v. Tackitt. Alaska decisions have likewise often rejected holdings under the Fourth Amendment when interpreting its state constitutional protection against searches and seizures in conjunction with its privacy clause.

Yet in other states with privacy provisions, the purported difference has only rarely been evident. Illinois in In re May 1991 Will County Grand Jury Subpoena stated that its ‘‘Constitution goes beyond Federal constitutional guarantees by expressly recognizing a zone of personal privacy,’’ thereby precluding the grand jury from subpoenaing, in the absence of individualized suspicion, physical evidence from nonsuspect witnesses. But despite this occasional willingness to state that its guarantee goes beyond the federal Constitution, Illinois courts have not developed an independent privacy jurisprudence to protect this supposed greater right in the typical search and seizure context, instead almost always treating it as coextensive with the Fourth Amendment.

Such coextensive treatment is in fact required in California and Florida as a result of state constitutional conformity amendments. California Constitution article I, section 28(d), precludes the California courts from developing a state exclusionary rule, leaving only the federal Constitution to govern evidence exclusion for improper searches. Florida Constitution article I, section 12, is even more explicit, requiring that state constitutional search and seizure issues be construed in conformity with the Fourth Amendment as interpreted by the United States Supreme Court. Thus, California and Florida courts cannot use their privacy guarantees to create any independent state constitutional protection against invasive searches and seizures.

The effect of a privacy guarantee on a state’s constitutional search and seizure jurisprudence is thus somewhat muddled. Even among the states with similar types of clauses, the holdings cannot be reconciled. Moreover, some state courts without privacy provisions have likewise rejected the Supreme Court’s search and seizure holdings when interpreting their own state constitutions. As a result, a privacy clause, while providing a potential argument for recognizing an enhanced expectation of privacy against governmental searches and seizures, is neither necessary nor sufficient to establish such protection.

Personal Autonomy Rights

Another dimension of privacy protects individual autonomy in making decisions and engaging in conduct related to certain personal and intimate matters, such as marriage, procreation, contraception, abortion, medical care, family relationships, and child rearing. State privacy clauses are frequently asserted as a basis to extend such autonomy rights to new contexts or to heighten the protection of individual liberty for previously recognized rights.

The Alaska Supreme Court’s decision in Ravin v. State is a famous early example. There, the court held that adult citizens possessed a right to privacy that extended to the possession and ingestion of marijuana for personal use while in their home, ‘‘a place where the individual’s privacy receives special protection.’’ Although the practical import of Ravin today is minimal because the federal Controlled Substances Act preempts its holding, subsequent Alaska cases have refused to extend the right to other drugs such as cocaine, and it has not been followed by any of the other states with privacy clauses, Ravin still constitutes an early recognition of the state’s role in defining liberty through a privacy guarantee.

The Florida Supreme Court interpreted its privacy provision in a series of decisions involving abortion rights. Under the federal right to an abortion, state statutes requiring a minor to notify or obtain consent from her parents before obtaining an abortion are constitutional if a judicial bypass procedure exists. The Florida legislature enacted such a parental consent statute, but the state supreme court held in In re T.W. that, because Florida’s explicit privacy clause embraces more interests and extends more protection than the federal Constitution, a minor had a state constitutional right to an abortion without being hindered by obtaining parental consent or a judicial bypass. The Florida legislature subsequently enacted a parental notification statute, which the court again invalidated. In response, the Florida legislature proposed, and Florida citizens ratified, a state constitutional amendment requiring a minor’s right to an abortion to be interpreted in accordance with the decisions of the U.S. Supreme Court. Yet because the amendment only explicitly applies to a minor’s right to an abortion, T. W.’s adoption of the rigid trimester framework from Roe v. Wade, instead of the less protective undue burden standard from Planned Parenthood v. Casey, apparently remains the legal standard governing abortion under the Florida Constitution.

Other states with privacy clauses have also extended additional protections to the right to choose under their state constitutions. California relied on its privacy provision to hold a parental consent statute unconstitutional in American Academy of Pediatrics v. Lungren and to require public funding of abortions in Committee to Defend Reproductive Rights v. Myers. Alaska held in Valley Hospital Association v. Mat-Su Coalition for Choice that its privacy guarantee created broader protections for reproductive autonomy than the federal Constitution such that a ‘‘quasi-public institution’’ could not decline to perform abortions because of moral disapproval. Montana similarly concluded in Armstrong v. State that its privacy clause necessitated a heightened strict scrutiny analysis of legislation infringing on procreative autonomy rights.

Several jurisdictions have used privacy clauses to establish a state constitutional right to sexual privacy and right to die. The contours of such liberty rights at the federal level are still in flux, as the Supreme Court’s holdings in Lawrence v. Texas invalidating a statute criminalizing certain same-sex sexual activity and in Cruzan v. Missouri upholding a clear and convincing evidence requirement for an incompetent patient’s wishes to discontinue life-sustaining treatment left many issues unresolved. Yet several states, including Arizona, California, and Florida, have addressed such issues more frequently under their state constitutions, providing a more thorough jurisprudence.

Each of the states with freestanding privacy rights has thus recognized some autonomy rights exceeding federal protection. Although the states with privacy provisions embedded within search and seizure clauses are more likely to conclude that no greater individual autonomy protection is intended than that provided by federal law, even these states have occasionally provided additional rights. Yet, once again, the existence of a privacy clause is not dispositive. Several other states without such clauses have recognized privacy rights through penumbras or implications from other constitutional provisions, guaranteeing additional or more extensive autonomy rights under their state constitutions than protected by the federal privacy right. A privacy clause thus provides textual support for urging greater autonomy rights, but does not dictate the outcome. Informational Privacy Another aspect of privacy is informational privacy, which precludes unreasonable surveillance, collection of personal information, and disclosure of such information. The U.S. Supreme Court has only addressed this component of privacy on a couple of occasions, but the states with privacy clauses have had more opportunities to define this guarantee.

California is at the forefront of protecting this right. Indeed, soon after the adoption of California’s privacy provision, White v. Davis concluded its primary purpose was precluding unnecessary surveillance and data collection by government and private businesses. California decisions have protected a variety of interests under the privacy clause (sometimes aided by related statutes), including barring intrusive discovery concerning a litigant’s sexual history without a showing of need in Vinson v. Superior Court, providing a cause of action against a defense attorney for disclosing a victim’s confidential mental health records in Susan S. v. Israels, and recognizing that some drug testing even by nongovernmental employers may violate privacy rights in Hill v. National Collegiate Athletic Association.

California’s recognition of constitutional privacy rights against private actors has not typically been accepted by the other states with privacy guarantees. Yet many of these other states do agree that state privacy provisions may shield discovery of confidential information in litigation. For example, Alaska in Gunnerud v. State precluded a criminal defendant from invading a witness’s privacy by discovering her psychiatric report that was irrelevant to her credibility, Florida held an AIDS victim could not obtain the identity of blood donors because of their privacy interests in Rasmussen v. South Florida Blood Services, Montana used its privacy provision and a statutory privilege in State ex rel. Mapes v. District Court to limit the discoverability of a plaintiff’s therapy records to those related to his claims, and Illinois in Kunkel v. Walton invalidated on constitutional privacy grounds a statute waiving all claims of medical confidentiality for litigants asserting a claim for bodily injury. These and other cases confronting similar issues necessitate a delicate balance between a litigant’s need for the information and its confidentiality. In those states with an explicit privacy guarantee, this balance is often slightly shifted in favor of privacy rights.

Nevertheless, other states without privacy clauses have reached similar holdings. Thus, as with other components of the privacy right, explicit clauses are not dispositive. The states with privacy provisions are generally more inclined than other states to provide additional protections under their state constitutions than required by federal law, which seems appropriate, because there would be little purpose in adding a constitutional privacy clause if it did not provide expanded protection at least occasionally. But there is not a consensus on which privacy rights should be recognized or expanded.

CHARLES W. ‘‘ROCKY’’ RHODES

References and Further Reading

• Friedelbaum, Stanley H., The Quest for Privacy: State Courts and an Elusive Right, Albany Law Review 65 (2002): 4: 945–989.
• Friesen, Jennifer. State Constitutional Law: Litigating Individual Rights, Claims, and Defenses. 3rd ed. Charlottesville, Va.: Matthew Bender & Company, 2000.
• Gormley, Ken, and Rhonda G. Hartman, Privacy and the States, Temple Law Review 65 (Winter 1992): 1279–1323.

Cases and Statutes Cited

• American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997)
• Armstrong v. State, 989 P.2d 364 (Mont. 1999)
• California v. Greenwood, 486 U.S. 35 (1988)
• Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779 (Cal. 1981)
• Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Gunnerud v. State, 611 P.2d 69 (Alaska 1980)
• Hill v. National Collegiate Athletic Ass’n, 865 P.2d 633 (Cal. 1994)
• In re May 1991 Will County Grand Jury, 604 N.E.2d 929 (Ill. 1992)
• In re T.W., 551 So.2d 1186 (Fla. 1989)
• Kelleher v. Minshull, 119 P.2d 302 (Wash. 1941)
• Kunkel v. Walton, 689 N.E.2d 1047 (Ill. 1997)
• Lawrence v. Texas, 123 S.Ct. 2472 (2003)
• Oliver v. United States, 466 U.S.170 (1984)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
• Rasmussen v. South Florida Blood Servs., 500 So.2d 533 (Fla. 1987)
• Ravin v. State, 537 P.2d 494 (Alaska 1975)
• Roe v. Wade, 410 U.S. 113 (1973)
• Singleton v. State, 437 S.E.2d 53 (S.C. 1993)
• South Dakota v. Opperman, 428 U.S. 364 (1976)
• Smith v. Maryland, 442 U.S. 735 (1979)
• State v. Boland, 800 P.2d 1112 (Wash. 1990)
• State v. Bullock, 901 P.2d 61 (Mont. 1995)
• State v. Gunwall, 720 P.2d 808 (Wash. 1986)
• State v. Rothman, 779 P.2d 1 (Haw. 1989)
• State v. Sawyer, 571 P.2d 1131 (Mont. 1977)
• State v. Tanaka, 701 P.2d 1274 (Hawaii 1985)
• State v. Tackitt, 67 P.3d 295 (Mont. 2003)
• State ex. rel. Mapes v. District Court, 822 P.2d 91 (Mont. 1991)
• Susan S. v. Israels, 67 Cal. Rptr. 2d 42 (Cal. Ct. App. 1997)
• Valley Hosp. Ass’n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997)
• Vinson v. Superior Court, 740 P.2d 404 (Cal. 1987)
• White v. Davis, 533 P.2d 222 (Cal. 1975)

See also Penumbras; Privacy; Search (General Definition); State Constitutions and Civil Liberties