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'Privacy' vs. The Public's 'Right to Know'
| Article
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18455 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
9 / 1990 |
5,008 Words |
| Author
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Sanford Levinson
Sanford Levinson is a professor of Law and Government at the
University of Texas, Austin. He is the author of
Constitutional Faith, Princeton University Press (1988). |
One of the things that should certainly be clear from earlier articles in this symposium is the protean quality of the notion of “privacy,” especially when applied to such practices as contraception and abortion. Almost all analysts have agreed through that one core aspect of privacy is the ability to control the release of important information about oneself. Sometimes this will mean that persons will be able to keep their thoughts or knowledge of past conduct entirely to themselves. Other times persons will be glad to share thoughts or memories, but only with a restricted circle of others whom they select. To be deprived of such freedom - to be, as the French social analyst Michel Foucault might have put it, with “the gaze” of unselected others - is, at the extreme, to feel violated and subject to the penetration of strangers. (The sexual imagery is deliberate.) Still, a moment's thought will remind us that we are, as a society, scarcely willing to give to individuals absolute control over the distribution of information about themselves. All of us depend in vital ways on the ability to find out information about others. Almost every assertion of a privacy right to limit access to information can be met with a plausible “right to know” claim based on the public benefits attached to wide access to the information in question.
Consider, then, the following examples where the public's alleged right to know might come into conflict with a claim to privacy protected against involuntary disclosure:
· A criminal defendant, citing the Fifth Amendment's guarantee against compelled self -incrimination, refuses to testify even though all evidence points to his culpability and he could provide important details about the criminal enterprise.
· A second participant in the enterprise, after asserting his Fifth Amendment rights, is granted immunity from prosecution and is therefore compelled to disclose all sorts of information that he would have preferred to keep private.
· A newspaper reporter, when called as a witness in this case to testify what the defendant had told her in a private interview, refuses to testify, citing the promise of confidentiality she had made to the defendant in regard to the information sought.
· The same reporter, after explaining her refusal to testify, returns to her current assignment - an article detailing the circumstances behind an important decision by the U.S. government - and demands the release of the
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