You be the judge

[iamshack]

Bowers is also a sodomy case that is only tangentially related to sexual orientation. Privacy cases are really state rights cases and it is a stretch to use these SC decisions.

This is the language the Texas Magistrate Judge is reading in Lawrence:

 

(d) Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life. Pp. 17—18.

Edited February 15, 2012 by iamshack

[Soxbadger]

Im not sure I agree. The first problem is fact based. Lawrence is "2 consenting adults", the case at hand is concerning an adult and a minor.

 

The second issue, it is just a motion for summary judgment. The Plaintiff should win if they can show any fact pattern where they could prevail.

 

It seems that this is a pretty over reaching ruling for a Magistrate Judge. I just read the synopsis but it implies that he acknowledges there has never been a right given to students and then grants it. Based on that alone its likely going to be appealed, just because this ruling could potentially be used by any student to sue the school (the synopsis suggests that the ruling is that all sexual orientation is protected and thus a male/female could sue the school if its revealed to their parents they are in a relationship.)

 

 

[G&T]

The US Magistrate judge in Texas disagrees.

 

So...? Much of his opinion is based on this supposition that comes without citation:

With an understanding that the Supreme Court carefully guards a person's right to make decisions regarding intimate conduct irrespective of that person's sexual orientation, the Court now turns to the Fifth Circuit's informational privacy precedent.

 

He then reuses that quote and inappropriately cites to Lawrence at 573-574 which is merely a cite to another case involving "autonomy."

 

The Judge has better standing in the Circuit opinions he discusses. One of which is a 2nd Circuit decision regarding the private nature of transsexuality that never cites to Lawrence.

 

This is a different area of law than Lawrence and one that hasn't made it to the high court yet.

[iamshack]

Im not sure I agree. The first problem is fact based. Lawrence is "2 consenting adults", the case at hand is concerning an adult and a minor.

 

The second issue, it is just a motion for summary judgment. The Plaintiff should win if they can show any fact pattern where they could prevail.

 

It seems that this is a pretty over reaching ruling for a Magistrate Judge. I just read the synopsis but it implies that he acknowledges there has never been a right given to students and then grants it. Based on that alone its likely going to be appealed, just because this ruling could potentially be used by any student to sue the school (the synopsis suggests that the ruling is that all sexual orientation is protected and thus a male/female could sue the school if its revealed to their parents they are in a relationship.)

I would agree with you more if this case was about sexual conduct, but it isn't. There is no need to consent because there is no evidence of sexual conduct. All that is in question here is whether the girl had a right to keep her sexual orientation private. Lawrence is relied upon only in that the subject's choice to not share her sexual orientation is an "individual decision concerning the intimacies of a physical relationship."

 

 

[Soxbadger]

Shack,

 

Its not about consent to have sex, its about the fact that minors are not adults and therefore they do not have the same rights as adults. Furthermore the invasion of privacy was telling the minors guardian.

 

We already have rules that suggest a minors privacy can be invaded for the perceived benefit of the guardian.

[iamshack]

So...? Much of his opinion is based on this supposition that comes without citation:

 

He then reuses that quote and inappropriately cites to Lawrence at 573-574 which is merely a cite to another case involving "autonomy."

 

The Judge has better standing in the Circuit opinions he discusses. One of which is a 2nd Circuit decision regarding the private nature of transsexuality that never cites to Lawrence.

 

This is a different area of law than Lawrence and one that hasn't made it to the high court yet.

He's obviously extending Lawrence from the actual conduct itself to the right to keep private the fact that one does engage in that conduct, and there is language in Lawrence to support that idea, which I quoted earlier.

 

His rationale may indeed get shot down by the higher courts, but the first time a case is extended to mean more than it was previously, it always gets criticized for extending the holding farther than it was originally meant to go. This is the nature of evolving jurisprudence.

 

 

[iamshack]

Shack,

 

Its not about consent to have sex, its about the fact that minors are not adults and therefore they do not have the same rights as adults. Furthermore the invasion of privacy was telling the minors guardian.

 

We already have rules that suggest a minors privacy can be invaded for the perceived benefit of the guardian.

That is the argument the School made, and the judge ruled that the evidence would suggest the school did not have a legitimate interest in communicating the subject's sexual orientation to her mother.

[Soxbadger]

And that part didnt even make sense to me. If its a motion for summary judgment, the only thing that should matter is if there is anyway for the Plaintiff to win. If there is, Summary Judgment is inappropriate.

 

I dont know why the ruling would go further and even if it did, I would think the Judge would need to rely on some sort of case law that suggested what is private to be kept from guardians.

[iamshack]

And that part didnt even make sense to me. If its a motion for summary judgment, the only thing that should matter is if there is anyway for the Plaintiff to win. If there is, Summary Judgment is inappropriate.

 

I dont know why the ruling would go further and even if it did, I would think the Judge would need to rely on some sort of case law that suggested what is private to be kept from guardians.

I don't know...I don't know who this judge is...I don't even agree with him stating the analysis starts with Lawrence...but I still stand by the belief that this is definitely an invasion of privacy.

[G&T]

He's obviously extending Lawrence from the actual conduct itself to the right to keep private the fact that one does engage in that conduct, and there is language in Lawrence to support that idea, which I quoted earlier.

 

His rationale may indeed get shot down by the higher courts, but the first time a case is extended to mean more than it was previously, it always gets criticized for extending the holding farther than it was originally meant to go. This is the nature of evolving jurisprudence.

 

Yes, that is obvious to me, but StrangeSox was citing it as black letter law and you seemed to be supporting that view. So...I guess I've had my say there.

[Soxbadger]

And the thread was "You be the judge" and if I was the judge I would have denied summary judgment based on the fact that there is a chance that the Plaintiff could win based on the facts, nothing more.

[iamshack]

And the thread was "You be the judge" and if I was the judge I would have denied summary judgment based on the fact that there is a chance that the Plaintiff could win based on the facts, nothing more.

Hah, I don't think he meant literally

[farmteam]

Fascinating thread so far.

 

Interestingly enough, I've been studying Lawrence for the past day or two. The court could easily have found for Lawrence based purely on Equal Protection grounds, and in the same stroke distinguish it from Bowers. The statute at issue in Lawrence prevented only same-sex couples from engaging in sodomy; the statute at issue in Bowers applied to everyone.

 

However, the Court in Lawrence decided to be pretty ambitious and decide it on due process grounds also (in order to essentially invalidate ANY anti-sodomy statute). The holding was confined to the "harm principle" -- the State cannot overstep the bounds of personal liberty, unless the conduct in question brings actual "harm" to another (admittedly "harm" is pretty broad, but they seem to have meant it in a colloquial, common sense way, and not in a "BUT SEEING GAYS MARRIED MAKES ME ANGRY" way). Since sodomy was deemed not to be harming anyone, the State could thus not ban it. And just to note, this only applies to consenting adults; minors and other protected parties are a different issue.

 

As for the invasion of privacy and false imprisonment, I generally agree with what Jenks said early in the thread. In most areas of the law, for something to be considered "private" the person who wants to keep that secret must make a reasonable effort at maintaining its privacy. This doesn't mean keep it private from certain individuals or entities; it means to keep it as private as reasonably possible. So if the student was openly out at school, it doesn't matter if she didn't want her mother to know -- she had stopped keeping it "secret" in general, and therefore destroyed its confidential nature in totality (speaking in a purely legal and not ethical sense).

 

I see what Jenks and Soxbadger are getting at with treating homosexuality as something that should be considered inherently confidential makes gays seem inferior. It's similar logic from Plessy, and which was underlying in "separate but equal" -- to tell a class of individuals "We're treating you differently based solely on this characteristic of yours [and not in any way that's meant to protect you]" tells them they don't deserve to be treated equally, and are thus inferior. I agree with it in that sense; but from a practical point of view, it seems fairly evident that there is a stigma associated with being gay that could cause "coming out" to be a difficult and deeply personal decision that should be respected; not because as a society we think you should be treated differently, but because some elements of our society as a whole has attached that stigma. And in THAT sense, this differs from "separate but equal" in the sense that it IS meant to protect individuals, in the same the law seeks to protect minors or the mentally ill (and no, I'm not equating homosexuality with either of those two).

 

Jenks is right as to false imprisonment (at least in many jurisdictions, not sure about Texas). It may seem odd, but courts are pretty stringent on that the person allegedly being confined had to ask to leave. It wouldn't matter that the coaches locked the door and started asking her questions. If she didn't explicitly ask to leave, false imprisonment won't hold up (some courts have even said that just asking isn't enough; the person has to actually attempt to leave).

 

All in all, it seems like the Coaches at least overstepped their bounds and should probably be fired, but I'm not so sure about the legitimacy of this litigation, at least without more facts.

Edited February 15, 2012 by farmteam

[Texsox]

When it was mentioned they locked the door I was thinking they were keeping other people out, not keeping her in. I assumed she could have gone over and opened the door and left.

 

[iamshack]

Fascinating thread so far.

 

Interestingly enough, I've been studying Lawrence for the past day or two. The court could easily have found for Lawrence based purely on Equal Protection grounds, and in the same stroke distinguish it from Bowers. The statute at issue in Lawrence prevented only same-sex couples from engaging in sodomy; the statute at issue in Bowers applied to everyone.

 

However, the Court in Lawrence decided to be pretty ambitious and decide it on due process grounds also (in order to essentially invalidate ANY anti-sodomy statute). The holding was confined to the "harm principle" -- the State cannot overstep the bounds of personal liberty, unless the conduct in question brings actual "harm" to another (admittedly "harm" is pretty broad, but they seem to have meant it in a colloquial, common sense way, and not in a "BUT SEEING GAYS MARRIED MAKES ME ANGRY" way). Since sodomy was deemed not to be harming anyone, the State could thus not ban it. And just to note, this only applies to consenting adults; minors and other protected parties are a different issue.

 

As for the invasion of privacy and false imprisonment, I generally agree with what Jenks said early in the thread. In most areas of the law, for something to be considered "private" the person who wants to keep that secret must make a reasonable effort at maintaining its privacy. This doesn't mean keep it private from certain individuals or entities; it means to keep it as private as reasonably possible. So if the student was openly out at school, it doesn't matter if she didn't want her mother to know -- she had stopped keeping it "secret" in general, and therefore destroyed its confidential nature in totality (speaking in a purely legal and not ethical sense).

 

I see what Jenks and Soxbadger are getting at with treating homosexuality as something that should be considered inherently confidential makes gays seem inferior. It's similar logic from Plessy, and which was underlying in "separate but equal" -- to tell a class of individuals "We're treating you differently based solely on this characteristic of yours [and not in any way that's meant to protect you]" tells them they don't deserve to be treated equally, and are thus inferior. I agree with it in that sense; but from a practical point of view, it seems fairly evident that there is a stigma associated with being gay that could cause "coming out" to be a difficult and deeply personal decision that should be respected; not because as a society we think you should be treated differently, but because some elements of our society as a whole has attached that stigma. And in THAT sense, this differs from "separate but equal" in the sense that it IS meant to protect individuals, in the same the law seeks to protect minors or the mentally ill (and no, I'm not equating homosexuality with either of those two).

 

Jenks is right as to false imprisonment (at least in many jurisdictions, not sure about Texas). It may seem odd, but courts are pretty stringent on that the person allegedly being confined had to ask to leave. It wouldn't matter that the coaches locked the door and started asking her questions. If she didn't explicitly ask to leave, false imprisonment won't hold up (some courts have even said that just asking isn't enough; the person has to actually attempt to leave).

 

All in all, it seems like the Coaches at least overstepped their bounds and should probably be fired, but I'm not so sure about the legitimacy of this litigation, at least without more facts.

Good post, FT...

 

I doubt there is a legitimate false imprisonment charge...they would have alleged it had it been the case. My guess is the reason they didn't allege it is exactly what you guys pointed out...she made no effort to leave. And Tex is right, the defense would simply argue they locked the door to keep the conversation private (by keeping others out), not to try and lock her in.

 

In a practical sense, however, I'd be willing to bet it was done for effect as much as anything, for the sake of intimidating the girl.

 

As for the issue of privacy, I disagree with your notion that the girl can't make her sexual preference known in one setting but still have the right to keep it secret in another. How is a high school student supposed to express, (or for lack of a better word) develop or enjoy her sexuality if it is unknown to all of her peers? As someone mentioned previously, there is an assumption made by most that people are heterosexual. In order to make it known that your preference is the same sex, you must engage in some sort of expression which makes that at least partially evident.

 

If you're going to argue that she can't make it clear to her peers that she prefers the same sex, yet also keep this unknown to her mother, because her behavior at school destroys her expectation of privacy, I'd strongly disagree. The fact that she was able to keep it secret from her mother evidences the fact that she did have an expectation of privacy and that privacy still existed, despite her behavior at school. The school officials, minus some issue of imminent danger or harm, have no right to violate her expectation because they were not serving any interest other than some personal score of theirs.

Edited February 16, 2012 by iamshack

[Texsox]

How do y'all factor in that the group who she did not keep the issue from is the very group that is now being asked to also keep the secret? That doesn't seem right. She was open at school, it would seem unfair to then require that group to also keep the secret. Wouldn't that mean we would have to ask anyone we know to be homosexual who they have told and who they are keeping it a secret from? That's crazy.

[G&T]

How do y'all factor in that the group who she did not keep the issue from is the very group that is now being asked to also keep the secret? That doesn't seem right. She was open at school, it would seem unfair to then require that group to also keep the secret. Wouldn't that mean we would have to ask anyone we know to be homosexual who they have told and who they are keeping it a secret from? That's crazy.

 

This is the point that several of us have already made. In order to to seek damages based some privacy right there has to be reasonable efforts to keep the the information private. If she was openly gay at school her claim has a problem unless everyone knew that the parents didn't know (which I doubt).

 

All this is, though, is a summary judgment motion. Whether she kept it reasonably secret is for the jury to decide.

 

This is true in every form of "privacy" right from criminal law searches to trade secrets in intellectual property. Once the cat is out of the bag, you can't shove it back in.

Edited February 16, 2012 by G&T

[iamshack]

No one was asking them to keep the secret. It's not as if the mother came to parent teacher meetings and she asked the teacher to not say anything.

 

They went out of their way to use the fact that the mother did not know as a threat to elicit more information, then carried through on the threat and did tell her mother. That is not asking them to keep a secret. That is the coaches deliberately exposing a secret.

[iamshack]

This is the point that several of us have already made. In order to to seek damages based some privacy right there has to be reasonable efforts to keep the the information private. If she was openly gay at school her claim has a problem unless everyone knew that the parents didn't know (which I doubt).

 

All this is, though, is a summary judgment motion. Whether she kept it reasonably secret is for the jury to decide.

 

This is true in every form of "privacy" right from criminal law searches to trade secrets in intellectual property. Once the cat is out of the bag, you can't shove it back in.

So let me ask you this...say this was in a work setting. Say a man was a homosexual but considered the matter private and kept it secret from his co-workers. Then one night, a group of secretaries show up in a gay bar and happen to see him kissing another man.

 

Do the secretaries have the right to now expose this fact about his sexual orientation to his coworkers or his boss?

[Balta1701]

So let me ask you this...say this was in a work setting. Say a man was a homosexual but considered the matter private and kept it secret from his co-workers. Then one night, a group of secretaries show up in a gay bar and happen to see him kissing another man.

 

Do the secretaries have the right to now expose this fact about his sexual orientation to his coworkers or his boss?

(By the way, it's worth adding to this post that homosexuality is not a protected class under the laws in many states. At least as of 2009, it was legal to fire a person solely for being homosexual in 29 states (that's the date on the first article that popped up, and the legislatures that came into office in 2010 probably weren't likely to change that).)

[Soxbadger]

If you are doing something in public there Im pretty sure you have little to no expectation of privacy. The secretaries dont have "the right" to expose him, but they also cant be sued if they decide to tell people a true fact, "I saw X at a gay club kissing a man."

 

 

[G&T]

So let me ask you this...say this was in a work setting. Say a man was a homosexual but considered the matter private and kept it secret from his co-workers. Then one night, a group of secretaries show up in a gay bar and happen to see him kissing another man.

 

Do the secretaries have the right to now expose this fact about his sexual orientation to his coworkers or his boss?

 

Great question. The answer lies in whether a reasonable person would believe that going to the gay bar and kissing a man would not result in disclosure of the information to the co-workers. If he knew the secretaries went there, then no. It is a question of fact.

 

On the other hand, if he were on a float in a gay rights parade wearing a thong and making out with a guy in front of masses of people, then that is likely unreasonable for him to believe the co-workers don't know.

 

 

[cabiness42]

They also accused her of spreading rumors that the 18-year-old was the ex-girlfriend of one of the coaches.

 

This sentence is what makes this case a bit unique for me. If the 16 y.o. was in fact spreading these rumors and said rumors weren't true, then the coach has some leeway in defending herself since teacher/student relationships are illegal and/or grounds for termination even if the student is of age. This also means that the 16 y.o. is the one who injected sexual orientation into the situation. If she didn't want her parents to know she was a lesbian, she should have kept her mouth shut about the 18 y.o. and the coach.

 

I'm not a fan of protecting people who run their mouths in public and then get all indignant when the information reached people they didn't want to have it.

[Jenksismyhero]

So let me ask you this...say this was in a work setting. Say a man was a homosexual but considered the matter private and kept it secret from his co-workers. Then one night, a group of secretaries show up in a gay bar and happen to see him kissing another man.

 

Do the secretaries have the right to now expose this fact about his sexual orientation to his coworkers or his boss?

 

You cannot claim that something is private after making it public. Who has been informed is irrelevant.

[iamshack]

This is an interesting case:

 

Sterling v. Borough of Minersville

U.S. Court of Appeals, Third Circuit

232 F.3d 190

November 14, 2000

 

This interlocutory appeal arises from a denial of the defendants' motion for summary judgment on qualified immunity grounds. At issue is whether police officers' threat to disclose the suspected sexual orientation of an arrestee to his family member violated the young man's constitutional right to privacy. We will affirm the order of the District Court because the law is clearly established that matters of personal intimacy are protected from threats of disclosure by the right to privacy and at least one of the officers involved was aware that his conduct was knowingly violative of that right

 

We have previously set forth the analytical framework for deciding qualified immunity claims. First, we must determine if the plaintiff has alleged a deprivation of a clearly established constitutional right. Assaf v. Fields, 178 F.3d 170, 174 (3d Cir.1999). A right is clearly established if its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right. Kornegay v. Cottingham, 120 F.3d 392, 396 (3d Cir.1997). If a violation exists, the immunity question focuses on whether the law is established to the extent that "the unlawfulness of the action would have been apparent to a reasonable official." Assaf, supra. The status of the right as clearly established and the reasonableness of the official conduct are questions of law. Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997).

 

We first ask whether Wayman had a protected privacy right concerning Wilinsky's threat to disclose his suspected sexual orientation. If the right exists, we then query whether it was clearly established at the time of its alleged violation.

 

In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court first acknowledged the individual's constitutional right to privacy. In Griswold, the Court declared that a state law prohibiting use of contraceptives by married couples was unconstitutional because it violated the right to privacy as gleaned from the penumbra of rights established by the Bill of Rights. The Griswold decision validated a dissent written forty years earlier by Justice Brandeis in Olmstead v. United States, 277 U.S. 438 (1928), which described the privacy right as "the right to be let alone--the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion of the government upon the privacy of an individual ... must be deemed a [constitutional] violation."

 

The boundaries of the right to privacy, however, have not been clearly delineated. In Griswold, the majority placed heavy emphasis on the intimate relationship of husband and wife in deciding that personal decisions relating to marriage are free from unjustified government interference. Later, however, the Court recognized that the right of privacy inured to the individual beyond the marital state. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a Massachusetts law that made it a felony to give anyone other than a married person contraceptive medicines or devices. The Eisenstadt majority held that the right to privacy is not limited to certain relationships:

If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with separate intellectual and emotional makeup. If the right of 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.

 

A year later in Roe v. Wade, 410 U.S. 113 (1973), the Court observed that there is "a right of personal privacy, or a guarantee of certain areas or zones of privacy," protected by the Constitution. This guarantee of personal privacy, covers "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty'" (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

 

The constitutional right to privacy was further refined in Whalen v. Roe, 429 U.S. 589 (1977). In Whalen, the constitutionality of a New York statute which required that the state be provided with a copy of prescriptions for certain drugs was challenged by physicians and patients. While the statute's validity was ultimately upheld, the Court held that the constitutional right to privacy respects not only an individual's autonomy in intimate matters, but also an individual's interest in avoiding divulgence of highly personal information. This sentiment was reaffirmed in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), wherein the Court, quoting Whalen, acknowledged that "[o]ne element of privacy has been characterized as 'the individual interest in avoiding disclosure of personal matters....'"

 

We recognize that the Supreme Court has not definitively extended the right to privacy to the confidentiality of one's sexual orientation. Indeed, a later case gives us pause. In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court overturned a decision of the Court of Appeals of the Eleventh Circuit that had invalidated a Georgia statute that made consensual homosexual sodomy a criminal offense. The majority rejected the claim that the Constitution confers a "fundamental right to homosexuals to engage in consensual sodomy."

 

While Bowers indicates that the Court is resistant to bestowing the protection of the Constitution on some sexual behavior, its ruling focused on the practice of homosexual sodomy and is not determinative of whether the right to privacy protects an individual from being forced to disclose his sexual orientation. In other words, the decision did not purport to punish homosexual status. Such a determination would in fact be contrary to the Court's holding in Robinson v. California, 370 U.S. 660 (1962), that the Eighth and Fourteenth Amendments forbid punishment of status as opposed to conduct. We do not read Bowers as placing a limit on privacy protection for the intensely personal decision of sexual preference.

 

Our jurisprudence takes an encompassing view of information entitled to a protected right to privacy. "[T]he right not to have intimate facts concerning one's life disclosed without one's consent ... is a venerable one whose constitutional significance we have recognized...." Bartnicki v. Vopper, 200 F.3d 109, 122 (3d Cir.1999), cert. granted, 530 U.S. 1260 (2000).

 

First, in United States v. Westinghouse Electric Corp., 638 F.2d 570 (3d Cir.1980), we held that private medical information is "well within the ambit of materials entitled to privacy protection," in part because it concerns intimate facts of a personal nature. We cautioned, however, that the right is not absolute. Public health or like public concerns may justify access to information an individual may desire to remain confidential. In examining right to privacy claims, we, therefore, balance a possible and responsible government interest in disclosure against the individual's privacy interests.

 

In Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 110 (3d Cir.1987), we held that questions posed concerning medical, financial and behavioral information relating to whether police officer applicants were capable of working in stressful and dangerous positions did not unconstitutionally infringe on the applicant's privacy rights, but determined that there were inadequate safeguards on unnecessary disclosure of the information obtained. We observed that "t would be incompatible with the concept of privacy to permit protected information ... to be publicly disclosed." In performing the necessary balancing inquiry, we looked to the individual's privacy expectation and concluded that "[t]he more intimate or personal the information, the more justified is the expectation that it will not be subject to public scrutiny."

 

Next, in Doe v. Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133 (3d Cir.1995), a public employee brought a section 1983 action for violations of his right to privacy when the employer discovered, through records of drug purchases made through the employee health program, that the employee had AIDS. After weighing certain factors to determine whether the disclosure constituted an actionable invasion of privacy, we determined that the public employer's need to access the prescription records for purposes of monitoring the health plan outweighed the employee's interest in keeping his drug purchases confidential. We arrived at this conclusion, however, only after identifying the government's interest in the information as "genuine, legitimate and compelling."

 

Most recently, in Gruenke v. Seip, 225 F.3d 290 (3d Cir.2000), a high school swim team coach, suspecting that a teenage team member was pregnant, required the young woman to take a pregnancy test. The young woman and her mother filed a section 1983 action claiming inter alia that the pregnancy test unconstitutionally interfered with the daughter's right to privacy regarding personal matters. We decided that the daughter's claim "falls squarely within the contours of the recognized right of one to be free from disclosure of personal matters as outlined in Whalen v. Roe" and held that the fact that the coach compelled the student to take the test, coupled with an alleged failure to take appropriate steps to keep the information confidential infringed the girl's right to privacy. Significant to today's matter, we determined that this type of conduct was not objectively reasonable under the law and could not entitle the coach to immunity from suit.

 

We thus carefully guard one's right to privacy against unwarranted government intrusion. It is difficult to imagine a more private matter than one's sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity.

 

We can, therefore, readily conclude that Wayman's sexual orientation was an intimate aspect of his personality entitled to privacy protection under Whalen. The Supreme Court, despite the Bowers decision, and our court have clearly spoken that matters of personal intimacy are safeguarded against unwarranted disclosure.

 

The zone of privacy, while clearly established in matters of personal intimacy, is not absolute. If there is a government interest in disclosing or uncovering one's sexuality that is "genuine, legitimate and compelling," Doe v. SEPTA, supra, then this legitimate interest can override the protections of the right to privacy. In this instance, however, no such government interest has been identified. Indeed, Wilinsky conceded he would have no reason to disclose this type of sensitive information.

 

Before we can definitely conclude that a constitutional tort has occurred, however, we must further ask whether Wilinsky's threat of disclosure, rather than actual disclosure, constituted a violation of Wayman's right to privacy.

 

Cases discussing actionability of threats to violate constitutional rights appear to follow one of two directions. Simply put, threats accompanied by a "chilling effect" that deny or hinder the exercise of a constitutional right have been deemed cognizable, see e.g., Citizens Action Fund v. City of Morgan City, 154 F.3d 211, 216 (5th Cir.1998) ("[t]hreats of unconstitutionally enforcing laws against individuals can lead to a chilling effect upon speech, silencing voices and opinions which the First Amendment was meant to protect"); Lamar v. Steele, 693 F.2d 559, 562 (5th Cir.1982) (contested state action aimed at precluding plaintiff's participation in future litigation implicated First Amendment's protections of free speech and right to petition), while threats arising in constitutional contexts without a deterrent effect could not substantiate a section 1983 claim. See e.g. Schlessinger v. Salimes, 100 F.3d 519 (7th Cir.1996) (threat to arrest not cognizable); Balliet v. Whitmire, 626 F.Supp. 219 (M.D.Pa.1986), aff'd, 800 F.2d 1130 (3d Cir.1986) (threat to remove child from home not a constitutional violation).

 

A threat to disclose implicating privacy rights does not, to us, fit into either category. The threat of disclosure does not have a chilling effect since the right to privacy is pervasive, i.e., no particular action is deterred. Instead, the essence of the right to privacy is in "avoiding disclosure of personal matters," Whalen, supra. The threat to breach some confidential aspect of one's life then is tantamount to a violation of the privacy right because the security of one's privacy has been compromised by the threat of disclosure. Thus, Wilinsky's threat to disclose Wayman's suspected homosexuality suffices as a violation of Wayman's constitutionally protected privacy interest.

 

Link

Edited February 16, 2012 by iamshack