4 A Right to Be Let Alone

The right to be let alone is indeed the beginning of all freedom.

—WILLIAM O. DOUGLAS,
Public Utilities Commission v. Pollak, 1952

In 1948, the Universal Declaration of Human Rights put into words an international commitment to individual privacy, forged in from the cauldron of war.¹ Shepherded through the United Nations by Eleanor Roosevelt, the Declaration was a legacy of Nuremberg, meant to set down “a jurisprudential underpinning for political or philosophical assertions of the dignity of the individual irrespective of local, domestic laws.”² Its Article 12 stated forthrightly, “No one shall be subject 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.”³ In the corridors of the UN, “privacy” was not a deeply considered or contentious item. Although its drafters, in multiple sessions, parsed nearly every word and provision in the Declaration, they were silent on both “privacy” and the “private.” Apart from a few semantic scuffles, Article 12 itself was barely discussed, seemingly unproblematic for delegates from around the globe.⁴ Privacy was taken to be part of an assumed bundle of protections concerning people, their dwellings, and their papers that had been articulated in a line of distinguished documents, from the French Declaration of Human Rights (1789, 1793) and the United States Bill of Rights (1791) to the Atlantic Charter (1941) and Bogota Declaration (1948).⁵

In practice, however, privacy would not so easily make the passage from paper ideal to tangible entitlement. The Declaration, nonbinding on member states, proved to have little traction in the postwar United States. Becoming entangled with Cold War ideological battles—and to some, synonymous with “Soviet-led subversion”—human rights quickly receded as a resource for substantive discussions about the status of individual dignity and autonomy vis-à-vis the state or other agents of modern society.⁶ Public concern about the dwindling spaces for privacy in a knowing society escalated during the early Cold War era, but it did not yield official remedies. This was true even though rights to privacy had gained ground in tort law since the late nineteenth century, with many state statutes on the books, and even despite the fact that rights language was finding its way into discussions of full employment as well as movements for racial justice.⁷

It was nearly two decades after the Declaration of 1948 that privacy was pronounced a full-fledged individual right by the U.S. Supreme Court. A beneficiary of the sweeping rights talk of the 1960s, privacy suddenly acquired at mid-decade a constitutional pedigree and a civil libertarian inflection.⁸ The timing can only be explained by reference to the modern civil rights movement. The “rights revolution” was brought into being by the black freedom struggle in both the North and South, and it defined the era, leading to the passage of the Civil Rights Act of 1964 and Voting Rights Act of 1965. Due process was revolutionized in these years too.

Galvanized by social movements, new rights were championed and secured in the courts—most spectacularly during the years of the liberal Warren Court, bookended by the landmark desegregation ruling of Brown v. Board of Education in 1954 and the Tinker v. Des Moines Independent Community School District decision safeguarding students’ free speech rights in 1969. Rulings on criminal procedure, the rights of the indigent, and the protection of racial and religious minorities led the way. The rights to counsel, to “remain silent” during interrogation, to a fair trial, to refuse self-incrimination, to protest, to travel, to religious and associational freedom, and to marry across the color line were all elaborated in these years.⁹ Moving still faster and further than judicial statements, a restless popular rights consciousness was everywhere evident in the broader society. Even President Lyndon Johnson traded on it, sometimes implying in his lofty promise of a Great Society that not just civil rights but also social rights to a “richer quality of life and decent standard of living” were waiting in the wings.¹⁰

In this climate, it was not surprising that the mounting privacy concerns of earlier decades would intersect with the language of rights. “Rights” in fact already, if informally, colored how postwar citizens made their claims to a measure of freedom from intrusion or scrutiny. But it was the 1965 Supreme Court case, Griswold v. Connecticut, overruling a ban on married couples’ use of contraceptives, that would finally supply privacy its constitutional bona fides. This dramatic moment in privacy’s history is the one that most Americans recognize and most U.S. historians register. The “right to privacy” has been treated as one of a bundle of recognitions burnishing the dignity and freedom of the individual in the 1960s—an example of what sociologist Peter Clecak has termed the “democratization of personhood” in the latter half of the twentieth century, born of “enhanced cultural options, rising economic resources and rewards, strengthened legal guarantees, and augmented personal and political rights.”¹¹ Once Griswold is followed to its jurisprudential conclusion, 1973’s Roe v. Wade, privacy tends once again to disappear from sight, however. The birth control case becomes the origin point for a story about reproductive rights—and fights—in the later twentieth century, its divisive legacy bewailed by legal scholars and political commentators alike.¹²

But Griswold v. Connecticut was not yet this in 1965, when in ringing terms, Justice William O. Douglas affirmed “a right of privacy,” which he dignified as being “older than the Bill of Rights—older than our political parties, older than our school system.”¹³ The ruling is properly remembered as a milestone in establishing a new right. But it must also be understood as an intervention in a wide-ranging dialogue already underway, carrying the potential to generate new privacy claims and to sidestep others. In giving Griswold its due, we should not err in making it the whole story of privacy in the 1960s. The junction of privacy and rights in that decade—and the fashioning of a “right to privacy” from the peculiar material of a birth control case—was only one development, albeit a significant one, shaping privacy’s career in U.S. public culture.

Griswold may be familiar, but its consequences for debates about the fate of privacy in American life are surprisingly unknown. What visions of privacy would the ruling bolster, and which would it shunt aside? How would the rights of the marital bedroom translate to other spheres: the workplace, the police station, the classroom, the welfare office, the laboratory? Were rights even the best vessel for securing individual privacy? And how would they speak to the quandary of the known citizen, which had reached such a high pitch by the mid-1960s? These were the questions that Americans immersed in contemporary privacy debates would ask. Like the ruling itself, the answers they found were not at all straightforward.

Constitutionalizing Privacy

Griswold v. Connecticut, the case that would announce the modern constitutional right to privacy, had its roots in a different sexual era and an old law. It stemmed from Warren and Brandeis’s day, when the forces of “Comstockery”—named for the zealous morals crusader, Anthony Comstock—were at work criminalizing contraception and abortion, as well as sexual expression of all kinds. Connecticut’s birth control statute of 1879, crafted by none other than the showman P. T. Barnum, was part of the wave of anti-obscenity reforms that rolled through state legislatures in the late nineteenth century.¹⁴ As part of this broader societal campaign to rein in vice, Connecticut enacted the most restrictive anti-contraception statute in the nation. It barred not just the display and dissemination of contraceptives but also their use, as well as the issuing of related medical advice.¹⁵

By 1961, the first time a challenge to the Connecticut law wound its way to the Supreme Court, assumptions and practices around birth control had changed.¹⁶ The birth control pill had just been approved by the Food and Drug Administration the prior spring, and longer-term developments had decisively altered the landscape: the federal judiciary had ruled in 1936 that the Comstock law could not be used to prevent transporting contraceptives for medical uses, a major movement in support of birth control had gained steam, and middle-class women, at any rate, had for a generation managed to secure relatively easy access to contraceptives.¹⁷ “Contraception,” writes legal scholar Lawrence Friedman, “was on its way to becoming a non-issue.”¹⁸ Indeed, a quiet sexual revolution, not entirely visible until later in the decade, was already afoot.¹⁹ Alongside all of this were organized efforts by the American Law Institute, a body charged with monitoring and modernizing legal codes, to decriminalize certain consensual sexual practices.²⁰ Connecticut’s harshly restrictive statute seemed, to most observers, a relic: there had been almost no prosecutions under the law, and there was little support for it even in the ranks of the Catholic Church.²¹

The Court nevertheless dismissed a 1961 challenge in Poe v. Ullman on technical grounds of standing, also citing the statute’s lack of enforcement.²² But the case would return, bearing the name of Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, and supported by the American Civil Liberties Union (ACLU) and the national birth control movement. In the wake of Poe, hoping to press the question, Griswold and Lee Buxton—chair of Yale Medical School’s Department of Obstetrics and Gynecology—opened a clinic offering contraceptive counseling for married women. The two carefully arranged to be arrested under the 1879 law. When the Connecticut Supreme Court upheld both the arrest and the statute, the Supreme Court finally agreed to weigh in on its merits.²³

The Court’s long-awaited ruling in 1965 identified a constitutional “right to privacy” for the first time in American history. Yet that stark summary fails to capture Griswold’s full significance. As legal commentators then and since have noted, the Court’s language in declaring that right was ambiguous and its reasoning difficult to parse. Although seven of nine justices agreed to strike down the Connecticut statute, they could not agree as to why. Was this a case with clear precedents grounded in the right to association or speech? Could contraceptive use be encompassed by the “ordered liberty” guaranteed by the Fourteenth Amendment? Or had a right to privacy that included birth control existed all along, hidden in the seams of the Bill of Rights? Immediately after the ruling was handed down, a legal scholar remarked that “the extraordinary thing about this case is not its result, but rather the divergencies in the theories of the Justices who wrote the opinions to explain it.”²⁴ Casting broadly for a rationale that would allow the Connecticut law to be invalidated, the Griswold ruling constituted, in a more recent observer’s words, “one of the most idiosyncratic opinions in the two centuries of Supreme Court history.”²⁵

There had been intimations—in a patchwork of the Court’s prior majority and dissenting opinions—that a constitutional right of privacy might exist. Some stretched as far back as the 1886 Boyd v. United States decision, which concerned the use of a man’s private papers as evidence against him. It boldly rejected “all governmental invasions of the sanctity of a man’s home and the privacies of life.”²⁶ An even earlier claim to bodily privacy, revolving around who could be present when a woman delivered a child, was made in the Michigan state courts in 1881.²⁷ Certainly the Fourth Amendment’s prohibitions on search and seizure had carved out a place for privacy with respect to one’s “person, papers and home,” a protection closely associated with property rights.²⁸ But Justice Louis Brandeis’s eloquent dissent in Olmstead v. U.S. (1928), the federal wiretapping case, was more typically the point of departure for jurists. In it, Brandeis balked at the Court’s refusal to establish a right of privacy from the state, invoking “the right to be let alone” as the “most comprehensive of rights and the right most valued by civilized men.”²⁹

Other resources for the Court in the 1960s came from far-flung precedents involving family decision making, the right of association, and freedom of conscience. Two cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, suggested that there were limits to state interference in parental decisions related to child-rearing and education.³⁰ In the 1940s the Court struck down laws stipulating the forced sterilization of criminals (Skinner v. Oklahoma, 1942) and schoolchildren’s obligatory salutes to the flag (West Virginia State Board of Education v. Barnette, 1943), both of which gave support to the notion of a private sphere that the state could not touch.³¹ Justice Douglas, author of the Griswold opinion, would be on the leading edge of these arguments, his personal and somewhat idiosyncratic commitment to privacy evident in a series of dissents in the early 1950s concerning incriminating testimony and free expression.³²

A set of later rulings, most prominently NAACP v. Alabama (1958)—which barred a state from gaining access to a private organization’s membership lists—shored up political privacy and the privacy of association.³³ And 1961’s Mapp v. Ohio, decided at precisely the same moment as Poe v. Ullman, made the federal exclusionary rule binding on the states, citing the privacy of the home as a barrier to the use of illegally procured evidence not just in federal but also in state criminal prosecutions. Mapp clearly stated that “the right to privacy embodied in the Fourth Amendment is enforceable against the States.”³⁴ Although it spoke to developments outside constitutional law, it is worth noting too that by 1960, tort law, which had gradually answered Warren and Brandeis’s 1890 call, recognized four distinct sorts of privacy invasion in the civil courts: intrusion on a person’s solitude, public disclosure of embarrassing private facts, false publicity, and false appropriation of one’s name or likeness.³⁵

That birth control, however, could be construed as a matter of privacy was not foreordained. Like abortion, contraception up until this point was understood to be in the domain of either public morals regulation or public health and medical authority. Regulated by state law, “contraceptive devices” were not particularly “private” in the sense that they were available only through transactions with doctors and clinics. Indeed, Griswold concerned Connecticut’s regulation of a Planned Parenthood clinic, and not (directly, anyway) people using contraception in a private bedroom. If it now seems self-evident that birth control belongs to the private sphere, this was not the case in 1965: Griswold was more the cause than the consequence of this understanding. If it also seems obvious that the “right to privacy” would lead to a chain of rulings specifying reproductive rights and, eventually, sexual liberty, this was even less clear. It took decades of labor, beginning in the 1920s, for the American Civil Liberties Union to successfully frame birth control as a personal right.³⁶ For the ACLU, as was true for its position on obscenity and nudism, the issue centered from the outset on rights to free speech and expression. The organization, influenced by birth control advocates like Margaret Sanger, would only very gradually shift from defending the dissemination of information about contraception to defending its use. The case for sex as a civil liberty was, even by 1965, tentative and partial. The ACLU and its allies in pressing the Connecticut case, for example, did not dare to introduce the subject of abortion into the mix.³⁷

The fact that Griswold originated in arrests for contraceptive counseling at a public clinic made the privacy argument still more difficult to locate. Yet that argument had been introduced in Poe v. Ullman by lawyers for Planned Parenthood and the ACLU, citing not the clinic but the privacy of “sacred relations between a man and his wife” and the right to be “let alone in the bedroom” as the true site of the law’s violation.³⁸ Estelle Griswold herself proclaimed that “we merely desire freedom in this most intimate of all our practices.”³⁹ Under her canny leadership, Connecticut’s Planned Parenthood chapter was happy to forward the analysis. Already in 1955—right on the heels of Senator Joseph McCarthy’s fall from grace—it was soliciting support for overturning the birth control statute by invoking the imagery of a police state. One of its publications pictured police officers “hiding beneath beds, pad and pencil ready to record any activity that might take place on the mattress above.” The caption read, “A policeman in every home is the only way to enforce this law.”⁴⁰ The ACLU, engaged at this time in questions raised by Mapp v. Ohio concerning the possession of obscene material in the privacy of one’s home, was beginning to connect the dots, its lawyers uniquely poised to apply a privacy claim across a broad spectrum of concerns, from search and seizure to contraception.⁴¹ Although the Court would not overturn the Connecticut statute in 1961, there were four promising dissents. Justice Harlan’s was particularly auspicious for its strong hints regarding the plausibility of a constitutional right to “marital privacy.”⁴²

4.1. Advocates of legal contraception portrayed a “policeman under the bed” as the only way that bans on birth control could be enforced.

Despite these efforts, privacy would be neither the first nor the leading rationale for most of the key players in the 1965 ruling. Justice William O. Douglas, who wrote for the majority in Griswold, had initially been inclined toward the right of association and “peripheral rights” of the First Amendment, referencing several key rulings that protected the National Association for the Advancement for Colored People from state harassment.⁴³ It was only later drafts of his opinion that turned critically on what he referred to as “penumbras” and “emanations” of the Third, Fourth, and Fifth Amendments—their combined protections from the quartering of soldiers, arbitrary search and seizure, and self-incrimination amounting to a “right to privacy.”⁴⁴ A few of Douglas’s colleagues were willing to go along; Justice Brennan, in particular, had urged Douglas to make the privacy argument. But others struggled to find a more compelling logic for overturning a law that only recently would have been thought to fall squarely within the state’s legitimate police powers.⁴⁵ Justice Harlan, as he had in his Poe v. Ullman dissent, relied on the notion of fundamental liberties protected by the Fourteenth Amendment’s due process guarantee. Justice Goldberg, who joined Douglas’s opinion, wound up authoring a long concurrence invoking the Ninth Amendment and matters “left to the people.” This startling innovation—the Ninth Amendment had received almost no attention in the whole history of the Court’s jurisprudence—suggests the stretching and strain that the case entailed for jurists committed to finding a principled privacy in the Constitution.⁴⁶

Some justices, try as they might, had trouble discerning privacy in the case at all. Chief Justice Earl Warren harbored a strong sense that a right was implicated somehow, voicing the view in conference that “basic rights are involved here—we are dealing with a most confidential association, the most intimate in our life.” But he was “bothered” that he couldn’t find the proper grounds on which to invalidate the law.⁴⁷ Warren’s clerk, calling Douglas’s reasoning “dangerous,” urged the Chief Justice to join a concurrence written by his colleague Byron White, who believed the law should be tossed out, but on grounds of equal protection rather than privacy. Indeed, many of the Court’s law clerks scorned what they thought was a weak opinion, one recalling years later that “no one who read it liked it.”⁴⁸ Douglas’s mystical language of penumbras and emanations flowing from the Bill of Rights came in for particular ridicule.

Tellingly, even the lead counsel’s brief for Estelle Griswold did not privilege privacy above other concerns. Thomas Emerson afterward described the “unusual variety of possible doctrinal solutions” the case allowed.⁴⁹ The fact that it “did not readily fit into any existing legal pigeonhole” meant that any direction the Court took to overrule it would be entering “uncharted waters.” Emerson did himself characterize the statute as an invasion of privacy. He believed that even though the Court had not “spelled out” its boundaries, “plainly the right extends to unwarranted government invasion of (1) the sanctity of the home, and (2) the intimacies of the sexual relationship in marriage.”⁵⁰ But the privacy argument shared space in his brief with arguably more powerful and popular reasons for supporting access to contraception—including population control and the rights of physicians to advise their patients.⁵¹ He cited other reasons beyond “privacy” for overturning Connecticut’s law as well, including the challenges of its enforcement and its discriminatory impact on poor women.⁵²

Nor did the other attorneys arguing the merits of Griswold’s case consider the privacy logic uppermost, perhaps judging those waters simply too uncharted. Their briefs suggested that the key issue at stake was either due process (whether the contraception ban aligned with a legitimate legislative purpose) or the First Amendment (whether it violated the free speech rights of the clinic directors).⁵³ Other rationales were contemplated too. A bold argument about contraception as central to women’s equal citizenship rights, which had appeared in Trubek v. Ullman, one of the dismissed cases en route to Griswold, was feasible, if unlikely to succeed given the gendered assumptions of the time.⁵⁴ Much more seriously entertained were questions of equal protection centered on economic class, namely the differential imposition the birth control law posed for low-income women. As public clinics’ main clientele, they were more directly affected by Connecticut’s ban than were middle-class women, who could afford private physicians or obtain contraception by traveling out of state. Planned Parenthood’s brief in the case tarred the statute as “grossly discriminatory,” and a couple of the justices (Warren and White) favored this reasoning.⁵⁵

And then there were the dissenters, Justices Hugo Black and Potter Stewart. Both disparaged the Connecticut law, Stewart branding it as “uncommonly silly.” But neither believed in the existence of a right that could bar a state legislature from regulating as it saw fit in the domain of health and morality—let alone by recourse to a constitutional “right to privacy.” As one commentator put it, the dissenters rejected “all of the proposed privacy theories as constitutional nonsense,” and Douglas’s opinion in particular for crafting “a fanciful new constitutional right out of thin air.” Justice Black called the right of privacy that Griswold carved from the Bill of Rights utterly “vague and standardless.”⁵⁶ As for privacy itself, it was a “broad, abstract and ambiguous concept,” its meanings too easily expanded or contracted to be useful material for the law. “I like my privacy as well as the next one,” he asserted in the course of his twenty-page dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”⁵⁷

Black’s adjectives—broad, abstract, and ambiguous—aptly characterize the terms in which 1960s-era citizens discussed privacy, annexing the word to physical, virtual, and even psychological intrusions. Heightened sensitivity around privacy was evident in protests against prying into personal life via the home, the workplace, the school, or the marketplace, and it was almost certainly at play in the Court’s ruling. Yet, at least in the ways Americans envisioned it at the time, it was a difficult concept to tether to a right.⁵⁸ If, as a contemporary legal scholar noted, privacy was “one of the warmest words in the literature of political and legal philosophy,” it was also the case that there were few concepts “more vague or less amenable to definition and structured treatment.” Indeed, “under this emotional term march a whole congeries of interests, some closely interrelated, some almost wholly unrelated and even inconsistent.”⁵⁹ There was little disagreement that Connecticut’s law was bad. But there was even more consensus that the Court had disposed of it improperly by invoking privacy. More than three dozen legal critiques of Griswold were issued in the next several years, many expressing disquiet over its “nebulous language” and “curious, puzzling mixture of reasoning” even as they endorsed its outcome.⁶⁰

The Accidental Right

How was it that a constitutional right to privacy was not just pronounced in 1965, but wrested from this particular case? Justice Douglas’s personal tilt toward privacy arguments notwithstanding, there were larger forces at work than either personality or precedent. Although impossible to prove, it seems undeniable that the Court was responding to more than an antiquated birth control law. The intensifying privacy debates of the past decade surely played into Justice Warren’s sense that “basic rights” were at stake in the birth control case, even if the substance of such rights was hazy and difficult to discern in the Court’s prior rulings.⁶¹ Particularly evocative given the geopolitical climate was Justice Douglas’s language of police patrolling domestic space—searching “the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives”—which he suggested was the logical ending point of the Connecticut statute’s enforcement.⁶² Although the case concerned a public clinic, not a private bedroom, Douglas asked his readers to imagine this insupportable violation of intimacy.

At its crux was the married couple. The justice treated the marriage bed as a timeless, “pre-constitutional,” privileged space.⁶³ The assumption of inviolate privacy in the marital bedchamber was in fact not age-old but relatively recent, and given new force by the ideology and architecture of postwar suburbia. It would anchor Douglas’s fabrication, as one critic described it, of a “modern morality play, with much judicial finger-shaking at fictional police invading a fictional bedchamber of a fictional couple in search of evidence of the use of contraceptives.”⁶⁴ In some sense the ruling was less an endorsement of individual privacy rights than a bolstering of protections for marriage and the family, aligning the United States with more modern constitutions and the Universal Declaration of Human Rights.⁶⁵ The family had been central to the American social order long before the Cold War. But marriage carried enormous political freight in the mid-twentieth-century United States. The family it produced was sign and substance of citizens’ freedoms, the proof of their birthright to liberty and privacy. What the U.S. Supreme Court did in Griswold, writes historian Nancy Cott, was “set these linkages into constitutional interpretation,” knitting together “the protection of marital intimacy with the political principles of American democracy.”⁶⁶ All of these interpretations help fit Griswold into a Cold War and anti-totalitarian frame, making it a key symbolic statement of American commitment to a private sphere free from state interference.

Still, given the welter of privacy concerns in the postwar United States, the binding of marital sexuality and reproduction to the constitutional right to privacy should strike us as odd, even accidental. Marital intimacy of the sort that Douglas invoked and made vulnerable in Griswold had played almost no part in postwar debates over the state of Americans’ privacy. Heterosexual unions, shadowed as they were by the increasing visibility of homosexuality in American life, were publicly affirmed and celebrated in the Cold War era.⁶⁷ Unlike residential, school, work, and even market relationships—all of which were newly shot through with privacy questions—the marital bond was not particularly troubled by intruders, unless one counted the family therapists to whom couples voluntarily flocked in the 1950s.⁶⁸ Indeed, earlier attempts to overturn the Connecticut statute had foundered on the fact that the law’s challengers “had failed to demonstrate any real risk of prosecution.”⁶⁹ All of this points to the largely symbolic nature of the ruling’s language, at least as far as direct intimate regulation was concerned. Griswold had important immediate results: it decriminalized and widened access to contraception for working-class people who depended on public clinics. It would also become in time the foundation for consequential reproductive rights rulings. But in an era staked to the promise of “bedroom privacy,” no matter what Justice Douglas implied, it did not respond to or remedy a literal concern about the state patrolling the intimacies of married couples.

This stood in stark contrast to the sex lives of other citizens. Married couples may not have had to worry, but plenty of other Americans who desired sexual privacy in this era were denied it. Griswold, in extending some citizens’ rights, underscored widespread societal misgivings as to how others would make use of such privacy if only they had it. Single women, gay people, and those who violated dominant sexual norms—by marrying across the color line in many states, for example—were subject to very public regulation and policing.⁷⁰ Female sexuality was rarely viewed as a private matter. Unmarried women had long been targets of family and community strictures, and eventually public and institutional ones, around reproduction.⁷¹ This was especially true for poor, working-class, and nonwhite women whose sexual decision making attracted far more public concern than that of affluent white women and who could marshal fewer resources in the project of sheltering their sexual lives from others.⁷²

Douglas’s dramatic scenario of police patrolling bedrooms was, for example, not at all fictional in the case of female welfare recipients. The modern welfare regime in the United States doled out invasive scrutiny alongside benefits, bringing new levels of surveillance into the homes of poor people, and especially of poor women.⁷³ Most egregiously, what were known as “man in the house” rules allowed public assistance to be stripped away if female recipients were found “consorting with men.” Investigators routinely appeared in their homes in the middle of the night in search of “substitute fathers”—evidence that a woman might be receiving undocumented financial support and making her potentially liable for criminal charges.⁷⁴ The intimate lives of homosexual men and women were even more zealously policed, in raids of public restrooms and episodes of public shaming. Any privacy that gay people were able to eke out was judged not as a “positive public good,” historian Marc Stein points out, but instead as a “secret evil.”⁷⁵ With intimate privacy a privilege reserved for those respecting the boundaries of normative sexuality, homosexual men and women’s struggles registered only faintly in the well-publicized debates over privacy intrusions at mid-century.

Nor, emphatically, was these citizens’ privacy at issue in Griswold. What the ruling clarified instead was that were different allowances of privacy for different kinds of citizens in American society. Class and sexuality, along with race, helped determine whose privacy mattered in the dominant political culture, all the way up to the Supreme Court. Thus did a “right to privacy” that looked universal, indeed constitutional, in fact serve only some. As Stein shows, the “liberal” Warren Court was in fact deeply conservative in matters sexual, going out of its way to emphasize that its rulings did not protect sexual intimacy outside of heterosexual marriage.⁷⁶ Goldberg’s and White’s concurring opinions stated explicitly that the holding “in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct”; Harlan employed similar language.⁷⁷ The Court, it is clear, sought to protect not sexual privacy writ large, but marital, heterosexual, and reproductive privacy up until and well beyond its controversial ruling of 1973, Roe v. Wade.⁷⁸ The Catholic Church, the ACLU, and Planned Parenthood in 1965 did not challenge this emphasis, deliberately ignoring contemporary proposals calling for the decriminalization of consensual adult sex.

Moreover, the conclusions that Americans were beginning to draw about the state of personal privacy at mid-century—focused on intrusions from modern institutions that seemed to know them too well—were rooted in a range of experiences that differed from those at a birth control clinic. The probing questions of employers and psychologists, the invasiveness of neighbors and the media, the existence of private detectives and wiretaps, and the investigations of credit bureaus and insurance agents were likely all seen as more offensive to privacy than bans on married people’s contraceptive use, particularly since so many middle-class men and women found their way around those restrictions. Citizens could not so easily evade the sense that the space for solitude and secrets in American society was shrinking. Had public opinion rather than the nine justices of the Supreme Court been in the driver’s seat it is entirely possible that the “right to privacy” would have arrived with a very different tenor.

Viewed as an episode in the history of privacy—rather than the history of reproductive freedom or women’s rights—Griswold v. Connecticut thus offers a paradox. The Court’s historic ruling raising privacy to the status of a constitutional right resolved an issue that almost no one at the time associated closely with privacy. Undoing a morals regulation that affected fewer Americans by the year, it addressed neither the actual harms of policing intimate life nor the deeply contested issues around individual privacy that by 1965 begged for attention. Still, Griswold and its fictional policeman partook in some ways from the privacy discourse that preceded and surrounded it. The ruling’s line in the sand, definitively cordoning off the normative domestic sanctuary from the state, was a clear statement that there were tangible places and situations where privacy continued to reign in modern society, where individuals’ lives would be sealed off from an insistently knowing society. Some citizens, at least, could be certain that the government would not interfere with sexual decisions or practices within the private home. That is, the ruling sketched the boundary between public and private in a way that seemed easy to defend and straightforward to regulate. More even than the assurance that marital intimacy would remain intact, the promise that there remained “zones of privacy” for retreat and repose in American society, places that the state did not reach and could not know, may have been Griswold’s true public import in 1965.

What seems clear is that the meeting of birth control advocates and the Warren Court on the terrain of a “right to privacy” was an odd turn in privacy’s history and—perhaps, given the range and bulk of issues collecting under its name—an understandable narrowing of its scope. Time would alter its accidental quality, knitting together privacy rights with decisions about sexual-reproductive matters such that the conjunction no longer seemed strange. In the years after 1965, the Court would continue to rely on Griswold and its language of privacy in cases having to do with contraception, abortion, and eventually sexuality.⁷⁹ This was true of 1972’s Eisenstadt v. Baird, which struck down laws banning contraception for the unmarried, making privacy, in one scholar’s words, “a more portable, individual right.”⁸⁰ The Court here announced that “if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”⁸¹ This tilt toward individual autonomy in decision making and to reproductive rights would be even clearer in the following year’s Roe v. Wade, which proclaimed that the “right to privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”⁸²

These rulings crystallized Griswold’s place in the history of reproductive freedom, situating the right to privacy squarely in that tradition and also facilitating its branching off in the direction of what has been termed “decisional autonomy” rather than intrusion per se.⁸³ In this way, the Court made a new right-to-privacy idiom more available even as it limited its purview. The Court’s rhetorical power to shape public understandings can be potent. Public commentary on Roe, for example, quickly adopted its language and lead, cementing the view that abortion, once considered a public health matter or issue of medical privacy, turned fundamentally on individual women’s autonomy and “choice.”⁸⁴ Much of the criticism of the Court’s privacy rulings from Griswold onward has centered on the impoverishment of discourses of reproductive freedom, the way abortion in particular became locked to “privacy” and “choice” rather than gender or economic equality, becoming entangled in a bitter, single-issue politics. That disappointment has led to a near-consensus among legal scholars that the Court’s bold foray into privacy was both a grave and a consequential error.⁸⁵

Fewer have asked what happened to privacy because of the way Griswold and reproductive rights jurisprudence interrupted a public debate in progress about “the right to be let alone”—as well as the desire, in many circumstances, to remain unknown. Strikingly, Griswold and nearly all the Supreme Court cases that came on its heels crafted the constitutional right to privacy within the context of sexual intimacy and family life.⁸⁶ Abortion came to be obviously, if contentiously, a matter of “privacy.” The intrusions of community life, advertising and marketing, school and employment testing—all those issues that raised the pitch of privacy discussions in the decade before Griswold—did not. The Supreme Court may in 1965 have responded to a broad social unease with the state of Americans’ privacy. But in doing so, at least in the realm of jurisprudence, it helped to hijack those meanings.

***Griswold*’s Little-Known Progeny**

In the immediate “afterglow” of Griswold, however, the brand-new right to privacy looked expansive.⁸⁷ Popular observers were none too surprised that the Court had located it. That such a right existed seemed intuitively correct, the law catching up to what citizens already sensed. And even if Griswold referred only to marital privacy and only with regard to contraception, commentators spied a more inclusive and capacious right in the offing. The Nation, for example, noted a “clear suggestion that the majority will recognize other forms of a general right to privacy.” Time magazine anticipated much more discussion to come: “Lawyers can now spend years happily fighting over just what else the new right of privacy covers.”⁸⁸ For many, Griswold seemed to indicate that clear lines could be drawn between the public and private spheres of modern life, that protections of privacy from all manner of intrusions were forthcoming, and that the Court was ready to lend its considerable authority to that project.

The fact, if not the text, of the ruling buoyed such expansiveness. Today understood as the progenitor of reproductive rights, Griswold in its own time appeared applicable to an array of quite different scenarios, observers easily imagining its implications for a whole complex of institutions that, in seeking to probe Americans’ personal lives, had done so much to rouse privacy debates since World War II. The birth control case thus could easily be assimilated into well-developed debates over the known citizen. The state’s potential access to confidential counseling central to the doctor-patient relationship, but also the intimate conversations between spouses regarding family planning, linked Griswold to privacy discussions that had come before it. Many journalists, commentators, and professional associations predicted that the ruling was just the first step in a broader recalibration of privacy in American society and that a comprehensive right “to be left alone” was imminent. Sexual conduct outside marriage was one candidate for new protections. But so was a citizen’s ability to be free of wiretapping and eavesdropping, compelled disclosures through lie detectors, and employment testing, for example. Even the home lives of the poor looked less open to interference post-Griswold. Most of the potential rights to privacy that the ruling would inspire outstripped the protections that the Court was prepared to offer. But their plausibility in the later 1960s should not be underestimated.

A handful of legal observers viewed Griswold less as a milestone than a decision grooved by other fundamental rights, simply another step along “a worn and familiar path.”⁸⁹ But most were certain major change was at hand. One expert contributing to a Michigan Law Review panel on Griswold contrasted the “slow and gradual” evolution of privacy rights in tort law following Warren and Brandeis’s famous 1890 essay to privacy’s precipitous and startling constitutional appearance in 1965. Disconnected from search and seizure or self-incrimination rulings that it might have built on, the jurisprudential link was forged “only by use of the term ‘right of privacy’ to apply to both type of rights.”⁹⁰ Griswold, in this analysis, was a break with and decisive step beyond the haphazard mentions of privacy in the Court’s earlier rulings. Another on the panel believed the Court’s language would provide the “constitutional underpinnings” for “situations which do not fit established categories neatly but still seem to rest on values thought to be vital and which, for lack of a better term, are called privacy.”⁹¹ There was no doubt, predicted another, that “many forces in our society will press hard toward fuller realization of its great potential.”⁹² For a last expert, the ruling was nothing short of “the birth of a new facet of constitutional meaning.” Griswold was “the nearest articulation to date (although it is none too clear at that) of the constitutional foundations of a yearning for ‘privacy.’ ” This was true even if the ruling remained longer on yearning than on substance.⁹³

4.2. Estelle Griswold (left) celebrating the Supreme Court ruling announcing a constitutional right to privacy in the case that bore her name.

What impressed these commentators was not that privacy talk was in the air. As one noted, “It takes a special form of foolhardiness to raise one’s voice against the right of privacy at this particular moment in its history.”⁹⁴ The novelty was the Court’s engagement with it. Before Griswold, it had seemed that privacy was everywhere in U.S. public culture but the law. Harkening back to Warren and Brandeis, the Duke legal scholar Clark C. Havighurst mused that three quarters of a century later, “privacy still remains primarily a nonlegal concept,” and an “awkward” one at that. “The law,” he claimed, “has never absorbed the privacy concept comfortably or made it altogether its own.” As he saw it, it was popular exposés and the mass press that had elevated privacy as a social value in order to express a “congeries of public fears and annoyances.” Treating law as a latecomer to the party, Havighurst believed, however, that its moment of reckoning had arrived, given privacy’s new status as “a rallying point for those concerned about the encroachments of mass society on the individual.”⁹⁵

On the heels of Griswold, it appeared that lawyers and legal scholars would be forced to take heed. A sense of coming legal recognition, even revolution, pervaded one 1966 symposium on the “right to privacy.” To the philosopher Glenn Negley, it was remarkable that “after centuries of failure to recognize privacy … we suddenly find ourselves concerned with the right of privacy as one of the most critical problems of contemporary political and legal analysis.”⁹⁶ Why now? William M. Beaney, a Princeton political scientist, argued that to understand privacy’s mid-1960s moment it was necessary to look less at legal precedents than at the society at large, at the human relationships undergoing “radical transformation as the result of new ways of carrying on governmental and private organizational activities.” He reflected on the difference from Warren and Brandeis’s day, when it was the privacy of “public men” that was most at issue. In 1966, “certain forms of visual and auditory surveillance,” as well as opinion surveys, behavioral research, and computerized data gathering, were “rapidly destroying the privacy of the obscure ‘common man.’ ”⁹⁷

In this, Beaney echoed legal scholar Robert Dixon Jr., who in his own reflections on Griswold moved seamlessly from the marital bedroom to the “evolution of democratic socialism and the security state, in which the forces of organization threaten to crowd out privacy.” Elaborating in a footnote, Dixon referred precisely to the issues that had preoccupied writers on privacy in the past decade revolving around the known citizen: the “growing corporate and government practice of psychiatric evaluation and psychological testing of employees” and related issues of permissible “range and depth of probing.”⁹⁸ Thomas Emerson, the prevailing attorney in Griswold, similarly gestured to larger fish to fry. At stake was the protection of the private realm, “which belongs to the individual” and loomed ever larger as “modern society has developed.” For Emerson, “all the forces of a technological age—industrialization, urbanization, and organization—operate to narrow the area of privacy and facilitate intrusions into it.” Sounding the same symbolic notes as Justice Douglas, he argued that preserving a private sphere in this context marked “the difference between a democratic and a totalitarian society.”⁹⁹

None of these commentators, in their sweeping invocations of mass society and transformed social relationships, dwelled on anything so concrete or narrow as a state ban on contraceptives. The substance of Griswold was almost beside the point. Rather, they took the ruling to be speaking to a specifically modern set of pressures on the person. As such they offer compelling evidence that many believed the Court to be responding to a profound social and political—perhaps even structural—shift in American society. At issue, in Havighurst’s estimation, was the “preference of individuals to live their lives and maintain their personalities and affairs free from undue intrusion by, or exposure to, the outside world.” Some threats to this “personality” flowed from the state. But many did not. Beaney fingered contemporary intruders such as “business, labor organizations, universities, and other private entities” that “affect our daily lives more immediately and in many cases more substantially than do governmental agencies.”¹⁰⁰ For Negley, the culprit was simply modern “organization,” which he characterized as “the complex of corporate pressures that prescribe the possibilities of action for every man.”¹⁰¹

In the mid-1960s, legal observers were certain that harms to privacy, however defined, stemmed from the very workings of the contemporary social order. On these grounds, some critiqued the Court’s attempt to confine “zones of privacy” to particular spaces or physical entities; that is, the home or the bedroom. Beaney believed that privacy—suggesting “aloofness and withdrawal from everyday life,” and thus a practical impossibility—was in fact the wrong word for the set of problems it sought to address. Following Warren and Brandeis, he preferred the rights of “personality” (had the term not, alas, already been captured by the psychologists) or perhaps the “dignity of the individual” as a counterweight to the troubles that plagued the modern person.¹⁰² Yet another contributor to the 1966 symposium, Cornell law professor Milton R. Konvitz, likewise objected to the “right to privacy” phrasing for its association with what was “withdrawn from public view—like the marital bedroom” and its implications of darkness and secrecy. He was partial to Thomas Cooley’s phrase, “the right to be let alone,” or what he simply called “breathing space.” Sounding a distinctly 1960s-era note, Konvitz urged that humans’ need for such space was something that applied no matter where the individual happened to be. It was “a sphere of space that has not been dedicated to public use or control. It is a kind of space that a man may carry with him, into his bedroom or into the street. Even when public, it is part of the inner man.”¹⁰³ For the Chicago sociologist Edward Shils, the essential thing was the “capacity for ‘keeping to one’s self,’ to be unobserved, to withhold information about states of mind and actions, i.e., the capacity to retain possession of these emanations of the self.”¹⁰⁴

These philosophical ruminations about breathing room for the “inner man”—particularly the concern with mental or interior spaces and psychological freedom—were clear outgrowths of the multilayered discussions about privacy in the postwar era. And they were nurtured by the widely available language of totalitarianism that circulated in mid-century America. The Supreme Court’s decision to pronounce on privacy seemed to open the door to remedies for harms less tangible than a policeman under the bed. Curbs on personality testing, eavesdropping, forced confessions, and perhaps even ubiquitous marketing, such observers speculated, might be where the Court would head next. Their aspirations for the new right went far beyond the Court’s declarations about “zones of privacy” and protected statuses such as marital intimacy. Would Griswold be the opening wedge to a serious reworking of the relationship between the individual and the social order—a sign that the pressures of contemporary life might be met in law? A flurry of hopeful new privacy claims would test the question.

Legal scholars were not the only ones who assumed that Griswold was a stepping-stone to more expansive privacy protections. This was clear in popular commentaries about the likely effect of the decision on contraception bans and certain reproductive decisions even if—as is also clear—few initially made the link to abortion rights.¹⁰⁵ The War on Poverty just launched, advocates for the poor imagined that public health clinics and social welfare programs would now be free to engage in contraceptive counseling, for example.¹⁰⁶ Commentators predicted that, even construed narrowly, the decision would have implications for other birth control regulations on the books, as well as compulsory sterilization laws.¹⁰⁷ Others simply dismissed or ignored the Court’s carefully tailored language of “marital privacy,” assuming that a more capacious right to sexual privacy had already been elaborated or soon would be. Indeed, the press as often as not misrepresented the right to privacy that the justices had actually established. As Marc Stein has found, popular accounts portrayed Griswold, along with the reproductive rights cases that would follow, “as more sexually libertarian and egalitarian than the texts of the decisions stated or implied.”¹⁰⁸ Many outlets in 1965 reported, inaccurately, that laws banning contraception were now unconstitutional or that all forms of birth control were constitutionally protected. Even when the decision was rightly cast narrowly, as one that protected married couples’ use of contraception, reports often implied that broader change was inevitable. The meager public attention to Eisenstadt v. Baird, the 1972 case that extended Griswold’s protections to unmarried people, may have stemmed from the fact that many Americans assumed all contraception bans had already been overturned.¹⁰⁹

More intriguing were expectations about the impact of the 1965 ruling that had nothing to do with marriage, family, or reproduction. A host of commentators, scholarly and popular, immediately perceived Griswold’s relevance to far-flung domains. Again, this is surprising only if we see the ruling as mostly about reproductive rights. But for contemporaries, the pressing questions having to do with privacy were elsewhere, and Griswold was simply a tool for answering them. Sounding much like a latter-day Samuel Warren or Louis Brandeis, one commentator, for example, hoped “the right of privacy is not to be limited narrowly to the facts of Griswold, but is meant to foretell broad protection for the dignity of man and the inviolability of his rights of personality.” If so, it might bolster citizens’ rights vis-à-vis legislative investigation, travel, loyalty oaths, and religious freedom.¹¹⁰ Others added intrusive police tactics and lie detectors to the list. Some ventured further, wondering a bit fancifully what Griswold portended for those seeking “a greater degree of freedom from unsolicited phone calls from pollsters and salesmen.”¹¹¹ One legal analyst, looking at concurrent trends in Fourth Amendment law, boldly laid out privacy’s future without even mentioning sexual or reproductive rights; he observed that “the right to be left alone by medical experimenters” and even the right to be free of radio programs on public transportation seemed to be “assuming constitutional proportions.”¹¹² The new right to privacy was enticingly elastic, able even perhaps “to form a protective shield for the individual against an increasingly intrusive world.”¹¹³

Most commonly mentioned in all this flurry of speculation, however, was Griswold’s significance for wiretapping and electronic eavesdropping. Wiretapping, deemed constitutional in 1928 in the Olmstead case, had long troubled citizens and legal scholars alike. The Federal Communications Act of 1934 had already outlawed information procured by wiretaps in federal courts, but not the wiretaps themselves, and evidence gleaned from them was still allowable in state courts.¹¹⁴ The birth control case provided critical ammunition for extending the ban. When the Duke Law Journal applauded the fact that the Court in Griswold had “seized a propitious opportunity” for dealing with other “problematic areas in which an interest in privacy may be paramount,” it put wiretapping and eavesdropping at the head of the line.¹¹⁵ Estelle Griswold’s lawyer, Thomas Emerson, argued too that electronic eavesdropping was an “obvious area” in which the right to privacy “is sure to be pressed and may well be successful.” He reasoned that “the scientific possibilities are so fantastic and the invasion of privacy so devastating that it is hard to believe a civilized society will not feel compelled to throw up some protection to individuals.”¹¹⁶ Justice Earl Warren, the man whose name was stamped on the Warren Court, himself had stated in 1963 his belief that “the fantastic advances in the field of electronic communication” now constituted a “great[] danger to the privacy of the individual.”¹¹⁷

What was sometimes called “conversational privacy” seemed to some a natural corollary of the way that the right to privacy was conceived in Griswold. The New York Times explained that even though “the connection between birth control and wiretapping may not seem obvious to the naked eye,” legal experts believed the 1965 ruling likely to lead to bans on wiretapping and other forms of virtual eavesdropping. The link was, of course “the right of privacy, which was given a constitutional home of its own for the first time in the Connecticut case.” Griswold appeared promising for this purpose because the new right seemed to “override” the “technical distinction of a physical intrusion” that the Court had required to find an invasion of privacy, via the Fourth Amendment, in the Olmstead decision.¹¹⁸ In that case, because telephone wires extended outside the residence in question, listening in did not violate any physical boundary and so was not judged an invasion. Justice Taft argued in his ruling that the language of the Fourth Amendment was limited to “material things”: a person, his house, his papers, or his personal effects. Since an individual’s spoken words were not “material,” he or she had no privacy interest in them as they traveled over the phone lines. Despite its references to a specific place, the marital bedroom, Griswold gestured to a broader realm of discussion and conversational intimacy—among physicians and patients, but perhaps others as well—that was constitutionally protected.¹¹⁹ As one commentator put it, “If there is a right to marital privacy in the home, why should there not be as well a right of privacy in the home or place of business against the unwelcome intrusion of uninvited participants in conversations intended to be private?”¹²⁰ For those inclined to this interpretation, it was a foregone conclusion that the Court would be required to “knock out all forms of eavesdropping.”¹²¹

An answer would soon come in the 1967 Supreme Court ruling of Katz v. United States. The case centered on the admissibility of evidence obtained by the FBI’s bugging of a public phone booth on Sunset Boulevard in Los Angeles, where a man named Charlie Katz habitually placed illegal interstate bets.¹²² Although Katz was engaged in a criminal practice in a public locale, his conviction was overturned. In the process, the Court advanced a new interpretation of the Fourth Amendment’s protection against “unreasonable searches and seizures.” Henceforth the Constitution would protect Americans not simply from physical trespasses—the “material things” that had been the sticking point in Olmstead—but from trespasses against their “reasonable expectations of privacy.” The ruling’s most famous line decoupled privacy rights from property rights, declaring forcefully that the Fourth Amendment “protects people, not places.”¹²³ By making the person and his or her expectations—and not that person’s physical surroundings—the subject of privacy, the ruling indirectly answered some contemporary critiques of Griswold’s limited language of protected “zones.”

The more mobile (and subjective) understanding of individual privacy advanced in Katz responded to new technologies like “detectaphones” and “spike mikes” that could glean private conversations without physically breaching private space.¹²⁴ Life magazine’s cover story in 1966, for instance, introduced the reader to tiny bugging devices that might “wind up in the olive of a nearby martini, in the mouthpiece of his telephone, in a knob on his car’s dashboard, in the handle of his briefcase, even in a cavity in the tooth of an intimate associate.”¹²⁵ Journalistic fascination with transmitters small enough to fit in a cigarette pack, and particularly the ubiquitous martini olive (with a “built-in sending device and a toothpick antenna”), was evident in the widespread coverage of increasingly available and affordable spy gadgets.¹²⁶ Life gave a human face to these techniques—a glimpse into “a world suddenly turned into a peephole and listening post”—in its profile of a day in the life of “master eavesdropper” Bernard B. Spindel. A family man with seven children and a “svelte wife,” Spindel was “an accomplished barbecue chef, a horse fancier, builder of floating electric Christmas trees,” who incidentally had been indicted or arrested 204 times for surreptitiously recording strangers’ conversations.¹²⁷ Life’s interest was in exposing a figure in the shadows, a man who knew something about everyone. But the reporter couldn’t conceal his own voyeuristic interest in Spindel’s futuristic gadgets and considerable expertise.

Alan Westin, who authored a landmark book, Privacy and Freedom, the same year that Katz was handed down, offered a more sober accounting of the ways miniature listening, transmitting, and recording devices along with tiny cameras and telephoto lenses were “dissolving the walls” that Americans had once naïvely trusted to shield them from prying eyes and ears.¹²⁸ He provided a partial but daunting catalog of technological hazards under the header “New Tools for Invading Privacy”: florescent powders or dyes, miniature transmitters, “radio pills,” two-way mirrors, “electric eyes,” “hidden television-eye monitoring,” closed-circuit television, infrared film, telephoto-lens cameras, sniperscope viewers, third-party eavesdropping, micro-miniature tape recorders, electrically conductive paint, remote-control tone devices, “spike” and parabolic microphones, ultrasonic generators, powerful binoculars, safe-cracking listening devices, telephone or teletype taps, television signal measurement, and “needle-thin flashlights” for reading sealed mail.¹²⁹ Privacy, imagined as a physical retreat from others’ eyes and ears, would be much harder to secure in this new technological context. In a sense, though, Katz was an answer, if long in coming, to the virtual invasions that accompanied the arrival of the telephone and telegraph. That physical trespass was not an essential component of a privacy invasion had seemed obvious to many Americans nearly a century before Katz was decided.

And yet the resolution of that long-simmering question, along with Charlie Katz’s win, came with a price. Although many observers had confidently expected that the Supreme Court would make all forms of wiretapping illegal, the holding permitted the practice—“so long as it proceeded pursuant to a judicial warrant.” What was most controversial and surprising about Katz in 1967 was not its modernizing of privacy rights or its grappling with virtual intrusions, maintains one legal scholar. It was that electronic eavesdropping was ruled “constitutionally permissible.”¹³⁰ In Katz, new privacy claims came up against the interests of law enforcement in employing a highly useful technology for uncovering criminal activity. Weighing the two interests—the right not to have one’s private conversations known and the duty of the police to apprehend known criminals—the Court offered the warrant requirement as a middle ground.

4.3. Concerns about wiretapping and electronic eavesdropping were at a high pitch in American society by the mid-1960s.

As it turned out, Katz’s compromise would be more telling for the future than Griswold’s deceptively solid language of “zones of privacy.” Already in 1967, the window of possibility opened by that 1965 ruling was closing. In the 1970s, privacy’s jurisprudential fortunes would take a turn for the worse as the backlash around Roe v. Wade intensified and a less expansive understanding of individual rights took hold. The right to privacy would be considerably less appealing to the more conservative Burger and Rehnquist Courts than it had been to Earl Warren’s. It would be subordinated, along with other of the Warren Court’s key rulings, to rising calls for “law and order” in American public culture. The new Supreme Court Justice, William H. Rehnquist, the man who would “be instrumental in defining the scope of constitutional privacy for the next quarter century,” mused in 1973 that when “the balance is struck in favor of ‘privacy’ some other societal value will suffer.” Law enforcement was his key example.¹³¹ As political scientist Naomi Murakawa has argued, conservatives and liberals alike would subscribe to the tenets of this platform in the Nixon years, whereby “the implicitly white right to safety was paramount, not to be threatened by special ‘minority’ or ‘criminal’ rights.”¹³²

Citizens would learn in the years to come that privacy questions raised by national security or policing, along with an array of others bearing on society’s ability to know and to track individual citizens, could pose even thornier challenges than did those related to morals regulation. In 1967, however, Katz may have looked like a blip rather than a portent. Privacy advocates had the wind in their sails, and they boldly pressed the question of rights.

Privacy Democratized

The Griswold ruling not only allowed Americans to imagine more robust applications of the “right to be let alone.” Arriving when it did in the mid-1960s, the heyday of civil rights energies and the New Left, it also raised questions about whom that right served. Before the 1960s, cultural commentators often treated privacy as a middle- and upper-class entitlement, and a concern of little interest to minorities and the poor.¹³³ This explains, if only in part, the cloistered nature of earlier Cold War privacy debates, trained resolutely on issues that most affected the white, suburban middle class.

But this limited view—along with its elitist assumptions about a greater desire for privacy among the privileged—would temporarily be revised and even reversed in the later 1960s. The poor, some would come to argue, might be even more in need of privacy than the comfortable. Activists and advocates pressed for protections that would secure the dignity of all citizens, especially those who had rarely been the imagined holders of rights. And for a brief time, the privacy claims of special classes of citizens, including criminals, prisoners, juvenile delinquents, vagrants, and the poor, gained traction. Professionals and policy makers would be pushed to reevaluate a whole set of practices that had governed the lives of those on society’s margins. On closer inspection, many of those practices now looked like improper invasions of privacy. As privacy earned a new status in American society—no longer simply a privilege or a preference or a sensibility but a constitutional right—it seemed that new kinds of people might lay claim to it.

One commentator, writing immediately post-Griswold, understood the Warren Court’s concern for extending equal protection to “disadvantaged individuals and minorities” as a critical step “toward protecting the privacy of ever-larger numbers of people.” Although aware that privacy had often been viewed as the province of “higher status individuals,” he glimpsed in the 1960s the possibility of its extension to all citizens, including criminal suspects, religious and racial minorities, and welfare clients.¹³⁴ He was correct that class- and race-based limits to privacy were beginning to crumble alongside substantive efforts to combat discrimination and inequality in American society. Social movements were the engine, but the Warren Court played a critical role, striking down key instances of unequal treatment and enlarging through its rulings the “rights of belonging” in American society.¹³⁵ Similarly, the Court’s decisions in this era—on vagrancy, for example—took steps toward “dismantling the criminal law as a method of social control.”¹³⁶ A new pluralism, bolstered by law, was evident in the flourishing of privacy claims in multiple spheres. It spoke both to the cross-cutting appeal of privacy as an answer to social problems and to the way the very demand for privacy was being democratized.

The Warren Court’s creation of new protections for criminal suspects is the best-known instance of this expanded arena for individual sovereignty. In a brief span of years, the Court codified the right to counsel and appeal; the rules for excluding wrongfully obtained evidence; and protections against self-incrimination, warrantless searches, forced confessions, and other forms of police coercion.¹³⁷ Some of these rulings were more closely linked to individual privacy than others. But the overall pattern helped give shape to a 1960s-era revisioning of who ought to have access to privacy and in what circumstances.

So did the political rhetoric of the era’s social activism. The civil rights movement’s exposure of many forms of social exploitation and its insistence on human dignity were crucial. The New Left’s suspicion of authorities, its profession of faith in ordinary citizens’ judgments, and its quest for personal freedom and authenticity bolstered the presumption of an individual’s claim on privacy vis-à-vis institutional or professional prerogatives.¹³⁸ Even as it challenged society’s division between public and private, the women’s movement strengthened this particular sort of claim to sovereignty over one’s person and self. This was especially clear in activists’ challenges to medical paternalism and the male physicians who exerted so much control over women’s bodies—extending even to the knowledge they possessed of their own physical beings. The landmark publication of the Boston Women’s Medical Collective, Our Bodies, Ourselves, hit notes of self-possession, even self-authentication, that would resonate powerfully by the early 1970s. A book emphatically “by and for women,” the manual reminded readers that “it’s your body” and not anyone else’s.¹³⁹ By invoking privacy, citizens wrested some control from authorities and gained leverage in their interactions with powerful institutions in American society. Nourished by the courts and social movements alike, privacy was becoming part of a popular lexicon of rights—even for those citizens who had been able to claim precious little of it in the past: soldiers and patients, juvenile delinquents as well as welfare recipients.

Remarkably, even the military, long a social world bound by its own rules, became a site for probing privacy’s boundaries in this era. Writing in the Military Law Review in 1964, a lieutenant colonel surveyed debates on the extent to which soldiers were entitled to a sphere apart from state scrutiny. He concluded that “an Army career today demands some sacrifice, but not total submission to authority.” This writer made the case that the complex of rights, privileges, and immunities that enlisted men enjoyed were really “manifestations of a single, more fundamental right, one which should be called ‘the soldier’s right to a private life.’ ” He also suggested that although the Constitution had not been much of a resource for soldiers up to the mid-1960s, times were changing. The privacy rights of soldiers, like those of civilians, might get a hearing in the courts.¹⁴⁰ That promise would not bear out, at least in the way the lieutenant colonel hoped: a 1975 ruling of the U.S. Court of Appeals, referencing Katz, stated plainly that “the ‘expectation of privacy’ is different in the military than it is in civilian life” and that “the soldier cannot reasonably expect the Army barracks to be a sanctuary like his civilian home.”¹⁴¹ Yet the very belief that the military might be remade to protect soldiers’ private lives—inspired by the broad critique of totalitarianism that underwrote Griswold as well as the spirit of the New Left—was a powerful testament to the expansiveness of privacy talk in this era.

Hospitals and the medical arena also witnessed new thinking about privacy in the late 1960s and early 1970s, ranging from the ruminations of medical ethicists to the decision making of nurses at the moment of care. It is as if medical workers saw their profession with new eyes, their familiar workaday routines gaining a different aspect in the intense focus on privacy of the day. The eminent Christian ethicist Paul Ramsey, in his lectures on “the patient as person,” asked how best to “show respect for, protect, preserve, and honor the life of fellow man.”¹⁴² One answer was to treat the patient first as a human being; another was to accept limits to the search for knowledge about him. Others wrote of the need for medical staff to root each and every decision in the “basic concern for each individual’s right to his private cloak of personal dignity.”¹⁴³ A nurse, Dorothy Smith, granted that “experiencing some intrusion upon one’s privacy is a necessary part of patienthood.” It was a status that compelled physical exposure, as well as personal disclosure of private matters. Medical care, as she saw it, was a human interaction in which “one of the persons lacks his usual ability to ‘cover his nakedness’ and to protect himself from loss of personal privacy.” The obligation of the nurse therefore was to protect the privacy of the person who couldn’t do so himself, to help the patient, in other words, “re-clothe” himself. Smith called on medical personnel to “reinforce the patient’s personhood regardless of the physical or emotional exposure that makes him particularly vulnerable.”¹⁴⁴ Writing in 1969, her reflections owed something to Griswold but also to Katz: the notion that the individual was entitled to a “reasonable expectation of privacy,” no matter the setting.

In fundamental ways, this charge rewrote the rules of medical care. The nurse, Dorothy Smith explained, must help patients not only protect their privacy but also “deal with that loss of privacy which is inevitable in the situation.” It behooved her to protect her patients’ modesty, to shield them from embarrassment, to refrain from inquiring needlessly into their affairs, and to help them learn what sort of sharing of information was necessary—all the while carrying the burden of their confidences. Smith offered instructions on “Arranging for Privacy,” spelling out small details (moving a chair close, wheeling a patient to a quiet hallway, drawing a curtain, closing doors to the nurses’ station) that would help create a private enclave—indeed a zone of privacy—around the patient. Smith further argued that such principles ought to guide the blueprints for new hospital wards, which “we should appraise … not only with an eye to efficiency and safety but also to patients’ privacy.”¹⁴⁵ By 1973, such concerns had made their way into the Patient Bill of Rights, adopted by the American Hospital Association. Beyond stating that all patients had a right to privacy, it encouraged respect for the patient’s body, stipulating that it be shielded “from the view of others.”¹⁴⁶ The patient, like the accused, was to be treated as a rights-holder, deserving of authorities’ respect and restraint.

The newest note in all of this, however, was the sudden concern for the privacy and self-respect of welfare recipients. In the long history of public relief in the United States, it is fair to say that the question had scarcely been contemplated. In the 1960s, however, legal scholars, poverty experts, and, most importantly, a welfare rights movement propelled largely by African American women were emboldened to raise it. Old assumptions about the link between privilege and privacy were coming under fire. One sign was a searching exploration of “privacy, poverty, and the Constitution” in 1966 by Albert Bendich, a lawyer and professor at U.C. Berkeley. He offered up the maxim that “poverty and privacy are intimately and inversely related,” arguing that the “willingness to intrude upon and manage the lives of others” evident in the welfare system stemmed from a belief that those on public assistance were “less than full citizens and persons, even if not quite criminals.” This made them “fair game for treatment [we] would consider unconstitutional if applied to persons of means.” As he saw it, the vital task was to demolish what he pointedly called “the right to invade privacy which such attitudes nurture.”¹⁴⁷

As Bendich’s analysis suggests, the question about the privacy rights of the poor brought critical attention to more than just criminal procedure and policing. It also generated a reappraisal of the administrative state and the social welfare guarantees of the New Deal and now Great Society—and particularly the behavioral strictures that accompanied their beneficence. Social Security’s public assistance provisions could look different through a right-to-privacy lens. A lifeline of benefits to poor people might also result in damaging incursions on their dignity. One legal scholar in Griswold’s aftermath wondered, for instance, about “the reach of the inquisitorial power of the state in the case-worker-client relationship” common to programs like Aid to Dependent Children. That power of caseworker over client, he thought, raised “serious questions precisely in the area of privacy now constitutionally zoned by the Supreme Court.” Would that right to privacy now “extend to such matters as frequency of sexual intercourse, ethical outlook, savings habits, drinking habits”—all of which were regularly noted and monitored by caseworkers? He probed the issue further: “What may be made a matter of record, and what guarantees of confidentiality are legally mandated? How far (apart from birth control) may the ‘planning’ in family planning be carried?”¹⁴⁸

If privacy was a constitutional right, to what degree could or should it be restricted for those most directly in the government’s sights? The state’s close tabs on those drawing public assistance was typically justified by the need to guard against benefits fraud and abuse. This was a concern, importantly, only about certain kinds of “welfare,” even within the same federal agency: Social Security’s Aid to Dependent Children rather than Old Age Benefits. The discussion that crystallized around welfare recipients’ dignity and rights after Griswold thus reveals how privacy talk could challenge the harms of class and potentially enlarge poor people’s citizenship claims.¹⁴⁹

The two-tiered welfare state that separated “entitlements” from “welfare,” it seemed, had birthed a two-tiered privacy regime as well. Some citizens—suburban homeowners with private bedrooms, those who paid into and drew out of Social Security’s retirement fund—were accorded a constitutional shield around their privacy. Less fortunate Americans, those on public assistance or living in public housing, had no such protection from the gaze of the state. The Yale legal scholar Charles Reich would develop the point in a series of essays exploring the constitutional implications of the modern welfare regime.¹⁵⁰ Observing that the law had barely taken note of public assistance administration and the rights of beneficiaries, he argued that welfare recipients “have been subjected to many forms of procedure and control not imposed on other citizens.” The poor, he intoned, “are all too easily regulated.”¹⁵¹ Reich indeed believed that the most challenging constitutional issues raised by welfare programs were related to questions of “personal liberty and privacy.” Both were regularly transgressed by inquiries, all in the name of efficient management, into recipients’ personal and family affairs—“the sort of things that are, to the average person, nobody else’s business, certainly not government’s.” As Reich saw it, “the evils of any public welfare system” consisted in subjecting large numbers of people to just this sort of “bureaucratic discretion.” Encouraged by Griswold, he sought to bring such issues under the banner of constitutional rights.¹⁵²

One immediate target was the despised practice of “midnight raids” to check up on welfare recipients’ living arrangements. Looking to precedents regarding the sanctity of the private dwelling as well as justifications for entry, Reich judged it obvious that such raids violated the Fourth Amendment.¹⁵³ The only reason they transpired was that “persons on public assistance are in no position to enforce a constitutional right of privacy.”¹⁵⁴ Social Security and public assistance had become an essential infrastructure for contemporary society, argued Reich. The question was whether they had to come bundled with “official condescension and prying.” “Must the price of state support,” he demanded, “be the erosion of self-respect, and individual rights against government?”¹⁵⁵

The welfare rights movement of the late 1960s, energized by civil rights successes and the rights-friendly rhetoric of the Warren Court as well as the organizing prowess of women on public assistance, answered in the negative.¹⁵⁶ The very fact that the government subsidized low-income housing and other social benefits was an entering wedge for activists’ claim as citizens to a right to decent living conditions. Perhaps paradoxically, the fact that the “previously private sphere of home had become public and political space,” writes historian Rhonda Williams, motivated welfare rights advocates to demand more autonomy from and less scrutiny by the agents of the government.¹⁵⁷

The movement would even win some contests in this arena. In King v. Smith of 1968, the Supreme Court took up the claim of an African American welfare recipient from Alabama, Mrs. Sylvester Smith, whose Aid to Dependent Children benefits had been abruptly cut off. The rationale for that decision—as Smith’s caseworker informed her—were reports indicating occasional visits of a boyfriend. That fact in turn had been discovered through a note in Smith’s case dossier and confirmed via the questioning of a “third party.” In Alabama by the mid-1960s, in what was commonly understood as a bid to trim welfare rolls, any sexual liaison with a man was enough to trigger the state’s “substitute father” regulation. The law presumed that a woman in Smith’s situation was receiving male support for her children and was thus not eligible for aid—even if the man neither lived with her nor paid her bills.¹⁵⁸ Caseworkers complied with these rules, even interviewing children in some cases about their mother’s sexual practices. This was as about as close as one could get to a policeman in the bedroom, that evocative figure used by both Planned Parenthood and Justice Douglas in arguing for a constitutional right to privacy. In the words of Alabama’s Commissioner of Pensions and Security, a mother could choose “to give up her pleasure or to act like a woman ought to act like and continue to receive aid.”¹⁵⁹

The ignominies did not end there. As the New York Times Magazine detailed the situation in a profile, for Mrs. Smith to regain the public aid that she had lost, she was required to notify the state of Alabama that “she had broken with the phantom father”; moreover, her statement needed the corroboration of two references, such as a law enforcement official or a minister. As the incredulous reporter explained, “With Mrs. Smith’s permission, an investigator would have gone to her favorite policeman or grocer to inquire whether she was still enjoying sexual relations with Williams [the man in question] and, if so, where and how often.” What eventually landed Smith’s case before the Supreme Court was the fact that she did not grant her caseworker any such permission. “I told her it was none of her business,” was how Smith was quoted by the Times. More than this, she was indignant “at the idea that the welfare people could punish her family, which she had kept together for years by main determination and hard work, because they didn’t like her private doings.” Smith argued that she was entitled both to public assistance and to some protection from the state welfare department’s investigation of her sex life.¹⁶⁰

King v. Smith would be a signal victory for the welfare rights movement. Although not on privacy grounds, the Supreme Court sided with Smith, stating that recipients of aid under the Social Security Act “had the same right to make choices about their intimate affairs as did other citizens.”¹⁶¹ Withholding federal dollars from those on public assistance “because of race, sexual activity or other activities irrelevant to their need” was ruled unconstitutional.¹⁶² Even if the Court made no constitutional claim for privacy, King v. Smith was still an important widening of protections for sexual privacy in practice.¹⁶³ And yet the stubborn link between welfare administration and intimate intrusion persisted. One of the key accomplishments of activists was the winning of a right to fair hearings, which prevented the denial of benefits without evidence or argument. But the hearings could themselves be highly invasive of beneficiaries’ personal lives, often centering on the judgments of caseworkers about “the client’s honesty, sexual practices, parenting skills, housekeeping abilities, and effectiveness as a money manager.”¹⁶⁴ Welfare rights could in this way quite easily collide with privacy rights.

The overlap of the War on Poverty and a set of novel privacy claims created sharp dilemmas, as advocates for those under the closest watch of state agencies keenly perceived. Needy citizens, after all, were some of the best-known citizens to the state. To truly shield their private lives from officials would collapse the entire apparatus supporting welfare provision in the United States. Experts in administrative law and juvenile justice, Joel Handler and Margaret Rosenheim, took it as a given that privacy had “different boundaries depending on one’s status in the society.” The poor and dependent, unable “to interpose the customary screens around their private activities and to keep themselves shielded from the prying eyes of others,” were less likely to be secure in a “private personality” than were other citizens. The condition was only partly financial. It also stemmed from “a peculiar vulnerability of the needy and dependent to official or quasi-official inquiry and surveillance.”¹⁶⁵ Governmental programs had an undeniable interest in efficiency and making sure their goals were met, the scholars acknowledged. In an age of expanding welfare but also urgent privacy claims, this created intractable quandaries.¹⁶⁶

The stand-out social policy for thinking through this tug-of-war was public assistance. To a much greater degree than income taxes and retirement benefits, each of which entailed some monitoring of the middle class, welfare payments hinged on individual visibility, or as Handler and Rosenheim put it, “the unique personal circumstances of the recipients.”¹⁶⁷ Whereas benefits programs aimed at the comfortable typically took “one’s word at face value,” that was very much the exception in means-tested assistance. Public relief required “an intimate knowledge” of the recipient’s “appetites and needs” and demanded “exposure of the applicants’ lives and affairs to those who administer it.” It also, inevitably, degraded those assisted by opening them “to a kind of scrutiny and control from which the rest of us are ordinarily exempt.”¹⁶⁸

In fact, this sort of scrutiny was intensifying in the 1960s, even as privacy claims were being raised loudly throughout the society. The War on Poverty’s penchant for treatment, counseling, training, and rehabilitation programs meant that state agencies were tasked with probing even more deeply into the lives of the poor than previously. Juvenile justice was one setting where this was evident, with family life and personal conduct matter-of-fact subjects for official observation and concern. Given the focus on attitudinal changes—“a youth cannot be ‘helped’ unless he has recognized his guilt and is willing to be rehabilitated”—such programs justified “the penetration of government into the mind itself,” authorizing officials “to roam at will” in the lives of juveniles and their families. This was an alarming version of the “brain watching” that had been lambasted in the context of psychological testing. But, even for juveniles’ advocates, such prying appeared unavoidable. Handler and Rosenheim’s stark conclusion was that “programs to prevent delinquency, dependency, and neglect can be expanded, but, however labeled, they will be expansions of official regulation of private lives.” Indeed, it was in the most “humanitarian, progressive” programs of social welfare that the most trying issues around privacy were beginning to surface.¹⁶⁹

The ruling in Griswold v. Connecticut, alongside the many varieties of privacy talk that proliferated in the 1960s, could be empowering, equipping patients and soldiers as well as criminal defendants and welfare recipients with some recourse against the forces that impinged on their intimate lives and private affairs. But the expanding scope of privacy claims also generated thickets of complications. The social programs associated with the War on Poverty—promising dignity and autonomy to those who had typically been relegated to the margins of U.S. society—were a case in point. New entitlements, even new rights, often came bundled with a level of administrative invasiveness that perhaps would have rankled at any time, and even more so in an age keenly attuned to privacy.¹⁷⁰ More generally, policy making on social problems, including those addressing racial discrimination and invidious distinctions, often rested on the “investigation of characteristics thought to be private.”¹⁷¹ Knowledge of individuals’ intimate affairs was sometimes essential, it seemed, in the name of those same people’s rights. Americans of the 1930s, at an earlier moment in the history of the welfare state, had faced the prospect of surrendering some of their personal information to the state in exchange for social insurance. In an age steeped in privacy talk, whether Americans would tolerate a much more intensive species of prying in exchange for the benefits of fuller citizenship was an open question.

In 1890, Samuel Warren and Louis Brandeis had described privacy as “the right to be let alone.” By 1965, the phrase resounded with both citizens and courts. Newfound respect for citizens’ privacy was announced in the highest court in the land, and privacy law would be remade in the cascade of rulings that began with Griswold v. Connecticut. If, one commentator mused, the Boston lawyers could have imagined that contraception—something rarely discussed in polite society in their time—would be the vessel for privacy as a constitutional right, they may well have been scandalized.¹⁷² The framing of this right, tethered to “notions of privacy surrounding the marriage relationship,” meant that a narrowed version of sexual privacy and autonomy would be privileged in future jurisprudence. It also departed markedly from the kinds of privacy citizens had worried over most intently in the decades leading up to 1965.

Nevertheless, the Connecticut birth control case played a key role in shaping legal and popular understandings of privacy in the 1960s. By the end of the decade, through the work of activists, lawyers, and professionals, it had helped to generate a capacious imagining of the entitlement to be free of society’s scrutiny. Criminal defendants and hospital patients, welfare recipients and enlisted men, all staked claims to privacy in these years. Not all or even most of them achieved constitutional status, of course. Yet the Court’s effort to supply borders and tangible contents to privacy backfired. A certain boundlessness infected the way that citizens talked about their right to be let alone in these years, as if the Court’s attempt to define the claim only made its contours blurrier. One of the conundrums of the 1960s was how expansive the new right appeared to be even as the possibility of identifying clear zones of privacy seemed to recede. As more and more citizens gained a purchase on privacy, conflicts over its meaning escalated. Open to all comers, “privacy” would become vexingly compromised by competing interests. Universalist—and even constitutional—claims about “a right to privacy” masked this more specific truth.

Some would begin to argue that a right that could be called on to solve debates over contraception as well as electronic eavesdropping, abortion well as social welfare administration, was overburdened from the outset. There were those who pinpointed rights themselves as the problem. Legal scholar Mary Ann Glendon, for example, has criticized the right to privacy as exemplifying the “isolated character of the rights-bearer” in the United States. The distinctive feature of the American rights dialect, she writes, is “its extraordinary homage to independence and self-sufficiency, based on an image of the rights-bearer as a self-determining, unencumbered, individual, a being connected to others only by choice.”¹⁷³ This fiction, that society is peopled by autonomous individuals who wield rights against others, was perhaps incapable of resolving a problem as socially complex as privacy. Others contended that privacy rights, which seemed mostly to address liberty from the state, were ill suited for situations in which the government was called on to help. Privacy in this sense could cut against demands for equal treatment: by ensuring that the state would stay out of “private” questions, the law could leave existing power dynamics in place. A final question revolved around when and for what reasons citizens’ privacy affirmatively ought to be curbed. As public officials called attention to the costs of the welfare state or the crime rate or the deterioration of the family in the decades to come, the pendulum would begin to swing away from the expansive aspirations for privacy that the Court’s 1965 ruling had kindled.¹⁷⁴

Griswold dangled the possibility that privacy rights were the answer to the dilemmas raised by a knowing society. Other hallmarks of its era, however—the fight for racial justice, the growth of the administrative state, and the increased ambition of social and political interventions—called into question the Court’s containment of privacy to particular places and particular people. Indeed, the hopes raised by the recognition of a “right to privacy” revealed the shaky ground on which it rested: that there was a discernible line between private and public at all. If “people, not places” were to be the locus of privacy rights, what happened when those people chose to exercise their privacy in public places? If the advance of personal autonomy depended on retreating from moral regulation, what of the new conflicts triggered by unwanted intrusions from liberated people and bodies? And, perhaps most significant, if to police, manage, or research effectively was to know those who were to be punished, administered, or studied, what would determine the proper balance between privacy rights and socially valuable information about citizens? Neither Griswold’s “zones of privacy” nor the rulings that followed it could resolve the case’s most generative questions.

4

A Right to Be Let Alone

Constitutionalizing Privacy

The Accidental Right

Griswold’s Little-Known Progeny

Privacy Democratized

***Griswold*’s Little-Known Progeny**