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Book Review : Taking Solid Look at the Privacy Issue

February 17, 1987|LEE DEMBART

Privacy in a Public Society: Human Rights in Conflict by Richard F. Hixson (Oxford University Press: $19.95)

One of the paradoxes of life is that both as a society and as individuals, we hold many conflicting ideals. We believe in egalitarianism, but we also believe in merit. We believe in individualism, but we also believe in the social good. We believe in privacy, but we also believe in free, robust and wide-open public debate.

There is nothing inherently wrong in holding views that are in tension. In fact, it would be wrong not to, for all of these ideals are important goals that should be cherished.

But what should be done in the specific cases where conflicting goals actually clash? Is there some higher principle by which they can be reconciled?

Question of Priorities

What is more important: a defendant's right to a fair trial or the public's right to attend courtroom proceedings and the press's right to report them? What is more important: a person's right not to be searched without a warrant or the public's right to protect itself from drunken drivers on the highways? The list of such questions has no end.

The legal system faces these and similar questions with great regularity. The development of constitutional law to date leads strongly to the conclusion that it is not possible to enunciate some principle, some rule of law, that can guide the resolution of these disputes.

Richard F. Hixson, a professor of journalism at Rutgers University in New Jersey, tackles this problem in the context of privacy, a legal right that frequently conflicts with other legal rights that society also holds dear. His book is well reasoned if somewhat dry, and it underscores the difficulty of ever settling this dispute once and for all.

In fact, at the frontiers of legal doctrine, where rights clash, what courts do is to balance the competing interests, weighing one against the other. As a result, these frontier legal issues tend to be decided on a case-by-case basis, and each decision is closely tied to the specific facts of the case.

Anyone searching for a doctrine in a line of Supreme Court cases is likely to have a long and ultimately fruitless search. The court wavers back and forth, seemingly torn between the equities on each side.

History of the Concept

Hixson traces the richly textured history of the concept of privacy as it has developed in American society and in American law. His exposition starts from the philosophical underpinnings and comes sweeping through to the most recent opinions of the U.S. Supreme Court.

But Hixson shows how this concept of privacy clashes with other ideals and rights. It is a theme he comes to in the first chapter and returns to throughout the book: "The conflict between the subjective desire for solitude and seclusion and the objective need to depend upon others."

In the legal context, the right of privacy soon clashes with the Fourth Amendment right to be safe against unwarranted searches and seizures and with the First Amendment right to speak and publish. Hixson's analysis leads him to think that "an open democratic society cannot tolerate a high degree of privacy."

There is a difference between the two conflicts that Hixson alludes to but does not develop fully. In the first case, the clash with the Fourth Amendment's search and seizure protections, the violator of privacy is the government. Citizens are to to be safe against unwarranted government intrusions, such as by the police.

Invasion by Privacy

In the second case--the clash between privacy and the public's right to know--the invader of privacy is not the government but the press, which claims an unlimited First Amendment right to publish freely on matters of public interest. The courts in general have been extremely and properly sympathetic to the press in First Amendment matters, but Hixson makes clear that personal privacy has won out against it under certain circumstances.

In cases of privacy versus free press, the courts have balanced the competing claims in the specific cases, sometimes coming out on one side and sometimes coming out on the other. Don't bother looking for the overarching statement of principle behind these cases. As Hixson puts it, "To date, no broad conceptual base has emerged."

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