Conceptions of Privacy:
A Q-Method Study of Lay and Professional Viewpoints
Abstract
Since the publication of Warren and Brandeis' classic article
on privacy in the Harvard Law Review more than one hundred years
ago, the scope and dimensions of privacy issues in American
society have escalated dramatically. The privacy issues that
constitute the focus of this study are based on a general belief
that there are areas of individual belief and activity that are
not the concern of government, groups, or other persons. Using
Q-method, this study assesses the structure of prevalent
conceptions of privacy. Taken from a wide variety of popular
and legal commentary, the 60 item Q-sample for the study is
structured with reference to privacy as it relates to property,
public safety, paternalism (legislative parentalism),
confidentiality of information, and personal relationships.
Based on a P-sample of 40 subjects, the authors interpretet the
viewpoints on privacy issues associated with the four factor
solution. These are designated Privacy Libertarianism,
Lifestyle Conservatism, Harm Principle Liberalism, and Classical
Conservatism.
Prepared by:
John F. Kozlowicz and Charles E. Cottle
Department of Political Science
University of Wisconsin-Whitewater
Prepared for delivery at the 9th Annual Conference
on the Scientific Study of Subjectivity, October 7-9, 1993.
School of Journalism, University of Missouri-Columbia.
Introduction
In the last thirty years the Supreme Court of the United States
has started to deal with various dimensions of a constitutional
right to privacy.1 Concomitant with the rise of a concern for
privacy and privacy related rights by the Court, dramatic
changes in technology as well as an increased concern by
government, society, corporations, and individuals in the
affairs, beliefs and actions of individuals, individual privacy
has come under greater assault.
In this paper we look at the ways in which privacy is perceived
by both "privacy" professionals and by lay persons. The privacy
issues that constitute the focus of this study are based on a
general belief that there are areas of individual belief and
activity that are not the concern of government, groups, or
other persons. The sorts of questions addressed pertain to what
it is that people believe in when they indicate that they
believe in the right of privacy. For example, is there a common
set of beliefs related to privacy? Are there various dimensions
to privacy beliefs? To explore these questions, we adopt
Q-methodology as developed by William Stephenson2 as the
methodology of the study, and we report the findings of a
Q-study conducted to investigate the various conceptions of
privacy. Taken from a wide variety of popular and legal
commentary, the 60 item Q-sample for the study is structured
with reference to privacy as it relates to property, public
safety, paternalism (legislative parentalism), confidentiality
of information, and personal relationships.
A Brief History of Privacy Rights
The development of a specific constitutional right to privacy
is a relatively new constitutional doctrine.3 The first
specific development of a constitutional right of privacy is
found in the Supreme Court's decision in Griswold v.
Connecticut4 wherein the Supreme Court based the right to
privacy on a penumbra of rights centered on several
Constitutional Amendments5 since there was no explicit statement
of a right to privacy in either the U.S. Constitution or any of
its amendments.
While the notion of a specific constitutional doctrine of the
right to privacy is new, the concept of privacy as a part of our
legal tradition has a much longer history. In 1890 Samuel
Warren and Louis Brandeis published their classic article on the
right of privacy.6 In fact, Brandeis and Warren rested the
protection of the right to privacy on a property basis
suggesting a tort for damages as the way to remedy privacy
violations. They conclude the arguments on privacy citing the
classic common law expression of privacy based property:
The common law has always recognized a man's house as his
castle, impregnable, often, even to its own officers engaged in
the execution of its commands. Shall the courts thus close the
front entrance to constituted authority, and open wide the back
door to idle or prurient curiosity?7
Interestingly, the initial concerns of Brandeis and Warren did
not relate so much to government invasions of privacy as they
were concerned with the dangers of an inquiring press invading
family privacy through the publication of details of the social
activities of the Warren family. However, when Brandeis had his
first occasion to deal with the issue of privacy after becoming
a Supreme Court Justice, the privacy issue was one of government
invasion of one's privacy.
In Olmstead v. United States,8 the Supreme Court was confronted
with a government wiretapping of telephone conversations as the
basis for the arrest and conviction of Olmstead for violating
the National Prohibition Act. The Court's majority, however,
felt that wiretapping of telephone conversations did not violate
the Fourth Amendment to the Constitution. Brandeis dissented in
the case arguing that government actions wiretapping and, hence,
listening to private conversations violated one of the most
cherished rights and comprehensive rights of persons. For
Brandeis, the Fourth and Fifth Amendments protected persons from
governmental intrusions upon individual privacy. As he
suggested earlier in his article with Warren, the right of
privacy is simply the right to be left alone whether that
interference come from government or the private sector.
While the protection of privacy as a specific constitutional
right was not articulated by a court majority, the right of
privacy that Brandeis suggested had a long development under the
Court even if the Court chose not to identify that right as the
right to privacy.9 The long history of the protection of the
privacy from governmental invasion under the Fourth Amendment is
well documented in case law even in circumstances where the
Court has upheld an invasion of privacy.10
It was not until 1965 that the Court articulated a specific
constitutional right of privacy in Griswold v. Connecticut.11 In
this case the state of Connecticut had an anti-contraceptive law
that prevented the sale, distribution, and possession of
contraceptive devices. In fact, the law even forbade the giving
of information related to artificial means of birth control.
Abstinence was the limit of information that could be provided
anyone including married couples concerning prevention of
pregnancy. Planned Parenthood planned to open a clinic in
Connecticut that would dispense information and instruction on
the use of birth control devices. After violating the
Connecticut law, Griswold, the executive director of Planned
Parenthood, was convicted and fined $100. Writing for the
Court's majority, Justice Douglas articulated a right of privacy
based on the penumbra of rights contained in the First, Third,
Fourth, Fifth, and Ninth Amendments. Especially relying on the
Ninth Amendment which stated that the enumeration of certain
specific rights in the previous amendments or the body of the
Constitution was not meant to deny other rights retained by the
people. For Douglas, one of those rights retained by the people
was a right that long pre-dated the Constitution. This was the
right of marital privacy. Connecticut law clearly infringed
that right by mandating that it was illegal to provide married
couples with the information or devices to carry out decisions
on family planning and procreation decision-making.
From the arguments in Griswold it was a small step for the
Court to begin to develop a more generalized right of privacy
applicable to other areas. In 1972, the Court handed down its
controversial abortion decision.12 In this decision the Court
upheld a woman's right to an abortion on her general right to
privacy of her body. However, because of other complicated and
unresolved issues as when the right to life begins, when one
becomes a person, and what is the constitutional status of a
fetus, the Court's majority was compelled to balance the woman's
right to privacy with the state's power to regulate medical
procedures and its obligation to protect the rights of the
fetus.
Other cases advanced the cause of a right to privacy in a
variety of other areas. In Katz v. U.S.13 the Supreme Court
broadened the notion of privacy as more than just a protection
of privacy related to a particular place. Herein, Justice
Stewart writing for the Court noted that a listening bug placed
by government agents just outside a public phone booth (clearly
not a wiretapping issue) was unconstitutional. Relying on the
First, Fourth, and Fifth Amendments, Stewart maintained that
individuals have a reasonable expectation that government agents
will not eavesdrop on their conversations with others. Thus, a
person entering a phone booth has a reasonable expectation that
his or her conversations will be immune from government
listening.14 There were no special circumstances here as
probable cause that would allow government agents to obtain a
warrant in order to legally intercept these conversations.
Before long the Court began protecting privacy rights in a
variety of circumstances. The right to privacy became a
constitutionally accepted doctrine. As Dionosopolous and Ducat
have nicely argued, the Court's privacy decisions can be
categorized in three constitutional categories of privacy:
privacy inhering in the place, privacy inhering in the person,
and privacy inhering in a relationship.15
While the constitutional right of privacy has grown to cover a
wider variety of areas and the Court has come to accept the
doctrine of a specific constitutional right to privacy, the
right of privacy has, at the same time, grown in the extent of
its protection and become more vulnerable to assault from
technological advances and a societal and corporate need to
acquire more information about individuals. Simply, the right
to privacy has become far more complex, far more complicated,
and far more extensive today.
Despite much of the complexity and diverse issue related to the
right to privacy, a fundamental basis of the controversies
surrounding the right privacy can be reduced to tensions between
the support of rights of the individual to behave as he or she
wishes versus the right of society to regulate behavior to
protect others from harm or to regulate behavior to promote a
view of moral goodness in society. As the Privacy Q-sort
results reported below suggest, perspectives on privacy display
substantial variation in their support of various aspects of
individual privacy issues versus the right of government,
corporations, groups, or individuals to intrude upon or
denigrate one's privacy.
The Privacy Q-Sort
The privacy Q-sort, which is listed in Appendix I, was
constructed from a wide sampling of opinion in recent popular
literature and significant U.S. Supreme Court cases.16 Both
these sources were surveyed in the attempt to develop a
concourse of statements that provided an adequate sampling of
opinion concerning the topic at hand. This survey of literature
indicated that privacy is a highly diverse topic ranging across
a large number of issues. Some of these, for example, are
issues relating to the sanctity of the home and property rights,
abortion, electronic communication rights, public safety,
paternalistic legislation, the confidentiality of information.
We concluded that the factorial design shown in Table 1 would
serve as the structure for the sampling of opinion statements
for the Privacy Q Sample..
Table 1 - Factorial Design of Privacy Q Sample
Domain Levels n
---------------------------------------------------------------------
Orientation (a) Individual (b) Collectivity 2
Category (c) Property Rights (d) Public Safety 6
(e) Paternalism (f) Confidentiality
(g) Relationships (h) General
----------------------------------------------------------------------
Combinations = 2 X 6 = 12
Total Statements = 12 X 5 duplications = 60
The orientation of each statement in the 60 item Privacy Q-sort
sample tends to (1) support the rights of the individual, or (2)
support the interests of a collectivity that purports to serve a
interests larger than those of the individual; e.g., the state,
society, the community, the public interest, or at times,
business corporations. The six categories in the design are not
intended to be exhaustive. Instead, they serve as headings for
a number of issues that have generated substantial interest
within the public or in the courts.
As a category within the sample structure, property rights
includes statements that reference the sanctity of the home,
office records, electronic communication, property in oneself
(i.e., in one's own body), individual autonomy, and contracts
for services as a form of property. Privacy issues that pertain
to matters of public safety include alcohol and drug testing,
drunk driving checkpoints, work related drug testing, AIDS, and
pornography as incitement to violence. References to
paternalistic legislation in the sort include statements
pertaining to censorship, vice, "blue" laws, and matters of
personal safety. Confidentiality of Information issues in the
q-sort pertain to the practice known as "outing" in which the
sexual preference of homosexuals is revealed without their
permission, issues concerning access to electronic information
such as bank and financial records, and medical records. The
category of personal relationships pertains to matters of sexual
preference, family life, and the conduct of romantic
relationships vis. a vis. the workplace and employer rights.
Finally, the sort includes six statements of a general nature
that strike one as primarily ideological and general, yet
substantial enough to make reference to privacy issues. These
statements include, for example, references to the role of the
individual in society, the nature of privacy and the functions
it performs, and the role of government in society.
Subjects for the study were chosen on the basis of occupational
characteristics we felt relevant to different points of view
concerning privacy. Here we sought out legal professionals
(including attorneys, judges, and police officers),
secretaries, counselors, and computer network specialists; all
occupations dealing with privacy issues at the various levels
represented in the structure of the statement sample. Q-sorts
from several lay persons were also solicited. The subjects for
the study come primarily from southeastern Wisconsin, a region
that includes both urban industrial and rural inhabitants. In
addition to Wisconsin residents, several subjects were obtained
who were participants in a local session of the national Elder
Hostel program. These subjects were residents of several
different states.
Procedures
Forty subjects completed the Privacy Q-sort according to the
following quasi-normal forced distribution:
Most Disagree Most Agree
Value - 4 -3 -2 -1 0 +1 +2 +3 +4
----------------------------------
Number of Statements 3 5 7 9 12 9 7 5 3
(n = 60)
Subjects who found the distribution too confining were allowed
to deviate as they saw fit. The Q-sorts were correlated and
subjected to centroid factor analysis. Seven factors with
eigenvalues greater than 1.0 were extracted. Only four of
these, however, were chosen for analysis here. These were
subjected to varimax rotation and factor scored.17 The
resulting factor structure with associated subject
characteristics is shown in Table 2.
Table 2 reveals that 13 of the forty subject were "pure
loaders" on Factor I; i.e., they had factor loadings higher than
.40 and did not load at that level on any other factor.
Subjects #12 and #13 loaded negatively on Factor I. Six
subjects were pure loaders on Factor II; five on Factor II; and,
four on Factor IV. Subjects #'s 29 through 31 were mixed
loaders; i.e., they loaded above .40 on more than one factor.
Subject # 29, a college professor, loaded on both Factors I and
III, while subjects #'s 30 and 31 had mixed loadings on Factor I
and another factor not reported in this report. The rest of the
subjects did not load significantly on any factor. Either they
found nothing salient in the 60 item Q-sort, or their points of
view are truly unique.
An examination of the typal arrays (shown in Table 3) of factor
scores associated with each of the four factors listed in the
factor structure (Table 2) suggests labels for each of the
factors. We labeled the factors Privacy Libertarians (Factor
I), Lifestyle Conservatives (Factor II), Harm Principle Liberals
(Factor III), and Classical Conservatives (Factor IV).
Table 2: Factor Structure - Privacy Q-Sort
Factors (a) (b)
I.D. No. I II III IV Occupation
1 83 07 11 -05 Retired Engineer
2 83 01 09 09 College Professor
3 73 16 20 13 Retired Teacher
4 72 -19 -08 05 Retired
5 72 01 13 15 Retired Physician
6 71 12 10 02 Police Detective
7 64 -23 02 33 Attorney
8 64 39 -08 07 Counselor
9 62 01 36 -08 Retired Teacher
10 58 -02 -40 -30 Attorney
11 45 27 -02 -35 Attorney
12 -65 12 35 31 Judge
13 -60 08 33 27 Student
14 07 64 11 14 Teacher (City Gov't)
15 -06 62 -07 14 Retired - Book Business
16 10 62 -04 15 Retired Educator
17 04 52 13 -08 Judge
18 07 43 11 21 Administrative Secretary
19 -16 42 07 25 Retired Teacher
20 -09 34 58 20 Police Officer
21 -21 -05 51 11 Secretary
22 18 29 47 -07 Retired
23 15 -07 45 09 Police Officer
24 38 31 43 -02 College Professor
25 06 13 03 53 City Government
26 -23 06 03 50 Computer Specialist
27 01 -01 06 44 Police Detective
28 -03 38 06 44 Judge
29 48 37 46 -04 College Professor
30 45 -03 20 06 Judge *
31 42 03 11 29 Computer Specialist *
32 10 20 31 16 Attorney
33 06 02 34 31 Retired
34 12 -01 31 -04 Police Officer
35 16 27 20 28 Police Chief
36 22 21 15 23 Police Officer
37 00 21 38 29 Clergy
38 25 -03 01 14 Attorney
39 19 19 07 18 Teacher
40 08 30 03 -04 Computer Specialist
a Decimals removed from factor loadings.
b Factor loadings of .40 and above for factor assignment.
* Mixed loadings on a factor not reported here.
Table 3 - Typal Arrays
Factor I Factor II
Privacy Libertarians Lifestyle Conservatives
-4 -3 -2 -1 0 +1 +2 +3 +4 -4 -3 -2 -1 0 +1 +2 +3 +4
30 60 42 4 40 33 53 21 41 54 56 10 22 11 19 53 35 59
22 38 2 8 11 20 23 49 9 12 27 50 17 5 45 37 55 38
12 48 58 6 51 50 57 37 1 51 8 26 58 14 36 13 49 47
10 54 59 39 49 16 29 48 25 46 40 20 29 18
18 56 34 14 28 55 5 1 28 31 3 33 39 52
24 35 7 17 47 32 34 4 43 7
52 31 36 26 45 15 60 16 21 42
46 44 15 57 6 2
3 19 13 44 24 23
32 30
27 9
25 41
Factor III Factor IV
Harm Principle Liberals Classical Conservatives
-4 -3 -2 -1 0 +1 +2 +3 +4 -4 -3 -2 -1 0 +1 +2 +3 +4
15 3 25 10 38 26 41 49 16 10 39 21 26 47 44 52 60 18
51 22 7 23 46 56 35 36 5 15 48 35 53 49 5 13 2 4
27 31 1 32 59 54 6 43 39 27 8 3 23 28 50 1 55 42
37 57 28 24 55 40 52 19 43 22 37 38 24 16
12 33 11 4 44 14 9 54 20 31 46 30 17 36
42 17 50 29 21 56 14 40 58 29
30 8 2 48 34 45 51 57 34 6
53 60 20 59 33 41
13 45 47 12 25 7
19 11
18 9
58 32
Interpretation of the Factor Structure:
Four Positions on Privacy
Factor I - Privacy Libertarians
In the factor structure revealed in this study, the four
factors represent different approaches to balancing the rights
of individuals against the rights of society. Adherents to the
Factor I position emphasize the paramount importance of
individual rights and their position displays little interest in
granting legitimacy to the claims of society.
The theme of individual autonomy is emphasized by Factor I
supporters in their disagreement with the statement that "in
society, individual rights must give way to the good of society
(-3 on #48). Factors II and IV also disagree with this
statement, but Factor I most consistently asserts the autonomy
of individuals through specific references to policy. For
example, Factor I adherents assert that "abortion is a private
affair, and that government has no role to play in a woman's
decision to terminate a pregnancy (+4 on #1). Their pro-choice
stance is complemented by the general principle that the "right
to privacy means the right to be secure in one's own body. . .
(+3 on #49). In matters of sexuality, " a person's sexual
orientation is nobody's business but their own. Gays and
lesbians should have the same rights and privileges as
heterosexuals (+4 on #9). Sexual activities between consenting
adults should not be regulated by the government (+3 on #5).
Privacy must be protected where sexuality is concerned (+3 on
#21) as the right of intimate relationships is at the heart of
our constitutional protection of privacy (+2 on #45). Oddly,
however, Factor I shows little support for the view that
"outing" is a serious invasion of privacy (+1 on 43).
Factor I adherents extend their defense of individual privacy
rights to issues concerning the rights of the accused, and
rights of voluntary association. They strongly support the view
that illegal evidence should not be used in court against an
accused person (+3 on #37) and they disagree with the position
that government should not respect the privacy rights of
criminals (-3 on #60). With regard to rights of association,
privacy libertarians disagree that employers should be able to
regulate interpersonal relationships (-3 on #10), that employers
should be able to discipline employees who belong to hate groups
(-2 on #58), or that romance with supervisors should be
prohibited (-1 on #46).
The privacy libertarian agenda pertains clearly to private
lifestyle issues. Not on the agenda of Factor I adherents are
drunk driver checkpoints (0 on #51), and issues concerning
electronic communication and surveillance (0 on #'s 7, 11, 19,
and 44). Interestingly, Factor I subjects appear to have
conflicted feelings about free speech as guaranteed under the
First Amendment of the U.S. Constitution (0 on #36) and the
regulation of obscenity in public (0 on #25). An interview with
one of the defining subjects on Factor I, conducted subsequent
to the completion of the Q-sort, confirmed these feelings of
ambivalence about the negative aspects of the freedom of
expression and the impact of pornography on society.
Factor II - Lifestyle Conservatives
Adherents to Factor II present a seemingly contradictory
approach to privacy issues. Their viewpoint distinguishes
itself with the assertion that "that government is best which
governs least (+4 on 59). This traditional libertarian
sentiment is buttressed by the belief that "privacy is a
positive benefit, not only to individuals, but to society as a
whole; the human diversity it spawns in outlooks and lifestyles
are the well-springs of a free society" (+4 on #47). Moreover,
each of us has certain rights granted by God that cannot be
taken away (+3 on #35). Yet this foreground of this libertarian
attitude is detailed with a strong anti-abortion stand that
calls for calls for governmental regulation (+4 on #38 and -3 on
# 1). In addition to the anti-abortion position, Factor II
supporters agree that society must promote morality with laws
against drugs, prostitution, and other forms of vice (+3 on
#18).
Thus, the benefits of privacy do not extend to questions of
personal morality for Factor II adherents. Whereas the Privacy
Libertarians of Factor I disagree that the courts should uphold
legislation that leads to moral delinquency (-2 on #42), Factor
II Lifestyle Conservatives believe the prevention of moral
delinquency a proper role for the judicial system (+2 on #42).
And whereas the position expressed in Factor I defends privacy
associated with sexuality (a likely domain of moral
delinquency), Factor II supporters are lukewarm or reticent in
their defense of privacy related to sexuality.
21. (+1) Because sex is a sensitive, key relationship of human
existence, central to family life, community welfare, and the
development of human personality, it is important to protect the
privacy of everyone, whether homosexual or heterosexual, where
sexuality is concerned. (ag)
45. (+1) Indeed, the right of an individual to conduct intimate
relationships seems to me to be the heart of the Constitution's
protection of privacy. (ag)
43. (+1) The practice known as "outing," where the
homosexuality of persons is revealed without their permission,
is a serious invasion of privacy and should not be tolerated.
(af)
5. ( 0) Sexual activities between consenting adults should
not be subject to regulation by the government. (ae)
4. ( 0) The government should regulate pornography in order
to maintain the dignity of women and prevent violence against
them. (bd)
30. ( 0) Homosexual sodomy is purely an unnatural means of
satisfying an unnatural lust which government should declare
morally and criminally wrong. (be)
22. ( -1) Adultery, homosexuality and the like are sexual
intimacies which the state should forbid. (bg)
Despite Factor II adherents' conservatism regarding questions
of moral vice and its cool views toward the protection of
privacy related to sexuality, they return to their libertarian
principles on matters related to employer prerogatives over
private relationships (-2 on #10, +2 on #13), the privacy of
electronic mail (-2 on #50) and financial records (+3 on #55),
the rights of the accused (+2 on #37), and the belief that
people have the right to make mistakes in judgment in their
appropriate sphere of privacy (+2 on #53). Unlike Factor I,
supporters of Factor II also display a concern for public safety
that tends to negate privacy rights on occasion (-4 on #51 and
-3 on #27). This concern for public safety is featured even
more strongly in the position manifested in Factor III.
Factor III - Harm Principle Liberals
Adherents to Factor III support many of the privacy rights
advocated by the privacy libertarians of Factor I, yet the
Factor III agenda is conditioned by an acute concern for public
safety. The operant principle that guides their judgment
appears to be John Stuart Mill's "harm principle;" namely, that
"the only purpose for which power can be rightfully exercised
over any member of a civilized community, against his or her
will, is to prevent harm to others" (+4 on 39).18 Harm, can of
course, be defined in a myriad of ways, yet Factor III appears
to define it in largely physical terms. Excluding the
possibility of those liberties associated with physical harm,
Factor III thus supports a subset of liberties advocated by the
Privacy Libertarians of Factor I. The Factor III agenda,
however, focuses first on the avoidance of harm, and only then
on the preservation of liberties. This is evidenced by looking
at the extremes of the Factor III typal array.
Factor III adherents assert that "government social service
agencies and the courts should regulate family life, when
necessary, to prevent spouse or child abuse (+4 on #16); that
the right to privacy means security in one's own body (+3 on
#49); that work-related drug testing is not a witch hunt (-4 on
#27); and, that drunk driver checkpoints are not unreasonable
invasions of privacy (-4 on #51).
Factor III subjects tend to trust the police and do not see
police detention powers as undermining privacy rights (-4 on
#15). Moving toward a conservative stance, Factor III adherents
support the use of illegally acquired evidence in court (-3 on
#37). Neither are Factor III subjects First Amendment
absolutists (+3 on #36). Indeed, Factor III distinguishes
itself by mild agreement with the view that in society,
individual rights must give way to the good of society (+1 on
#48). (Each of the other factors ranked this statement a -3.)
Factor III's willingness to give up individual rights to the
good of society, however, is not inconsistent with the harm
principle.
Apart from the issue of harm, Factor III is quite compatible
with the viewpoint adopted by adherents of Factor I. Factor III
agrees that the sexual activities of consenting adults should
not be subject to regulation by the government (+4 on #5); that
a person's sexual orientation is private (+3 on #3); that some
sins are not crimes, and therefore should not be contrary to the
law (+2 on #41). On the negative side, Factor III disagrees
that the state should forbid adultery and homosexuality (-3 on
#22) or that homosexuality should be declared criminally wrong
(-2 on #30). Neither should the courts uphold legislation
prevents moral delinquency (-2 on #42).
Factor IV - Classical Conservatives
Classical conservatives do not support libertarian arguments in
economics nor in private behavior. Conservatives of this type
see a constant threat to morality in society, if not an actual
crisis. Adherents of Factor IV in this study most nearly fit
this description. They assert that it is important that society
promote morality with laws against vice (+4 on #18); that
pornography must be regulated to maintain the dignity of women
and prevent violence against them (+4 on #4); and that courts
should uphold legislation that regulates conduct that leads to
moral delinquency (+4 on #42). Coupled with a strict duty to
uphold the law, Factor IV supporters advocate individual
responsibility if people are to receive aid from the community
(+3 on #2). Additionally, there is no sympathy with criminals,
whose privacy rights should not be respected (+3 on #60). Nor
is there a defense of the freedom of expression as guaranteed by
the First Amendment (+3 on #36).
Part of Factor IV's conservative attitude is a concern for the
prevention of harm. Factor IV adherents believe the government
should regulate family life when necessary to prevent spouse and
child abuse (+3 on #16); that dangerous diseases (e.g., H.I.V.)
might occasion a loss of privacy (+3 on #52); that work-related
drug testing is reasonable (-4 on +27); and that the police do
not have too much power to detain individuals (-4 on #15). They
also support government action against "victimless crimes" (+2
on #6).
The prevention of harm and moral vice are the most important
items on the classical conservative agenda. These priorities
leave little place for some of the positions adopted by Factors
I and III regarding traditional privacy concerns, especially
those relating to lifestyle issues. For example, the Classical
Conservatives are either conflicted or neutral on the view that
privacy means security in one's own body (0 on #49).
Furthermore, they disagree that a person's sexual orientation is
private (0 on #9, -2 on #21, -2 on #43). Like Factor II, Factor
IV conservatives do not disagree that homosexuality should be
declared criminally wrong (+1 on "30).
With the exception of private relationships being immune from
employer interference (+2 on #13 and -4 on #10) and the view
that abortion is a personal matter (+2 on #1), individual
privacy rights do not fare well in the priorities of Factor IV
adherents. Rather, their concern is for the stability and
cohesion of society. Without these priorities, the good life
(including a modicum of privacy) cannot be achieved.
Four Positions on Privacy: Legal Implications
In this paper, we have identified and described four differing
points of view relating to privacy issues. These positions have
been designated Privacy Libertarians, Lifestyle Conservatives,
Harm Principle Liberals, and Classical Conservatives. Our
preliminary research indicates a potential for the emergence of
other factors, but we were unable to support them at this point
in our research. In the next phase of our research in which we
will broaden the range of subjects performing Q-Sorts, it should
be possible to determine if there is empirical support to
justify the identification of additional viewpoints..
Additional follow-up interviews should help us better understand
the nature of the various perspectives.
While many of the Q-Sort statements were derived from judicial
opinions of the Supreme Court and legal issues related to
privacy that have not yet reached the Court, the emergence of
any of the four factors in judicial opinions has significant
implications for the development of the law in future court
decisions and ultimately for the quality of life in the United
States.
The views expressed in Factor I do not currently hold a
majority view on the Court. Rather they reflect the view of the
Court during the late fifties and sixties in what was called the
Warren Court era. Factor I views, which tend to restrict the
role of government in regulating human behavior (especially when
cast in the argument of individual rights), characterized Court
rulings during this period.19 Not surprisingly, it was during
this period that many conservative groups were critical of both
the Court's rulings and its approach to interpreting the
Constitution.20 In many ways the views expressed in Factor I
reflect the more absolutist position of Justice William O.
Douglas21 and to a lesser extent to the views of Justice Hugo
Black. With the advent of Burger Court,22 the decisions of the
Court were not as strongly committed to the more absolutist
protection of individual rights. In many ways the transition
from the Warren Court to the Burgher/Rehnquist Court was a move
to the judicial transformation from Factor I values to Factor II
values.
Factor II values, Lifestyle Conservatism, have had an influence
on certain types of decisions confronting the Court in recent
years. In Bowers v. Hardwick23 the Supreme Court upheld a
Georgia law that made sodomy, whether consensual or not or in
private or public, a crime. Despite its decisions of a few
years that earlier that allowed the private possession of
obscenity in one's home for one own use and a strong statement
supporting privacy of the home,24 the Court relied on the power
of the state to enforce traditional notions of morality. The
Court noted that the sodomy right claim did not bear any
resemblance to its previous privacy decisions which were based
on family, marriage, and procreation. Yet in more acceptable
moral circumstances, the Court willingly allowed members of the
Amish faith to stop sending their children to school after the
eighth grade. The Court based this judgment on a balancing of a
state interests in enforcing compulsory education laws against
Amish free exercise of religion claims that too much education
would make their children more worldly and materialistic and
likely to turn away from service to God.25 These two positions
suggest that the power of government versus the individual is
not the central issue; rather the central factor is to what
extent privacy claims are consistent with the prevailing
morality. The mixed view of the Court on some moral issues is
evident in the recent abortion decisions where the Court has
been unwilling to reverse a woman's right to an abortion but
quite willing to limit access to abortions.26
The point of view presented by the Factor III approach, Harm
Principle Liberalism, is much more consistent with the approach
of the later Burger Court and the Rehnquist Court of today.
Decisions of these Courts have shown a continued belief in
individual and privacy rights, but generally they will allow
restrictions based on the safety of other individuals or society
in general. This is most evident in recent decisions that have
upheld drug testing of employees in professions where there is a
danger to the public27 and that have upheld sobriety check
points.28 However, in cases where there was no showing of an
immediate danger to police or society, the Court has come down
on the side of privacy29 as it has in matters that expand
police powers to deal with the growing drug problem and the
difficulty that police have in making drug arrests in the United
States.30
The Classical Conservatism of Factor IV is represented by a
substantial block of judges on the Supreme Court today. The
core of that positions consists in Chief Justice William
Rehnquist, Anthony Kennedy, and Antonin Scalia.31 These judges
often represent a majority position on the Court when they can
attract the support of the more centrist or moderate members of
the Court such as Stevens or Souter.
Factor IV beliefs are very much at ease with some of the recent
rulings consistent with Factor II beliefs such as the upholding
of sodomy laws,32 the recent trend making it easier for
prosecutors to prosecute obscenity cases,33 the outlawing of
child pornography,34 reasonable searches of students by school
officials,35 and upholding the right of police in dealing with
criminal activity.36
The foregoing remarks suggest that each of the four positions
on privacy identified in this report have considerable support
in the development of the law related to privacy as well as
adherents currently on the Court or in the recent past. These
positions represent substantial belief systems supported to some
extent by recent decisions of the Supreme Court.
The research outlined in this report confirms a significant and
important diversity of beliefs related to privacy. The four
positions in summary form are: Factor I - privacy as a strong
protection of individual freedoms and a limited role for
governmental regulation; Factor II - restrictions on privacy
rights tempered by morality and a lukewarm concern for privacy
in sexual areas; Factor III - restrictions on privacy tempered
by a concern for safety of society and its members; and, Factor
IV - a strong belief in the right of society to regulate
privacy beliefs. Taken together, these positions represent
substantial differences on the rights of individuals and the
power of government and/or society to regulate individuals and
beliefs in the context of privacy.
Appendix I
Privacy Q-Sort : Statements and Factor Arrays
Statements Factors
I II III IV
l. Abortion is a private affair. The government has 4 -3 -2 2
no role to play in a woman's decision to continue or
terminate her pregnancy. (ac)
2.I favor government programs that make the provision -2 1 0 3
of welfare dependent upon the "good behavior" of those
who receive it. (bc)
3.In this society we pay dearly for increased security -1 0 -3 -2
from crime through the loss of our privacy. People we
do not and cannot see are examining us all the time.
(ad)
4.The government should regulate pornography in order -1 0 0 4
to maintain the dignity of women and prevent violence
against them. (bd)
5.Sexual activities between consenting adults should 3 0 4 1
not be subject to regulation by the government. (ae)
6.So called "victimless crimes" always have victims, -1 0 2 2
and the government should be allowed to punish them.
(be)
7.Privacy has fallen victim to the computer age. 0 2 -2 1
Information about everything we do, from buying a car
to making a phone call, is now public information. The
government appears powerless, or not willing, to do
anything about it. (af)
8.Technology has developed to the point where no one -1 -3 -1 -3
can expect to have absolute privacy. Electronic mail
can be intercepted, telephone conversations can be
tapped, credit records are easily available to anyone.
We might as well get used to it. (bf)
9.A person's sexual orientation is nobody's business 4 0 3 0
but their own. Gays and lesbians should have the same
rights and privileges as heterosexuals. (ag)
10.Employers should have the right to regulate the -3 -2 -1 -4
interpersonal relationships of employees if company
profits or trade secrets are at stake. Thus, a
corporation should have the right to prohibit its
employees from engaging in romantic relationships with
employees from a competitor corporation. (bg)
11.Privacy in our time has not only been invaded; it's 0 0 -1 0
been eagerly surrendered. Do people no longer see
themselves as private beings? (ah)
12.There's no such thing as privacy rights. That's -4 -4 -3 -1
just something the Supreme Court said. It's nowhere
in the Constitution. (bh)
13.While employers have the right to make rules for 1 2 -1 2
the work place and hire those they believe will best
perform a given job, they have no right to use this
power to control employees' private lives. Some job
applicants are denied employment because they smoke,
have an occasional beer at home, or ride motorcycles.
These policies are unjustified. (ac)
14.When a worker's misconduct significantly affects 0 0 2 -1
work performance, and the employees are forewarned
that certain behaviors are taboo, the worker should
lose his or her right to privacy in that matter. (bc)
15.Generally speaking, the police have too much power 1 -2 -4 -4
to detain and search individuals. They frequently
exceed the constitutional limits against unreasonable
searches and seizures. (ad)
16.Government social service agencies and the courts 2 0 4 3
should regulate family life, when necessary, to
prevent spouse or child abuse. (bd)
17.The right to privacy in marital relations is a 1 -1 -1 2
fundamental right guaranteed by the U.S. Constitution.
(ae)
18.It is important that society promote the morality -3 3 0 4
of its people. That is why we need laws against
drugs, prostitution, and other forms of vice. (be)
19.Every day an American wakes up, he or she is less 0 1 0 -3
free as far as private information about him or her is
concerned. (af)
20.Not every public disclosure about a person's 1 1 1 -2
private affairs is an invasion of privacy, even though
they be embarrassing or damaging in some other way.
Sometimes the personal privacy of newsworthy
individuals has to be weighed against the public's
"right to know." (bf)
21.Because sex is a sensitive, key relationship of 3 1 2 -2
human existence, central to family life, community
welfare, and the development of human personality, it
is important to protect the privacy of everyone,
whether homosexual or heterosexual, where sexuality is
concerned. (ag)
22.Adultery, homosexuality and the like are sexual -4 -1 -3 -1
intimacies which the state should forbid. (bg)
23.Privacy establishes a barrier against intrusion 2 1 -1 -1
from the outside world; what we do in private should
be nobody's business but our own. (ah)
24.Obscenity should not be protected by the first -2 0 0 2
amendment. (bh)
25.While the government should have broad powers to 0 -2 -2 0
regulate obscenity in public; that power simply does
not extend to the mere possession of obscene materials
by the individual in the privacy of his or her own
home. (ac)
26.Our tradition of separating the private and public 1 -2 1 -1
realms has often had harmful effects for women and
children. While the public sphere has been governed
by the rules of justice, the family, which is a
private association, has been exempt from those rules.
(bc)
27.As more and more employers require drug testing, it 0 -3 -4 -4
may not be possible to obtain a job without such a
test. Testing for drugs smacks of a Witch Hunt and is
an invasion of privacy. (ad)
28.We should support the policies of universities and 1 -2 -1 0
other institutions that make it illegal to use
"fighting words" having to do with racial or ethnic
characteristics. We should not support the right of
an individual to express his or her private thoughts
in public in every case. (bd)
29.Our whole constitutional heritage rebels at the 3 2 1 2
thought of giving government the power to control
people's minds. Adults should be able to decide for
themselves what to hear, see, and read. (ae)
30.Homosexual sodomy is purely an unnatural means of -4 0 -2 1
satisfying an unnatural lust which government should
declare morally and criminally wrong. (be)
31.It's sad, but people nowadays simply assume that -1 -1 -3 -1
they have the right to know about everyone -- and
indeed, in the course of events, that they will know
about everyone, and everyone will know about them.
(af)
32.The public disclosure ("outing") of a person's 0 -2 -1 0
homosexuality without their permission may be
regrettable, but it's part of the price we have to pay
the freedom of speech. (bf)
33.Our law extends constitutional protection to 1 1 -2 0
personal decisions relating to marriage, procreation,
contraception,family relationships, child rearing, and
education. The law has little reason to interfere
with these private matters. (ag)
34.Because we are part of society and partake of the -1 -1 2 1
benefits of society, it is reasonable to expect that
government may make reasonable regulations concerning
marriage and employment relationships. (bg)
35.Each of us has certain rights granted to us by God. -1 3 2 -2
These rights cannot be taken away by government. (ah)
36.Despite its unconditional phrasing of "Congress 0 1 3 3
shall make no law. . .," the First Amendment should
not protect every expression of every idea. (bh)
37.If the police obtain evidence against a person in 3 2 -3 0
an illegal search, they should not be permitted to use
that evidence against that person in a court of law.
(ac)
38.A woman under the age of eighteen should be -3 4 0 1
required to have parental permission to obtain an
abortion. (bc)
Statements
39.The only purpose for which power can be rightfully 0 2 4 -3
exercised over any member of a civilized community,
against his or her will, is to prevent harm to others.
(ad)
40.Crime prevention is essential in our crime-ridden 0 0 2 0
society. The threat of crime, however, means
increased intrusions into our privacy from television
cameras and screening devices that protect us. The
loss of privacy is the price we must be willing to pay
for crime prevention. (bd)
41.Some sins are not crimes. Religious beliefs about 4 0 2 1
moral vice should not determine the content of the
law. (ae)
42.Our courts should uphold legislation that regulates -2 2 -2 4
conduct if that conduct is likely to end in a
contribution to moral delinquency. (be)
43.The practice known as "outing," where the 1 1 3 -2
homosexuality of persons is revealed without their
permission, is a serious invasion of privacy and
should not be tolerated. (af)
44.The fact that personal records are now more 0 -1 1 1
accessible to the public than before is not all bad.
It is now much easier for the public to monitor the
information given to us by politicians and public
officials, thus making them more accountable. (bf)
45.Indeed, the right of an individual to conduct 2 1 0 -2
intimate relationships seems to me to be the heart of
the Constitution's protection of privacy. (ag)
46.If employment and promotion procedures in the -1 -1 0 0
workplace are to be conducted fairly, conflicts of
interest must be avoided whenever possible. This
means that as a matter of fairness, supervisors should
not be allowed to become romantically involved with
people who work for them. (bg)
47.Privacy is a positive benefit, not only to 2 4 1 0
individuals, but to society as a whole. The human
diversity it spawns in outlooks and lifestyles are the
well-springs of a free society. (ah)
48.In society individual rights must give way to the -3 -3 1 -3
good of society. (bh)
49.The right to privacy means the right to be secure 3 3 3 0
in one's own body and freedom from physical intrusion
of it by others. (ac)
50.Electronic mail is not the same as first class 1 -2 0 1
mail. Since most forms of electronic mail use public
networks, it is not reasonable to expect that such
communications will not be observed or read by others.
(bc)
51.Checkpoints on highways to spot drunk drivers by 0 -4 -4 -1
police are an unreasonable invasion of the right of
privacy of the innocent driver. (ad)
52.People with dangerous communicable diseases must -2 3 3 2
lose some of their rights to privacy when public
safety is at issue. This means, for example, that
people who are H.I.V. positive might be required to
make their condition known to their employer or
prospective employer. (bd)
Statements
53.People may not always make the best decisions about 2 2 -1 -1
their personal safety or their health, but as long as
they harm no one but themselves, those decisions
should be theirs to make. Neither the government, nor
society, should decide for them. (ae)
54.People don't always realize what is in their best -2 -4 1 -3
interest. We need government to make laws that
protect us from ourselves on those occasions when we
make mistakes in judgment. (be)
55.Bank records and personal finances are private. No 2 3 1 3
one should have the right to view, sell, or distribute
that information without the permission of all
concerned. (af)
56.While it is true that computers and electronic -2 -3 1 -2
record keeping have diminished our privacy, it is also
true that law enforcement is greatly improved by these
developments. In this situation, the privacy of
personal records is less important than the
apprehension of criminals and tax dodgers. (bf)
57.Many employers, including government agencies, 2 -1 -2 0
require that employees report any "romantic
relationships" with persons they supervise or who work
with a competing corporation. This is clearly an
invasion of the privacy rights. (ag)
58.Businesses and public agencies should have the -2 -1 0 1
authority to discipline or dismiss those employees who
belong to racist organizations such as white hate
groups or the Ku Klux Klan. (bg)
59.That government is best which governs least. (ah) -1 4 0 -1
60.In combatting drugs or organized crime, the -3 -1 0 3
government should not be required to protect the
privacy rights of criminals. (bh)
Correlations between Factors
Factors 1 2 3 4
1 1.0000 0.1535 0.2007 0.0041
2 0.1535 1.0000 0.3546 0.3432
3 0.2007 0.3546 1.0000 0.2272
4 0.0041 0.3432 0.2272 1.0000
NOTES
1. Prior to Griswold v. Connecticut, 381 U.S. 479 (1965), there did not exist
a specific constitutional right to privacy. However, Supreme Court decisions
in a variety of substantive areas implied a right to privacy or debated issues
related to rights of privacy. For example, see the early court decisions
relating to obscenity (Roth v. United States and Alberts v. California, 354
U.S. 476 [1957] and Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S.
413 [1966]), miscegenation (Loving v. Virginia, 38 8 U.S. 1 [1967]), freedom
of association (NAACP v. Alabama, 357 U.S. 449 [1958], NAACP v. Button, 371
U.S. 415 [1963], and Wieman v. Updegraff, 344 U.S. 183 [1952]), search and
seizure of homes (Mapp v. Ohio, 367 U.S. 643 [1961]), freedom of religious
belief (Board of Education v. Barnette, 319 U.S. 624 [1943], McGowan v.
Maryland, 366 U.S. 420 [1961], and Braunfield v. Brown, 366 U.S. 599 [1961]),
and libel (Near v. Minnesota, 283 U.S. 697 [1931], Beauhar nais v. Illinois,
343 U.S. 250 [1952], and New York Times v. Sullivan, 376 U.S. 254 [1954]).
2. See William Stephenson, The Study of Behavior: Q-Technique and Its
Methodology. Chicago: University of Chicago Press, 1953.
3. Some scholars have maintained that the protection of the right to privacy
has been a part of the Bill of Rights since its adoption. See for example,
Schwartz, The Great Rights of Mankind: A History of the American Bill of
Rights. Madison House (1992).
4. 381 U.S. 479 (1965).
5. First, Third, Fourth, Fifth, and Ninth Amendments.
6. Warren and Brandeis, "The Right to Privacy," 4 Harvard Law Review 193
(1890).
7. Id. at 220.
8. 277 U.S. 438 (1928)
9. See the listing of court cases and issues in footnote #1 of this paper.
10. See for example Weeks v. U.S., 232 U.S. 383 (1914),Rochin v. California,
342 U.S. 165 (1952), Mapp v. Ohio, 367 U.S. 643 (1961), and Terry v . Ohio,
392 U.S. 1 (1968).
11. 381 U.S. 479 (1965)
12. Roe v. Wade, 410 U.S. 113 (1972).
13. 389 U.S. 347 (1967).
14. Id. at 359.
15. Dionosopolous and Ducat, The Right to Privacy: Essays and Cases. West
Publishing (1976).
16. See for example, Griswold v. Connecticut, 381 U.S. 479 (1965), Roe v.
Wade, 410 U.S. 113 (1972), Planned Parenthood v. Danforth , 428 U.S.
70(1976), Webster v. Reproductive Services, 492 U.S. 490 (1989), Chimel v.
California, 395 U.S. 752 (1969), Terry v. Ohio, 392 U.S. 1 (1968) Ohio v.
Akron Center for Reproductive Services, 110 S.Ct. 2972, (1990), Katz v.
U.S., 389 U.S. 347 (1967), Stanley v. Georgia, 394 U.S. 557 (1969), Bowers
v. Hardwick, 4478 U.S. 186 (1986), National Treasury Employees Un v. Bon
Raab, 489 U.S. 656 (1989), and Skinner v. Railway Labor Executives
Association, 489 U.S. 602 (1989).
17. Statistical Procedures were performed with QMethod (VMS version), a
computer program specially written for Q-analysis by John Atkinson of Kent
State University at Kent, Ohio.
18. See Mill, John Stuart. The Philosophy of John Stuart Mill: Ethical,
Political and Religious. Edited by Marshall Cohen. New York: The Modern
Library, 1961.
Mill's harm principle is one of the most eloquent statements outlining the
relation of the individual to society and the state that is available in the
literature of liberalism. In the essay, On Liberty, Mill defines the harm
principle thusly,
. . . The object of this Essay is to assert one very simple principle, as
entitled to govern absolutely the dealings of society with the individual in
the way of compulsion and control, whether the means used by physical force in
the form of legal penalties or the moral coercion of public opinion. That
principle is, that the sole end for which mankind are warranted, individually
or collectively, in interfering with the liberty of action of any of their
number, is self-protection. That the only purpose for which power can be
rightfully exercised over any member of a civilized community, against his
will, is to prevent harm to others (pp. 196-197).
In a slightly different version,
As soon as any part of a person's conduct affects prejudicially the interests
of others, society has jurisdiction over it, and the question whether the
general welfare will or will not be promoted by interfering with it, becomes
open to discussion. But there is no room for entertaining any such question
when a person's conduct affects the interests of no persons besides himself,
or needs not affect them unless they like (all the persons concerned being of
full age, and the ordinary amount of understanding) . In all such cases there
should be perfect freedom, legal and social, to do the action and stand the
consequences (p.272).
19. While the Warren Court did not always restrict government behavior from
limiting individual rights, it did provide some exceptions. See Terry v.
Ohio, 392 U.S. 1 (1968) wherein the Court upheld the right of police to
conduct a stop and frisk (pat down of the outer garments for weapons) when
they had a "reasonable suspicion" that a suspect was armed and dangerous. The
"reasonable suspicion" standard requires far less proof than the "probable
cause standard which has been the traditional standard employ nder the Fourth
Amendment's search provisions. Another exception is evident in Brown v. Board
of Education of Topeka, 347 U.S. 483 (1954) and its progeny which mandated
racial desegregation in a number of areas.
20. Strangely, many critics of the Warren Court demanded that the Court take a
more literal approach to its rulings based on the U.S. Constitution and not
make law in its decisions, but in some areas it was the very literal way the
Court's majority interpreted the First Amendment restriction that "Congress
make no law..." that led to criticism of the Court.
21. It is interesting note that it was Justice Douglas in the Griswold v.
Connecticut, 381 U.S. 479 (1965) who wrote the opinion establishing privacy as
a specific constitution right.
22. During his term as President, Nixon was able to add several judges that
moved the Court away from its strong protection of individual rights. Nixon's
appointees were much more centrist and prone to a balancing approach. His
appointments included Warren Burger, Harry Blackmun, William Rehnquist, and
William Powell. The Burger Court did not abandon the protection of individual
rights, but they were far more likely to temper this rights as balanced
against the needs of society. In many ways the transfo ion from the Warren
Court to the Burger Court was a judicial transformation from Factor I values
to Factor II values.
23. 478 U.S. 186 (1986).
24. Stanley v. Georgia, 394 U.S. 557 (1969).
25. Wisconsin v. Yoder, 406 U.S. 205 (1272). Consistent with a Factor II
approach, Chief Justice Burger indicated that he was persuaded by the long and
devout history of the Amish, and he might not be so convinced to uphold the
religious claim if it emanated from some cult or commune.
26. Webster v. Reproductive Health Services, 492 U.S. 490 (1989) and Rust v.
Sullivan, 111 S.Ct. 1759 (1991).
27. Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989).
28. Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).
29. In Brown v. Texas, 443 U.S. 47 (1979), the Court did not allow police to
stop and demand identification from an individual who appeared suspicious and
was not know to the officer. In this instance, the officers did not indicate
any criminal behavior or actions that would make them fear for their safety.
Thus, the Court said that they could not demand that this person identify
himself as the Court could find no basis to invade his right of privacy.
There was no compelling interest to restrict the righ privacy.
30. In Minnesota v. Dickerson, U.S. (1993) the Supreme Court upheld a
modification of the Terry rule to allow police to seize forms of contraband
other than weapons that they can determine under a new concept known as "plain
feel." In Austin v. U.S., U.S. (1993), the Court upheld federal
statutes that allow law enforcement to seize the fruits of drug related
crimes.
31. However, sometimes even the Classic Conservative position will take a
surprising position as evident by Scalia's vote to uphold flag burning as a
permissible, even if objectionable, form of First Amendment expression. See
for example, Texas v. Johnson, 491 U.S. 397 (1989) and United States v.
Eichman 110 S.Ct. 2404 (1990) where Scalia voted with the majority in
upholding the right to burn the flag against both state and federal statutes.
However, in the following year in Barnes v. Glen Theatre, 111 . 2456 (1991)
Scalia voted to uphold a state law outlawing nude and semi-nude dancing in an
adult entertainment facility. In his concurring opinion, Scalia stated that
here the outlawed activity was conduct and not specifically directed at the
kind of expression protected by the First Amendment.
32. Bowers v. Hardwick, 478 U.S. 186 (1986).
33. Miller v. California, 413 U.S. 15 (1973) and Paris Adult Theatre v.
Slaton, 413 U.S. 49 (1973).
34. New York v. Ferber, 458 U.S. 747 (1982).
35. New Jersey v. T.L.O., 469 U.S. 325 (1985).
36. See for example Michigan Department of State Police v. Sitz, 496 U.S. 444
(1990) upholding sobriety checkpoints by police, California v. Greenwood, 486
U.S. 335 (1988) upholding the right of police to search one's garbage for
evidence of criminal activity, and Horton v. California, 496 U.S. 128 (1990)
upholding the power of police to seize evidence they inadvertently come upon
in "plain view."