You be the judge

[iamshack]

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

So you're stating that if you do something outside of the confines of your own home, it is public behavior and therefore you have no expectation of privacy?

 

I disagree and think this is the incorrect line of thinking when considering whether something is considered private and entitled to privacy.

 

 

[farmteam]

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.

 

I briefly mentioned it at the end of my previous post, but is important to remember a lot of the rules get thrown out of the window (or a lot of new rules get thrown IN the window, if you prefer to think of it that way) when dealing with minors. I know you know that; I'm just stating it to give my argument a more definite context.

 

Also, in the interest of clarity, the second bolded point is exactly what I'm arguing, as long as by "keep this unknown to her mother" you mean "legitimately seek legal recourse against those who inform her mother of her actions at school." She can try to keep it unknown from her mother all she wants; she just cannot (in my view) require, and even reasonably expect her mother not to become aware of her sexual orientation if it's common knowledge among a diverse group of people (the student body). That last bit makes an assumption that I inferred from the original article -- it seems like the entire school (or at least a significant portion of) knew of her sexual orientation; if it was only a few close friends (small enough to fit the definition of "all reasonable measures to ensure the secret is kept confidential") then that is different. But if it was anything more than that, as it seems it was, then yes, she should have reasonably expected her mother might become aware of her secret; put a different way, I don't think a member of the diverse group that knows of her sexual orientation could be reasonably expected to assume her mother (or anyone else) did NOT know of her secret. That doesn't mean those who knew could still maliciously or intentionally tell her mother; that might be a different tort (probably IIED, as someone mentioned earlier). I'm speaking merely of accidental disclosure; the sort of thing you say reasonably assuming the other party knows something when in fact they don't. In this case, it looks like the coaches did do it intentionally/maliciously (though malice requires intent, so saying both might be overkill!). However, it seems you and I have moved to arguing about invasion of privacy in the more general sense of accidental disclosure (at least, by both your's and my posts, it appears we have a disagreement over this basic point, so that should probably be resolved before moving onto the malicious disclosures, and we'd probably agree pretty quickly at that point).

 

The above is pretty much the purely legal argument I'm making; but as you've said this is more intricate because it involves a stigmatized secret (homosexuality). Perhaps you're fusing your legal and practical arguments, and I'm thinking you're blending lines you're not -- whereas, I'm keeping them separate (until I synergize them after analyzing both) as much as for my own sake as for the sake of accentuating the different positions (purely legal and purely realistic, and everything in between). You're right that coming out is an incredibly difficult decision, and while the argument I made above would not distinguish between disclosing any orientation, be it gay, straight, bi, etc., in real life there's obviously a big difference between disclosing a person disclosing their heterosexuality and another person disclosing their homosexuality (with the root of the difference perhaps being that there's no "disclosure" of heterosexuality usually, it's far more often than not assumed). What I said above ("I don't think a member of the diverse group that knows of her sexual orientation could be reasonably expected to assume her mother (or anyone else) did NOT know of her secret"), gets sort of screwed up on this point. Common Sense/Courtesy dictates that a random student (but not a close friend) of the girl wouldn't be talking to random people about her sexual orientation, because that's a characteristic that's considered to be inherently private (this is distinguished from people talking about sexual acts hetero or homosexual individuals participate in; I'm referring merely to the "state of things" as it were), in large part because homosexuals are historically pariahs. However, this is one of those things that falls in that gray area of law, where courts say "While ethically I may find your act abhorrent, it's protected, or at least not condemned, by the law." I agree with this latter view. To try to detail out all the groups you can and cannot tell a secret to would involve far more complication than courts usually think reasonable.

 

On a slightly different note, the first bolded point brings up a good point that you might have implied but didn't state explicitly -- that if we accept the premise that we can't forbid the reasonable expression of one's sexuality, we allow the expression of that sexuality to take place, and expression inherently breaks a secret being kept in the strictest of senses. Your premise (or at least as I read it; correct me if I'm wrong) presumes a public expression of sexuality. However, as I think Soxbadger mentioned, any public act inherently can't be considered private.

 

I agree that gays should have the same public right to reasonably expressing their sexuality as straight people do. I also agree that there isn't the worry of "disclosure" for a straight person expressing their sexuality publicly that there is for homosexuals (who are not out yet). Without that worry, straight people are allowed much greater use of that freedom. However, let us not forget the multitude of factors that go into deciding whether to come out entails (or I assume; I'm straight and thus didn't have to make that decision, but it certainly seems like there would be many considerations into it?), and this invasion of privacy is only of those factors (even if a heavily weighted factor). And this is where the crux of our disagreement comes up, I think: I consider that factor to be something considered when making the decision to come out, and once that decision is made, the individual has accepted those consequences, while you think this particular factor (invasion of privacy) should still be protected anyway (again, let me know if I'm putting words in you're mouth). I really don't intend for that to sound callous; I still certainly maintain that any intentional or malicious disclosure is probably a tort of some kind. I just mean that "coming out," at its core, centers around deciding to take this (controversial? touchy? stigmatized? I can't think of the right word) characteristic public, and doing so involves accepting the purely "accidental disclosures" I discussed at the beginning might occur.

[Jenksismyhero]

So you're stating that if you do something outside of the confines of your own home, it is public behavior and therefore you have no expectation of privacy?

 

I disagree and think this is the incorrect line of thinking when considering whether something is considered private and entitled to privacy.

 

If you perform a public act or make the information known "to the public" how can you go back and later claim that it's private? As G&T put it, once it's out of the bag, it's out of the bag.

 

I fail to see what societal interest is served by being able to claim that information is private in situation A, but not situation B (absent consent).

[iamshack]

I briefly mentioned it at the end of my previous post, but is important to remember a lot of the rules get thrown out of the window (or a lot of new rules get thrown IN the window, if you prefer to think of it that way) when dealing with minors. I know you know that; I'm just stating it to give my argument a more definite context.

 

Also, in the interest of clarity, the second bolded point is exactly what I'm arguing, as long as by "keep this unknown to her mother" you mean "legitimately seek legal recourse against those who inform her mother of her actions at school." She can try to keep it unknown from her mother all she wants; she just cannot (in my view) require, and even reasonably expect her mother not to become aware of her sexual orientation if it's common knowledge among a diverse group of people (the student body). That last bit makes an assumption that I inferred from the original article -- it seems like the entire school (or at least a significant portion of) knew of her sexual orientation; if it was only a few close friends (small enough to fit the definition of "all reasonable measures to ensure the secret is kept confidential") then that is different. But if it was anything more than that, as it seems it was, then yes, she should have reasonably expected her mother might become aware of her secret; put a different way, I don't think a member of the diverse group that knows of her sexual orientation could be reasonably expected to assume her mother (or anyone else) did NOT know of her secret. That doesn't mean those who knew could still maliciously or intentionally tell her mother; that might be a different tort (probably IIED, as someone mentioned earlier). I'm speaking merely of accidental disclosure; the sort of thing you say reasonably assuming the other party knows something when in fact they don't. In this case, it looks like the coaches did do it intentionally/maliciously (though malice requires intent, so saying both might be overkill!). However, it seems you and I have moved to arguing about invasion of privacy in the more general sense of accidental disclosure (at least, by both your's and my posts, it appears we have a disagreement over this basic point, so that should probably be resolved before moving onto the malicious disclosures, and we'd probably agree pretty quickly at that point).

 

The above is pretty much the purely legal argument I'm making; but as you've said this is more intricate because it involves a stigmatized secret (homosexuality). Perhaps you're fusing your legal and practical arguments, and I'm thinking you're blending lines you're not -- whereas, I'm keeping them separate (until I synergize them after analyzing both) as much as for my own sake as for the sake of accentuating the different positions (purely legal and purely realistic, and everything in between). You're right that coming out is an incredibly difficult decision, and while the argument I made above would not distinguish between disclosing any orientation, be it gay, straight, bi, etc., in real life there's obviously a big difference between disclosing a person disclosing their heterosexuality and another person disclosing their homosexuality (with the root of the difference perhaps being that there's no "disclosure" of heterosexuality usually, it's far more often than not assumed). What I said above ("I don't think a member of the diverse group that knows of her sexual orientation could be reasonably expected to assume her mother (or anyone else) did NOT know of her secret"), gets sort of screwed up on this point. Common Sense/Courtesy dictates that a random student (but not a close friend) of the girl wouldn't be talking to random people about her sexual orientation, because that's a characteristic that's considered to be inherently private (this is distinguished from people talking about sexual acts hetero or homosexual individuals participate in; I'm referring merely to the "state of things" as it were), in large part because homosexuals are historically pariahs. However, this is one of those things that falls in that gray area of law, where courts say "While ethically I may find your act abhorrent, it's protected, or at least not condemned, by the law." I agree with this latter view. To try to detail out all the groups you can and cannot tell a secret to would involve far more complication than courts usually think reasonable.

 

On a slightly different note, the first bolded point brings up a good point that you might have implied but didn't state explicitly -- that if we accept the premise that we can't forbid the reasonable expression of one's sexuality, we allow the expression of that sexuality to take place, and expression inherently breaks a secret being kept in the strictest of senses. Your premise (or at least as I read it; correct me if I'm wrong) presumes a public expression of sexuality. However, as I think Soxbadger mentioned, any public act inherently can't be considered private.

 

I agree that gays should have the same public right to reasonably expressing their sexuality as straight people do. I also agree that there isn't the worry of "disclosure" for a straight person expressing their sexuality publicly that there is for homosexuals (who are not out yet). Without that worry, straight people are allowed much greater use of that freedom. However, let us not forget the multitude of factors that go into deciding whether to come out entails (or I assume; I'm straight and thus didn't have to make that decision, but it certainly seems like there would be many considerations into it?), and this invasion of privacy is only of those factors (even if a heavily weighted factor). And this is where the crux of our disagreement comes up, I think: I consider that factor to be something considered when making the decision to come out, and once that decision is made, the individual has accepted those consequences, while you think this particular factor (invasion of privacy) should still be protected anyway (again, let me know if I'm putting words in you're mouth). I really don't intend for that to sound callous; I still certainly maintain that any intentional or malicious disclosure is probably a tort of some kind. I just mean that "coming out," at its core, centers around deciding to take this (controversial? touchy? stigmatized? I can't think of the right word) characteristic public, and doing so involves accepting the purely "accidental disclosures" I discussed at the beginning might occur.

You aren't that far away from high school. I imagine being gay in high school is still something that spreads through the student body like wildfire. Say she was seen kissing her girlfriend near the entrance to school or something; that is information that would fly so fast through the student population that everyone would know in a day or a matter of days what her sexual orientation was. So you're telling me that she cannot express her sexuality in ANY manner at school, unless she is willing to stand by as someone from the school contacts her mother and has a discussion about it?

 

I just can't agree with this notion.

[iamshack]

If you perform a public act or make the information known "to the public" how can you go back and later claim that it's private? As G&T put it, once it's out of the bag, it's out of the bag.

 

I fail to see what societal interest is served by being able to claim that information is private in situation A, but not situation B (absent consent).

I don't think this accurate.

 

The question seems to revolve around whether the character of the information was something of a private nature or not. Whether or not there are people aware of her sexuality is not the question, but rather, whether her sexuality is a private concern of hers and whether or not it was her constitutional right to protect that information from being disclosed against her wishes.

[Texsox]

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.

 

 

By what definition is this a secret? That's what I have a problem with. I'm going to tell you (and many others something) but if you happen to tell someone I didn't want to know, I can then seek damages?

 

Plus, let's say there was a concern about the ages and the legal aspect. Are we suggesting that telling the mom her minor daughter is dating an adult male is ok, but telling the mom her minor daughter is dating an adult woman is wrong?

 

Again, I am not excusing the coaches here, but as these ruling are applied in other cases, there are some concerns.

[farmteam]

So you're telling me that she cannot express her sexuality in ANY manner at school, unless she is willing to stand by as someone from the school contacts her mother and has a discussion about it?

 

I just can't agree with this notion.

 

That's not what I'm saying. I'm saying, she can't express her sexuality in any manner in school and still reasonably expect her mother won't find out.

 

 

I don't think this accurate.

 

The question seems to revolve around whether the character of the information was something of a private nature or not. Whether or not there are people aware of her sexuality is not the question, but rather, whether her sexuality is a private concern of hers and whether or not it was her constitutional right to protect that information from being disclosed against her wishes.

 

Her sexuality is a private concern of hers and it's her constitutional right to protect that information from being disclosed against her wishes. But where you say "disclosed against her wishes" applies to any particular person or group the person does not want that information disclosed to, no matter who else it has already been disclosed to, I say that her disclosing it publicly, ie coming out, means it's impossible (in the eyes of the law) for anyone to disclose the information against her wishes, because she's already made the information public.

 

Essentially, you're dividing the "public" into spheres, and that isn't the case.

[farmteam]

Plus, let's say there was a concern about the ages and the legal aspect. Are we suggesting that telling the mom her minor daughter is dating an adult male is ok, but telling the mom her minor daughter is dating an adult woman is wrong?

 

That's not what I'm suggesting. I'd say both instances are OK because of a different issue -- the parent has a right to know if their minor child is engaging in sexual activity with an adult. Sexual orientation is irrelevant, in terms of the question you asked.

[cabiness42]

In this case, it looks like the coaches did do it intentionally/maliciously (though malice requires intent, so saying both might be overkill!).

 

I would argue that there was no malice here. The 16 y.o. was supposedly telling other students that the coach had done something inappropriate with the 18 y.o. If the coach had actually not done that, then the 16 y.o. has done something terribly wrong by spreading this rumor and notifying the parent is an appropriate action.

 

Straight or gay, you can't go accusing a coach/teacher of sleeping with a student if it didn't happen, and not expect consequences. If you were hiding something from your parents, then you should make doubly sure you aren't making false accusations.

[iamshack]

That's not what I'm saying. I'm saying, she can't express her sexuality in any manner in school and still reasonably expect her mother won't find out.

 

 

 

 

Her sexuality is a private concern of hers and it's her constitutional right to protect that information from being disclosed against her wishes. But where you say "disclosed against her wishes" applies to any particular person or group the person does not want that information disclosed to, no matter who else it has already been disclosed to, I say that her disclosing it publicly, ie coming out, means it's impossible (in the eyes of the law) for anyone to disclose the information against her wishes, because she's already made the information public.

 

Essentially, you're dividing the "public" into spheres, and that isn't the case.

 

Yes, I am.

 

I don't think a result of her expressing her sexuality in school should mean she loses any right to keep that information private. Since her fellow students know, does that mean they can tell her future employer? The recruiting officer for the armed forces? Where does it stop?

Edited February 16, 2012 by iamshack

[iamshack]

By what definition is this a secret? That's what I have a problem with. I'm going to tell you (and many others something) but if you happen to tell someone I didn't want to know, I can then seek damages?

 

Plus, let's say there was a concern about the ages and the legal aspect. Are we suggesting that telling the mom her minor daughter is dating an adult male is ok, but telling the mom her minor daughter is dating an adult woman is wrong?

 

Again, I am not excusing the coaches here, but as these ruling are applied in other cases, there are some concerns.

It is not against the law for a 16 year old to date an 18 year old.

[farmteam]

Yes, I am.

 

I don't think a result of her expressing her sexuality in school should mean she loses any right to keep that information private. Since her fellow students know, does that mean they can tell her future employer? The recruiting officer for the armed forces? Where does it stop?

 

This is what I was getting at with intentional/malicious disclosures. That's different from what I was talking about (accidental disclosures). If they're telling a future employer, recruiting officer, etc. with the intent to harm her candidacy (or, possibly, with the actual knowledge that it could harm her candidacy), she would have legal recourse against the person who made the disclosure. It probably wouldn't be invasion of privacy; more likely something along the lines of tortious interference of a contract (if she'd already signed an employment agreement), or some form of harassment.

 

Actually, as for that last scenario, I'm not sure if that's completely accurate under today's law; but hooray for normative arguments.

[G&T]

Yes, I am.

 

I don't think a result of her expressing her sexuality in school should mean she loses any right to keep that information private. Since her fellow students know, does that mean they can tell her future employer? The recruiting officer for the armed forces? Where does it stop?

 

Those are defamation claims and have been litigated in the past.

 

This is an alleged violation of constitutional rights without apparent economic impact. This is a fuzzy area.

 

Edit: I know truth is a defense to defamation but there are suits regarding information given in an employment reference situation.

Edited February 16, 2012 by G&T

[iamshack]

This is what I was getting at with intentional/malicious disclosures. That's different from what I was talking about (accidental disclosures). If they're telling a future employer, recruiting officer, etc. with the intent to harm her candidacy (or, possibly, with the actual knowledge that it could harm her candidacy), she would have legal recourse against the person who made the disclosure. It probably wouldn't be invasion of privacy; more likely something along the lines of tortious interference of a contract (if she'd already signed an employment agreement), or some form of harassment.

 

Actually, as for that last scenario, I'm not sure if that's completely accurate under today's law; but hooray for normative arguments.

Well I don't understand why you're arguing accidental disclosure because this is clearly not an accidental disclosure. Not only was this an intentional disclosure, but it was preceded by a threat to do the same.

 

 

[farmteam]

Well I don't understand why you're arguing accidental disclosure because this is clearly not an accidental disclosure. Not only was this an intentional disclosure, but it was preceded by a threat to do the same.

 

 

However, it seems you and I have moved to arguing about invasion of privacy in the more general sense of accidental disclosure (at least, by both your's and my posts, it appears we have a disagreement over this basic point, so that should probably be resolved before moving onto the malicious disclosures, and we'd probably agree pretty quickly at that point).

 

Perhaps I was mistaken in my guess, but that's why I tried to clarify it.

[Jenksismyhero]

I don't think this accurate.

 

The question seems to revolve around whether the character of the information was something of a private nature or not. Whether or not there are people aware of her sexuality is not the question, but rather, whether her sexuality is a private concern of hers and whether or not it was her constitutional right to protect that information from being disclosed against her wishes.

 

Well it is accurate, or so says the law. By simple definition if information is disclosed publicly it is no longer private. The only exception is when you've given limited consent to the disclosure and then that information still gets out. You've stated publically that this private information is private, except in this limited circumstance (think medical records).

 

Edit: And yes, if you're open about your homosexuality and you're making out with other girls in school, why would you expect that information to remain confidential?

Edited February 16, 2012 by Jenksismybitch

[iamshack]

Perhaps I was mistaken in my guess, but that's why I tried to clarify it.

I'm sorry...I agree with the point you and others are making if the mother had come to the school and a student had something or whatever...where you lose me is when the coaches knew it was not something her mother was aware of and thus used it as a threat. Not only did they threaten to tell her mother but then they sought the mother out and actually did tell her.

[iamshack]

Well it is accurate, or so says the law. By simple definition if information is disclosed publicly it is no longer private. The only exception is when you've given limited consent to the disclosure and then that information still gets out. You've stated publically that this private information is private, except in this limited circumstance (think medical records).

Well show me some law that states this.

 

I'm not seeing this line of reasoning mentioned in any of the cases we've discussed in the thread or that I've read myself.

 

Edit: It seems as though one's sexual orientation would fall into the limited consent to disclosure category, IMO.

Edited February 16, 2012 by iamshack

[Jenksismyhero]

Well show me some law that states this.

 

I'm not seeing this line of reasoning mentioned in any of the cases we've discussed in the thread or that I've read myself.

 

It's the basic element of the tort:

 

To state a cause of action for this tort, the plaintiff must plead and prove that (1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person.

 

 

[Jenksismyhero]

Well show me some law that states this.

 

I'm not seeing this line of reasoning mentioned in any of the cases we've discussed in the thread or that I've read myself.

 

Edit: It seems as though one's sexual orientation would fall into the limited consent to disclosure category, IMO.

 

Not if you're doing it in public. I said before, if this were a case where no one but her and a select few people knew, then that's one thing. But if it was a known "fact" around the school, she doesn't have much of an argument. That's all factually dependent obviously, so we'll have to see what evidence is introduced at trial.

[G&T]

Well show me some law that states this.

 

I'm not seeing this line of reasoning mentioned in any of the cases we've discussed in the thread or that I've read myself.

 

Edit: It seems as though one's sexual orientation would fall into the limited consent to disclosure category, IMO.

 

This is something I wanted to mention to Tex on the last page. "Right to privacy" is a vague legal concept that does not have defined contours especially at the Supreme Court level. The right truly exists only in state law cases involving economic damages. Beyond that, some would argue that the right to privacy doesn't exist at all.

 

My point being that looking to SC cases for guidance here is difficult.

Edited February 16, 2012 by G&T

[iamshack]

It's the basic element of the tort:

 

To state a cause of action for this tort, the plaintiff must plead and prove that (1) publicity was given to the disclosure of private facts; (2) the facts were private, and not public, facts; and (3) the matter made public was such as to be highly offensive to a reasonable person.

Maybe you could elaborate on what the second element means, exactly?

 

Because we've gone through about 10 cases now and not one has interpreted the element the same way as you are.

 

 

[Jenksismyhero]

This is something I wanted to mention to Tex on the last page. "Right to privacy" is a vague legal concept that does not have defined contours especially at the Supreme Court level. The right truly exists only in state law cases involving economic damages. Beyond that, some would argue that the right to privacy doesn't exist at all.

 

Right, i think i mentioned it before, there are two separate issues here - the right to privacy constitutionally, and a cause of action for disclosure of private information.

[Jenksismyhero]

Maybe you could elaborate on what the second element means, exactly?

 

Because we've gone through about 10 cases now and not one has interpreted the element the same way as you are.

 

We're talking past each other here. You're looking at cases that hold that private information may (or does) include sexual orientation. Ok fine, let's accept that premise. I'm saying that any case brought for the release of that private information is going to be dead in the water where that private information isn't really private anymore. It's become public knowledge.

Edited February 16, 2012 by Jenksismybitch

[iamshack]

We're talking past each other here. You're looking at cases that hold that private information may (or does) include sexual orientation. Ok fine, let's except that premise. I'm saying that any case brought for the release of that private information is going to be dead in the water where that private information isn't really private anymore. It's become public knowledge.

Yeah, I understand that. Except you're not allowing for the fact that you can't express your homosexuality without it becoming what you define as "public." Otherwise you'd just be sitting at home masturbating.