You be the judge

[iamshack]

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.

Well, the Supreme Court has addressed the right to privacy for almost 50 years now. Admittedly, the Supreme Court has not ruled on whether or not a right to privacy regarding sexual orientation exists. But I would argue it's a bit more than a "vague legal concept."

[Jenksismyhero]

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.

 

I'm assuming in talking about this that she was open about her relationship (as that was the school's response) - hand holding, kissing etc. obviously if she's got a girlfriend or something and they're only seen together at their homes, then that's a different story.

[iamshack]

I'm assuming in talking about this that she was open about her relationship (as that was the school's response) - hand holding, kissing etc. obviously if she's got a girlfriend or something and they're only seen together at their homes, then that's a different story.

So ultimately what your saying is that because of the nature of her sexuality, she is not allowed to be a normal human teenager and STILL not tell this to her parents?

 

Do you really think that was the intent of the second element of the tort?

[G&T]

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.

 

I think the term "public" is conclusory. It is only public is reasonable efforts are not made to keep it private. What is reasonable is for a court to decide.

[Jenksismyhero]

So ultimately what your saying is that because of the nature of her sexuality, she is not allowed to be a normal human teenager and STILL not tell this to her parents?

 

Do you really think that was the intent of the second element of the tort?

 

I don't think she should be afforded some greater protection if she's being completely open about it in other aspects of her life. Obviously it all comes down to who knows (how many people) and in what areas of her life those people know.

 

But no, I don't think she has an actionable claim where all of her friends know she's gay but her mom doesn't, especially where the mother already suspects it, and especially once you consider the third element of damages, which would be lessened even more by the "public" nature of the information.

 

 

Best case for what you're arguing is a student who is incredibly quiet about it, no one suspects anything, she tells a teacher in confidence with the promise it never gets out, and the teacher still tells her mother. But even then damages is gonna be a huge issue. You don't get emotional damages (unless you suffer medical issues as a result) or you can prove a proximate damage of some other kind (loss of a job/opportunity).

[iamshack]

I don't think she should be afforded some greater protection if she's being completely open about it in other aspects of her life. Obviously it all comes down to who knows (how many people) and in what areas of her life those people know.

 

But no, I don't think she has an actionable claim where all of her friends know she's gay but her mom doesn't, especially where the mother already suspects it, and especially once you consider the third element of damages, which would be lessened even more by the "public" nature of the information.

 

 

Best case for what you're arguing is a student who is incredibly quiet about it, no one suspects anything, she tells a teacher in confidence with the promise it never gets out, and the teacher still tells her mother. But even then damages is gonna be a huge issue. You don't get emotional damages (unless you suffer medical issues as a result) or you can prove a proximate damage of some other kind (loss of a job/opportunity).

Well I couldn't disagree more. I think a rule that results in a person having to choose between expressing their sexuality or having everyone in the world know about it is unconscionable.

 

 

[Jenksismyhero]

Well I couldn't disagree more. I think a rule that results in a person having to choose between expressing their sexuality or having everyone in the world know about it is unconscionable.

 

They don't have to choose anything. Just don't expect to be able to sue and recover if you publicize that information and expect it to remain private.

[Rex Kickass]

And I think that's where this case falls apart and probably was a gigantic waste of time/money/resources. There are no damages here other than, what, embarrassment? But it's only embarrassment if we're determining that homosexuality is somehow bad or unsightly or something that should be kept private.

 

There's nothing necessarily bad or unsightly when it comes to being a poor math student, but my high school administration chose to reveal my transcripts without consent to my employer in an attempt to get me fired. (This actually happened.) Although being bad at algebra isn't innately bad, there was clearly an intent to damage my reputation with my employer (who thankfully did not care.)

 

I feel the same argument applies here. There's nothing wrong with being gay. However, my sexual orientation is as private as I choose to make it - and if I choose to keep it private and a secret, revealing my orientation without my consent is clearly an intent to damage my reputation with someone who may not view being queer in quite the same positive light.

[iamshack]

There's nothing necessarily bad or unsightly when it comes to being a poor math student, but my high school administration chose to reveal my transcripts without consent to my employer in an attempt to get me fired. (This actually happened.) Although being bad at algebra isn't innately bad, there was clearly an intent to damage my reputation with my employer (who thankfully did not care.)

 

I feel the same argument applies here. There's nothing wrong with being gay. However, my sexual orientation is as private as I choose to make it - and if I choose to keep it private and a secret, revealing my orientation without my consent is clearly an intent to damage my reputation with someone who may not view being queer in quite the same positive light.

Keep reading...it gets better...

[iamshack]

They don't have to choose anything. Just don't expect to be able to sue and recover if you publicize that information and expect it to remain private.

Again, there is no way to normally express your sexuality unless it falls into your definition of "publicize."

 

You don't see that as a problem here?

Edited February 16, 2012 by iamshack

[G&T]

Well, the Supreme Court has addressed the right to privacy for almost 50 years now. Admittedly, the Supreme Court has not ruled on whether or not a right to privacy regarding sexual orientation exists. But I would argue it's a bit more than a "vague legal concept."

 

No I would stand by my statement. The right exists only where we choose based on societal values at the time. Privacy is not, itself, a fundamental right and is more of a policy concern than a defined legal construct. This is actually a frequent bar exam question that trips up who can't image that you have a fundamental right to consensual sodomy but not privacy.

 

In other words, the government does not regulate "privacy" but activities that may be considered "private".

 

Once you go beyond activities the analysis is not so clear and without economic harm the case is difficult to prove.

[Jenksismyhero]

Sorry, I don't see it. I understand coming out is a big deal. I understand it should be on the terms of the person who's coming out. But if you're open about it at school, you should know that be it through a teacher, a student, or whatever, that other people are going to find out about it. You can't complain after the fact.

[iamshack]

Sorry, I don't see it. I understand coming out is a big deal. I understand it should be on the terms of the person who's coming out. But if you're open about it at school, you should know that be it through a teacher, a student, or whatever, that other people are going to find out about it. You can't complain after the fact.

Fair enough. Agree to disagree.

[farmteam]

I knew trying to address points in advance in a long-winded post was a bad idea.

 

So ultimately what your saying is that because of the nature of her sexuality, she is not allowed to be a normal human teenager and STILL not tell this to her parents?

 

I was trying to address this point ahead of time with:

 

 

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.

 

Your point about the restriction of expression is a good one, and it's hard to make consistent with relevant laws. The above paragraph was my attempt at it.

[Tuna]

I may be in over my head here, I'm not a lawyer and have never studied anything remotely close. With that being said, I agree with both sides of the argument to a certain degree. The one thing that keeps standing out to me is SHACK. Your stance on how she can be openly gay at school and still have the right to privacy has me confused. School is not a sexual sanctuary, it's not Vegas, what happens there is public knowledge. If they found out after having a heart to heart conversation, that's one thing, but to be openly gay in a public forum is...well, public.

 

I'm not trying to attack you and there's a good chance that if I haven't "gotten" it 13 pages in then I never will.

[StrangeSox]

Sorry, I don't see it. I understand coming out is a big deal. I understand it should be on the terms of the person who's coming out. But if you're open about it at school, you should know that be it through a teacher, a student, or whatever, that other people are going to find out about it. You can't complain after the fact.

Fwiw I don't think she admitted to being out at school, that was a hypothetical.

[Texsox]

About the same thoughts here with me. I can't believe a person can be open about something and have all of those people be compelled to keep a secret. And who are they suppose to keep the secret from? Should I ask anyone I know anything about who they have told and who they haven't? That seems so stupid.

 

I am thinking about a coworker. If someone said they were thinking of fixing him up with a girlfriend of theirs, I would probably say, that's nice of you. But if someone else said, that's probably not a good idea, he's gay; I don't think that would be wrong. He has never hid his preference.

[StrangeSox]

About the same thoughts here with me. I can't believe a person can be open about something and have all of those people be compelled to keep a secret. And who are they suppose to keep the secret from? Should I ask anyone I know anything about who they have told and who they haven't? That seems so stupid.

 

I am thinking about a coworker. If someone said they were thinking of fixing him up with a girlfriend of theirs, I would probably say, that's nice of you. But if someone else said, that's probably not a good idea, he's gay; I don't think that would be wrong. He has never hid his preference.

The issue here is that a government actor violated her rights in an official capacity.

[iamshack]

About the same thoughts here with me. I can't believe a person can be open about something and have all of those people be compelled to keep a secret. And who are they suppose to keep the secret from? Should I ask anyone I know anything about who they have told and who they haven't? That seems so stupid.

 

I am thinking about a coworker. If someone said they were thinking of fixing him up with a girlfriend of theirs, I would probably say, that's nice of you. But if someone else said, that's probably not a good idea, he's gay; I don't think that would be wrong. He has never hid his preference.

I don't know how I can make this more clear...the mother did not go to the school and have the news "accidentally" broken to her. She was not talking to a teacher and the teacher let it slip.

 

The coaches threatened the student that they would tell her mother. I'm not sure how much more clear of an implication there can be than that. Then they followed through with the threat and went OUT OF THEIR WAY to find the mother at her residence to tell her this.

 

There is no compelling anyone to do anything. There is a difference between keeping a secret and actively seeking to expose a private concern to someone that the subject does not wish to know.

 

 

[farmteam]

I don't know how I can make this more clear...the mother did not go to the school and have the news "accidentally" broken to her. She was not talking to a teacher and the teacher let it slip.

 

The coaches threatened the student that they would tell her mother. I'm not sure how much more clear of an implication there can be than that. Then they followed through with the threat and went OUT OF THEIR WAY to find the mother at her residence to tell her this.

 

There is no compelling anyone to do anything. There is a difference between keeping a secret and actively seeking to expose a private concern to someone that the subject does not wish to know.

 

Again, I think that's covered by some other tort. Probably not defamation, but some form of harassment, I'd think. But not invasion of privacy.

[Texsox]

The issue here is that a government actor violated her rights in an official capacity.

 

And I am questioning she has that right. Forget motivation for a moment, if a teacher disclosed the relationship out of concern that it is an adult dating a minor child, the same end result would have occurred. I find it hard to believe that a minor child has the right to privacy if they are in a potentially illegal relationship with an adult. Plus, if I am keeping something secret from my mother, and I allow you and others to know, then wait for someone, anyone, to slip so I can sue? That just doesn't seem correct. For that to be avoided anyone with knowledge of her orientation would have to walk up to her and ask who she is open with and who she is keeping it a secret from. That seems wrong to me.

 

The coaches handled this wrong, but there is wrong and there is illegal wrong. This to me is wrong, but should not be illegal. If it was you would be creating a potentially second class of reporting potential sexual abuse. One class for heterosexual relationships in which you can easily report and a second class for homosexual relationships where you have to ask the possible victim if they are fully out, partially out, or keeping it a secret from everyone?

[G&T]

And I am questioning she has that right. Forget motivation for a moment, if a teacher disclosed the relationship out of concern that it is an adult dating a minor child, the same end result would have occurred. I find it hard to believe that a minor child has the right to privacy if they are in a potentially illegal relationship with an adult. Plus, if I am keeping something secret from my mother, and I allow you and others to know, then wait for someone, anyone, to slip so I can sue? That just doesn't seem correct. For that to be avoided anyone with knowledge of her orientation would have to walk up to her and ask who she is open with and who she is keeping it a secret from. That seems wrong to me.

 

The coaches handled this wrong, but there is wrong and there is illegal wrong. This to me is wrong, but should not be illegal. If it was you would be creating a potentially second class of reporting potential sexual abuse. One class for heterosexual relationships in which you can easily report and a second class for homosexual relationships where you have to ask the possible victim if they are fully out, partially out, or keeping it a secret from everyone?

 

This is why Jenks is telling you that privacy claims require economic harm. Bringing action in your hypo is not going to go anywhere if there aren't any damages. That's the equalizer. This is a constitutional claim against the government.

 

Additionally, you comparing the exposure of a legal sexual relationship to the exposure of illegal sexual abuse. You have no privacy right in criminal activity (aside from the law of criminal procedure). Sexual orientation wouldn't even be at issue. Put another way, I don't think Jerry Sandusky is gay. He's mentally ill.

[StrangeSox]

And I am questioning she has that right. Forget motivation for a moment, if a teacher disclosed the relationship out of concern that it is an adult dating a minor child, the same end result would have occurred. I find it hard to believe that a minor child has the right to privacy if they are in a potentially illegal relationship with an adult. Plus, if I am keeping something secret from my mother, and I allow you and others to know, then wait for someone, anyone, to slip so I can sue? That just doesn't seem correct. For that to be avoided anyone with knowledge of her orientation would have to walk up to her and ask who she is open with and who she is keeping it a secret from. That seems wrong to me.

 

The coaches handled this wrong, but there is wrong and there is illegal wrong. This to me is wrong, but should not be illegal. If it was you would be creating a potentially second class of reporting potential sexual abuse. One class for heterosexual relationships in which you can easily report and a second class for homosexual relationships where you have to ask the possible victim if they are fully out, partially out, or keeping it a secret from everyone?

 

Tex, read the ruling on the motion for summary judgement. The judge goes through whether the school had a compelling reason to break that right to privacy or not.

[iamshack]

This is why Jenks is telling you that privacy claims require economic harm. Bringing action in your hypo is not going to go anywhere if there aren't any damages. That's the equalizer. This is a constitutional claim against the government.

 

Additionally, you comparing the exposure of a legal sexual relationship to the exposure of illegal sexual abuse. You have no privacy right in criminal activity (aside from the law of criminal procedure). Sexual orientation wouldn't even be at issue. Put another way, I don't think Jerry Sandusky is gay. He's mentally ill.

I've been out of law school for 4 years now, and I am not a practicing attorney, so please bear with me here...but it sure seemed that many of the cases I read in regards to constitutional rights being violated had much less reason for economic harm than this one. If you assume for the sake of argument (and I know you disagree here) that there is some constitutional right to privacy, wouldn't the fact that information considered by the courts to be a very private concern was disclosed to her mother be plenty egregious enough to formulate some economic harm from?

 

Your relationship with your parents is one of the most important relationships a person will ever have, after the relationship with your spouse and your children, and considering many people go through their lives without either of the latter two, for many people, it is THE most important relationship they will ever formulate in their entire lives. To have that relationship jeopardized (and I am not saying this is morally correct that a parent would hold something like sexual orientation against their child) by someone who has no compelling reason to disclose a private concern of the child to the mother seems like a fairly extraordinary offense to me. I've seen attorney monetize a lot of far less obvious harm in my day of studying the law and working in law firms.

[iamshack]

Again, I think that's covered by some other tort. Probably not defamation, but some form of harassment, I'd think. But not invasion of privacy.

It may be, Farmteam, and don't get me wrong, I very much appreciate your comments in this thread. Sorry if I am coming off as combative towards you.

 

In many cases, I have been arguing not necessarily for a right of privacy here, and despite what some have said, privacy and defamation are fairly similar offenses, but rather, arguing that the behavior of the coaches was illegal and tortious.