“Privacy at the Margins is a tour de force.

It reinvigorates our understandings of why

privacy ought to be protected by identifying the First Amendment values that
privacy rights implicate. It convincingly argues that privacy ought to be protected
not simply because invasions of privacy injure dignity, but also because they
frequently function to subordinate marginalized individuals and communities.
Scott Skinner-Thompson has written a book that will be looked to for generations
to come — a major feat in the field of privacy.”
Khiara M. Bridges, Professor of Law, University of California, Berkeley School of
Law and author of The Poverty of Privacy Rights.
“This is an enormously important book about a crucial aspect of privacy law that
has been overlooked: the way in which it affects historically discriminated against
individuals. Professor Skinner-Thompson focuses on privacy for our public actions
and for information about us and examines how this affects marginalized commu-
nities. His treatment of this topic is stunning in its originality, its clarity, and its
insightful proposals for change.”
Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law,
University of California, Berkeley School of Law.
“Privacy at the Margins makes a significant contribution in helping us understand
the importance of privacy for equality for the most vulnerable among us. It pushes
legal conceptions of privacy in new ways, reframing privacy as expressive resistance
to the powerful and as indispensable to equality of opportunity. It is thought-
provoking, creative, and an important must read.”
Danielle Keats Citron, Professor of Law, Boston University School of Law and Vice
President, Cyber Civil Rights Initiative.
“In a world in which privacy has been privatized, the marginalized and precarious
in society need it more than ever. Why then has privacy received such limited
protection by courts and lawmakers? In his signature style, Scott Skinner-
Thompson brilliantly wrestles with this critical question and proposes insightful
ways to redress the problem, both as a legal and discursive matter. Privacy at the
Margins offers a roadmap to transform privacy from an individualistic right into an
anti-oppression legal tool. This is a crucial text for our new digital age and for
anyone interested in surveillance, anti-subordination, justice, and privacy today.”
Bernard E. Harcourt, author of Exposed: Desire and Disobedience in the Digital Age
and Critique & Praxis, and Isidore and Seville Sulzbacher Professor of Law and
Professor of Political Science at Columbia University.
 privacy at the margins

Limited legal protections for privacy leave minority communities vulnerable to concrete
injuries and violence when their information is exposed. In Privacy at the Margins, Scott
Skinner-Thompson highlights why privacy is of acute importance for marginalized
groups. He explains how privacy can serve as a form of expressive resistance to govern-
ment and corporate surveillance regimes – furthering equality goals – and demonstrates
why efforts undertaken by vulnerable groups (queer folks, women, and racial and
religious minorities) to protect their privacy should be entitled to constitutional protec-
tion under the First Amendment and related equality provisions. By examining the ways
even limited privacy can enrich and enhance our lives at the margins in material ways,
this work shows how privacy can be transformed from a liberal affectation to a legal tool
of liberation from oppression.

scott skinner-thompson is an Associate Professor at Colorado Law School, where

he researches constitutional law, civil rights, and privacy law, with a particular focus on
LGBTQ and HIV issues.
 Privacy at the Margins

SCOTT SKINNER-THOMPSON
Colorado Law School
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© Scott Skinner-Thompson 2021
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and to the provisions of relevant collective licensing agreements,
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For EPC
Contents

Acknowledgments page xi

Introduction 1

1 No Privacy in Public = No Privacy for the Precarious 8

2 Performative Privacy in Theory and Practice 45

3 Performative Privacy’s Payoffs 85

4 Containing Corporate and Privatized Surveillance 108

5 Outing Privacy as Anti-Subordination 139

6 Equal Protection Privacy 180

Conclusion 215

Index 217

ix
Acknowledgments

I’m indebted to a host of people for helping develop this book. Foremost, I’m
grateful to Matt Gallaway at Cambridge for soliciting the volume, patiently waiting
for the typescript, and seeing it to fruition. Thanks as well to those who reviewed the
book proposal for Cambridge, helping to refine and improve the final work. For
scrupulous copyediting, thank you to Martin Barr, and for editorial management,
thanks to Catherine Smith and Neena Maheen.
For input on various parts of this project (either the building-block articles or the
typescript itself ), I am deeply thankful to: Amy Adler, Carlos Ball, Amy Bauer, Stuart
Benjamin, Marc Blitz, Joseph Blocher, Fred Bloom, Michael Boucai, danah boyd,
William Boyd, Kiel Brennan-Marquez, Jedediah Britton-Purdy, Ryan Calo, Deborah
Cantrell, Kristen Carpenter, Martha Chamallas, Erwin Chemerinsky, Alan Chen,
Danielle Keats Citron, Julie Cohen, Charles Colman, Justin Desautels-Stein, Jessica
Eaglin, Seth Endo, Kris Franklin, David Garland, Charlie Gerstein, Andrew Gilden,
Amy Griffin, John Griffin, Nich Harrell, Allyson Haynes Stuart, Sharon Jacobs,
Bernard Harcourt, Jennifer Hendricks, Marissa Jackson, Maryam Jamshidi, Margot
Kaminski, Sonia Katyal, Derek Kiernan-Johnson, Sarah Krakoff, Margaret Kwoka,
Joseph Landau, Sylvia Law, Art Leonard, Amanda Levendowski, Benjamin Levin,
Kate Levine, Alex Lipton, Carolyn McAllaster, Jonathan Manes, Florencia Marotta-
Wurgler, Sandra Mayson, Thomas Mann Miller, Susan Nevelow Mart, Ralf
Michaels, William Moon, Melissa Murray, Douglas NeJaime, Helen Nissenbaum,
Helen Norton, Angela Onwuachi-Willig, Michael Oswalt, Justin Pidot, K. Sabeel
Rahman, Blake Reid, Camille Gear Rich, Neil Richards, Russell Robinson, Shalev
Roisman, Lauren Roth, Ira Rubinstein, Pierre Schlag, Jason Schultz, Andrew
Schwartz, Jocelyn Simonson, Fred Smith, Anna Spain Bradley, Sloan Speck, Marc
Spindelman, Mark Squillace, Ed Stein, Katherine Strandburg, Jennifer Sullivan,
Harry Surden, Daniel Susser, Ari Ezra Waldman, Jeremy Waldron, Clint Wallace,
Peter Winn, Tobias B. Wolff, Felix Wu, and Kenji Yoshino.

xi
xii Acknowledgments

Thanks, as well, to participants in the following workshops or conferences, where

aspects of this work were presented along the way (in some cases, at multiple iterations
of the conferences): the Yale Freedom of Expression Scholars Conference, the
Privacy Law Scholars Conference, the Duke Law Civil Rights Conference, the
Internet Law Scholars Works-in-Progress Conference, the Loyola Constitutional
Law Colloquium, the Law & Society Association Conference, the Lavender Law
Conference, the Rocky Mountain Junior Scholars Forum, the NYU Privacy Research
Group, the NYU Lawyering Scholarship Colloquium, the NY LGBT Law Faculty
Workshop, the CU–DU First Amendment All-stars Workshop, the St. John’s Law
School Faculty Workshop, the Colorado Law School Works-in-Progress Series, the
AALS Employment Discrimination Section Works-in-Progress Workshop, and
Professor Margaret Kwoka’s Governance Workshop at Denver University Sturm
College of Law. For insightful conversations that helped inform my thinking on the
relationship between privacy and anti-subordination, I’m also grateful to the partici-
pants at the Intersectionality and Algorithmic Discrimination Workshop hosted by
the Lorentz Center in Leiden, Netherlands in December 2017.
To varying degrees, this book draws from and refines some of my prior work,
including:
“Recording as Heckling,” 108 The Georgetown Law Journal 125 (2019)
“Privacy’s Double Standards,” 93 Washington Law Review 2051 (2018)
“The First Queer Right,” 116 Michigan Law Review 881 (2018) (review essay)
“Performative Privacy,” 50 UC Davis Law Review 1673 (2017)
“Outing Privacy,” 110 Northwestern University Law Review 159 (2015)
I’m very grateful to the editors of these publications for their earlier input, and for
permitting me to republish aspects of those articles in book form.
Special thanks are also owed to several intrepid research assistants who either
helped with the underlying law review articles or the book project directly: Alistair
Blacklock, James Castle, Ariane Frosh, Wyatt Forman, Christina Kata, Lucas
Knudsen, Emily Poole, and Matthew Simonsen.
For institutional support including summer research stipends that helped propel
this research, I am grateful to the University of Colorado Law School and Dean Jim
Anaya, as well as to Gordon Gamm who, through the Gordon J. Gamm Justice
Award, supported and honored this scholarship. Deepest gratitude to Jane
Thompson and Matt Zafiratos for library support and to Kelly Ilseng for adminis-
trative support – thanks for all you do for our school.
To my students: thank you for challenging and inspiring me. As Audre Lorde
poetically put it, “teaching is a survival technique. It is for me . . . the only way real
learning happens.”
Penultimately, to my dear friends and family, especially, my mom, Daryl, and my
dad, Preston. Mom and Dad: thank you for decades of unwavering love and support.
No people have been better parents.
Finally, to Jonathan, my rock, my pillow, and all textures in between.
 Introduction

Privacy often suffers in courts of law and as a legislative or regulatory priority.

Privacy, in effect, is marginalized as a right and frequently ranked below security
or law enforcement concerns. Often it is even ranked below administrative, per-
sonal, or corporate convenience. At the same time, privacy is of acute significance
for members of marginalized communities – queer folk, racial and religious minor-
ities, women, immigrants, people living with disabilities, people living in poverty,
workers, and those at the intersections.
Why is it that privacy receives limited protection from courts and legislatures
notwithstanding the heightened necessity of privacy for communities fighting for
lived equality; communities currently at the margins?
What are the particular doctrinal limitations of privacy law that exacerbate the
precariousness of marginalized communities?
Are there nevertheless undercurrents within certain judicial contexts that, if
emphasized, might lead to greater protection for those in precarious positions?
Are there ways of thinking about privacy rights that might lead to more robust
privacy protection by courts and lawmakers and better capture why privacy is of
critical importance, particularly for vulnerable communities?
Put differently, can privacy be transformed from a liberal, individualistic value
into an anti-oppression legal tool?
Privacy at the Margins seeks to answer these questions in the context of consti-
tutional law and, in so doing, to provide solutions in the form of legal theories or
frames for privacy that will better advance the privacy rights of marginalized com-
munities in courts and society. It is, at its heart, focused on ways to adapt legal
doctrine so as to better protect the privacy rights of the precarious while simultan-
eously attempting to reinvigorate broader societal appreciation for why privacy
matters – for everyone (albeit perhaps to different degrees). To do so, the book
musters insights from critical disciplines (queer, anti-racist, feminist, and surveil-
lance studies) and applies them to the law. And it emphasizes the ways technological

1
2 Introduction

developments have made privacy more relevant – not less (as some have suggested) –
underscoring how advances in technology require updates in law. The book focuses
on two primary – and sometimes overlapping – privacy contexts or kinds or privacy:
privacy in public (privacy while someone navigates physical or online space) and
informational privacy (that is, unconsented to disclosure of an individual’s infor-
mation). As to each context, it involves three principal aims.
First, taking a critical view of several seemingly benign regulatory laws and
background norms – and building on a rich body of new scholarship – Privacy at
the Margins documents and highlights many of the ways in which the privacy of
marginalized communities across several intersectional demographic groups is
uniquely endangered by both government and privatized surveillance regimes
(broadly defined), the dramatic, concrete harms caused by that surveillance and,
correspondingly, why privacy for such communities is of heightened practical and
material importance.
For example, law enforcement uses the lack of legal protections for privacy while
in public to target racial and religious minorities for surveillance, which is a gateway,
“but for” cause for the disproportionate degree to which black, Latinx, and Muslim
communities are criminalized and subject to carceral punishment. (Of course,
structural and individual prejudice are the principal cause). But such surveillance
and the lack of public privacy also pushes these communities from the public
square, deterring them from entering society on their own terms and, in effect,
erasing aspects of their identities from society. Similarly, the government’s purport-
edly “neutral” administrative surveillance apparatuses not infrequently out infor-
mation regarding people’s sexuality, gender identity, and HIV status, potentially
subjecting people to discrimination on the basis of that information – discrimination
that, in many instances, may not yet be universally impermissible (or, where
technically forbade, is difficult to regulate due to underenforcement and access-to-
justice barriers). The first goal of the book is to detail that those who are already in
the most precarious social positions are disproportionately vulnerable to privacy
violations, while the privacy of the privileged is more protected. This is no accident.
And it occurs notwithstanding that (because?) these marginalized communities are
most in need of privacy in order to avoid downstream discrimination and other
negative consequences that often results when their sensitive information, including
but not exclusively information directly to their minority status, is disclosed.
Simply put, the loss of privacy increases the precariousness of marginalized
individuals’ lives and vulnerable groups are less able to absorb the social costs
associated with privacy violations that may impact large swaths of people, not just
the marginalized. That is, members of marginalized communities not only suffer a
greater amount of privacy violations, but any such incursions also inflict exponen-
tially outsized harms on members of marginalized communities.
Second, the book scrutinizes particular aspects of privacy law that are facilitating
the diminished privacy of marginalized communities and analyzes how existing
 Introduction 3

legal theories of privacy have, by and large, given inadequate attention to the
amplified importance of privacy to marginalized communities and been unable to
connect those privacy harms to doctrinal solutions. Instead, in various legal contexts,
privacy continues to be conceptualized and framed as a broad, amorphous, univer-
salist value – something akin to autonomy, dignity, or personhood – that fails to
capture the discrete, particular, and material harms that directly result from privacy
violations. For instance, in the informational privacy context (again, defined as
trying to prevent the disclosure of information about someone), there has been a
tendency to emphasize how the ability to keep certain information secret is key to
indirectly ensuring that the person has control or autonomy over their lives. And
with regard to efforts to maintain privacy in public by, for example, wearing a hoodie
or using online encryption tools to obfuscate one’s cyber activity, academics have
primarily focused on public privacy’s indirect constitutional benefits, such as its
ability to make the freedom of association meaningful in practice. While undoubt-
edly accurate and important components of why privacy matters, to date, the focus
on broad values or indirect benefits has been met with limited judicial purchase.
Third, then, Privacy at the Margins suggests alternative legal theories, and corres-
ponding rhetorical frames, for a variety of privacy problems afflicting marginalized
communities. In doing so, I draw on authorities ranging from critical social theory
(including feminist and anti-racist movements), public health, and human rights
activism – and connect them to law – to help underscore that privacy isn’t all or
nothing, but in some contexts, it is everything.1 We don’t necessarily need complete
privacy in every situation in order for privacy over certain information or in certain
settings to serve as a form of harm or risk reduction, mitigating concrete injuries –
injuries that can have a tremendous material impact on people’s lived experience.
Privacy can operate as a form of safety, shielding people from what is, in effect,
“surveillance violence” – privacy violations that often lead inexorably to grave,
sometimes deadly, material harm.2
In a nutshell, I advocate that, in certain contexts, privacy’s expressive and anti-
subordination dimensions be centered in discussions about why we need privacy
rights. Once privacy’s ability to directly advance equality, anti-subordination, and
expressive interests is comprehensively understood, privacy may receive increased
societal appreciation and doctrinal protection. Specifically, efforts to maintain

1
In this way, I attempt to connect the dots between legal discussions of privacy, which often
focus on liberal, individualistic, and formalist approaches, and the more critical approaches
adopted by other disciplines, including surveillance studies. Cf. Julie E. Cohen, Studying Law
Studying Surveillance, 13 Surveillance & Soc’y 91 (2015).
2
This draws from Anna Lauren Hoffmann’s concept of “data violence” and Dean Spade’s
development of the theory of “administrative violence.” Dean Spade, Normal Life:
Administrative Violence, Critical Trans Politics, and the Limits of Law (2011);
Anna Lauren Hoffmann, Data Violence and How Bad Engineering Choices Can Damage
Society, Medium (Apr. 30, 2018), https://medium.com/s/story/data-violence-and-how-bad-engin
eering-choices-can-damage-society-39e44150e1d4.
4 Introduction

public privacy, rather than serving merely as an indirect incubator for freedom of
thought or enhancing the ability to freely associate (though they are that), should be
framed as direct, expressive statements of resistance to surveillance regimes and their
subordinating effects, falling more squarely within the First Amendment’s expansive
protections. For informational privacy problems, rather than emphasizing the more
attenuated relationship between privacy and dignity or autonomy, litigants should
focus on the more palpable importance of certain categories of information (such as
intimate, sexual, or medical information) and how, when disclosed, the information
directly leads to downstream negative consequences. For instance, when a person’s
transgender status is disclosed by government policies that restrict the ability of an
individual to correct the gender marker on a driver’s license or birth certificate, that
person is often subject to employment discrimination on the basis of their gender
identity – discrimination that is still permissible in some contexts (for example, by
small businesses in many states). More gravely, as a direct, material result of the
privacy violation, the person may be exposed to harassment or physical violence.
In sum, the book is designed to highlight the acute need for privacy among
marginalized communities, demonstrate how existing legal frames are falling short,
and, finally, chart a way forward both doctrinally and in terms of public discourse in
how we think and talk about privacy. In so doing, the book does not take a one-size-
fits-all approach to privacy problems – and the doctrinal solutions proffered for
threats to informational privacy and privacy while in public differ because the
problems themselves differ. Likewise, the legal source of the right to privacy will
vary depending on the context.
For example, the initial chapters focus predominately on problems of privacy in
public and argue that the key to securing protections for both privacy while
navigating physical space and online space may lie, as noted, in conceptualizing
efforts to maintain privacy as outward statements of resistance to the surveillance
regime. In this context, the doctrinal foothold is the First Amendment’s protections
for free expression and the particular doctrinal solicitude that has been shown to
iconoclastic speech of marginalized voices. Similarly, to the extent private party
recording of public space is itself expressive and protected against government
regulation when targeted at, for example, police officers who may be engaged in
the use of excessive force, the First Amendment’s authorization of limitations on
heckling speech provide an avenue for regulating the recording (particularly cor-
porate recording) when it infringes on individuals’ privacy – their expressive,
performative privacy. Later chapters deal with informational privacy problems posed
by both government disclosure of sensitive information and private party disclosure
of such information. As to government disclosures, the book argues that consti-
tutional due process protections embodied in the Fifth and Fourteenth
Amendments limit the government’s ability to out our sensitive information, par-
ticularly when disclosure of that information leads to material harms, which will
often be the case when information pertaining to particular marginalized
 On Privilege and Marginalization 5

characteristics is disclosed. Conversely, as to private parties, constitutional equality

principles necessitate modifying public disclosure tort doctrine so as to more
robustly and comprehensively provide remedies to those who have their information
disclosed. Put differently, emphasizing the importance of equal, but contextually
sensitive, informational privacy rights may help privacy advance anti-subordination
goals. Importantly, as to both public privacy and informational privacy, the emphasis
on direct expression and anti-subordination will not only lead to judicial recognition
of the rights at issue, but more robust protection – moving from balancing tests
embodied in much extant privacy law (such as the Fourth Amendment) to
heightened scrutiny when the government is the privacy violator.
***
Contrary to the received wisdom, privacy is not dead. Or at least it needn’t be. With
greater attention to the ways in which even limited privacy can enrich and enhance
our lives at the margins in concrete, direct ways, legal protections for privacy can be
strengthened for us all, with particular benefits flowing to marginalized commu-
nities. Privacy can be transformed from a liberal affectation to a legal tool of
liberation from oppression.
***
Before going further, though, some definitional explanations and related prelimin-
ary ground work will be useful.

on privilege and marginalization

“Privilege” can exist in many forms and people may be privileged in certain
contexts, but not others. As explained by critical feminist/anti-racist scholar bell
hooks, “[i]t is necessary for us to remember, as we think critically about domination,
that we all have the capacity to act in ways that oppress, dominate, wound (whether
or not that power is institutionalized).”3 Relatedly, as underscored by Kimberlé
Crenshaw, people can be made vulnerable or marginalized in multiple, intersecting
ways,4 but be privileged in other spaces. Consequently, as used throughout, the
concepts of privilege, marginalization, and vulnerability are dynamic and may not
align perfectly with the relatively narrow categories of protected classes recognized
under traditional American equal protection analysis.5 Instead, they operate as
3
bell hooks, Talking Back: Thinking Feminist, Thinking Black 21 (Routledge 2015)
(1989).
4
Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi.
Legal F. 139, 140 (1989) (explaining how people may be multiply burdened by intersecting
forces and that “the intersectional experience is greater than the sum of racism and sexism”).
5
Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human
Condition, 20 Yale J.L. & Feminism 1, 2–6 (2008) (outlining the impoverished concept of
equality in American law and proposing a more substantive approach that considers how
6 Introduction

shorthands annotating that – in the particular context being discussed at a given

moment – a person with certain characteristics may be marginalized by society
because of those characteristics.

on privacy
Just as with overly broad and conversation-ending rhetorical appeals to “security,”
the word “privacy” can cover multitudes. As noted, but worth reemphasizing, in this
book I am principally concerned with two types of privacy, or privacy contexts. First,
public privacy – privacy or anonymity while someone navigates physical or online
space. Second, informational privacy – unconsented to disclosure of information
about a particular individual. Where there is a risk of conflation, I try to emphasize
specifically which privacy variety I’m discussing, but, inevitably, at times I refer to
“privacy” as a shorthand, but context and chapter focus should make clear which
kind of privacy problem is being discussed.

on anti-subordination
A key argument of this book is that privacy (both informational and while in public)
can serve important anti-subordination goals and, indeed, that where privacy does
advance anti-subordination ends for marginalized groups, legal protections for
privacy rights should be at their apex. “Anti-subordination” refers to the idea that
legal equality principles ought not merely prohibit the classification of people based
on various demographic criteria (race, sex, disability, etc.), but that lived equality –
that is, substantive, material day-to-day equality as opposed to formal, “on-the-books”
equality – necessitates dismantling facially neutral (non-classifying) laws that never-
theless oppress particular groups. An anti-subordination theory of equality supports,
at times, being conscious of different classifications (rather than ignoring them) and,
perhaps, using those classifications to level up those that are being subordinated,
including through reform of facially neutral legal regimes that, as rendered, are
anything but. When applied to privacy law, an anti-subordination approach to
privacy law recognizes that even if a law does not facially classify based on a
protected characteristic, there is, in reality, nothing neutral about surveillance
systems – they are replete with normative ends and masked power that reinforce
racial, sexual, and ableist hierarchies.6 And the privacy rules that reinforce and
facilitate these hierarchies ought to be overhauled.

vulnerability is a constant of the human condition and a product of more than the rigid
identity-based typologies of equal protection law).
6
Mark Andrejevic, Foreword to Feminist Surveillance Studies ix, xi (Dubrofsky & Magnet
eds., 2015); Ruha Benjamin, Race After Technology 77 (2019).
 On Speaking with Others 7

on speaking with others

Finally, given that this book involves attempting to highlight how the lives of many
different groups of people are made more precarious by administrative and carceral
surveillance systems – and the potential synergies among these groups as a result of
their related, though far from identical, struggles – at several turns I am writing about
experiences with which, as a white economically privileged gay male documented
citizen, I do not have direct experience. In an effort to be cognizant of that privilege
and the false authority my position as a legal academic may supply my voice, in
researching these themes, I have tried – imperfectly – to take up the charge of Audre
Lorde: “where the words of [different marginalized communities] are crying to be
heard, we must each of us recognize our responsibility to seek those words out, to
read them and share them and examine them in their pertinence to our lives.”7
Correspondingly, throughout the book I endeavor to center and amplify the voices
of those within the communities at issue, particularly those “who also ha[ve] the
authority of lived experience.”8 Which only makes sense given that many within
marginalized communities need no tutorial regarding the ways surveillance and lack
of lived privacy impacts them – instead, it is those with relative power and privilege
who need this information most acutely and to whom this book is primarily
directed.9

7
Audre Lorde, Sister Outsider 43 (rev. ed. 2007).
8
bell hooks, Talking Back, supra note 3, at 44.
9
One important caveat before diving deeper: the descriptions of the cases contained herein are
largely taken from court opinions (with the occasional media report), which often evaluate
allegations, rather than established evidence. I am in no position to confirm, and am in no way
suggesting that any of the allegations discussed in any particular case are, in fact, true or false.
 1

No Privacy in Public = No Privacy for the Precarious

Broadly speaking, both privacy doctrine and public discourse suggest that the right
to privacy is significantly diminished once one enters the public realm or once one’s
information is shared with others.1 In fact, certain doctrines provide that the right to
privacy while in public is nearly nonexistent, that privacy is more or less “dead” once
you walk out your front door or expose your activities to anyone else – even if you are
fortunate enough to have your own property and still be on it.2 Pursuant to this
conception of the right to privacy, privacy is synonymous with secrecy – and, as
described by Daniel Solove, this “secrecy paradigm” greatly limits legal protection
for privacy.3 As it stands, without lived privacy, one has no claim to legal privacy or
privacy rights – and without legal privacy, one has no ability to protect or maintain
lived privacy.4
But in a world of over seven billion people and almost constant surveillance by
governments, corporations, and other individuals, keeping one’s activities and infor-
mation completely secret (and thus entitled to a right to privacy under the traditional
“secrecy paradigm”) is impossible.5 Even more so for certain marginalized commu-
nities who are more likely to live in conditions where their information is exposed to

1
Julie E. Cohen, Configuring the Networked Self 121 (2012) (“Generally speaking,
surveillance is fair game within public space, and also within spaces owned by third parties”).
2
Michael Warner, Publics and Counterpublics 27 (2002) (“Modern American law fre-
quently defines privacy as a zone of noninterference drawn around the home. So strong is this
association that courts have sometimes refused to recognize a right to privacy in other spaces”);
A. Michael Froomkin, The Death of Privacy?, 52 Stan. L. Rev. 1461, 1536–37 (2000).
3
Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 497 (2006).
4
Cf. Harry Surden, Structural Rights in Privacy, 60 S.M.U. L. Rev. 1605, 1612 (2007) (analyzing
the role of physical and technological structural restraints in protecting privacy rights).
5
Andrew E. Taslitz, Privacy as Struggle, 44 San Diego L. Rev. 501, 504–05 (2007) (document-
ing the “requirement of superhuman individual efforts to attain secrecy . . . as an essential
prerequisite to the existence of privacy” rights).

8
 No Privacy in Public = No Privacy for the Precarious 9

others and who are more likely to be subject to and targeted for government
surveillance in the first instance.6
This chapter discusses the current doctrinal and discursive barriers preventing a
meaningful right to privacy while navigating both physical and online space, and
once information has been exposed to others, and also highlights how this prevailing
anti-privacy ethos creates unique problems for members of different marginalized
groups. The narrow conception of privacy as being largely nonexistent in public
spaces (sometimes referred to as “situated privacy”)7 serves as a background rule or
norm that enables and sanctions greater surveillance of marginalized communities.8
The cramped legal frame leads to further loss of lived privacy with tangible conse-
quences. It creates a self-fulfilling prophecy of privacy loss – once information is
exposed to the “public” (even marginally), greater surveillance and loss of privacy is
then often legally permissible. As another has put it, so long as legal privacy “is
parasitical on private-sphere privacy, the former must die as its host dies, and this
host is undoubtedly faltering today in the networked, monitored and digitized world
we are calling our own.”9 And the secrecy paradigm is increasingly debilitating as
privacy-invading technologies expand the reach of state and private, corporate
surveillance regimes (which often work hand in hand).
The physical and informational zone of what is truly secret – known to no one
else – is shrinking dramatically.10 As such, under the “privacy-only-in-private” theory,
the law protects very little indeed. Paradoxically, as government, corporate, and
citizen surveillance regimes expand (decreasing what can functionally be kept
secret), the right to privacy is extinguished along with it.11 Instead of serving as a
bulwark against encroachments on privacy, the “privacy-only-in-private” theory is
defined in such a way to ensure that privacy will, in fact, be dead. And this
constricted legal definition of privacy permits privacy-invading technologies and
criminal, administrative, corporate, and interpersonal/individual surveillance
systems to have relatively free rein.

6
Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile Police, and
Punish the Poor 6 (2017) (“People of color, migrants, unpopular religious groups, sexual
minorities, and other oppressed and exploited populations bear a much higher burden of
monitoring and tracking than advantaged groups”).
7
Margot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 203 (2017).
8
Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case
of Divorce, 88 Yale L.J. 950 (1979).
9
Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101, 118 (2008).
10
Joel Reidenberg, Privacy in Public, 69 U. Miami L. Rev. 141, 142 (2014); Bernardine Evaristo,
Girl, Woman, Other 144 (2019) (“the borders between public and private are dissolving”).
11
Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment after Lawrence, 57
UCLA L. Rev. 1, 6–7 (2009) (“If public exposure forfeits privacy protections, then how
constitutional doctrine defines public exposure determines what aspects of ordinary life receive
protection from government interference. What receives constitutional protection in turn
shapes the boundaries of ordinary life”).
10 No Privacy in Public = No Privacy for the Precarious

But there is nothing a priori about this definition of private and public – instead, it
is an ideology; a normative architecture that has profound implications for who is
protected, and who is not; who has room to flourish, and who is squashed.12 The
limited conception of what is legally protected as “private” is a form of social control,
helping to buttress hegemonic social norms and ways of being; ways of existing, with
devastating implications for many marginalized communities whose lives are too
often overdetermined by government and corporate attempts to render their lives
observable.
To be sure, while the secrecy paradigm plays a prominent role in erasing both the
lived privacy and legal privacy rights of many marginalized communities, it is
reinforced by other background rules and rhetorical frames, such as those that frame
privacy as a commodity or an element of property rights. As powerfully underscored
by others,13 the commodification of personal information encourages and endorses a
transactional approach to privacy rights, countenancing the trading away of privacy
for other material goods, ranging from government benefits to social media
accounts. Such a frame also devalues privacy as a mere object of commerce, rather
than a foundational, material right critical to human flourishing. But before a person
can even trade away their information, they must be deemed to control that infor-
mation in the first instance. Hence this book’s focus on legal rules and rhetorical
frames that suggest people lack rights over their information at all once it is exposed
to others.

law: privacy and public are contradictory terms

In several different doctrinal contexts, the law provides that privacy does not
meaningfully exist in public space or once the information has been shared outside
of limited confines. While what counts as “public” and “private” is driven by
normative value judgments and choices, the law contributes to making them “seem
to be preconceptual, almost instinctual” and powerfully shapes how we learn public
and private, making the fixed conceptions “hard to challenge.”14
Fourth Amendment criminal procedure law is a prime example. In theory, the
Fourth Amendment prevents the government from conducting searches for the
purpose of investigating alleged criminal wrongdoing without first securing a war-
rant from a judge after showing that there is “probable cause” to believe that
evidence of a crime will be discovered. But no protected “search” requiring a
warrant and a showing of probable cause occurs if the person did not have a
12
Warner, supra note 2, at 27 (“Public and private are not always simple enough that one could
code them on a map with different colors – pink for private and blue for public”).
13
E.g., Shoshana Zuboff, The Age of Surveillance Capitalism 65 (2019); Julie E. Cohen,
Between Truth and Power 50 (2019); Khiara Bridges, The Poverty of Privacy Rights
10, 66–68 (2017).
14
Warner, supra note 2, at 27.
 Law: Privacy and Public Are Contradictory Terms 11

“reasonable expectation of privacy” in the area or thing being searched in the first
instance.15
With regard to physical privacy or observation of people as they move about their
lives, the Supreme Court has largely provided (with some exceptions when targeted,
law enforcement surveillance occurs over a prolonged period of time) that no
reasonable expectation of privacy exists and therefore no warrant is required for
the police to surveil people when their movements are otherwise observable from a
public location. This principle has manifested in several, specific Fourth
Amendment doctrines. For example, the open fields doctrine has been used to
curtail the right to privacy – even on an individual’s own property, traditionally the
place where the right to privacy is most sacrosanct. The open fields doctrine provides
that an individual has no reasonable expectation of privacy for activities conducted
out of doors, in fields, or property not within the “curtilage” – the area directly
adjacent to the home. The Supreme Court has relied on the open fields doctrine to
hold, for example, that no warrant was required for police to walk past a locked gate
and “No Trespassing” signs and into secluded property in order to investigate reports
that marijuana was being grown.16 Interpreting the open fields doctrine on multiple
occasions, the Supreme Court has taken a broad view of when privately owned
property is exposed or open to the public and thus entitled to minimal Fourth
Amendment privacy protections.
The cases in many ways speak for themselves. The Court has held that no warrant
was required for police to inspect a predominately enclosed but partially open
greenhouse within the curtilage of a home from a helicopter 400 feet above the
ground, notwithstanding that the greenhouse could not been seen into from the
street.17 Similarly, no warrant was required for police to enter onto a 198-acre
property, cross over a perimeter fence as well as multiple interior fences, and peer
into a locked barn located half a mile from the public road and in close proximity to
the property’s residence.18 Nor was a warrant required for an aerial search of a
backyard within the curtilage of a home that was enclosed by two separate fences,
one 6 feet tall and the other 10 feet tall.19 Based on this line of authority, a United
States Court of Appeals recently held that there was no Fourth Amendment viola-
tion where police recorded an individual’s activity outside his home for ten weeks
with a camera mounted on a utility pole by the utility company without a warrant.
According to the court, “it is only the possibility that a member of the public may

15
Katz v. United States, 389 U.S. 347, 351 (1967).
16
Oliver v. United States, 466 U.S. 170 (1984).
17
Florida v. Riley, 488 U.S. 445 (1989).
18
United States v. Dunn, 480 U.S. 294 (1987).
19
California v. Ciraolo, 476 U.S. 207 (1986); see also Dow Chem. Co. v. United States, 476
U.S. 227 (1986) (permitting EPA aerial surveillance of outdoor area of Dow’s power plant
without a warrant despite elaborate security around the complex). But see Kyllo v. United
States, 533 U.S. 27 (2001) (holding that use of thermal imaging technology on house constitutes
a search for which a warrant is required).
12 No Privacy in Public = No Privacy for the Precarious

observe activity from a public vantage point – not the actual practicability of law
enforcement’s doing so without technology – that is relevant for” determining
whether a privacy violation has occurred under the Fourth Amendment.20
The Court has also held that when an individual places garbage on the street curb
for collection, even if temporarily and opaquely packaged, such “public exposure”
defeats any reasonable privacy expectation.21 A similar criminal procedure concept,
the “plain view” doctrine, provides that police officers may seize evidence of
contraband when visible from a lawful vantage point.22 This rule serves to sanction
the widespread proliferation and use of police-worn body cameras and dash cameras
as a means of surveillance and evidence gathering (often under the guise of police
accountability).
With regard to privacy over information or communications, the Supreme Court
has significantly weakened the protections provided by the Fourth Amendment
through reliance on the so-called third-party doctrine. The third-party doctrine
stipulates that, in certain situations, an individual’s “reasonable expectation of
privacy” (again, the precondition for Fourth Amendment coverage) often evaporates
once an individual shares the relevant information with another person or entity,
sometimes referred to as a “third party.”23 So, while the government may be required
to obtain a warrant if it wants to directly intercept the content of a conversation
between two people (for example, through a wiretap), if the information at issue (for
example, that a call did in fact take place) is shared with a phone company (a third
party), no warrant may be required to obtain that information either from the third
party or through direct interception because the fact of the call is not one that was
kept private in the first instance – the phone company was aware of the call, not just
the two conversants, excusing the government from obtaining a warrant.24
Correspondingly, under what has been dubbed “assumption of the risk,” the
Supreme Court has concluded that when individuals volunteer information to
others, they are assuming the risk that the other party may be an informant who
may relay the information to law enforcement.25 In such situations, the Court has
often held that no “search” occurred and therefore the Fourth Amendment’s
warrant requirement is not triggered.
The theme that links the third-party doctrine, the open fields doctrine, the plain
view doctrine, assumption of the risk, and the secrecy paradigm more broadly, is the
underlying notion that there is no meaningful right to privacy in public – if

20
United States v. Houston, 813 F.3d 282, 289–90 (6th Cir. 2016).
21
California v. Greenwood, 486 U.S. 35 (1988).
22
Texas v. Brown, 460 U.S. 730 (1983).
23
As Kathy Strandburg has pointed out, the widely used phrase “third-party doctrine” is some-
times a misnomer since not all cases involve information shared between more than two
individuals. Katherine J. Strandburg, Home, Home on the Web and Other Fourth Amendment
Implications of Technosocial Change, 70 Md. L. Rev. 614, 652 n.201 (2011).
24
Smith v. Maryland, 442 U.S. 735 (1979); United States v. White, 401 U.S. 745 (1971).
25
Hoffa v. United States, 385 U.S. 293 (1966).
 Law: Privacy and Public Are Contradictory Terms 13

information is even slightly exposed to others, the government and private parties are
often permitted broad access.
While in 2018 the Supreme Court imposed an important but modest limitation
on the third-party doctrine in Carpenter v. United States, the doctrine is far from
being a dead letter.26 In Carpenter, the Court concluded that a person’s historical
cell-site location information revealing encyclopedic data regarding the person’s
physical movements over a period of several days was not voluntarily shared with the
service providers and therefore free game for government collection from the service
providers without a warrant. Although the Court emphasized that Fourth
Amendment doctrine must be attentive to technological changes (as it had in the
past),27 the Court also noted that its decision was a narrow one, that the third-party
doctrine endured, and that it was the expansive scope of the search revealing “an all-
encompassing record of the holder’s whereabouts” over a sustained period of time
that ran afoul of the Fourth Amendment. Indeed, post-Carpenter, many courts have
continued to enforce the secrecy paradigm in the same old way notwithstanding the
continued development and deployment of privacy-invading technologies by law
enforcement.28 In other words, though the Court in Carpenter expressed that a
“person does not surrender all Fourth Amendment protection by venturing into the
public sphere,” under prevailing law they do surrender an astounding degree of
protection, as outlined above.29
The secrecy paradigm’s strictures are not unique to the Fourth Amendment
context, which limits law enforcement’s ability to conduct a search for the purpose
of a criminal investigation without a warrant and probable cause, but also extends to
the constitutional informational privacy context. In theory, the constitutional right
to informational privacy, rooted in guarantees for substantive due process, limits the
government’s ability to disclose or “out” certain information regarding us.30 But, as

26
138 S. Ct. 2206 (2018).
27
See also Riley v. California, 573 U.S. 373 (2014) (emphasizing cell phones are qualitatively and
quantitatively different in terms of the amount of information they reveal).
28
E.g., United States v. Kelly, 385 F.Supp.3d 721 (E.D. Wis. 2019) (installation of two surveillance
cameras recording defendant’s comings and goings from an apartment over a period of nine
days did not require a warrant post-Carpenter); United States v. Kubasiak, 2018 WL 4846761
(E.D. Wis. Oct. 5, 2018) (use of video camera in neighbor’s house to surveil defendant’s
backyard over prolonged period of time not improper under Carpenter); United States
v. Morel, 922 F.3d 1 (1st Cir. 2019) (no reasonable expectation of privacy in internet protocol
(IP) address information used to access a website or application); United States v. Felton, 367
F.Supp.3d 569 (W.D. La. 2019) (same). But see United States v. Moore-Bush, 381 F.Supp.3d
139 (D. Mass. 2019) (video monitoring of person’s home from police camera over eight-month-
long period required warrant post-Carpenter), appeal docketed, No. 19-1582 (1st Cir. June
10, 2019).
29
Carpenter, 138 S. Ct. at 2217; cf. Matthew Tokson, The Next Wave of Fourth Amendment
Challenges After Carpenter, 59 Washburn L.J. 1 (2020) (noting the cryptic nature of Carpenter
while expressing optimism about its privacy potential).
30
Whalen v. Roe, 429 U.S. 589, 599–600 (1977) (defining informational privacy as “the individual
interest in avoiding disclosure of personal matters”).
14 No Privacy in Public = No Privacy for the Precarious

with the Fourth Amendment, several courts have concluded that if the information
at issue has previously been exposed to anyone else, then there is no constitutional
violation when the government further broadcasts the information.31 For example,
in Doe v. Lockwood, the Sixth Circuit Court of Appeals ruled that there was no
violation of constitutional informational privacy where a municipal health commis-
sioner allegedly disclosed that the plaintiff was HIV-positive to a local newspaper
who then published the plaintiff’s identity because the plaintiff had disclosed his
status to a court when requesting medical leave from prison to receive treatment for
his HIV.32 Notwithstanding that the plaintiff’s prior “disclosure” to a court was not
the source where the defendant health commissioner obtained the private infor-
mation and notwithstanding the compelling reasons for the plaintiff’s disclosure
(seeking medical treatment while in captivity), the Sixth Circuit concluded that the
information at issue was already “public.” Therefore, the health commissioner’s
alleged broadcast of the information to a local newspaper who published the infor-
mation was not actionable.
The secrecy paradigm also extends beyond constitutional privacy law to privacy
tort doctrine, which, in principle, is designed to secure privacy rights against other
private-party actors – including corporations. For example, the Restatement
(Second) of Torts provides with regard to the tort of publication of private facts that
“there is no liability for giving further publicity to what the plaintiff [themself] leaves
open to the public.”33 The Restatement, in essence, embraces the idea that there is
no privacy in public. And this premise has been advanced by the Supreme Court,
which has held, for example, that no actionable privacy tort violation occurred
where the press published information about a rape victim that was already in the
public domain via court records.34
Lower courts have followed suit, even in egregious situations. For example, in
Doe v. Peterson, plaintiff sued operators of a nude photograph website, where nude
photos of plaintiff taken when she was a teenager and sent privately to her then
boyfriend were posted. The court dismissed plaintiff’s public disclosure claim,
reasoning that because the photos had been previously posted by a different website,
they were not private facts.35 Similarly, in Lentz v. City of Cleveland, the court held
that the plaintiff police officer could not successfully bring a public disclosure claim

31
E.g., Chasensky v. Walker, 740 F.3d 1088, 1097 (7th Cir. 2014); Big Ridge, Inc., v. Fed. Mine
Safety & Health Review Comm’n, 715 F.3d 631, 652 (7th Cir. 2013); Kerns v. Bader, 663 F.3d
1173, 1187 (10th Cir. 2011); Eagle v. Morgan, 88 F.3d 620, 625–26 (8th Cir. 1996); Fraternal
Order of Police v. City of Philadelphia, 812 F.2d 105, 116 (3d Cir.1987).
32
Doe v. Lockwood, No. 95–3499, 1996 U.S. App. LEXIS 19088, at *13–17 (6th Cir. June
27, 1996).
33
Restatement (Second) of Torts § 652D cmt. b (1977) (gendered language revised).
34
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975).
35
784 F. Supp. 2d 831, 834–35 (E.D. Mich. 2011); see also Danielle Keats Citron, Sexual Privacy,
128 Yale L.J. 1870, 1917 (2019) (documenting weak legal recourse for victims of nonconsensual
pornography).
 Law: Privacy and Public Are Contradictory Terms 15

pertaining to publication of his mental health history when, during the lawsuit,
evidence was unearthed indicating that four years prior to the publication, the
plaintiff’s mental health information had been discussed at a public Civil Service
Commission hearing.36 More precisely, the disclosure was excused because, after
the alleged disclosure, evidence was found indicating that the information had
previously been disclosed. As will be outlined in more detail in Chapter 6, these
examples are part of a long list over a recent decade-long period (2006–16) where
courts have rigorously enforced the secrecy paradigm in public disclosure tort cases
brought by plaintiffs of marginalized social status.
Indeed, they arguably represent an even stricter application of the secrecy para-
digm than that imposed in one of the most high-profile (and highly criticized) public
disclosure tort cases – the case of Oliver “Billy” Sipple.37 Sipple had intervened to
help prevent a would-be assassin from shooting then President Gerald Ford. In the
aftermath of the attempted assassination, a newspaper reporting on the event sug-
gested that Sipple was gay and that assertion was further reported by other news-
papers. Sipple sued for public disclosure of private facts, but the Court of Appeal of
California affirmed the grant of summary judgment in the defendants’ favor. The
court concluded that even though Sipple’s family members learned of his sexual
orientation for the first time because of the publication, his orientation was known to
“hundreds” of others through, among other activities, his participation in gay parades,
because he “spent a lot of time in [the] ‘Tenderloin’ and [the] ‘Castro,’” and because
of “his friendship with Harvey Milk, another prominent gay.” The Sipple decision,
while ignoring that information such as one’s minority sexual orientation can be
extremely sensitive and damaging depending on the context in which it is shared, is
in one sense less drastic than the cases discussed above because Sipple’s orientation
was, purportedly, known to “hundreds.”
These examples underscore that for many living at the margins of society who (as
will be demonstrated) are subjected to high levels of government and private
surveillance and transparent living quarters, keeping any information – much
less sensitive information – completely secret as privacy law is often interpreted
to require is a practical impossibility. This narrow, warped doctrine disproportio-
nately burdens marginalized communities who may share information as a form of
bonding, identity exploration, or resistance, and who are, in certain contexts, less
able to keep information secret ex ante, and thus entitled to legal protection. That is,
these legal rules serve as the background conditions facilitating the diminished lived
privacy of marginalized groups, which in turn leads to further diminished legal
protections.

36
No. 1:04CV0669, 2006 WL 1489379, at *4 (N.D. Ohio May 22, 2006).
37
Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040 (1984); Ari Ezra Waldman, Privacy as
Trust: Information Privacy for an Information Age 99, 111 (2018) (critiquing the complete
secrecy requirement as applied in the LGBTQ outing context)
16 No Privacy in Public = No Privacy for the Precarious

Extensive research now documents the degree to which marginalized commu-

nities experience less lived privacy, are subject to greater degrees of surveillance, and
feel the burdens of any surveillance more acutely. These patterns emerge across a
variety of intersectional, demographic factors (or what bell hooks referred to as
“interlocking systems of domination”) including poverty, employment sector, race,
religion, gender, sexuality, gender identity, and immigration status.38 As Mary Anne
Franks has observed, “[t]he surveillance of marginalized populations has a long and
troubling history. Race, class, and gender have all helped determine who is watched
in society, and the right to privacy has been unequally distributed according to the
same factors.”39
And “surveillance” of marginalized communities takes many, diffuse, and often
subtle forms. As surveillance studies scholars have emphasized, surveillance systems
include much more than just law enforcement searches for the purpose of criminal
investigations, but include administrative, bureaucratic, corporate, social, and law
enforcement networks “that afford control of people through identification,
tracking, monitoring, or analysis of individuals, data or systems.”40 Surveillance
systems also include outsourced, citizen-on-citizen surveillance that further erode
lived privacy and provide fertile surveillance data for law enforcement and corporate
regimes. Many of these tools/systems of surveillance have deep roots in constituting
and maintaining the colonial state. I turn, now, to an examination of some of the
ways – just some – that the privacy of marginalized groups is sacrificed by back-
ground legal rules, including the requirement for complete secrecy. This discussion
is intended to be illustrative rather encyclopedic. Unfortunately, comprehensively
cataloguing all the myriad ways in which marginalized communities are surveilled
would be an impossible task. Instead, my aim here is to accentuate the many diverse
ways in which the privacy of marginalized communities is invaded, in part as a result
of the background secrecy paradigm framework. To be clear, not all of the examples
discussed are necessarily a direct product of the secrecy paradigm, but those that
aren’t illustrate the scope of surveillance of marginalized groups (in other words, the
lack of lived privacy for such groups), and how any given exposure or privacy
invasion will sanction further privacy invasions pursuant to the secrecy paradigm.
The following discussion is broken down by different demographic characteristics in
order to highlight that surveillance of the marginalized is widespread, but the
deployment of these categories should not detract from the fact that many people
live at the intersections of these classifications.

38
bell hooks, Talking Back: Thinking Feminist, Thinking Black 25 (Routledge 2015)
(1989).
39
Mary A. Franks, Democratic Surveillance, 30 Harv. J.L. & Tech. 425, 441 (2017); see also Alvaro
M. Bedoya, Privacy as Civil Right, 50 N.M. L. Rev. 301 (2020)
40
Torin Monahan, Surveillance in the Time of Insecurity 8 (2010); see also David Lyon,
Surveillance Society 2 (2001).
 People Who Are Economically Disadvantaged 17

people who are economically disadvantaged

A system without protections for public privacy affords more protection to the
affluent, who can afford to build higher walls – both literally and technologically –
to keep surveillance regimes at bay.41 Put differently by Neal Katyal, “[p]rivacy in
America today is a luxury good that the poor often lack the resources to secure.”42
The affronts to the privacy of poor communities are manifold, as documented by the
important work of Michele Gilman and others.43
Without some modicum of privacy in public, the millions of people who are
housing insecure or homeless are particularly vulnerable.44 The lack of privacy
while in public furthers the material deprivation of homeless people’s lives.
Because privacy law is extremely home-centric,45 it privileges those who are able
to secure property for a home, particularly those who can own their own home (as
opposed to rent and/or obtain government-subsidized housing). Indeed, under the
most conservative and limited understandings of privacy rights, privacy violations
occur when there is trespass, which is predicated on ownership or control over
private property.46 Without a home, an individual lives their life in public – on the
streets or in shelters – in effect having to forfeit not just their health and safety, but
privacy over their entire lives – including the most intimate aspects of their lives
such as personal hygiene and sexual activity.47 If an act is banned in public space, for
the homeless it amounts to a total and complete ban because they have no private
space in which to perform the action.48 So privacy for the homeless is a critical first-
order right that ensures that a whole host of embodied acts – including the most
basic and intimate – are able to be performed at all. In addition to lack of privacy
over sanitary and sexual practices, public health scholars and housing advocates

41
William Stuntz, Distribution of Fourth Amendment Privacy, 67 Geo. Wash. L. Rev. 1265, 1266
(1999).
42
Neal Kumar Katyal, Architecture as Crime Control, 111 Yale L.J. 1039, 1129 (2002).
43
Michele Gilman, The Class Differential in Privacy Law, 77 Brook. L. Rev. 1389, 1403 (2012).
44
Kami Chavis Simmons, Future of the Fourth Amendment: The Problem with Privacy, Poverty,
and Policing, 14 U. Md. L.J. Race Relig. Gender & Class 240, 249 (2015); David Reichbach,
The Home Not the Homeless: What the Fourth Amendment Has Historically Protected and
Where the Law Is Going after Jones, 47 U.S.F.L.Rev. 377 (2012).
45
Stephanie M. Stern, The Inviolate Home: Housing Exceptionalism in the Fourth Amendment,
95 Cornell L. Rev. 905, 913–18 (2010).
46
Cf. United States v. Jones, 565 U.S. 400 (2012) (placement of GPS tracking device on vehicle
was a search because it was a trespass on private property).
47
Christopher Slobogin, The Poverty Exception to The Fourth Amendment, 55 Fla. L. Rev. 391,
401 (2003) (explaining that pursuant to Fourth Amendment doctrine, “people who live in
public spaces (for instance, the homeless who reside in boxes) and people who have difficulty
hiding or distancing their living space from casual observers (for instance, those who live in
tenements and other crowded areas) are much more likely to experience unregulated govern-
ment intrusions”)).
48
Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. Rev. 295, 318 (1991).
18 No Privacy in Public = No Privacy for the Precarious

have observed that “housing is healthcare” and, among other limitations, the lack of
secure shelter diminishes the ability of people to safely and securely store medica-
tions, including, for example, those needed to combat HIV which may need to be
refrigerated.49
Several kinds of laws regulating people who are housing insecure all but ensure
that they experience no lived privacy, therefore, no legal privacy rights pursuant to
the secrecy paradigm and, therefore, no ability to exist and perform the most
mundane, but critical, of human tasks.50
Anti-camping and sit–lie laws are a heartbreaking illustration.51 Many homeless
people live in tents or makeshift shelters on public land that is otherwise unoccupied
(under highways, on piers, next to railways, for example), or simply sleep on public
sidewalks or in parks because they have nowhere else to go. When individual tents or
shelters are grouped together, they are sometimes referred to as “tent cities.” Several
municipal governments have outlawed such survival practices to varying degrees.52
These include purportedly “progressive” cities, such as Boulder, Colorado, and San
Francisco.53 The government’s ability not just to search but to forcibly remove,
detain, and destroy the possessions of homeless people who attempt to subsist while
on public land is made possible, in part, by background rules providing that there is
no privacy in public. If a person enjoyed a legal right to privacy in public, then you
could imagine their shelter being constitutionally protected from destruction by the
government. Instead of protecting privacy, the law in many jurisdictions permits and
encourages the government to criminalize efforts to maintain privacy and sanctuary
while in public space – which is what anti-camping laws do.
In addition to anti-camping ordinances, homeless encampments are not infre-
quently swept and wholesale destroyed by city governments in the name of public
health – tactics that have been endorsed by the Trump administration. Rather than
provide services to the homeless, the government attacks individual efforts to survive.
Because of the lack of privacy rights in public, efforts to maintain privacy are

49
Armen Merjian, HIV/AIDS and Housing, in Aids and the Law (Skinner-Thompson ed., 6th
ed. 2020).
50
Waldron, supra note 48, at 320 (“If someone needs to urinate, what [they] need above all as a
dignified person is the freedom to do so in privacy and relative independence of the arbitrary
will of anyone else”) (gendered language revised; emphasis in original).
51
Donald Saelinger, Note, Nowhere to Go: The Impacts of City Ordinances Criminalizing
Homelessness, 13 Geo. J. on Poverty L. & Pol’y 545, 556 (2006) (describing multiple laws,
including anti-panhandling laws, designed to push homeless people from the public square).
52
Homeless Advocacy Policy Project, Too High a Price: What Criminalizing
Homelessness Costs Colorado (2016), https://www.law.du.edu/documents/homeless-advo
cacy-policy-project/2–16–16-Final-Report.pdf.
53
Libby Adler, Gay Priori: A Queer Critical Legal Studies Approach to Law Reform 1–2
(2018) (critiquing lack of resistance by mainstream LGBT organizations to San Francisco’s sit–
lie prohibition despite its impact on queer homeless youth).
 People Who Are Economically Disadvantaged 19

themselves criminalized and targeted.54 In effect, the existence of homeless people is

criminalized through a series of laws regulating public space that Jeremy Waldron
has described as “one of the most callous and tyrannical exercises of power in
modern times by a (comparatively) rich and complacent majority against a minority
of their less fortunate fellow human beings.”55
While some courts have recognized some limited privacy interests of homeless
people even while in public space,56 others have reached the opposite conclusion57
and anti-camping and sit–lie ordinances remain prevalent and frequently
enforced.58 And, of course, homeless people are barred from building shelter on
privately owned land because of trespass law that protects the privacy and property
rights of the privileged – those able to own (or rent) property.59
Homeless people are policed and surveilled in public not just by the government,
but also by social gaze and feelings of shame and disenfranchisement. The lack of
private space can also make it difficult to form friendships and intimate relation-
ships. As sociologists Matthew Taylor and Eileen Walsh put it, “[t]he homeless
person, in this way, has a unique relation to privacy. Public spaces, by default, are
the only places they can exist in, and yet the people in these public places want little
to do with them. They are interminably in a confusing environment that neither
welcomes nor integrates them.”60
Should people who are housing insecure desire and be able to find a bed in a
housing shelter, their privacy rights are still greatly diminished. According to Taylor

54
National Law Center on Homelessness & Poverty, Violations of the Right to
Privacy for Persons Experiencing Homelessness in the United States, A Report to
the Special Rapporteur on the Right to Privacy (May 31, 2017), https://nlchp.org/wp-
content/uploads/2018/10/Special-Rapporteur-Right-to-Privacy.pdf.
55
Waldron, supra note 48, at 301–02.
56
E.g., State v. Mooney, 218 Conn. 85 (1991) (person had reasonable expectation of privacy over
closed duffel bag under bridge abutment where he had been living); State v. Pippin, 403 P.3d
907 (Wash. Ct. App. 2017) (person had state constitutional privacy interest in their tent
notwithstanding that it was on public land in part because of intimate nature of information
available); cf. Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018) (holding that where city
criminalizes sleeping or lying in all public places without providing alternative shelter, the city
violates the Eighth Amendment prohibition on cruel and unusual punishment).
57
E.g., People v. Thomas, 45 Cal. Rptr. 2d 610 (Cal. Ct. App. 1995) (no right to privacy in
cardboard box being used as shelter where shelter was on public property in violation of
sidewalk obstruction ordinance); People v. Ordorica, 2017 WL 4510738 (Cal. Ct. App.
Oct. 10, 2017) (no right to privacy in mostly enclosed shelter constructed on state-owned land
and no Fourth Amendment violation where police entered shelter with mental health outreach
workers for purpose of providing aid, but nevertheless discovered weapon in the shelter).
58
National Law Center on Homelessness & Poverty and National Coalition for the
Homeless, Homes Not Handcuffs: The Criminalization of Homelessness in U.S.
Cities (2009), http://timefolds.com/nch/wp-content/uploads/2013/11/CrimzReport_2009.pdf.
59
Waldron, supra note 48, at 299 (“As far as being on private property is concerned . . . the
homeless person is utterly and at all times at the mercy of others”).
60
Matthew R. Taylor & Eileen T. Walsh, When Corporal Acts Are Labeled Criminal: Lack of
Privacy among the Homeless, 8 Soc. Mind 130–42 (2018).
20 No Privacy in Public = No Privacy for the Precarious

and Walsh’s ethnographic study, some homeless people prefer to remain on the
street because homeless shelters are “privacy-starved environments.”61 The lack of
personal space in shelters amplifies the ability of anyone else (staff or fellow shelter-
seeker) to make another person physically or emotionally uncomfortable. The same
study also documented that many people who had visited shelters felt they were
asked too many prying questions. Nor do homeless shelters necessarily offer a place
to store and access personal items on a long-term basis, or offer solitude where one
can gather and develop one’s thoughts. Of course, there is nothing that dictates that
homeless shelters be built without privacy (or that our society refuse to provide
adequate shelter for all). As with many purported privacy problems, it’s a design
choice.62 And certain shelters have provided more privacy by creating individual
“sleeping pods” for homeless people.63
Moreover, while the Department of Housing and Urban Development (HUD)
under the Obama administration issued rules requiring shelters receiving federal
funds to house transgender individuals based on their gender identity, giving
transgender people the ability to access sex-segregated spaces consistent with their
identity, in 2020 the Trump administration proposed a rule that would allow shelter
providers to define and determine an individual’s sex, giving them the power to
invade the privacy of and exclude transgender people.64
Beyond issues of accommodation (either on the streets or in shelters), people who
are housing insecure may be subject to privacy violations even when the govern-
ment is attempting to provide services (as opposed to criminalize) the homeless. As
Virginia Eubanks has emphasized, public assistance programs have long intruded
into people’s lives, using means-testing and income limits as rationalizations for “all
manner of surveillance and policing of applicants and beneficiaries.”65 But technol-
ogy is being deployed to amplify and automate the scope of this surveillance,
including with respect to the homeless. For example, as documented by Eubanks,
Los Angeles launched a “coordinated entry system” (CES) designed to match the
most vulnerable people living without housing with public resources. In order to
identify and triage the most vulnerable (and the purportedly most “deserving” of
housing assistance), social workers, outreach workers, and shelters collect a host of

61
Id.
62
Ari Ezra Waldman, Designing without Privacy, 55 Hous. L. Rev. 659 (2018); Anna Lauren
Hoffmann, Data Violence and How Bad Engineering Choices Can Damage Society, Medium
(Apr. 30, 2018), https://medium.com/s/story/data-violence-and-how-bad-engineering-choices-
can-damage-society-39e44150e1d4.
63
Sarah Marsh, Wooden Sleeping Pods Offer Privacy to London’s Homeless, The Guardian
(Dec. 19, 2018), https://www.theguardian.com/society/2018/dec/19/wooden-sleeping-pods-priv
acy-shelter-london-homeless-deptford.
64
Compare 24 C.F.R. § 5.106 (2019) (granting equal access in accordance with gender identity)
with 85 Fed. Reg. 44811 (July 24, 2020) (permitting shelters to assign people based on
“biological sex”).
65
Eubanks, supra note 6, at 28.
 People Who Are Economically Disadvantaged 21

intimate information in order to input it into the “Vulnerability Index-Service

Prioritization Assistance Tool” (VI-SPDAT).66 Survey questions include inquiries
into whether an individual had a history of sexual assault, mental health crises, sex
work, or suicide, in addition to personal identifying information. The collected
information is then made available to over 100 different organizations, including
local governments. And while Eubanks documents examples of people being
successfully matched to services under the largely automated program, she also
uncovered examples where people divulged intimate data enabling them to be
monitored and tracked by the government without ever receiving services.67
Indeed, the scope of the privacy invasions involved in Los Angeles’s CES and VI-
SPDAT system was flagged by the United Nations Special Rapporteur on Extreme
Poverty and Human Rights Philp Alston as extremely troubling.68
Consequently, through a network of laws that criminalize their presence in
public space, sacrifice privacy in homeless shelters, and monitor and surveil home-
less people when they seek social services, homeless people are literally pushed from
the public square and made invisible. As Loic Wacquant has put it, the poor are
either disciplined or disappeared (and, consequently, so are the underlying failures
of our social structures to care for members of our communities).69 Such laws have a
disproportionate effect on black, Latinx, and Native communities, as well as
LGBTQ youth, who are overrepresented in the homeless population.70
People living on the streets or in shelters are not the only economically disadvan-
taged people subject to extensive surveillance and deprived of privacy. Those living
in public housing – for example, federal housing projects or Section 8 subsidized
housing – are subject to meaningful privacy loss in purported exchange for the
housing assistance. For example, the “one strike, you’re out” policy permitting the
eviction of federally subsidized housing tenants when any guest or visitor engages in
illegal activity on the premises encourages third-party policing within communities
in need.71 And such policies have been extended to private housing not subject to
federal subsidized housing requirements through local laws requiring housing leases

66
Id. at 93–94.
67
Id. at 114.
68
Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur
on Extreme Poverty and Human Rights (Dec. 15, 2017), https://www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=22533&LangID=E.
69
Loic Wacquant, Punishing the Poor xxii, 108, 288 (trans., Duke 2009) (2004).
70
National Alliance to End Homelessness, Demographic Data Project: Race,
Ethnicity, and Homelessness, https://endhomelessness.org/demographic-data-project-race;
Laura E. Durso & Gary J. Gates, Serving Our Youth: Findings from a National
Survey of Service Providers Working with Lesbian, Gay, Bisexual and Transgender
Youth Who Are Homeless or at Risk of Becoming Homeless (2012), https://
williamsinstitute.law.ucla.edu/wp-content/uploads/Durso-Gates-LGBT-Homeless-Youth-Surv
ey-July-2012.pdf.
71
Regina Austin, Step on a Crack, Break Your Mother’s Back: Poor Moms, Myths of Authority,
and Drug-Related Evictions from Public Housing, 14 Yale J.L. & Feminism 273, 288 (2002).
22 No Privacy in Public = No Privacy for the Precarious

to include a “crime-free lease addendum.”72 This is an example of the outsourcing

of surveillance by governments – and how decreased lived privacy and lack of
privacy vis-à-vis other individuals is utilized by lawmakers to advance draconian
surveillance and regulatory policies. It takes policies such as the New York
Metropolitan Transit Authority’s “If You See Something, Say Something” campaign
for citizen surveillance of subways (which disproportionally impacts people who
must take mass transit as opposed to driving) and applies it to people’s own living
quarters, making them suspects in their own homes.
There are also examples of rent-stabilized housing landlords seeking to install
facial recognition entry systems in order to control who can access their homes.73
Such systems would give landlords unprecedented real-time surveillance of tenants
and access to the tenants’ biometric data. And, as has been well documented, facial
recognition systems are inaccurate, particularly when trying to identify people of
color.74 (In summer 2019, federal legislation was introduced to ban federally subsid-
ized housing from using facial recognition technology, but as of spring 2020 had not
been enacted.)75
In addition to laws designed to surveil people of limited means while they
navigate “public” spaces (and, as noted, sometimes while in their homes), wide-
spread and sophisticated administrative welfare surveillance further permits the state
to have a deep and broad view of the lives of those seeking state assistance –
including their informational privacy. In other words, the administrative welfare
surveillance documented by Eubanks is not limited to the homeless, but extends to
many seeking some measure of state assistance (however modest). For example, as
documented by John Gilliom, so-called welfare bureaucracies collect, store, and
collate massive amounts of information about people seeking public benefits,
including information regarding their health, intimate relationships, and living
situations, often treating people as objects to be known rather than individuals with

72
Sarah Swan, Home Rules, 64 Duke L.J. 823, 825 (2015).
73
Brooklyn Tenants File Legal Opposition to Landlord’s Application to Install Facial Recognition
Entry System in Building, Legal Services New York (May 1, 2019), https://www
.legalservicesnyc.org/news-and-events/press-room/1466-brooklyn-tenants-file-legal-opposition-to-
landlords-application-to-install-facial-recognition-entry-system-in-building.
74
E.g., Patrick Grother et al., Face Recognition Vendor Test (FRVT) Part 3: Demographic Effects
(NISTIR 8280), Nat’l Inst. of Standards & Tech (Dec. 2019), https://doi.org/10.6028/NIST.IR
.8280 (highlighting widespread demographic disparities among nearly 200 facial recognition
algorithms); Robin Sloan, Mr. Penumbra’s 24-Hour Bookstore 166 (2012) (noting racism of
facial recognition software); cf. Safiya Umoja Noble, Algorithms of Oppression 66–96
(2018) (documenting racist, sexist, stereotyped, and commodified Google search results for
women of color).
75
And some have made powerful calls for the complete ban of facial recognition software. Evan
Selinger & Woodrow Hartzog, The Inconsentability of Facial Surveillance, 66 Loy. L. Rev.
101 (2019).
 People Who Are Economically Disadvantaged 23

agency.76 Similarly, Khiara Bridges has underscored the “devastating absence of

privacy” for “marginalized, indigent women who must turn to the state for assistance
if they are to achieve healthy pregnancies and infants.”77 Bridges highlights how
women that seek care under Medicaid’s Prenatal Care Assistance Program (PCAP),
are required by law to undergo several intrusive consultations that can include
wholesale questioning of women’s lives, including their romantic relationships,
relationships with parents, domestic violence, use of controlled substances, etc. As
explained by Bridges, “wealth is the condition of possibility for privacy.”78
The threats posed by widespread surveillance of economically marginalized
communities are amplified in a big data society.79 As highlighted by researchers
affiliated with Data & Society, low-income individuals are uniquely hampered by
privacy threats posed by big data.80 Impoverished individuals are burdened in
multiple ways. First, as suggested above, they are subject to greater amounts of
surveillance and data collection by government agencies, law enforcement agencies,
and through social media. But beyond that, patterns of device use, decreased privacy
literacy, and lack of financial access to devices with built-in privacy-enhancing
technology further endanger poor communities.81 For example, iPhones, which
offer more privacy protections compared to other smartphone platforms (such as
phones using Google’s Android operating system), are also significantly more expen-
sive than other market options.82 Moreover, poor communities are less able to bear
the cost associated with any privacy violation, whether it be the disclosure of
stigmatizing information preventing them from obtaining a job or having the
resources to combat identity theft.83 Put succinctly by Bridges, “[p]ower differentials
will leave us differently exposed” and even assuming that there is equal observation
(which there is not), any “equal observation will not result in equal exposure.”84
In short, the lack of protections afforded to public space have direct, material
impacts on the lives of people who are economically disadvantaged, permitting the
state and corporations greater insight into their lives and, in turn, greater regulatory
and punitive impact.

76
John Gilliom, Overseers of the Poor: Surveillance, Resistance, and the Limits of
Privacy 30–39 (2001); see also Wacquant, supra note 69, at 58 (explaining that social services
have been retooled as an instrument of surveillance in the criminalization of state-sponsored
poverty).
77
Khiara Bridges, Privacy Rights and Public Families, 34 Harv. J.L. & Gender 113, 122–23 (2011).
78
Id. at 176; Bridges, supra note 13, at 5, 12.
79
Solon Barocas & Andrew Selbst, Big Data’s Disparate Impact, 104 Cal. L. Rev. 671 (2016).
80
Mary Madden et al., Privacy, Poverty and Big Data: A Matric of Vulnerabilities for Poor
Americans, 95 Wash. U. L. Rev. 53 (2017).
81
Id. at 70–76.
82
Leif Johnson, Apple’s price inflation turns privacy from a right to a privilege, Macworld
(Nov. 8, 2018), https://www.macworld.com/article/3318269/apples-price-inflation-turns-privacy-
from-a-right-to-a-privilege.html.
83
Madden et al., supra note 80, at 55.
84
Bridges, supra note 13, at 143.
24 No Privacy in Public = No Privacy for the Precarious

racial minorities
Racial minorities are also subjected to less lived privacy and therefore diminished
privacy rights under the secrecy paradigm, paving the way for yet further surveillance
of minority communities.
Indeed, heightened surveillance of racial minorities, particularly black people,
has in many ways been a defining condition of both America itself and the lives of
black people. As explained by Khiara Bridges, “it is an empirically demonstrated
truth that the state focuses its gaze most specifically on the bodies of people of
color.”85 Put powerfully by sociologist Simone Browne in her important work on
racialized surveillance, “Surveillance is nothing new to black folks. It is the fact of
antiblackness.”86 Surveillance of black people not only has served as a tool of
monitoring and social control, but also serves to produce “blackness” as a category
further enabling monitoring and categorization based on such “blackness.” This
process has been referred to by Browne as “racializing surveillance” – whereby
“enactments of surveillance reify boundaries along racial lines, thereby reifying race
. . . where the outcome of this is often discriminatory and violent treatment.”87 As
explained by Browne, racialized surveillance helps structure social relations along
racial lines, thereby privileging whiteness.88
Some of the historical examples of racialized surveillance documented by
Browne include government, corporate, or individualized branding of black people
as chattel slaves, the use of ships logs to categorize black people as commodities
along with other cargo, the use of “overseers” to inspect and torment black slaves,
the use of slave passes to identify and categorize people, fugitive slave advertise-
ments, the census, and lantern laws which required black people out at night to
carry a lantern so as to literally shine a light on them and expose them to view. Each
of these surveillance practices helped produce blackness as a category enabling
further surveillance and subjugation based on that category. They are examples of
what Browne, drawing from Frantz Fanon and others, calls “epidermalization” – the
imposition (sometimes literally, in the case of branding) of race on the body that
produced a person of African descent as “black,” as “slave,” as “commodity,” and as
“inferior.”89
But, of course, strategies of racialized surveillance are not a historical artifact.
They continued apace with Jim Crow and FBI surveillance of black activists and
intellectuals, and they continue today. Ta-Nehisi Coates’s contemporary description
of the degree to which black bodies are targeted for surveillance and control is the
most direct, and among the most stirring: “white America is a syndicate arrayed to

85
Id. at 97.
86
Simone Browne, Dark Matters: On the Surveillance of Blackness 10 (2015).
87
Id. at 8.
88
Id. at 17.
89
Id. at 26.
 Racial Minorities 25

protect its exclusive power to dominate and control [black] bodies.”90 Coates’s
disturbing account of the violence visited upon black bodies echoes that of James
Baldwin and many others.91 Surveillance – the erosion of public privacy – plays a
prominent part in this syndicate.
The use of police floodlights to illuminate areas where people of color live and
congregate, whether it be outside New York City Housing Authority developments
or outside transit stations where people of color (many of them queer) enter lower
Manhattan from New Jersey are, in effect, a modern instantiation of lantern laws –
illuminating racial minorities while they try to move in public space at night.
A related high-profile contemporary example of the role of surveillance in the
toolbox of control over racial minorities is New York City’s “stop-and-frisk” program,
wherein black and Latinx people were targeted on public streets for police question-
ing, detention, and often body frisks.92 Over 80 percent of the 4.4 million stop-and-
frisk detentions made by the New York Police Department (NYPD) between
2004 and 2012 were of black or Hispanic individuals. The policy was an example
of racial profiling, wherein people were explicitly targeted for stops based on their
race, and discriminatory impact of a facially neutral policy that permitted frisks
based, in part, on presence in a high crime area. The evidence of discrimination
included the fact that the NYPD both carried out more stops in neighborhoods
where there were more black and Latinx people than white people and, within any
given neighborhood, officers were more likely to stop black and Latinx individuals
than white folk. The practice was ruled unconstitutional in violation of the
Fourteenth Amendment, ultimately leading New York to reform its written policies,
but it’s emblematic of the degree to which dark bodies are targeted for additional
scrutiny – and time will tell whether reform is instituted on the streets.
The stop-and-frisk program is part of broader approach to law enforcement that
has disproportionately targeted black and Latinx communities for police patrols of
public space – even when the law enforcement practice appears, at first glance, race
neutral.93 For instance, so-called broken windows policing posits that minor
instances of property crime – such as vandalism – can create an atmosphere of

90
Ta-Nehisi Coates, Between the World and Me 42 (2015).
91
E.g., James Baldwin, The Fire Next Time 33–34 (1963) (recounting how “[w]hen I was ten,
and didn’t look, certainly, any older, two policemen amused themselves with me by frisking
me, making comic (and terrifying) speculations concerning my ancestry and probable sexual
prowess, and for good measure, leaving me flat on my back in one of Harlem’s empty lots”);
bell hooks, We Real Cool: Black Men and Masculinity 68 (2004) (lamenting the “ritual
[ized] sexualized torture of the black body” throughout American history); Billie Holiday,
Strange Fruit (Commodore 1939) (“Here is fruit for the crows to pluck, For the rain to
gather, for the wind to suck, For the sun to rot, for the trees to drop, Here is a strange and bitter
crop”).
92
Floyd v. City of N.Y., 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
93
Roy Coleman, Reclaiming the Streets: Closed Circuit Television, Neoliberalism and the
Mystification of Social Divisions in Liverpool, UK, 2 Surveillance & Soc’y 293, 305 (2004)
(explaining that “the black body has been and continues to be hugely symbolic and
26 No Privacy in Public = No Privacy for the Precarious

lawlessness, sowing the conditions for more serious activity, such as violence. As the
theory goes, one of the best ways to reduce or prevent violent crime (or crime that
has a victim), is to have police focus on order maintenance in addition to criminal
investigation. Order can be maintained through the use of police patrols in areas
with “disreputable or obstreperous or unpredictable people: panhandlers, drunks,
addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed.”94 Again, or so
the theory goes.95
Relatedly, the use of actuarial tools to predict where crime will occur and the
related designation of so-called high crime areas to justify continued over-policing in
those areas, creates a feedback loop (or a ratchet effect) reinforcing justifications for
heightened patrolling and surveillance of racial minority communities.96 In other
words, the more you put police in public areas (where privacy rights are slim to
none), the more crime you’ll find because of that surveillance, justifying further
surveillance.
As applied, the deployment of broken windows policing and actuarial practices
has led to greater police presence and surveillance in communities of color (often
communities that are also socioeconomically disadvantaged).97 To be clear, the
greater police presence is itself a public privacy harm, subjecting those in public
space – walking down the street – to observation, surveillance, frisking, and social
control by the police.98 This is all the more true with the rapid proliferation of
police-worn body cameras by law enforcement departments across the United
States, and policies requiring police to activate their cameras more regularly,
creating a vast repository of “evidence” that can be used against minority
communities.99

representative of disorder for state and corporate servants,” and is therefore targeted for policing
because the state views it as disruptive to the established order).
94
George L. Kelling & James Q. Whitman, Broken Windows: The Police and Neighborhood
Safety, Atlantic Monthly (Mar. 1982), https://www.theatlantic.com/magazine/archive/1982/
03/broken-windows/304465/?single_page=true.
95
The “theory” of broken windows policing has been powerfully critiqued by, among others,
Jeremy Waldron, who has suggested that “aggressive policing strategies mean that we can have
all the glamour of a prosperous-looking society without doing very much – doing perhaps much
less than we have done in the past – to help the poor [and] the unfortunate.” Jeremy Waldron,
Homelessness and Community, 50 U. Tor. L.J. 371, 388 (2000).
96
Bernard Harcourt, Against Prediction: Profiling, Policing, and Punishing in an
Actuarial Age 148 (2007); Bridges, supra note 13, at 91.
97
The Sentencing Project, Report of The Sentencing Project to the United Nations
Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination,
Xenophobia, and Related Intolerance Regarding Racial Disparities in the United
States Criminal Justice System (Mar. 2018).
98
Wacquant, supra note 69, at 4, 125, 265.
99
Mary Fan, Camera Power: Proof, Policing, Privacy, and Audiovisual Big Data
3–5 (2019).
 Racial Minorities 27

But that police presence qua surveillance, in turn, leads to additional privacy
harms, including, as discussed above, stops, frisks, searches, and, potentially, arrest
and incarceration, with the attendant loss of privacy they entail. As the Movement for
Black Lives continues to effectively highlight, the harms visited upon communities of
color by police surveillance of their communities are not limited to privacy harms –
too often the patrols and surveillance lead to police brutality and death. In other
words, it is the greater police presence in communities of color that contributes to and
makes inevitable higher rates of arrest, conviction, and violence toward people of
color. As explained by The Sentencing Project, the “rise of mass incarceration begins
with disproportionate levels of police contact with African Americans.”100
As the NYPD stop-and-frisk policy highlights at scale, the disproportionate sur-
veillance created by policies such as broken windows and actuarial policing – again,
purportedly race-neutral forms of policing – is amplified by race-conscious and
explicitly biased surveillance methods, such as racial profiling wherein people are
targeted for surveillance and detention because of their race.101 For example, there
are recent examples where police departments have allegedly targeted Black Lives
Matter (BLM) members for photographic surveillance while engaged in First
Amendment protected protest activity102 and for surveillance via social media,103
with no basis for suspicion. The FBI has also targeted BLM members for surveil-
lance.104 And several recent studies document the ubiquity of racial profiling of
motorists, leading to a disproportionate number of black people being pulled over
and subsequently searched by police. A 2019 analysis conducted by the Stanford
Computational Policy Lab of over 100 million municipal and state traffic stops
conducted in jurisdictions across the country revealed “evidence of widespread
discrimination in decisions to stop and search drivers.”105 According to the study,
there was “evidence that the bar for searching black and Hispanic drivers is lower
than for searching whites.” So prevalent is the practice of racial profiling that in
popular parlance it has been dubbed the criminalization of “driving while black.”106

100
The Sentencing Project, supra note 97, at 3.
101
Cf. Anna Spain Bradley, Human Rights Racism, 32 Harv. Hum. Rts. J. (2019) (explaining that
racism deserves as much attention as discrimination in legal discourse and law reform).
102
Mark Morales & Laura Ly, Released NYPD emails show extensive surveillance of Black Lives
Matter protestors, CNN (Jan. 18, 2019), https://www.cnn.com/2019/01/18/us/nypd-black-lives-
matter-surveillance/index.html.
103
Black Lives Matter v. Town of Clarkstown, 354 F.Supp.3d 313 (S.D.N.Y. 2018) (documenting
allegations of surveillance of BLM members).
104
Defending Rights & Dissent, Still Spying on Dissent: The Enduring Problem of FBI
First Amendment Abuse (2019), https://rightsanddissent.org/fbi-spying.
105
Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops across the
United States, Stanford Computational Policy Lab (2019), https://5harad.com/papers/100M-
stops.pdf.
106
Sharon LaFraniere & Andrew W. Lehren, The Disproportionate Risks of Driving While Black,
N.Y. Times (Oct. 24, 2015), https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-
driving-black.html.
28 No Privacy in Public = No Privacy for the Precarious

Or, as put by one of author Tayari Jones’s characters in her moving novel highlight-
ing the devastating role of policing on black relationships, “[a]pparently, make plus
model plus race equaled drug dealer, even in Atlanta.”107

religious minorities
Like other minority communities, religious minorities – particularly Muslim com-
munities – have been subjected to greater surveillance and diminished lived priv-
acy.108 For example, law enforcement agencies such as the NYPD created specific
initiatives targeting Muslim communities for surveillance.109 These surveillance
initiatives included video monitoring of who enters and exits mosques and embed-
ding undercover officers in Muslim community organizations, among other tactics.
Like the racially applied stop-and-frisk program, the legality of the NYPD program
was successfully challenged in federal court as a violation of constitutional guaran-
tees of equal protection and free exercise, resulting in a settlement and commitment
to end suspiciousness surveillance on the basis of religion or ethnicity.110 But it was
initially enabled by the lack of privacy in public, permitting police to, in effect, stake
out Muslims.
There are also laws, particularly prevalent in Europe, that prevent Muslim
women from wearing head veils in public and forcibly expose part of these women’s
bodies to public surveillance. In 2018, Denmark became the sixth European country
to ban certain Muslim head and face coverings from being worn in public, and in
2019 the Canadian province of Quebec banned the wearing of face coverings by
some government employees. But likewise in the United States, there are instances
where government actors have targeted those wearing Muslim clothing for discrim-
inatory treatment. Muslim women and youth have been subject to discrimination
and harassment on the basis of their head veils at work,111 while playing high school
sports,112 and simply trying to exist and enjoy public space by, for example, going for

107
Tayari Jones, An American Marriage 218 (2018).
108
Bernard E. Harcourt, The Counterrevolution: How Our Government Went to War
against Its Own Citizens 145–51 (2018).
109
Hassan v. City of New York, 804 F.3d 277, 285 (2015) (outlining NYPD surveillance of Muslim
communities).
110
Stipulation of Settlement, Hassan v. City of New York, 2:12-cv-03401-WJM-MF (D.N.J.
Apr. 5, 2018).
111
Cf. E.E.O.C. v. Abercrombie & Fitch Stores, 135 S.Ct. 2028 (2015).
112
Jamiel Lynch, Hijab Rule Keeps Junior from Playing in Regional Title Basketball Game, CNN
(Mar. 26, 2017), https://www.cnn.com/2017/03/15/us/maryland-hijab-high-school-basketball-
rule/index.html; Alaa Abdeldaiam, “It’s So Demeaning as an Athlete”: Muslim Teen DQ’d for
Hijab Shows Need for Further Progress in Sports, Sports Illustrated (Oct. 26, 2019), https://
www.si.com/more-sports/2019/10/27/muslim-teen-runner-disqualified-for-hijab.
 Queer Communities 29

a swim at a city pool.113 And certain law enforcement practices within the United
States at the federal and local levels have focused surveillance on those that do
wear a veil.114 Such policies impose obstacles on Muslim women’s ability to be
seen and heard in the public square. Veil restrictions “condition the entrance to
the public sphere” on compulsory rejection of one’s religion, and, I would add, a
surrender of one’s privacy.115 Rather than representing a purported feminist liber-
ation of Muslim women, veil restrictions operate as a form of surveillance of
Muslim women, forcing them to expose themselves to society in a conforming
way or forcing women out of public spaces and into the home,116 ignoring the
veil’s potential as a liberating, empowering symbol.117 Indeed, veil restrictions take
their place within a long – and brutal – history of Western attempts to surveil,
reveal, know, control and thereby produce the “dangerous” and “oriental” femi-
nine other.118

queer communities
As with racial and religious minorities, surveillance and policing of lesbian, gay,
bisexual, transgender, queer, and gender nonconforming people has been exten-
sively documented and affectingly described.119 The harms of surveillance are
particularly acute for those who are both queer and racial minorities. Predating

113
Melissa Gomez, Muslims Describe Being Confronted at Pool: “We’re Portrayed as
Troublemakers,” N.Y. Times (July 26, 2018), https://www.nytimes.com/2018/07/26/us/muslim-
children-pool-wilmington.html; see also Evaristo, supra note 10, at 58 (describing hostility
toward Muslim women who wear a veil)
114
Muslim Am. Civil Liberties Coal et al., Mapping Muslims: NYPD Spying and Its
Impact on American Muslims 15–16 (2013) (detailing how surveillance of Muslim commu-
nities chills and burdens choices to wear head coverings); see also Sabrina Alimahomed-
Wilson, When the FBI Knocks: Racialized State Surveillance of Muslims, 45 Critical
Sociology 871, 873 (2019) (documenting the FBI’s reliance on the wearing of “traditional
Muslim attire” to identify those at risk of radicalization notwithstanding that such behavior
amounts to “nothing more than a set of generalized characteristics that could be applied to a
vast majority of Muslims”).
115
Judith Butler, Notes Towards a Performative Theory of Assembly 82 (2015).
116
Cf. Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law 100–02
(1987) (foregrounding how privacy of the home has often been a place of repression for women,
and therefore framing women’s rights in terms of “a right to privacy looks like an injury got up
as a gift”).
117
Fadwa El Guindi, Veil: Modesty, Privacy and Resistance xvii (1999) (detailing how
“[v]eiling also symbolizes an element of power and autonomy and functions as a vehicle for
resistance”).
118
Edward Said, Orientalism 300–01 (Vintage Books 1979) (1978).
119
Joey L. Mogul et al., Queer (in)justice: The Criminalization of LGBT People in the
United States 45–58 (2011); Wesley Ware, Rounding up the Homosexuals: The Impact of
Juvenile Court on Queer and Trans/Gender-Non-Conforming Youth, in Captive Genders:
Trans Embodiment and the Prison Industrial Complex 77, 78 (Eric A. Stanley & Nat
Smith eds., 2011).
30 No Privacy in Public = No Privacy for the Precarious

the advent of contemporary administrative means for policing transgender identities

(such as banning transgender access to bathrooms comporting with an individual’s
gender identity), the state and police have long surveilled, criminalized, and
harassed queer individuals.
For instance, the so-called Lavender Scare of the 1950s involved the highest levels
of the US government – including President Dwight Eisenhower and the US Senate
under the influence of Joseph McCarthy – outing and firing thousands of gay
federal government employees. More viscerally, in the 1960s, New York City police
would enter clubs, line up, and check all gender nonconforming people to ensure
that people “were wearing the legally mandated three pieces of ‘gender appropriate
clothing.’”120 And, of course, until the Supreme Court’s 2003 decision in Lawrence
v. Texas, states were permitted to criminalize same-sex intimacy – even in the privacy
of one’s own home.121 As Eric Stanley puts it, “[t]rans/gender-non-conforming and
queer people, along with many others, are born into webs of surveillance.”122 As with
profiling of people based on race, the pervasiveness with which transgender people –
particularly trans women of color – are targeted for police scrutiny has been
described aptly as the criminalization of “walking while trans.”123 Tragically, some-
times the policing of trans women of color and trans youth has occurred with the
acquiescence (and sometimes support) of more privileged members of the queer
community. For example, trans people of color have been subjected to heightened
police surveillance in Greenwich Village, New York City, and Boystown, Chicago
with the support of some affluent, white gay property owners who live in these
neighborhoods.124
But in addition to historic and continued over-policing of LGBTQ individuals,
the administrative state also subjects queer people to additional, more subtle forms
of surveillance – surveillance that is enabled in part by background rules providing
that there is no privacy for information already exposed to the public. Rules
regulating when and how a person can change their name and gender marker on
government identification documents are a prime example. The complex rules that
vary across different jurisdictions are difficult to navigate, often necessitating a lawyer
and sometimes a court order. As Dean Spade has underscored, the classifications are
not neutral and there is nothing preternatural about them; instead, they operate as a
form of productive surveillance, reinscribing normative, state-sponsored iterations of

120
Eric A. Stanley, Fugitive Flesh, in Captive Genders: Trans Embodiment and the Prison
Industrial Complex 1, 1 (Eric A. Stanley & Nat Smith eds., 2011).
121
539 U.S. 558 (2003).
122
Stanley, supra note 120, at 7.
123
Leonore F. Carpenter & R. Barrett Marshall, Walking While Trans: Profiling of Transgender
Women by Law Enforcement, and the Problem of Proof, 24 Wm. & Mary J. Women & L. 5
(2017).
124
Adler, supra note 53, at 125–26.
 Queer Communities 31

gender identity (much in the same way the racialized surveillance documented by
Simone Browne produces norms or associations around race).125
Categories themselves are a form of disciplinary power. As explained by Spade:
The invention of various categories of proper and improper subjects is a key feature
of disciplinary power that pervades society. The creation and maintenance of such
categories of people (e.g., the homosexual, the criminal, the welfare dependent
mother, the productive citizen, the terrorist) establish guidelines and norms . . .
These norms and codes of behavior reach into the most minute details of our
bodies, thoughts, and behaviors. The labels and categories generated through our
disciplined behavior keep us in our places and help us know how to be ourselves
properly.126

Put similarly by Lisa Jean Moore and Paisley Currah, “identity documents do not
so much confirm identity as produce and authorize it legally.”127 And this is just as
true for any purportedly “new” category or expanded definition created by those
resisting limited identity rubrics, for example those who challenge the scope of
current categories (e.g., who counts as “male” or “female”) and create “new”
categories/labels (e.g., “genderqueer”). As Michael Warner has explained, “almost
everything about sex, including the idea of sexuality itself, depends on historical
conditions, though perhaps at deep levels of consciousness that change slowly.”128
The category of “transgender” is case and point. As one forward-thinking court
recognized, “Transgender is ‘[a]n umbrella term that may be used to describe
people whose gender expression does not conform to cultural norms and/or whose
gender identity is different from their sex assigned at birth. Transgender is a self-
identity, and some gender nonconforming people do not identify with this term.’”129
So, while recent public attention has been brought to the existence and import-
ance of people who are transgender, in discussing “transgender” rights it is equally

125
Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 744–45 (2008); see also Toby
Beauchamp, Going Stealth: Transgender Politics and U.S. Surveillance Practices
2 (2019) (“surveillance is a central practice through which the category of transgender is
produced, regulated, and contested”); Lisa Nakamura, Blaming, Shaming, and the
Feminization of Social Media, in Feminist Surveillance Studies 221, 221 (Dubrofsky &
Magnet, eds., 2015) (explaining that “[t]here is no form of surveillance that is innocent” and
that surveillance “remakes the body as a social actor, classifying some bodies as normative and
legal, and some as illegal and out of bounds”) (emphasis in original).
126
Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the
Limits of Law 106–07 (2011); see also Maggie Nelson, The Argonauts 86 (2015) (“Visibility
makes possible, but it also disciplines: disciplines gender, disciplines genre”).
127
Lisa Jean Moore & Paisley Currah, Legally Sexed, in Feminist Surveillance Studies 58, 63
(Dubrofsky & Magnet, eds., 2015); see also Beauchamp, supra note 125, at 25.
128
Michael Warner, The Trouble with Normal 10 (1999).
129
Rumble v. Fairview Health Servs., No. 14-CV-2037 (SRN/FLN), 2015 U.S. Dist. LEXIS 31591,
at *3 (D. Minn. Mar. 16, 2015) (alteration in original; emphasis added) (quoting Trans Bodies,
Trans Selves: A Resource for the Transgender Community 620 (Laura Erickson-
Schroth, ed. 2014))).
32 No Privacy in Public = No Privacy for the Precarious

important not to ignore identities that do not fit neatly into “new” categories being
socially and legally enshrined, and appeals for privacy, invisibility, or “going stealth,”
in some ways privilege those who can and want to conform to binary expressions of
gender.130 As author Maggie Nelson underscored in her social theory memoir,
“‘[T]rans’ may work well enough as a shorthand, but the quickly developing main-
stream narrative it evokes (‘born into the wrong body,’ necessitating an orthopedic
pilgrimage between two fixed destinations) is useless for some . . . ? [F]or some,
‘transitioning’ may mean leaving one gender entirely behind, while for others . . . it
doesn’t?”131 Indeed, as Eve Kosofsky Sedgwick observed, “no matter what cultural
construction, women and men are more like each other than chalk is like cheese.”132
That said, while categories – even new categories or expansions of existing
categories – have their own disciplining, surveilling impact, any definitional expan-
sion does have real emancipatory effect. Absolutely, as underscored by Audre Lorde,
“[m]uch of western European history conditions us to see human differences in
simplistic opposition to each other: dominant/subordinate, good/bad, up/down,
superior/inferior.”133 And such oppositional constructions of “difference” should
be resisted. But while there is good reason to be skeptical of the oppositional
construction of certain identities (male versus female; gay versus straight; trans versus
cis), the emerging categories “have a real power to organize and describe their
experience of their own sexuality and identity . . . If only for this reason, the
categorization commands respect.”134 Judith Butler, who was at the vanguard of
theorizing how our sexual and gender identities are socially constructed, similarly
recognized the instrumental, short-term political value of identity categories not-
withstanding their long-term disciplinary risks.135
In short, when a person resists prevailing classifications or fails to conform to them
and helps produce new forms of identity, the social tableau is beautifully expanded
(even if imperfectly), but there can also be tremendous personal costs for each
individual – including privacy costs. A closer examination of the myriad laws
regulating government identification documents highlights how.
While progress is being made to liberalize name change laws in some commu-
nities across the United States, many jurisdictions impose significant barriers to
changing one’s name on government identification documents. For example,

130
Beauchamp, supra note 125, at 47 (importantly critiquing the idea that all trans people can and
should fit stereotypical notions of masculinity and femininity and, therefore, become invisible
to surveillance regimes).
131
Nelson, supra note 126, at 52–53.
132
Eve Kosofsky Sedgwick, Queer and Now, in Tendencies 1, 7 (Eve Kosofsky Sedgwick
ed., 1993).
133
Audre Lorde, Sister Outsider 114 (rev. ed. 2007).
134
Eve Kosofsky Sedgwick, Epistemology of the Closet, in The Lesbian and Gay Studies Reader
45, 55 (Aberlove et al. eds. 1993).
135
Judith Butler, Imitation and Gender Insubordination, in The Lesbian and Gay Studies Reader,
supra note 47, at 307, 308–09.
 Queer Communities 33

certain states forbid people convicted of felonies from changing their name for long
periods of time and people convicted of certain crimes (such as identity theft) may
be permanently barred from changing their names. Particularly given the over-
policing and profiling of trans people of color, these laws represent a significant
barrier for trans and gender nonconforming people seeking to live consistently with
their gender identity.136 As advocates have emphasized, such laws result in “forced
outing that takes place every time [they are] required to present a government-issued
identification or [are] called by [their] legal name in public.”137
But even where name changes are technically permitted, the process can be
cumbersome and involve forced outing of intimate information. In New York State,
for instance, a person must seek a court order changing their name (which absent an
order to seal remains a public record open to all) and must also publish the fact that
they changed their name in a local newspaper (though the publication requirement
can be waived).138 There are fees associated with both requesting the court order and
publishing the notice in a newspaper. Should a name change petition be granted,
the individual then still needs to provide the order to each different agency, such as
the social security administration, where they want their name changed. Thus,
while in theory many states permit name changes for transgender people, the
barriers to obtaining accurate identifications across the panoply of government
bureaucracies are substantial in terms of cost, privacy, and logistics.
Compared to name change requirements, there are often even higher hurdles for
changing gender markers on government identification documents. A handful of
jurisdictions, such as Tennessee and Ohio, do not permit the gender marker on
one’s birth certificate to be changed under any circumstances. And many jurisdic-
tions require that in order for an individual to change their gender marker on their
birth certificate or driver’s license, an individual must first present medical docu-
mentation indicating that they have undergone gender confirmation surgery (some-
times referred to as sex reassignment surgery).139 But from a medical perspective,
gender identity – someone’s inner sense of belonging to a particular gender (such as
man or woman), or not belonging to a particular category (nonbinary or gender
nonconforming) – is the most appropriate determinant of someone’s “sex” classifi-
cation, not so-called “biological sex.” Indeed, frequent legal and vernacular refer-
ences to so-called “biological sex” are often imprecise because “sex-related
characteristics include external genitalia, internal reproductive organs, gender

136
Lark Mulligan, The Case for Abolishing Illinois’ Criminal Name-Change Restrictions, 66
DePaul L. Rev. 647, 650 (2017).
137
Complaint for Declaratory and Injunctive Relief, Ortiz v. Foxx, No. 1:19-cv-02923 (N.D. Ill.
May 1, 2019).
138
N.Y. Civ. Rights Law §§ 60–65 (2019).
139
E.g., La. O.M.V. Gender Change/Reassignment Policy § I 22.01 (2019); Lisa Mottet,
Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers
on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender
People, 19 Mich. J. Gender & L. 373, 400–01 (2013).
34 No Privacy in Public = No Privacy for the Precarious

identity, chromosomes, secondary sex characteristics [such as body hair,] genes” and
hormones.140 For the many who choose not to undergo surgery either because it (1)
is not medically indicated, (2) is not necessary for the person to live consistently with
their gender identity, or (3) is economically prohibitive,141 such laws publicly out
sensitive, intimate information to the public, including potential employers, who
may note the potential dissonance between the person’s ID and gender presentation,
increasing the likelihood of discrimination. As explained by Dean Spade, “[p]eople
whose identity documents do not match their self-understanding or appearance also
face heightened vulnerability in interactions with police and other public
officials.”142
Even in jurisdictions that do permit changes to gender markers without rigorous
medical documentation, most bureaucracies confine the choices available to the
male–female binary.143 Consequently, for those that wonderfully complicate the
binary, their documentation does not accurately reflect their identity and they will
continue to confront discomfort and problematic outing when required to present
their identifications (or, as will be discussed below, when forced to use binary
bathrooms). And in many of these more forward-thinking jurisdictions, the non-
binary option is usually limited to a single, third-gender category (often denomin-
ated with “X”), rather than multiple additional categories, a blank spot permitting
individuals the expressive freedom to self-describe, or the absence of gender classifi-
cation altogether.144
Given these barriers to accurate identification documents, it’s no surprise that
according to a national survey of transgender and gender nonconforming people
published in 2012, only one-fifth of the people surveyed had been able to update all
of their identification documents and records with accurate gender markers, one-
third had updated none of their documents or records, and 41 percent lived without
an accurate driver’s license or state ID. Of those who had presented an ID that did
not match their gender identity, 40 percent reported being harassed based on the

140
Expert Declaration of Deanna Adkins, MD, Carcano v. McCrory, No. 1:16-cv-00236
(M.D.N.C. May 13, 2016); see also Moore & Currah, supra note 127, at 63 (explaining that
“[g]ender is shaped by the interplay between a number of distinct and often shifting historical
factors”).
141
Scott Skinner-Thompson & Ilona M. Turner, Title IX’s Protections for Transgender Student
Athletes, 28 Wis. J.L. Gender & Soc’y 271, 291 (2013).
142
Spade, supra note 126, at 146.
143
In 2017, Oregon became the first state to allow people to select a nonbinary gender category on
state identifications, including drivers’ licenses, followed by roughly a dozen states by
summer 2019.
144
Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 945 (2019) (explaining that
the most enfranchising legal response to nonbinary identities may vary depending on the
context, in some instances militating toward the creation of more classification options, and in
others getting rid of gender-classifications altogether).
 Queer Communities 35

dissonance between their appearance/expression and their identification.145

Similarly, according to a 2015 survey, only 11 percent of respondents reported that
all of their IDs included the name and gender they preferred, and more than two-
thirds reported that none of the identification documents were accurate.146
A related, nascent effort at gender surveillance has occurred in a number of states
and localities over the last few years: so-called “bathroom bills” or “papers-to-pee”
laws have been proposed, and in some instances (e.g., North Carolina), enacted.
Certain iterations of these bills would have penalized transgender people for using
restrooms inconsistent with the sex they were assigned at birth or inconsistent with
an identification document. As outlined above, accurate identification documents
may be difficult to obtain because of onerous medical and procedural requirements.
Some of the laws that have been proposed would charge owners of public accom-
modations with enforcement of the laws and punish those proprietors with fines for
permitting patrons to use the “wrong” restroom, outsourcing surveillance of trans-
gender people to the private sector.147 A ballot initiative proposed in California
would have imposed a $4,000 fine on any government entity or person who
permitted a person to use a restroom inconsistent “with their sex as determined at
birth, through medical examination, or court judgment recognizing a change of
gender.”148 These laws are the literal public policing of people’s gender identity.149
Other jurisdictions – often local school districts – have passed or regularly
consider regulations targeting queer youth, forbidding students from using bath-
rooms or locker-rooms consistent with their gender identity.150 And the Trump
administration Department of Education recently concluded an investigation where
it interpreted Title IX of the Education Amendments Act to require schools to
exclude trans students from sports teams consistent with their gender identity.151
More broadly, the Trump administration is considering or in some contexts has
already proposed regulations that would define sex under federal law narrowly as an

145
Jaime M. Grant et al., Injustice At Every Turn: A Report of the National
Transgender Discrimination Survey 5 (2012), https://transequality.org/sites/default/files/
docs/resources/NTDS_Report.pdf.
146
Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey, National
Center for Transgender Equality 82 (2016).
147
E.g., H.B. 583, Reg. Sess. (Fla. 2015).
148
Initiative 15–0019, Limits on Use of Facilities in Government Buildings and Businesses
(Cal. 2015), https://oag.ca.gov/initiatives/search?populate=15–0019.
149
For a discussion of how the panoptic architecture of some modern lavatories itself can expose
gender nonconforming individuals, see Sheila L. Cavanagh, Queering Bathrooms 81
(2010).
150
E.g., H.B. 663, 2016 Gen. Assemb. Reg. Sess. (Va. 2016) (proposing to require schools to force
students to use bathrooms and locker-rooms corresponding to their so-called “anatomical sex”);
S.B. 6, 85 Reg. Leg. Sess. (Tex. 2017) (proposing to require students to use only the bathrooms
and locker-rooms corresponding to their so-called biological sex).
151
Scott Skinner-Thompson, Trump Administration Tells Schools: Discriminate against Trans
Athletes or We’ll Defund You, Slate (June 4, 2020), https://slate.com/news-and-politics/2020/
06/betsy-devos-transgender-athletes-connecticut.html?via=recirc_recent.
36 No Privacy in Public = No Privacy for the Precarious

immutable condition determined by external genitalia at birth, restricting transgen-

der people’s ability to be themselves and navigate a whole host of societal settings
beyond bathrooms and including dormitories, homeless shelters, and prisons.152
The significance of these bathroom regulations and their role as one of the next
battlegrounds for LGBTQ rights prompted one New York Times commentator to
deem 2015 the “Year of the Toilet.”153 But the laws are about much more than
toilets; they involve questions about whether society will recognize the existence of
transgender lives and permit transgender people to fully participate in public life. As
powerfully explained by the lawyers for Gavin Grimm, who was excluded from
using the bathrooms consistent with his gender identity by his high school in
Virginia, Gavin’s “case is about much more than bathrooms. It’s about a boy asking
his school to treat him just like any other boy. It’s about protecting the rights of
transgender people in public spaces and not forcing them to exist on the margins.”154
By dictating that people use the bathroom (or any other sex-segregated space)
corresponding to their so-called “biological sex,” often defined as the sex listed on
one’s birth certificate, such laws discriminate against transgender people on the basis
of their sex and gender identity.155 But, as with restrictive gender marker laws, they
also potentially operate as a form of biometric, normalizing surveillance156 that also
out intimate information about trans people every time they are forced to use public
restrooms or sex-segregated spaces that do not correspond to the individual’s gender
identity, subjecting them to ridicule and violence. In opposition to bathroom bills,
some transgender people posted photos of themselves in bathrooms required by the
bills, attempting to highlight the potential privacy implications of the laws for trans
people. Others creatively created cards to hand out to those who they encountered
in restrooms, explaining their presence.157

152
Erica L. Green et al., “Transgender” Could Be Defined out of Existence under Trump
Administration, N.Y. Times (Oct. 21, 2018), https://www.nytimes.com/2018/10/21/us/politics/
‌transgender-trump-administration-sex-definition.html.
153
Jennifer Weiner, Opinion, The Year of the Toilet, N.Y. Times (Dec. 22, 2015), http://www
.nytimes.com/2015/12/23/opinion/the-year-of-the-toilet.html.
154
G.G. v. Gloucester Cty. Sch. Bd., No. 16–1733, 2017 U.S. App. LEXIS 6034, at *3 (4th Cir.
Apr. 7, 2017).
155
Whitaker v. Kenosha Unified Sch. Dist. No. 1, 858 F.3d 1034 (7th Cir. 2017) (holding that
school district’s policy barring transgender student from using bathroom consistent with their
gender identity likely discriminated under both Title IX and the Equal Protection Clause).
156
Beauchamp, supra note 125, at 95.
157
While undoubtedly courageous of trans people to photograph themselves in bathrooms that do
not resonate with their gender identity, there are important limitations to this kind of activism
that seeks to, in essence, suggest that there is something problematic with, for example, a
transmasculine person using the women’s restroom. It arguably perpetuates tropes that trans-
men are somehow predators, and ignores that many trans people cannot or choose not to “pass”
and therefore do feel most comfortable using bathrooms that align with their sex assigned at
birth or gender-neutral bathrooms. Mitch Kellaway, Casting Trans Men as Predators Won’t
Stop Bathroom Bills, The Advocate (Mar. 29, 2016), https://www.advocate.com/commentary/
2016/3/29/casting-trans-men-predators-wont-stop-bathroom-bills.
 Queer Communities 37

By invading their privacy, the restrictive bathroom regulations deter transgender

people from entering the public square in the first instance and suggest that, to do
so, they must accede to the state’s arbitrary and inaccurate determination of who
they are. These laws deny trans people agency over their own identity and foreclose
access to the very venues where they could contest the state’s determination,
burdening their ability to participate in public life and denying their existence. As
emphasized by Chase Strangio, laws targeting transgender people are “part of a
coordinated effort at all levels of government to challenge trans existence, criminal-
ize our bodies, and push us into the shadows.”158
Quite right. And when paired with restrictive gender marker laws, laws forbidding
transgender people from using public restrooms that comport with their gender
identity put many trans people in an impossible double bind and infringe on their
autonomous decisions over medical treatment. Although some proponents of
bathroom bills claim that trans people who have surgery will be able to change
their birth certificate and therefore use the public bathroom corresponding with
their gender identity, transgender people will often be impeded from having
surgery and will therefore be barred from accessing bathrooms consistent with their
gender identity.
How so? Restrictive bathroom regulations often either explicitly condition
entrance to a multi-occupancy single-sex facility on some kind of surgical transi-
tion159 or on the existence of a birth certificate that has a gender marker correspond-
ing to the sex of the restroom. For example, both HB2 passed (and partially repealed)
in North Carolina and SB6 proposed in Texas conditioned entrance to sex-
segregated facility on the sex listed on a birth certificate.160 As discussed, many states
only permit gender markers on a birth certificate to be modified if an individual has
undergone surgery so, in effect, the birth certificate requirement often amounts to a
surgery requirement. But under the prevailing medical recommendations, an indi-
vidual only qualifies for genital surgery if they have reached the age of majority
(most commonly, 18 years old in the United States) and if they have lived consist-
ently for twelve months in the gender role that conforms with their gender identity.
According to the standards of care developed by the World Professional
Association for Transgender Health, it is recommended that adult individuals
needing metoidioplasty or phalloplasty (procedures to create a penis) or a vagino-
plasty (a procedure to create a vagina) live for twelve continuous months “in a

158
Chase Strangio, Trump’s Attack on Transgender Health Care Is an Attack on Trans People’s
Existence, Slate (May 9, 2018), https://slate.com/human-interest/2018/05/trumps-attack-on-
transgender-health-care-is-an-attack-on-trans-peoples-existence.html.
159
E.g., Whitaker, 858 F.3d at 1041 (school required “surgical transition” before it would permit
transgender boy to use boys’ restroom).
160
N.C. House Bill 2, 2d Extra Sess. (2016) (Sess. Law 2016–3); Tex. Senate Bill 6, 85th Reg.
Sess. (2017).
38 No Privacy in Public = No Privacy for the Precarious

gender role that is congruent with their gender identity” before obtaining those
surgeries.161 Pursuant to the standards of care, “[d]uring this time, patients should
present consistently, on a day-to-day basis and across all settings of life, in their
desired gender role. This includes coming out to partners, family, friends, and
community members (e.g., at school, work, other settings).” Presenting consistently
on a day-to-day basis often includes using the restroom that corresponds with one’s
gender identity. Therefore, restrictive bathroom regulations interfere with the med-
ical requirements for obtaining certain surgeries in the first instance because they
restrict people’s ability to use a single-sex public restroom until after having surgery.
Using a single-sex public restroom is probably one of the few activities in many
people’s daily lives that is, in fact, segregated by sex. How, then, is a person supposed
to live consistently for a year in their true gender role if they are forbidden from
doing one of the principle social activities that is sex-segregated?
In other words, restrictive bathroom regulations create a catch-22 even for those
transgender individuals who do feel the need for certain kinds of surgery. The
regulations often require surgery before using a single-sex bathroom but erect
significant barriers to compliance with the recommended medical prerequisites
for having certain surgeries. The double bind for transgender people who do not
need particular gender confirmation surgeries to live comfortably and consistently
with their gender identity and for youth who are often not eligible for surgery is even
more apparent. Because such people are forbidden from using the public restrooms
that correspond to their gender identity and expression because they have not had
the required surgery, every time they use a single-sex bathroom that does not match
their gender expression, sensitive, intimate information about their identities and
their bodies will be publicly disclosed. If they want to avoid such outing, they will be
forced to undergo some sort of surgical intervention – surgery they may not need to
live comfortably with their gender identity, that may not be medically indicated, or
that may be prohibitively expensive for a particular individual.162
The costs of restrictive gender classification laws are magnified for the dispropor-
tionate number of trans and genderqueer people that are incarcerated. Many jails,
prisons, juvenile detention centers, and immigrant detention centers in the United
States do not house trans folk in ways consistent with their gender identity. In other
words, trans women will often be housed in male facilities. For example, while the
Obama administration had provided that initial housing designations for the federal

161
World Professional Association of Transgender Health, Standards of Care for the
Health of Transsexual, Transgender, and Gender-Nonconforming People (7th
Version, 2012).
162
Restrictive bathroom laws are often defended in the name of protecting the privacy of those
who do not want to share a bathroom or locker-room with a trans person. But the existence of
transgender people does not pose a privacy threat to anyone. See Scott Skinner-Thompson,
Bathroom Bills and the Battle over Privacy, Slate (May 10, 2016), https://slate.com/human-
interest/2016/05/in-the-battle-over-bathroom-privacy-transgender-peoples-needs-matter-more
.html; Susan Hazeldean, Privacy as Pretext, 104 Cornell L. Rev. 1719 (2019).
 Women 39

Bureau of Prisons could be made based on the individual’s gender identity, the
Trump administration predictably reversed course, providing that the initial deter-
mination of where an individual should be housed should be based on so-called
biological sex.163 These administrative policies create surveillance violence, outing
trans people as such within prison, and potentially subjecting them to sexual
violence by other inmates or correctional officers. According to the 2015 US
Transgender Survey conducted by the National Center for Transgender Equality
of over 27,000 transgender people, one in five respondents who had been incarcer-
ated in a jail, prison, or juvenile detention center in the past year reported being
sexually assaulted by facility staff or other inmates – five to six times higher than the
overall incarcerated population.164 The lack of appropriate identification combined
with restrictive housing policies leads to privacy violations and violence.

women
Despite privacy’s critical role in advancing gender equity, women also face unique
privacy threats and are subjected to a substantial amount of gendered and sexualized
surveillance gaze, many instances of which are abetted by the secrecy paradigm.165
For example, women are disproportionately targeted for cyber harassment, includ-
ing the nonconsensual disclosure of intimate images, or so-called “revenge porn.”166
According to a recent study of nonconsensual pornography websites across the
United States, 91.8 percent of images examined featured female victims, and only
7.4 percent feature male victims.167 (Queer folk are also disproportionately
threatened by nonconsensual disclosure of their intimate images.)168
Nonconsensual disclosure of intimate images can visit concrete material harms by
creating a cycle of online harassment, leading to further sexual coercion, exacting
devastating mental health harms, preceding physical violence, and endangering

163
U.S. Dep’t of Justice, Bureau of Prisons, Transgender Offender Manual, Change Notice,
5200.04 CN-1 (May 11, 2018).
164
James et al., supra note 146, at 191.
165
Anita Allen, Uneasy Access: Privacy for Women in a Free Society 123–28 (1988).
166
Danielle Keats Citron, Hate Crimes in Cyberspace 13 (2014); see also Karen E.C. Levy,
Intimate Surveillance, 51 Idaho L. Rev. 679, 681 (2015) (documenting extensive methods for
monitoring people’s intimate lives)
167
Carolyn A. Uhl et al., An Examination of Nonconsensual Pornography Websites, 28 Feminism
& Psych. 50, 58 (2018); see also Yanet Ruvulcaba & Asia A. Eaton, Nonconsensual Pornography
among U.S. Adults: A Sexual Scripts Framework on Victimization, Perpetration, and Health
Correlates for Women and Men, Psychol. Violence (2019), https://psycnet.apa.org/doi/10
.1037/vio0000233; Asia A. Eaton et al., 2017 Nationwide Online Study of Nonconsensual Porn
Victimization and Perpetration, Cyber Civil Rights Initiative (June 2017), https://www
.cybercivilrights.org/wp-content/uploads/2017/06/CCRI-2017-Research-Report.pdf.
168
Ari Ezra Waldman, Law, Privacy, and Online Dating: “Revenge Porn” in Gay Online
Communities, 44 Law & Social Inquiry 987 (2019).
40 No Privacy in Public = No Privacy for the Precarious

employment opportunities.169 Activist and revenge porn victim Holly Jacobs has
courageously discussed the impact that nonconsensual disclosure of nude images
had on her life: the disclosure directly led to online harassment and terrorization,
mental health harms, and employment barriers, among other harms.170 While
increased attention is being paid to the harms of nonconsensual disclosure of
intimate images and new legislation enacted in many states thanks to courageous
activists and scholars,171 attempts to obtain legal redress are sometimes thwarted by
the secrecy paradigm.172
For instance, as described above, in Doe v. Peterson, plaintiff sued operators of a
nude photograph website, where nude photos of plaintiff taken when she was a
teenager and sent privately to her then boyfriend were posted. The court dismissed
plaintiff’s public disclosure claim, reasoning that because the photos had been
previously posted by a different website, they were not private facts. Put differently,
the bad act of another excused subsequent bad acts of disclosure.
There are important cases going the other direction and holding perpetuators of
revenge porn accountable in civil actions,173 but one of the principal arguments
advanced against holding people accountable for nonconsensual image distribution
is “that a woman’s consensual sharing of sexually explicit photos with a trusted
confidant should be taken as wide-ranging permission to share them with the public.
Said another way, a victim’s consent in one context is taken as consent for other
contexts.”174
Tragically, female victims of sexual violence have also been unable to stop
documentation pertaining to assaults against them from proliferating without their
consent. In fact, several of the Supreme Court’s key rulings establishing the secrecy
paradigm in the tort context involve the Court concluding that because the identity
of sexual assault victims were in publicly available court records or police reports,
further publication of that information was free game.175 One extreme example of
this is the case of Anderson v. Suiters.176 There, the court relied on the

169
Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 39 Wake Forest
L. Rev. 345, 351–52 (2014).
170
Citron, supra note 166, at 45–50.
171
Cyber Civil Rights Initiative (https://www.cybercivilrights.org), founded by Holly Jacobs, has
been at the vanguard of raising awareness regarding nonconsensual pornography.
172
To the extent that advocates call for a carceral response to nonconsensual image disclosure,
I remain skeptical, in part, out of concern that any new criminal laws will be disproportionately
enforced against members of marginalized communities, including racial minorities and queer
individuals. Cf. Elizabeth Bernstein, The Sexual Politics of the “New Abolitionism,” 18:3
differences 128, 143 (2007).
173
E.g., Taylor v. Franko, No. 09–00002 JMS/RLP, 2011WL 2746714 (D. Haw. June 12, 2011); Patel
v. Hussain, 485 S.W.3d 153 (Tex. App. 2016).
174
Citron & Franks, supra note 169, at 348.
175
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491
U.S. 524 (1989).
176
499 F.3d 1228 (10th Cir. 2007).
 Women 41

“newsworthiness” principle, a closely related doctrinal cousin of the secrecy para-

digm, also grounded in the First Amendment. Newsworthiness refers to the rule that
if a certain topic is of legitimate public concern, discussion of it by society, including
the press, is insulated from liability. In Suiters, the Tenth Circuit (in a decision
joined by then Judge, now Justice, Neil Gorusch) affirmed the grant of summary
judgment in favor of media defendants who published limited portions of a video of
a woman allegedly being raped while unconscious by her husband. The woman
allegedly provided the tape to law enforcement on the condition that it not be
shared, but the court concluded that because the tape was relevant to the prosecu-
tion of the woman’s husband for sexual assault, including assault on other victims,
the video was newsworthy and therefore free game for publication by the media.
(Absurdly, the court also downplayed the extent of the privacy violation, noting the
woman “was never identified by name, and the excerpted portion of the videotape
was limited to a few movements of the alleged attacker’s naked body without
disclosing the sexual acts in great detail; only [the woman’s] feet and calves were
clearly visible, and they bore no identifying characteristics.”)177
While rape shield laws may protect the identity of assault victims from being
disclosed in the course of a criminal proceeding,178 think of the incentives created
by a regime that essentially immunizes downstream disclosure once the identity has
been disclosed in the first instance or if it is related to a law enforcement
concern (which are almost always deemed “newsworthy”): if a woman is subject
to sexual assault and they come forward, their identity may be free game for
discussion. While victims of assault should of course feel no stigma, the decision
about whom to disclose any such assault is highly personal and should remain with
each individual.
Relatedly, the secrecy paradigm has also stymied efforts to protect women from
privacy intrusions (as opposed to disclosures) in public. For example, in Gary
v. State, a Georgia appellate court overturned the criminal invasion of privacy
conviction of a grocery store employee who aimed his cellphone camera up the
skirt of a woman on at least four occasions, recording video. The court concluded
that the conviction was improper because the woman was in a public place and
therefore could not “reasonably expect to be free from intrusion or surveillance.”179
The absence of privacy in public works with technological advances to render
women more vulnerable: while the physical lifting of someone’s skirt to view
intimate areas would, undoubtedly, be deemed a privacy violation, the same view
captured via camera, perhaps with telephoto lens, is ignored because it occurs in

177
Id. at 1237.
178
E.g., Col. Rev. Stat. §18–3-407(3).
179
790 S.E.2d 150, 151, 153 (Ga. Ct. App. 2016). But see Commonwealth v. Nascimento, 79 N.E.3d
1075 (Mass. App. Ct. 2017) (upholding conviction of person who videotaped two teenage girls
under their sundresses while they traveled on a public ferry).
42 No Privacy in Public = No Privacy for the Precarious

“public.”180 When juxtaposed to regulatory efforts to unveil Muslim women, dis-

cussed above, such cases suggest a perverse trend: women are at times forced by the
law not to take efforts to shield their bodies in public and, once their bodies are
exposed, they lose any ability to limit the degree to which their bodies are further
documented and disseminated.
The lack of privacy in public emboldens not just the public, objectifying gaze of
women by other people, it also facilitates catcalling and verbal harassment of women
in public space. As explained by JoAnne Sweeny, “[b]oth street and cyber-
harassment carry significant harms for their victims, resulting in women often
leaving or reducing their exposure to the public sphere out of fear . . . The right
to speak [in public], to say harassing, hateful things, should not outweigh a woman’s
right to some privacy and peace when she enters the public sphere.”181
The reality of the ubiquitous and gendered surveillance gaze is amplified by the
fact that though certain surveillance regimes, such as video/CCTV “security”
cameras, are sometimes justified as a means of protecting women from harassment,
such cameras can just as plausibly serve as a means of harassment by peeping
toms.182 Even assuming that these cameras are not perverted for gender harassment,
while video cameras may in certain instances protect privileged women from sexual
assault, video surveillance of public space (and the lack of privacy while in public), is
just as often used to police women from marginalized backgrounds: sex workers,
poor women, queer women, and women of color.183 Consequently, rather than
viewing “security” cameras as a form of protection, women from marginalized
backgrounds often remain wary of these cameras.
The lack of protection for privacy in public also enables the videotaping, harass-
ment, and doxing of women who attempt to exercise their right to reproductive
healthcare, including the right to obtain an abortion, and those that provide
healthcare services to women.184 (Doxing is the posting of personally identifiable
information about a person for purposes of galvanizing social opprobrium – or

180
Marc Tran, Combatting Gender Privilege and Recognizing a Woman’s Right to Privacy in
Public Spaces: Argument to Criminalize Catcalling and Creepshots, 20 Hastings Women’s
L.J. 186, 196 (2015).
181
JoAnne Sweeny, Trapped in Public: The Regulation of Street Harassment and Cyber-
Harassment under the Captive Audience Doctrine, 17 Nev. L.J. 651, 666 (2017).
182
Hille Koskela, Video Surveillance, Gender, and the Safety of Public Urban Space: “Peeping
Tom” Goes High Tech?, 23 Urb. Geography, 257, 264 (2002).
183
Amanda Glasbeek, They Catch You Doing the Simple, Human Things: CCTV, Policing, and
Gendered Exposure, 12 J. L. & Equality 63, 77 (2016).
184
Rachel L. Braunstein, Note, A Remedy for Abortion Seekers under the Invasion of Privacy Tort,
68 Brook. L. Rev. 309, 309 (2002); Alice Chapman, Note, Privacy Rights and Abortion Outing:
A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff, 112 Yale L.J.
1545, 1545–46 (2003); Yochi J. Dreazen, Abortion Protestors Use Cameras, Raise New Legal
Issues, Lawsuits, Wall Street J. (May 28, 2002), https://www.wsj.com/articles/
SB1022539371607091560.
 Women 43

worse – toward the individual.)185 Women have been videotaped and harassed by
antiabortion activists both as they enter and exit clinics, sometimes even in instances
where the patient is being transported via stretcher to an ambulance for more urgent
medical care. When women have attempted to hold accountable those who record
them as they enter/exit abortion clinics, such attempts have sometimes been
thwarted because the women were in “public” as they entered the healthcare
office.186 Harassment outside of abortion clinics has led some women attempting
to exercise their rights and doctors providing reproductive healthcare to hood or
conceal their identity as they enter abortion clinics.187
Even should a woman not be videotaped and harassed while entering an abortion
provider’s office, she may face immense privacy hurdles in order to obtain an
abortion – particularly if she is economically deprived. For instance, the Hyde
Amendment prohibits the use of federal funds for abortion unless the abortion is
necessary for the life of the mother, or if the pregnancy is the result of rape or incest.
Many women who are impoverished rely on Medicaid for their healthcare. If a state
follows the Hyde Amendment and restricts Medicaid funding for abortions to
pregnancies resulting from rape or incest, indigent women will have to disclose
their assault to healthcare providers (which, in turn, may deter them from seeking an
abortion at all). The attacks on poor women’s privacy is not limited to the abortion
context – as noted above when discussing the privacy of people who are economic-
ally disadvantaged and the important work of Khiara Bridges, women who rely on
state assistance are subjected to manifold privacy invasions in order to secure modest
public benefits, including reproductive healthcare. And as meticulously docu-
mented by Michele Goodwin, women’s reproductive health is also surveilled and
controlled through the criminal law system where, for example, fetal drug laws are
used to control the reproductive choices of women (often people of color and
people of limited means), including through disclosure of information pertaining
to their medical and reproductive health.188
Thus, in a variety of contexts, women’s privacy is endangered by various surveil-
lance regimes, and the background legal rules that support those regimes.
***
All told, when weak doctrinal protections for privacy in public, which are premised
on the ability to keep the information secret in order to have a right to privacy are
overlaid with the lack of lived privacy of many marginalized groups, these marginal-
ized groups are left with little in the way of remedies if they want to fight any privacy

185
Colin J.A. Oldberg, Note, Organizational Doxing: Disaster on the Doorstep, 15 Colo. Tech.
L.J. 181, 183 (2017).
186
United States v. Vasquez, 31 F. Supp. 2d 85, 90–91 (D. Conn. 1998); Valenzuela v. Aquino, 853
S.W.2d 512, 513–14 (Tex. 1993).
187
Rachel Grady & Heidi Ewing, 12th & Delaware (Loki Films 2010).
188
Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of
Motherhood 28–45 (2020).
44 No Privacy in Public = No Privacy for the Precarious

invasion inflicted by the government or a private party. While the above discussion
has focused on issues of poverty, race, sexuality, gender identity, gender, and
religion, certainly other forms of marginalization are also exacerbated by the inter-
action between lived exposure and the secrecy paradigm. Such is the case for
immigrants targeted with laws permitting their arrest based on suspicion of being
removable and who are otherwise subject to surveillance that is now pervasive and
decoupled from examination at the border.189 It’s true for people living with
disabilities whose impairments may be disclosed or made more visible due to
socially constructed ableist architectures.190 For workers who are subject to intensive
monitoring and tracking by their employers, the secrecy paradigm also leaves them
vulnerable.191 Equally so for formerly incarcerated individuals who may lack protec-
tion over their “public” criminal record, exposing them to employment discrimin-
ation.192 And for Native Americans who continue to be subjected to government and
privatized surveillance for their activism.193 There are many other examples (some of
which are interspersed in the chapters that follow). But my hope is that this chapter
has shed some light on why privacy matters for the marginalized, and the doctrinal
rules that facilitate the lack of privacy for these groups.

189
Anil Kalhan, Immigration Surveillance, 74 Md. L. Rev. 1, 9 (2014).
190
Natalia Pérez Liebergesell et al., Designing from a Disabled Body: The Case of Architect Marta
Bordas Eddy, Multimodal Tech. & Interaction (2018).
191
E.g., Karen E.C. Levy, The Contexts of Control: Information, Power, and Truck-Driving Work,
31 Info. Soc’y 160 (2015).
192
Benjamin Levin, Criminal Employment Law, 39 Cardozo L. Rev. 2265, 2296–97 (2018).
193
Alleen Brown et al., Leaked Documents Reveal Counterterrorism Tactics Used at Standing Rock
to “Defeat Pipeline Insurgencies”, The Intercept (May 27, 2017), https://theintercept.com/
2017/05/27/leaked-documents-reveal-security-firms-counterterrorism-tactics-at-standing-rock-to-
defeat-pipeline-insurgencies/.
 2

Performative Privacy in Theory and Practice

What can be done about the relative lack of doctrinal protections for privacy while
in public? How can society – and the law – begin to recognize and appreciate that
privacy while navigating public space is of critical importance, particularly for
marginalized communities, and worthy of doctrinal protection? In this chapter,
after first elaborating and deepening extant proffered justifications for a right to
public privacy, I bolster these justifications by underscoring what is, perhaps, a more
direct constitutional/doctrinal value served by a right to public privacy. In addition
to facilitating future speech and attempts to freely associate (as rightly emphasized by
many defenders of public privacy), attempts to preserve a degree of privacy or
anonymity in public (often undertaken by members of marginalized groups) are
frequently a form of performative and expressive opposition to an ever expanding
surveillance society and, as explained in Chapter 3, may be protected as symbolic,
expressive conduct under the First Amendment.
When a person wears a hoodie or mask shielding their identity, they may be
engaged in a form of active, expressive resistance to the surveillance regime –
lodging an objection to being surveilled.
When a person demands the right to publicly express their true gender identity
while simultaneously invoking the right to keep certain details about their birth-
assigned sex or genital anatomy obscure, they are performing the right to privacy and
resisting administrative surveillance.
When a woman wears a head, face, or body covering, she may be practicing her
Muslim faith, but may also be engaged in an act of performative privacy or modesty,
registering her refusal to be the object of social and government gaze.
When an individual uses encryption technology to hide their online communi-
cations, they are functionally maintaining their privacy (perhaps for the purpose of
social activism) but are also directly signaling disavowal of widespread internet and
cellular monitoring.

45
46 Performative Privacy in Theory and Practice

Recognizing the direct, expressive value of such privacy performances links these
acts to the widely cherished (and increasingly resurgent) right to freedom of speech
and helps us reimagine acts that are often viewed with distrust as part of a long
history of democratic, political dissent – dissent that is safeguarded by the First
Amendment.
After scrutinizing and further developing the prevailing defenses for a right to
public privacy, this chapter reveals and explores examples of performative privacy,
identifying and labeling a variety of social practices that are simultaneously func-
tional efforts to maintain privacy and expressive forms of resistance against the
scrutiny of the state and private, corporate actors. Here, I point to multiple forms
of evidence for performative privacy. First, drawing in part on social and political
theory, I explain how functional acts designed to maintain public privacy gain
expressive texture and meaning in response to the structures of surveillance which
pervade society. In other words, privacy efforts take on greater expressive meaning
within the social context of surveillance. Second, I highlight evidence indicating
that the state views functional efforts to maintain privacy as communicative forms of
resistance, highlighting privacy’s performative, expressive role. In some instances,
the state relies on the very expressive nature of an effort to maintain privacy to justify
regulation of that effort. Lastly, I point to examples where individuals actually self-
identify their privacy-enhancing acts as expressive. Chapter 3 then articulates the
doctrinal and discursive payoffs, or implications, of performative privacy.

public privacy’s indirect benefits

While some scholars have defended the secrecy paradigm,1 others have rightly
argued that public privacy is not an oxymoron.2 Rigid application of the secrecy
paradigm ignores that individuals do, in fact, expect privacy when they share
intimate information with a friend while in a public restaurant, for instance.3
They do not expect that the information will become universally accessible merely
because they shared it within limited confines.4 With regard to physical privacy, they
do not expect that by dint of exiting their front door (a requirement for many living
1
Heidi Reamer Anderson, The Mythical Right to Obscurity: A Pragmatic Defense of No Privacy
in Public, 7 I/S 543, 597–98 (2012); Orin S. Kerr, The Case for the Third-Party Doctrine, 107
Mich. L. Rev. 561, 576 (2009).
2
Andrew Jay McClurg, Bringing Privacy Law out of the Closet: A Tort Theory of Liability for
Intrusions in Public Places, 73 N.C. L. Rev. 989, 1044 (1995).
3
Daniel J. Solove, Nothing to Hide 100–01, 108 (2011); Neil M. Richards & Daniel J. Solove,
Prosser’s Privacy Law: A Mixed Legacy, 98 Calif. L. Rev. 1887, 1920 (2010); Marc Jonathan
Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment
to a World that Tracks Image and Identity, 82 Tex. L. Rev. 1349, 1415 (2004).
4
Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment after Lawrence, 57
UCLA L. Rev. 1, 6 (2009); Erin Murphy, The Case against the Case for Third-Party
Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L.J. 1239, 1252 (2009); Laurent
Sacharoff, The Relational Nature of Privacy, 16 Lewis & Clark L. Rev. 1249, 1270–71 (2012).
 Public Privacy’s Indirect Benefits 47

in a society), they are providing open access to their movements to the government
and private parties alike. As Kirsten Martin and Helen Nissenbaum have empirically
documented, the degree to which information is openly accessible does not dictate
individual judgments about whether people think accessing that information is
appropriate.5
Observing the conceptual and practical shortcomings of “privacy-only-in-private”
doctrines, other scholars have powerfully advocated for a limited right to privacy in
public focusing principally on privacy’s ability to serve as an incubator or protective
shield for thought, speech, and association. This section outlines and builds on
public privacy’s instrumental or indirect constitutional benefits – many grounded in
the First Amendment – before turning to public privacy’s more direct expressive
impacts.

1 Public Privacy as Incubator for Future Speech

Privacy can serve as a protective barrier, creating shelter for the development of ideas
and playing a crucial role in identity formation. Metaphorically, privacy operates as
an incubator or greenhouse for the cultivation of ideas, feelings, and identity.6
The notion that privacy writ large advances the development of ideas and future
speech has found its most robust defense in the work of Neil Richards. As Richards
explains, “new ideas often develop best away from the intense scrutiny of public
exposure” and “a meaningful guarantee of privacy – protection from surveillance or
interference – is necessary to promote this kind of intellectual freedom.”7 What
Richards labels “intellectual privacy” plays a critical role in the freedom of thought
and any speech flowing from that thought.8 Building on critical feminist studies,
I would suggest that privacy helps foster not just intellectual thoughts, but also
feelings. Privacy facilitates the mutually symbiotic crop rotation between feelings
and thoughts. As emphasized by Audre Lorde, “our feelings and the honest explor-
ation of them become sanctuaries and spawning grounds for the most radical and
5
Kirsten Martin & Helen Nissenbaum, Privacy Interests in Public Records: An Empirical
Investigation, 31 Harv. J. L. & Tech. 111, 116 (2017).
6
Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension between Privacy and
Disclosure in Constitutional Law, 140 U. Pa. L. Rev. 1, 69 (1991) (“The citizen who is truly
free in forming her identity should have the opportunity to experiment with roles she does not
wish to adopt in public”).
7
Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1946 (2013); see also
Julie E. Cohen, What Privacy Is For, 126 Harv. L. Rev. 1904, 1905 (2013) (explaining that
freedom from surveillance “is foundational to the practice of informed and reflective
citizenship”).
8
Neil M. Richards, Intellectual Privacy, 87 Tex. L. Rev. 387, 408–25 (2008); see also Marc J.
Blitz, Constitutional Safeguards for Silent Experiments in Living: Libraries, the Right to Read,
and a First Amendment Theory for an Unaccompanied Right to Receive Information, 74 UMKC
L. Rev. 799, 802 (2006) (explaining that the right to privately receive information is a way “for
individuals to exercise liberty of conscience and self-development”).
48 Performative Privacy in Theory and Practice

daring ideas. They become a safe-house for that difference so necessary to change
and the conceptualization of any meaningful actions.”9 Indeed, as Justice Brandeis
opined long ago: “The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the significance of [a
person’s] spiritual nature, of [their] feelings and of [their] intellect. They knew that
only a part of the pain, pleasure and satisfactions of life are to be found in material
things. They sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations.”10
Beyond theory and scholarship, the Supreme Court has further emphasized the
relationship between the First Amendment and privacy over one’s thoughts or
ideas.11 For example, in Stanley v. Georgia, the Court struck down a law that
criminalized possession of pornography because, pursuant to the First
Amendment, “a State has no business telling a [person], sitting alone in [their]
own house, what books [they] may read or what films [they] may watch.” According
to the Court, “[o]ur whole constitutional heritage rebels at the thought of giving
government the power to control [people’s] minds.”12 Similarly, in Lamont
v. Postmaster General, the Court stuck down an act of Congress requiring those
wishing to receive so-called communist political propaganda from Eastern
European governments to affirmatively disclose to the government that they wanted
to receive that mail.13 Jurisprudence recognizing that the freedom of speech also
contains a freedom not to speak, to keep one’s thoughts and ideas to oneself,
buttresses the notion that the freedom of expression is advanced by privacy over
one’s thoughts.14
Moreover, while privacy helps safeguard space for the free development of ideas
that may be shared publicly in the future, those privately expressed ideas also can
serve as form of catharsis even should the idea never see the light of day.15 And it can
operate as a safety valve or vent for pernicious ideas that ought not to be acted on.16

9
Audre Lorde, Sister Outsider 36–37 (rev. ed. 2007).
10
Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (gendered
language revised).
11
Kreimer, supra note 6, at 68 (“The Court has regularly recognized that shelter from public
exposure is often a prerequisite to the contribution of unorthodox views to the marketplaces of
ideas”).
12
394 U.S. 557, 565 (1969) (gendered language revised); see also West Virginia State Bd. of Ed.
v. Barnett, 319 U.S. 624, 642 (1943) (compelling students to salute flag “invades the sphere of
intellect and spirit which it is the purpose of the First Amendment”).
13
381 U.S. 301, 307 (1965).
14
E.g., Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (emphasizing that
the freedom of thought and expression contain both a right to speak and right not to speak).
15
James C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance 284
(1985) (documenting that peasant workers would vent their anger at unfair treatment in the
privacy of their home); Erving Goffman, The Presentation of Self in Everyday Life 170
(1959) (discussing how subordinate groups, including service workers, engage in ridicule and
gossip behind the scenes).
16
Cf. Andrew Gilden, Punishing Sexual Fantasy, 58 Wm. & Mary L. Rev. 419, 475–76 (2016).
 Public Privacy’s Indirect Benefits 49

Privacy can be a sort of testing ground and vetting mechanism before ideas are
expressed publicly.
Closely related to the concept of intellectual privacy, people also have a consti-
tutional interest in being able to avoid unwanted speech in public.17 Based on that
interest, the Court has upheld restrictions on speech outside of healthcare facilities
(including facilities where abortion are performed),18 picketing outside residences,19
and the volume of musical expression in public parks.20 As the Court has explained,
the First Amendment’s protections for freedom of speech do not always embrace
speech “that is so intrusive that the unwilling audience cannot avoid it.”21 What the
Court has explicitly labeled a “privacy interest in avoiding unwanted communi-
cation” extends to the home, of course, but can extend even into traditional public
forums, including New York City’s bustling Central Park.22
As these cases imply, people do not just seek the protection of privacy in their
home – they erect privacy barriers while in public space as well.23 Efforts to maintain
privacy in public can take more apparent forms, such as wearing a mask, but also
include subtle but urbane interventions, such as technology to frustrate facial
recognition software. Millions of people exercise more quotidian and less intricate
means of maintaining privacy every day.24 Examples include averting one’s face,
speaking in hushed tones, using a privacy filter/screen on your laptop, or wearing
headphones and keeping your head lowered on a subway.25 These privacy barriers
can be important to people’s efforts to seek refuge and thinking space in public.

17
Caroline Mala Corbin, The First Amendment Right against Compelled Listening, 89 B.U.
L. Rev. 939, 943–51 (2009) (explaining that the government has a constitutionally valid interest
in protecting people’s ability to avoid speech in public); Margot E. Kaminski, Privacy and the
Right to Record, 97 B.U. L. Rev. 167, 207–12 (2017) (highlighting jurisprudence weighing the
privacy harms to unwilling listeners in public spaces in First Amendment cases); Burt
Neuborne, The Status of the Hearer in Mr. Madison’s Neighborhood, 25 Wm. & Mary Bill
Rts. J. 897, 910–12 (2017) (arguing that in certain contexts the involuntary hearer’s interest
should trump the rights of the speaker).
18
Hill v. Colorado, 530 U.S. 703 (2000). But see McCullen v. Coakley, 134 S.Ct. 2518 (2014) (35-
foot buffer zone outside of abortion clinics burdened more speech than necessary).
19
Frisby v. Schultz, 487 U.S. 474 (1988).
20
Ward v. Rock Against Racism, 491 U.S. 781 (1989); Kovacs v. Cooper, 336 U.S. 77 (1949).
21
Hill, 530 U.S. at 716.
22
Id.
23
Andrew G. Ferguson, Personal Curtilage: Fourth Amendment Security in Public, 55 Wm. &
Mary L. Rev. 1283, 1350–51 (2014) (cataloguing methods for maintaining privacy in public
including masks, anti-face recognition technology, and anti-drone fashion); Bert-Japp Koops,
Privacy Spaces, 121 W. Va. L. Rev. 611 (2018) (documenting myriad privacy bubbles created
even outside the home).
24
Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55
Ariz. L. Rev. 997, 1005–07 (2013); Timothy Zick, Speech Out of Doors 67 (2009).
25
Cf. Jurgen Habermas, The Structural Transformation of the Public Sphere 158
(Thomas Burger, trans., MIT Press 1991 (1962) (quoting W.H. Whyte, The Organization
Man 352 (1956)) (noting that in an urban environment, “[t]o gain privacy, one has to do
something” and documenting examples of people’s subtle movements to build privacy).
50 Performative Privacy in Theory and Practice

Government, corporate, and individualized surveillance of public space can

infringe on the privacy refuges that people build while in public, burdening the
intellectual privacy that helps incubate future speech. For example, increasingly
common security surveillance and individual recording of public space can capture
the controversial book you are reading and identify you as the reader, it can disrupt
you as you attempt to quietly develop your own thoughts and feelings while listening
to a podcast or music, and it can deter you from attending an organizing meeting
where you might wish to explore burgeoning ideas with like-minded individuals.
And such surveillance can cause these ambient or collateral privacy harms even if
the privacy victim is not the principal target of the surveillance.26

2 Public Privacy as Enabling Simultaneous Speech

Privacy and anonymity also create the conditions that enable speech as that speech
is occurring – particularly while in public. Speech – including anonymous speech –
presumes the presence of some kind of public (and that anonymous speech in turn
helps shape and constitute the “public”).27 Without anonymity while speaking,
certain speakers would not express their ideas.28 This is in contrast to the privacy
as incubator concept discussed above, which focuses on how privacy insulates and
protects space for the cultivation of ideas for future expression. The focus here is on
privacy while engaged in the communicative act of speaking itself.
The importance of anonymous speech to a vibrant, functioning participatory
democracy was clear from the outset of America’s founding. As the Supreme
Court noted when protecting the right to distribute anonymously authored handbills
in Talley v. California, “[a]nonymous pamphlets, leaflets, brochures and even books
have played an important role in the progress of [humanity].”29 As the Court
emphasized, anonymous literature played a critical role in fomenting the resistance
that led to the Revolutionary War against England. The Federalist Papers them-
selves, authored to build support for the ratification of the Constitution, were
published under the pseudonym Publius, and the Anti-Federalists also published
anonymously under the pseudonym Cato.30 The right to anonymous speech is
critical, in part, because certain speech would not be uttered in the public square
at all without the protection of anonymity. According to the Court, “[t]here can be

26
Bernard E. Harcourt, Exposed 221 (2015) (explaining that video surveillance can create
discomfort, “depriv[ing] us of a secure space of our own, a place to feel safe, protected”).
27
Cf. Michael Warner, Publics and Counterpublics 12 (2002).
28
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–42 (1995) (striking down restriction on
anonymous speech because, without anonymity, social ostracism may deter that speech);
Margot E. Kaminski, Regulating Real-World Surveillance, 90 Wash. L. Rev. 1113, 1155 (2015);
Timothy Zick, Speech Out of Doors 309–10 (2009).
29
362 U.S. 60, 64 (1960) (gendered language revised).
30
Id. at 65; McIntyre, 514 U.S. at 343 n.6.
 Public Privacy’s Indirect Benefits 51

no doubt that such an identification requirement would tend to restrict freedom to

distribute information and thereby freedom of expression.” 31
The right to anonymous speech is so critical that the Court has struck down laws
that burden (as opposed to outright prohibit) the ability to remain anonymous, even
if the speaker is not engaged in an activity where they could reasonably expect
perfect privacy or complete anonymity. For example, in Watchtower Bible & Tract
Society of New York, Inc. v. Village of Stratton, the Supreme Court overturned a law
requiring that door-to-door canvassers first register with the municipal government.32
That registration resulted in the loss of anonymity. The fact that a canvasser would
reveal their identity and affiliation with a particular cause if they were known by a
resident they solicited did not vitiate the canvasser’s First Amendment interest in not
having their identity disclosed by the registration requirement. Similarly, the Court
has invalidated a law requiring that petition circulators wear badges with their name
while soliciting signatures because it forces individuals to reveal their identity while
communicating, at the moment anonymity is most crucial.33 In other words,
privacy/anonymity is not all or nothing in the speech context – even partial privacy
can advance important speech values.
An unfettered ability to surveil public space poses a meaningful threat to anonym-
ous speech. Take the Village of Stratton facts. If governments, corporations, and
other individuals are able to freely record, broadcast, and identify canvassers for
political or religious causes, the ability to engage in that kind of anonymous
advocacy will be burdened, implicating important free expression values. And there
are an increasing number of examples of just that – people attempting to speak on a
variety of political issues ranging from abortion to anti-fracking to anti-racism have
been intimidated through efforts to record, identify, harass, and dox the speakers.34

3 Public Privacy as Association

Democratic theory and Supreme Court jurisprudence have long recognized that
privacy and anonymity serve as critical first-order rights that help make the freedom
to associate, organize, and speak meaningful.35 For privacy of association to be
effective, it must cover – to some degree – privacy while navigating public space.36
Other scholars have rightly extended this premise, explaining how surveillance of
31
Talley, 362 U.S at 64.
32
536 U.S. 150, 166–69 (2002).
33
Buckley v. Am. Const. Law Found., 525 U.S. 182, 198–99 (1999).
34
E.g., Angela K. Evans, Initiatives canvassers report harassment, Boulder Weekly (July 28,
2016), http://www.boulderweekly.com/news/initiatives-canvassers-report-harassment.
35
Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 456 (1980).
36
Elizabeth Paton-Simpson, Privacy and the Reasonable Paranoid: The Protection of Privacy in
Public Places, 50 U. Toronto L.J. 305, 342 (2000); Christopher Slobogin, Public Privacy:
Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L.J. 213, 252–58
(2002).
52 Performative Privacy in Theory and Practice

our networked activities, not just our physical activities, chills the freedom to
associate.37
Doctrinally, the First Amendment protects not just the freedom to speak, but
also the freedom to assemble and to associate anonymously.38 Although the
freedom to associate is not explicitly mentioned in the First Amendment, the
Supreme Court confirmed in NAACP v. Alabama ex rel. Patterson that the First
Amendment’s freedoms of speech and assembly include the “freedom to engage
in association for the advancement of beliefs and ideas.”39 And the court
further held that compelled disclosure of an organization’s membership list
could “constitute as effective a restraint on freedom of association” as more
obviously coercive forms of repression. According to the Court, “[i]nviolability of
privacy in group association may in many circumstances be indispensable to preser-
vation of freedom of association, particularly where a group espouses dissident
beliefs.”40
Consistent with this conclusion, the Court has suggested that requiring members
of a political group to wear identifying armbands would be unconstitutional,41 and
that disclosure of the identities of those who sign electoral petitions must survive
exacting scrutiny.42 Moreover, while not grounded in the First Amendment, in its
recent decision in Carpenter v. United States, concluding that warrantless collection
of historical cell-site location information violated the Fourth Amendment, the
Court emphasized the constitutional importance of privacy over political and
intimate associations.43 Warrantless tracking of a person’s location via their historical
cell-site information was unconstitutional, at least in part, because it could expose
their movements to places such as a political headquarters.44
In this way, just as privacy can, as discussed above, serve a critical role in the
creation of individual identity, it can also help develop collective or group

37
Deven R. Desai, Constitutional Limits on Surveillance: Associational Freedom in the Age of
Data Hoarding, 90 Notre Dame L. Rev. 579, 590 (2014); Katherine J. Strandburg, Freedom of
Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49
B.C. L. Rev. 741, 747–48 (2008).
38
De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (describing the freedom of assembly and speech
as “cognate” rights); Burt Neuborne, Madison’s Music: On Reading the First
Amendment 19–20 (2015) (explaining that the freedom to associate is an implied component
of the First Amendment).
39
357 U.S. 449, 460–62 (1958).
40
Id. (citing United States v. Rumely, 345 U.S. 41, 56–58 (1953) (Douglas, J., concurring)); see
also Bates v. Little Rock, 361 U.S. 516, 523 (1960) (compulsory disclosure of membership lists
impairs First Amendment freedom of association).
41
Am. Commc’n Ass’n v. Douds, 339 U.S. 382 (1950).
42
Doe v. Reed, 561 U.S. 186 (2010).
43
138 S. Ct. 2206, 2217 (2018).
44
Id. at 2218; Joel Reidenberg, Privacy in Public, 69 U. Miami L. Rev. 141, 158 (2014) (arguing that
private-regarding acts in public should be protected under the freedom of association from
government surveillance).
 Public Privacy’s Indirect Benefits 53

identities.45 Indeed, the development of individual identity and individual thought is

contingent upon some level of mediated discourse with others.46 And those iden-
tities can be critically constituted in resistance to the prevailing norms.47 Theorist
Nancy Fraser describes enclaves for marginalized groups as “subaltern
counterpublics” serving dual functions: “they function as spaces of withdrawal and
regroupment; on the other hand, they also function as bases and training grounds for
agitational activities directed toward the wider publics.”48 Put similarly by Michael
Wagner, “participation in [subaltern counterpublics] is one of the ways by which its
members’ identities are formed and transformed.”49 That is, private associations
protect the group at issue, enabling it to galvanize and develop the group’s identity
and subsequently influence the public at large.50
Just like government disclosure of membership lists or tracking via cell-site
location, surveillance of public space can burden and infringe on the ability to
organize and associate privately. Recordings outside abortion clinics are a good
example. While surreptitious recordings of National Abortion Federation confer-
ence meetings and recordings within abortion clinics have received more attention
recently, citizen surveillance, observation, and public shaming of those who enter
and exit an abortion facility also burdens those who wish to gather to obtain services,
provide services, or strategize on how to preserve them. In addition to burdening the
right to reproductive choice (which is grounded in the right to privacy),51 the lack of
privacy in public space has the potential to infringe on people’s ability to associate
for the purpose of abortion procedures or abortion advocacy.52 The same would hold
true of surveillance outside the NAACP headquarters, an Alcoholics Anonymous
meeting, or a gay club.53 Indeed, at times, government leaders such as then New

45
Gavison, supra note 35, at 456; Julie E. Cohen, Configuring the Networked Self 129–30
(2012); see also Ari Ezra Waldman, Privacy as Trust: Information Privacy for an
Information Age 67 (2018) (emphasizing the social value of private disclosures)
46
Habermas, supra note 25, at 104.
47
James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts 111
(1990); Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of
Actually Existing Democracy, 25/26 Soc. Text 56, 67 (1990) (explaining that in stratified
societies members of marginalized groups often form “subaltern counterpublics” where they
“invent and circulate counterdiscourses, which in turn permit them to formulate oppositional
interpretations of their identities, interests, and needs”).
48
Fraser, supra note 47, at 68.
49
Warner, supra note 27, at 57.
50
Lorde, supra note 9, at 78 (“[O]ur own spaces are essential for developing and recharging”).
51
Scott Skinner-Thompson et al., Marriage, Abortion, and Coming Out, 116 Colum. L. Rev.
Online 126, 138–42 (2016) (chronicling the Court’s treatment of abortion under the right to
privacy).
52
E.g., United States v. Vazquez, 31 F. Supp. 2d 85, 90 (D. Conn. 1998) (concluding that women
had no claim to privacy over videotapes of them entering clinic because individuals have no
claim to privacy when walking down public street).
53
Winnie Wu, Plan for Cameras at New York Clubs Raises Privacy Concerns, N.Y. Times
(Aug. 14, 2006), https://www.nytimes.com/2006/08/14/nyregion/14clubs.html.
54 Performative Privacy in Theory and Practice

York Mayor Rudy Giuliani have encouraged other citizens to record or photograph
people entering sex-based businesses in order to shame and deter people.54 Given
that associating often requires going into public (either physically or digitally) in the
first instance, the right to record or monitor any and all things in public potentially
eviscerates the right to associate privately.

***
The emphasis on the indirect First Amendment values advanced by public privacy
(namely, facilitating future or simultaneous speech and the freedom of association)
have begun to create limited but significant cracks in the secrecy paradigm.55 For
example, in an important concurrence in United States v. Jones, which centered on
whether it was permissible for police to attach a GPS tracking device to the underside of
someone’s car and track them beyond what was contemplated by the search warrant,
Justice Sonia Sotomayor questioned whether “it may be necessary to reconsider the
premise that an individual has no reasonable expectation of privacy in information
voluntarily disclosed to third parties” and noted the chilling threat posed to associational
and expressive freedoms by unfettered surveillance of people while in public.56 And, as
discussed, concerns about burdening the freedom of association played an important
role in Carpenter, where the Court concluded that collection of warrantless historical
cell-site location data violated the Fourth Amendment. But, as noted in Chapter 1, the
decision in Carpenter was a narrow one, limited to the context of historical cell-site data
and has not yet otherwise dramatically eroded the third-party doctrine.
In other words, the prevailing explanations for public privacy’s importance are
accurate but perhaps incomplete. And justifying public privacy with reliance on
indirect constitutional benefits has, thus far, had relatively limited judicial purchase,
in part because the benefits are more tangential and harder for courts to discern.57
For example, in Laird v. Tatum, the Supreme Court held that the purported injury
from the chilling effect of Army surveillance on civil political activity was too
attenuated to even support plaintiff’s ability to bring a suit challenging the surveil-
lance – the Court held that the plaintiffs lacked standing because the alleged
chilling effect on their First Amendment activity was, in effect, too subjective to
constitute a “specific present objective harm.”58 This is a common barrier for privacy

54
Michael Warner, The Trouble with Normal 183 (1999).
55
E.g., United States v. Lambis, No. 15-cr-734, 2016 U.S. Dist. LEXIS 90085, at *19–20 (S.D.N.Y.
July 12, 2016) (third-party doctrine did not excuse use of cell-site simulator, or StingRay, without
a warrant because cellular data was communicated to government, not third party).
56
132 S. Ct. 945, 956–57 (2012) (Sotomayor, J., concurring).
57
Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030, 1051–52 (D.C.
Cir. 1978).
58
408 U.S. 1, 12–16 (1972); see also Jeffrey L. Vagle, Being Watched: Legal Challenges to
Government Surveillance (2017) (detailing the impact of Laird and the standing require-
ment on privacy lawsuits). But see Black Lives Matter v. Town of Clarkstown, 354 F.Supp.3d
 Public Privacy’s Indirect Benefits 55

lawsuits – courts are sometimes unable to identify a direct or concrete, material

injury and therefore not infrequently dismiss privacy lawsuits for lack of standing.59
Even if courts do recognize a cognizable privacy harm sufficient for standing
purposes, the harm is often still ethereal such that it is harder still for courts to weigh
the indirect constitutional benefits of privacy against competing government inter-
ests, such as security and public safety. That is, courts are often forced to weigh
privacy concerns against concerns over safety and security, and if privacy’s import-
ance is limited to indirectly creating space for the exercise of other constitutional
values, it will often lose out.
Despite some success in advancing a right to public privacy, by and large, the
development of such a right has been slow in coming and many doctrines maintain
their dogged commitment to the secrecy paradigm. It seems possible that the
sluggishness with which the purported right to public privacy has manifested itself
in doctrine is in part because it has been justified on the same instrumental terms
and with the same values that the right to privacy writ large has been (with mixed
success) defended. But defending the right to privacy in courts with reference
indirect benefits (such as facilitating the freedom of association) and amorphous,
liberal values (such as dignity or autonomy) has by many accounts been a failed
exercise because the purported harm is not palpable or immediate.60 In other words,
while “privacy scholars speak of philosophical rights and hypothetical risks . . . there
is nothing abstract about the physical, often menacing, intrusions” many people,
particularly from marginalized groups, suffer.61
Perhaps more to the point, justifying the right to be free from public surveillance
by, for example, closed-circuit television (CCTV) networks, by relying on indirect
concerns about “chilling” the freedom to meet and associate requires courts to take
more causal steps than may be necessary in order to normatively and doctrinally
justify a right to public privacy. It frames privacy as a tool used to harness other
downstream values and rights, rather than emphasizing privacy’s direct, and more
potent, outward-facing power.
As demonstrated below, conceptualizing efforts to maintain privacy in public as
expressive, performative acts highlights a more direct dimension and value of public
privacy, ties it more tightly to the freedom of expression guaranteed by the First

313 (S.D.N.Y. 2018) (alleged police surveillance of political activity sufficient to establish
standing for chilling of protected First Amendment activity).
59
For additional discussion regarding the judicial appetite for concrete harms and standing, see
Chapter 5.
60
Helen Nissenbaum, Privacy in Context 10, 108 (2010) (suggesting that reliance on “higher-
order values” to justify privacy often fails to resolve conflicts between privacy and other
interests); Tom Gerety, Redefining Privacy, 12 Harv. C.R.-C.L. L. Rev. 233, 234 (1977) (“A
legal concept will do us little good if it expands like a gas to fill up the available space”).
61
Barton Gellman & Sam Adler-Bell, The Disparate Impact of Surveillance 2, The
Century Foundation (2017), https://production-tcf.imgix.net/app/uploads/2017/12/03151009/
the-disparate-impact-of-surveillance.pdf.
56 Performative Privacy in Theory and Practice

Amendment, and foregrounds how surveillance directly stifles and burdens that
expression.62 Such a framing may not only have doctrinal benefits, but may also
have meaningful discursive, societal effects, elevating our collective acceptance of
privacy’s value.
To be clear, none of this is to say that even when framed as directly expressive,
acts of performative privacy do not also indirectly serve other constitutional values
(including freedom of association and thought). Of course they do. Indeed, a critical
argument of this book, as discussed in Chapter 3, is that framing acts of public
privacy as performative/expressive also furthers anti-subordination goals for the many
marginalized groups targeted for surveillance. But to access judicial protections for
these secondary benefits, first accentuating public privacy’s direct expression may be
necessary. The directly performative aspects of privacy can be the key to unlocking
and then securing the manifold benefits of privacy in public, including anti-
subordination benefits. And, as will be outlined in Chapter 3, while sometimes
beset by pluralism anxiety and a reluctance to vindicate claims that sound solely in
the register of identity-based equality claims, in the speech context, the Supreme
Court has afforded special solicitude to speech – including anonymous speech –
that relates to or advances anti-subordination goals. Therefore, the link between anti-
subordination and expression bolsters the degree to which the expression will be
given robust judicial protection. (And, in the informational privacy context dis-
cussed in Chapters 5 and 6, the anti-subordination benefits of privacy are, in fact,
the principal direct, material benefit.)

the performative pivot

Individuals’ efforts to maintain privacy, anonymity, or obscurity while simultan-
eously engaged in public activity ought to be understood as performative, expressive
acts – expressions that may often be protected directly by the Free Speech Clause of
the First Amendment. Certainly, as outlined at the outset of this chapter, maintain-
ing anonymity while in public by wearing a hoodie or using internet obfuscation
technology instrumentally aids one’s freedom of thought, movement and association
without being identified by public surveillance. But it is more than that. As govern-
ment, corporate, and individual surveillance of both our physical and cyber activities
becomes ubiquitous, efforts taken to shield activities from surveillance are not always
just a means to an end – a means to effectuate other constitutional values. Instead,
they are often a direct statement of resistance to the pervasive surveillance society. In

62
Judith Wagner DeCew’s version of “expressive privacy” is different from what I identify as
performative, expressive privacy. For DeCew, expressive privacy is akin to the instrumental
concept of intellectual privacy – the functional demand for privacy does not appear to be, in
and of itself, outwardly expressive. Judith Wagner DeCew, In Pursuit of Privacy 77 (1997).
 Performative Privacy in Theory 57

such instances, they are entitled to First Amendment protections from government
infringement.
What follows demonstrates how “performative privacy” is conceptually coherent
and descriptively accurate, and does the work of identifying and labeling examples of
performative privacy. Evidence that functional efforts to maintain privacy in public
are also expressive comes in three principal forms: (1) the state’s regulatory reaction
to functional efforts to maintain privacy; (2) individuals’ self-identification of such
acts as expressive; and (3) social and political theory, which elevates social context as
a backdrop that helps make individuals’ actions intelligible. After outlining the
theoretical foundations for performative privacy, this chapter analyzes several real-
world examples of performative privacy. Chapter 3 then explains how conceptual-
izing public privacy demands as expressive will help such demands find doctrinal
protection and protection in the court of public opinion.

performative privacy in theory

The idea that functional efforts to maintain privacy can also serve as expressive forms
of resistance to surveillance structures is supported by, and in turn extends, critical
theory and social theory more broadly. The concept of performative privacy serves to
highlight the degree to which we, as individuals, are being observed, operated on,
and controlled by surveillance systems, and at the same time helps label a form of
resistance – and one with doctrinal footing. Put differently, the notion of performa-
tivity as applied to privacy can help expose the extent to which individuals are
subjects of surveillance structures, and simultaneously reveals methods for main-
taining democratic agency and points of resistance within those surveillance net-
works.63 That is to say, “performative privacy” helps us understand the scope of
privacy problems and identify potential solutions.
As put by sociologist Erving Goffman, social performances involve the deploy-
ment of “expressive equipment,” including clothing, that help give contour to an
individual’s identity and shape the environment – or stage – upon which the
individual is performing.64 Just as important as what someone projects to the outside
world is what they choose to conceal – concealment is as central to identity
construction as outward expression.65 In other words, the observed can and often
do communicate.66
63
John E. McGrath, Loving Big Brother 16 (2004) (arguing that agency can be achieved by
mocking surveillance, even if the agency is “never fully volitional,” but focusing on efforts to
ape surveillance, rather than efforts to perform privacy and avoid identification).
64
Goffman, supra note 15, at 22–24; see also id. at 1, 13 (highlighting that appearance is an
important form of expression, and is often not normatively neutral, but instead asserts moral
demands).
65
Id. at 43.
66
Id. at 250–51 (“Instead of allowing an impression of their activity to arise as an incidental by-
product of their activity, they can reorient their frame of reference and devote their efforts to the
58 Performative Privacy in Theory and Practice

Political theorist Judith Butler expanded on Goffman’s discussion of social per-

formances and more squarely articulated the contemporary post-structural concept
of performativity while scrutinizing prevailing, heteronormative conceptions of
gender and sex. Butler explained that social performances of gender, rather
than expressing anything innate, ingrained, essential, or “true” about what it meant
to be male or female, were often mere reflections of the dominant social construc-
tions and conceptions of a particular gender. In Butler’s words, “the anticipation
conjures its object . . . the anticipation of a gendered essence produces that which it
posits as outside itself.”67 While Butler suggested that we were all, in essence,
performing and reproducing socially inscribed notions of gender, she also explained
that both subconscious and self-conscious performances that challenged prevailing
norms, for example, through drag, could “expose the tenuousness of gender ‘real-
ity.’”68 Put differently by Butler, social construction is a “temporal process which
operates through the reiteration of norms” but “sex is both produced and destabil-
ized in the course of this reiteration.”69 That is, as a result of the reiteration of
norms and identities, “gaps and fissures” open up that permit destabilization of
the norms.70
And while Butler is at times skeptical of individual volunteerism, she still seems to
recognize a space for subjective agency within the social grid/matrix. Indeed, she
seems hopeful of the possibility that we can “work[] the weakness in the norm.”71
Drawing from Michel Foucault, Butler explained that rather than remaining a
passive medium reflecting dominant norms, the body could be transformed into
an expressive site of resistance.72 And the expressive value of nonnormative gender
performances was amplified precisely because of the dominant structures of hetero-
normativity – that is, gender performances that deviated from the norm are imbued
with agency and expressive meaning in part because of their oppositional position-
ing to hegemonic social expectations. (To conclude otherwise – that is, to conclude

creation of desired impressions . . . [T]he observer’s need to rely on representations of things

itself creates the possibility of misrepresentation”).
67
Judith Butler, Gender Trouble xv (Routledge Classics 2006) (1990); cf. Devon
W. Carbado & Mitu Gulati, Acting White? 94 (2013) (“Grooming requirements such as
makeup for women and short hair for men help to constitute gender. They shape what it means
to be a man and what it means to be a woman”); Clare Huntington, Staging the Family, 88
N.Y.U. L. Rev. 589, 611–14 (2013) (arguing that family roles are performed and that such
performances have a “communicative effect, on others and the self” such that they “construct
familial categories and create social meaning”).
68
Butler, supra note 67, at xxv.
69
Judith Butler, Bodies that Matter xix (Routledge Classics 2011) (1993).
70
Id.
71
Id. at 181; see also Judith Butler, Undoing Gender 3 (2004) (“If I have any agency, it is
opened up by the fact that I am constituted by a social world I never chose. That my agency is
riven with paradox does not mean it is impossible. It means only that paradox is the condition of
its possibility”).
72
Butler, supra note 69, at 175–78.
 Performative Privacy in Theory 59

that that individuals completely lack agency or critical consciousness in the face of
the forces of social construction (powerful as they may be) – is in some ways an
insult to all people, including those from marginalized groups, who are acted upon
by social forces.)
In short, identities – including sexual and gender identities – are dynamic.73 And
our “sexed” bodies are similarly dynamic – the product of biology and genetics, yes,
but also social forces that shape and construct our bodies and identities.74 In turn,
our outward-facing identities contribute to the social tableau and shape others’
identities. In the end, our identities say something. They say something personal,
and often political.75 They are individually expressive – even if partially (largely?) the
product of social forces.
But the pertinence of performativity is not limited to gender politics. Put more
generally by David Hoy, particular social structures provide “the grid of intelligi-
bility” for understanding actions “as conforming to or dissenting from the given
power configuration.”76 As another example, in her more recent work, Butler
extends the theory of gender performance to the plural performativity of social
movements engaged in acts of public assembly. By physically occupying contested
public space, public gatherings communicate and signify a message “prior to, and
apart from, any particular demands they make.”77 That message is one which calls
“into question the inchoate and powerful dimensions of reigning notions of the
political.”78 The embodied plural performances of public assemblies question
whether the body politic is being served by prevailing participatory democratic
governance. For Butler, public assemblies perform an “expressive and signifying
function” demanding more livable political and economic conditions.79 Indeed, as
Zeynep Tufekci has underscored, social movements are only as powerful as the

73
Id. at xi (“Sexual difference, however, is never simply a function of material differences which
are not in some way both marked and formed by discursive practices. Further, to claim that
sexual differences are indissociable from discursive demarcations is not the same as claiming
that discourse causes sexual difference. The category of ‘sex’ is, from the start, normative; it is
what Foucault has called a ‘regulatory ideal.’ In this sense, then, ‘sex’ not only functions as a
norm, but is part of a regulatory practice that produces the bodies it governs[]”).
74
The categories of “man” and “woman” are, at bottom, “political categories and not natural
givens.” And “our bodies as well as our minds are the product of this [culturally imagined]
manipulation.” Monique Wittig, One Is Not Born a Woman, in The Lesbian and Gay
Studies Reader 103, 103–05 (Aberlove et al. eds. 1993).
75
Janet E. Halley, The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and
Bisexual Identity, 36 UCLA L. Rev. 915, 973 (1989) (“The mere disclosure of one’s gay, lesbian,
or bisexual identity ineluctably accumulates political significance”).
76
David Couzens Hoy, Critical Resistance 3 (2004).
77
Judith Butler, Notes Towards a Performative Theory of Assembly 8 (2015); cf. Bernard
E. Harcourt, Political Disobedience, in Occupy: Three Inquiries in Disobedience 45, 53
(Mitchell et al. eds., 2013).
78
Butler, supra note 77, at 9.
79
Id. at 11.
60 Performative Privacy in Theory and Practice

capacities they signal, suggesting that the messages they communicate regarding
their political heft are a key component of their power.80
As another example, others have powerfully documented the dialectic creation of
racial/ethnic performance codes. As Camille Gear Rich has explained, “part of the
process of constituting oneself as a social actor requires the acceptance and recogni-
tion of racial/ethnic codes and markings and the mobilization of these codes to
ensure that other actors read them in the manner that ensures one is placed in the
desired race or ethnic group.”81 That is, crafting one’s social identity involves an
expressive performance that feeds off of, and helps shape, social norms/structures of
race and ethnicity.82 Similarly, as documented by Devon Carbado and Mitu Gulati,
dominant, white workplace culture within the United States causes individuals to
work their identities – that is, they either conform to the prevailing social norms and
structures and attempt to “pass,” or resist such structures through nonconformance.
Efforts to work one’s identity are clearly communicative and involve what Carbado
and Gulati label “signaling strategies.”83
In short, a post-structural theory of performative politics posits at least four things:
(1) social performances conjure and reinscribe normative identities and values; (2)
actions (whether they be public assembly, drag, interactions with racial codes, or, as
I suggest, privacy demands) that deviate from prevailing performances can be
expressive forms of resistance separate and apart from any linguistic utterance that
may (or may not) accompany them; (3) these actions’ expressive value is derived, at
least in part, from the fact that they are deviating from prevailing social perform-
ances; and (4) the deviant actions’ expressive power is so great that it can begin to
erode, dismantle, or recraft the social structures to which they are responding.
Put in context, when men engage in sodomy, they express a challenge to gender
norms and create new, less violent and less restrictive norms; when people gather in
Zuccotti Park, Gezi Park, or Hong Kong International Airport, they contest neolib-
eral political governance and suggest that there are different ways to conceive of
participatory democracy; and, as I will show, when individuals attempt to maintain

80
Zeynep Tufekci, Twitter and Tear Gas: The Power and Fragility of Networked
Protest (2017); see also Scott Skinner-Thompson, Rules for Digital Radicals, Jotwell
(Nov. 14, 2017), https://cyber.jotwell.com/rules-for-digital-radicals/.
81
Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the
Future of Title VII, 79 N.Y.U. L. Rev. 1134, 1178 (2004).
82
Cf. Benedict Anderson, Imagined Communities 5–6 (rev. ed. 1991) (explaining that com-
munities and nations, are, at bottom, imagined/constructed “cultural artefacts” maintained
through certain social practices/institutions rather than anything a priori).
83
Carbado & Gulati, supra note 67, at 23–26; see also Kenji Yoshino, Covering, 111 Yale L.J.
769, 780–81 (2002) (documenting how people play down aspects of their identities in different
contexts, and are sometimes encouraged to do so by the law); cf. John Gilliom, Struggling with
Surveillance: Resistance, Consciousness, and Identity, in The New Politics of Surveillance
& Visibility 111, 114 (Kevin D. Haggerty & Richard V. Ericson eds., 2006) (emphasizing the
importance of understanding surveillance resistance as occurring within a structural context of
networked surveillance technologies).
 Performative Privacy in Theory 61

privacy while in public, they express resistance to surveillance regimes and also help
shape community norms regarding privacy as a valuable social good and help redraw
the line separating public from private.84
This theory of performative privacy draws additional support from the work of
Jean Baudrillard, who explained that while objects often have a functional value –
the instrumental purpose for which the object is used – they also have symbolic and
sign value relative to other objects and to people within a system of objects.85
According to Baudrillard, objects signify certain messages and the content of that
message is partially determined based on an object’s relationship to other objects,
and the people who use or display the object(s). As Baudrillard explained, an object
“derives its consistency, and hence its meaning, from an abstract and systematic
relationship to all other sign-objects.” 86 He labeled this system a “signifying fabric.”
Indeed, to the extent that sociologists have often recognized that criminal punish-
ment serves an expressive function – expressing (in theory) the conscience collective
of the community/state87 – it is no great leap to suggest that functional efforts to resist
surveillance, discipline, and punishment are also expressive.
Here, I am addressing the signifying effects of privacy efforts within the social
fabric of widespread surveillance – surveillance systems that are themselves not
neutral or apolitical, but instead communicate and create normative, often neolib-
eral, messages.88 As put by surveillance scholar Kirstie Ball, “surveillance communi-
cates value systems to the surveilled.”89 The extent to which the surveillance regime
has penetrated our lives is vividly conveyed by Bernard Harcourt – “ordinary life is
uncannily converging with practices of punishment: The see-throughness of our
digital lives mirrors the all-seeingness of the penal sphere.”90 Put another way, “the
infrastructure, by default, gathers data on you.”91 More concretely, “[t]he picture in
the picture window . . . is what is going on inside.”92 As surveillance scholars have

84
Cf. Butler, supra note 67, at xxiv (“[N]o political revolution is possible without a radical shift
in one’s notion of the possible and the real”); Ta-Nehisi Coates, Between the World and
Me 69 (2015) (“[T]he struggle, in and of itself, has meaning”).
85
Jean Baudrillard, For a Critique of the Political Economy of the Sign 29 (Charles
Levin trans., 1981) (arguing that an object’s sign value is often more important and valuable
than its pragmatic, functional value); Jean Baudrillard, The System of Objects 4 (James
Benedict trans., 1996) (isolating for study a “‘spoken’ system of objects – that is, the study of the
more or less consistent meanings that objects institute”).
86
Baudrillard, The System of Objects, supra note 85, at 200.
87
David Garland, Punishment and Modern Society 68 (1990).
88
Roy Coleman, Reclaiming the Streets: Closed Circuit Television, Neoliberalism and the
Mystification of Social Divisions in Liverpool, UK, 2 Surveillance & Soc’y 293, 299–300
(2004).
89
Kirstie Ball et al., Big Data Surveillance and the Body-Subject, 22 Body & Soc’y 58, 70–71
(2016).
90
Harcourt, supra note 26, at 21.
91
Finn Brunton & Helen Nissenbaum, Obfuscation 49–50 (2015).
92
Habermas, supra note 25, at 157 (quoting W.H. Whyte, The Organization Man 352 (1956)).
62 Performative Privacy in Theory and Practice

observed, “[i]n many respects surveillance is constitutive of modern society.”93 That

is, surveillance in its varied forms (administrative, technological, social, and penal) is
pervasive and dramatically shapes and restricts behavior, a point richly highlighted
by Julie Cohen, who argues that privacy theorists should abandon notions of
selfhood cultivated purely through solitary development.94 According to Cohen,
surveillance regimes impact and alter the development of both space and individual
identity, which are intimately linked – in other words, “exposure alters the capacity
of places to function as contexts within which identity is developed and per-
formed.”95 Or as David Phillips has explained, “[t]he ability to present the self
[and, I would add, conceal the self], and to make moral claims about how one is
to be perceived and acted toward, is a fundamental mechanism for structuring social
relations and for asserting social power.”96
Into this (in some ways self-inflicted) Panopticon step efforts to maintain privacy
while in public. I argue that such efforts are often a form of performative, expressive
resistance to the surveillance regimes – that they communicate and signal oppro-
brium of surveillance, shine a critical spotlight on that surveillance, and by so doing,
offer a reimagined place for privacy in our social structures.97 As with acts of public
assembly, “some matter of political significance is being enacted and conveyed” by
functional efforts to maintain (or take back) privacy.98 And because “power func-
tions more effectively the less visible it is,” acts of performative privacy draw out
exercises of state power from behind their cameras and force the use of more direct
forms of power (for example, arrests and incarceration), thereby exposing power
structures for further critique and challenge.99 It acts as a diagnostic tool, helping
locate and isolate power structures, but also as a poultice or drawing salve, helping to
combat those same structures.
Performative privacy as a dimension of public privacy has the potential to subvert
the perceived reality that a surveilled individual “is the object of information, never a
subject in communication.”100 Claiming one’s personal subjectivity is a founda-
tional aspect of liberatory struggles. As Lorde has explained, “[f]or Black women as

93
E.g., Aaron K. Martin et al., Understanding Resistance to Digital Surveillance: Towards a
Multi-Disciplinary, Multi-Actor Framework, 6 Surveillance & Soc’y 213, 216 (2009).
94
Cohen, supra note 45, at 129–30; see also id. at 140 (“Like identities, places are dynamic and
relational; they are constructed over time through everyday practice”).
95
Id. at 141.
96
David J. Phillips, From Privacy to Visibility, 23 Soc. Text 95, 95 (2005).
97
Cf. Scott, supra note 47, at 196 (“So long as the elite treat such assaults on their dignity as
tantamount to open rebellion, symbolic defiance and rebellion do amount to the same thing”);
McGrath, supra note 63, at 218–19 (arguing that surveillance performance critiques help us
comprehend responses to surveilled space).
98
Butler, supra note 77, at 22.
99
Hoy, supra note 76, at 83.
100
Michel Foucault, Discipline and Punish 200 (Alan Sheridan trans., 1977); cf. Mimi Thi
Nguyen, The Hoodie as Sign, Screen, Expectation, and Force, 40 Signs 791, 813 (2015) (“To be
an object is to be determined by another”).
 Performative Privacy in Theory 63

well as Black men, it is axiomatic that if we do not define ourselves for ourselves, we
will be defined by others – for their use and to our detriment.”101 And as critical
theorists such as bell hooks have underscored, expressing resistance is a critical step
in projects of liberation; in the transformation from object to subject: “Moving from
silence into speech is for the oppressed, the colonized, the exploited, and those who
stand and struggle side by side a gesture of defiance that heals, that makes new life
and new growth possible. It is that act of speech, of ‘talking back,’ that is no mere
gesture of empty words, that is the expression of our movement from object to
subject – the liberated voice.”102
The concept of performative privacy highlights that mitigating surveillance is one
method for transforming from object into communicator subject. Privacy is not
merely defensive, but can be outwardly offensive. As Hille Koskela has explained,
“[s]pace can feel oppressive: ‘like an enemy itself,’ but reclaiming space can – at the
same time – be the precondition of emancipation.”103 The concept of performative
privacy embellishes Koskela’s point by underscoring how reclaiming space through
efforts to maintain privacy is directly emancipatory, directly expressive, and not
merely a precondition for freedom.
Moreover, the fact that an effort to maintain privacy may serve a practical,
material purpose – keeping information secret – does not detract, but rather
enhances, its expressive values.104 As James Scott has explained, acts of material
resistance often double as forms of symbolic, ideological resistance. In other words,
“the two forms of resistance are . . . inextricably joined.”105
Indeed, part of the political power of efforts to maintain privacy in public is
derived from their fidelity and integrity to the values they espouse – acts of per-
formative privacy live the value being proselytized; they practice what they
preach.106 A great deal can be learned about the values of any subordinate group

101
Lorde, supra note 9, at 45.
102
bell hooks, Talking Back: Thinking Feminist, Thinking Black 9 (Routledge 2015) (1989).
103
Hille Koskela, “The Gaze without Eyes”: Video-Surveillance and the Changing Nature of
Urban Space, 24 Progress Hum. Geography 243, 259 (2000) (citation omitted).
104
Erich Fromm, On Disobedience 16–17 (1981) (explaining that acts of disobedience are key to
the establishment of freedom and humanity, and that several origin stories whether they be
Biblical (Adam and Eve) or Greek (Prometheus), center acts of disobedience as critical to the
establishment of humanity as such).
105
Scott, supra note 15, at 304. Cf. Loic Wacquant, Punishing the Poor xvi (trans., Duke
2009) (2004) (observing that systems of control both symbolize/communicate norms, and
materially shape reality).
106
Fromm, supra note 104, at 42 (explaining that ideas have greater impact or effect “if the idea is
lived by the one who teaches it; if it is personified by the teacher”); cf. Saul Alinsky, Rules
for Radicals: A Pragmatic Primer for Realistic Radicals 128 (1971) (explaining that one
of the key tactics for undermining prevailing regimes is to “[m]ake the enemy live up to their
own book of rules,” exposing their hypocrisy); see also John W. Bowers et al., The Rhetoric
of Agitation and Control 120 (1993) (documenting the rhetorical impact of nonviolent
resistance during the civil rights movement).
64 Performative Privacy in Theory and Practice

by looking at the forms of resistance they deploy – the form of resistance can be
expressive of the values embodied by the resisters.107 And these deviant actions all
have the power to erode, dismantle, or recraft social structures, in this case helping
reinstitute the social value of privacy.
Finally, it is important to emphasize that acts of resistance are not just a nihilistic
statement of “no” – but instead affirmative, ideological expressions. And while they
may not be end-all-be-all component of anti-subordination projects, such acts of
resistance nevertheless are a critical component of decolonial projects aimed at
establishing subjectivity.108 As Erich Fromm has articulated, disobedience “is an act
of the affirmation of reason and will. It is not primarily an attitude directed against
something, but for something: for [a person’s] capacity to see, to say what [they]
see[], and to refuse to say what [they] do[] not see.”109
In this way, and as discussed in Chapter 3, expressive efforts to maintain privacy in
public serve important autonomy interests that underlie the First Amendment,110
and form part of a long line of expressive conduct entitled to First Amendment
coverage. In what follows, I analyze several efforts to maintain privacy in order to
demonstrate that the theory of performative privacy is descriptively accurate – that is,
that it is more just a theory, but a lived reality. Chapter 3 outlines the various
implications for the theory of performative privacy.

performative privacy in practice

Even before Edward Snowden revealed details regarding the National Security
Agency’s efforts to surveil the American public through sophisticated metadata
programs, the extent to which our every digital and physical fingerprint was
observed, recorded, aggregated, and scrutinized was relatively well documented.
Of course, the use of surveillance as a tool for social control is quite old.111 In the face
of that surveillance, individuals and groups have attempted to obscure their iden-
tities and activities in public,112 often raising the operating costs for surveillers.113 As
107
Cf. Scott, supra note 15, at 277 (“Routine repression does its work unobtrusively”).
108
bell hooks, Black Looks: Race and Representation 4–5 (Routledge 2015) (1992) (explain-
ing that decolonization “as a political process is always a struggle to define ourselves in and
beyond the act of resistance to domination”).
109
Fromm, supra note 104, at 48 (gendered language revised).
110
Robert Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse, 64
U. Colo. L. Rev. 1109, 1122 (1993) (foregrounding the First Amendment’s protections for
autonomy).
111
Foucault, supra note 100, at 200–01 (observing the ways in which the state disciplines and
controls populations through surveillance).
112
Gilliom, supra note 83, at 6 (documenting how those receiving state assistance and subject to
its surveillance “build a critique of surveillance that is based in the realities and demands of
everyday life”); id. at 113 (listing examples of surveillance resistance such as obscuring one’s
license plate with mud and using false names for supermarket frequent shopper programs).
113
Harry Surden, Structural Rights in Privacy, 60 S.M.U. L. Rev. 1605 (2007).
 Performative Privacy in Practice 65

Virginia Eubanks has explained, “[r]esistance to surveillance is as common as

surveillance itself” – particularly among marginalized communities.114
Other legal scholars, such as Elizabeth Joh, Andrew Ferguson, and Ryan Calo have
documented some of the ways in which individuals resist surveillance in diverse
contexts, and begun to investigate the importance of these acts.115 As Joh has explained,
efforts to obscure are often not a means of hiding criminal activity (frequently there is
no criminal activity), but instead merely an effort to express protest – to communicate
to the state that they could not and should not observe.116 However, for Joh, the value
of privacy protests appears limited to (1) highlighting whether a particular form of
surveillance is necessary and (2) demonstrating shifting privacy norms; that is, that
people do expect privacy.117 Joh downplays any First Amendment role in protecting
privacy protests. Similarly, while Ryan Calo has noted the importance of citizen
resistance to surveillance, he does not appear sanguine about the prospect of legal
protections for that resistance.118
Here, the concept of “performative privacy” adds to existing legal discussions
regarding surveillance resistance not only by identifying and connecting additional
examples of such resistance, but more importantly by situating these examples
within social theory and surveillance studies, which, in turn, helps uncover privacy’s
expressive dimension. In other words, part of my contribution is in demonstrating
that there is expressive power in maintaining one’s anonymity or privacy against an
ever-watching surveillance regime, highlighting the social impact of those privacy
performances, and the potential doctrinal protections for that resistance.
Examples of such performative privacy are not uncommon, and I explore several
of them in detail. These real-world examples buttress the theoretical account
provided in the preceding section, and vice versa. Importantly, these examples do
not necessarily illustrate performative privacy in exactly the same ways. That is, there
are variations in how functional demands for privacy serve as acts of performative
expression. But rather than detracting from the theory of performative privacy, the
subtle differences in the way performative privacy operates in the context of hoodies/
masks, cyber masks, gender expression, and head veils helps highlight the concept’s
potency and potential breadth.

114
Virginia Eubanks, Want to Predict the Future of Surveillance? Ask Poor Communities, Am.
Prospect (Jan. 15, 2014), http://prospect.org/article/want-predict-future-surveillance-ask-poor-
communities; see e.g., Tamika Lewis, et al., Digital Defense Playbook: Community Power
Tools for Reclaiming Data, Our Data Bodies (2018).
115
Ryan Calo, Can Americans Resist Surveillance?, 83 U. Chi. L. Rev. 23, 30–31 (2016); Elizabeth
E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55 Ariz.
L. Rev. 997, 1000–02 (2013); see also Finn Brunton & Helen Nissenbaum, Vernacular
Resistance to Data Collection and Analysis: A Political Theory of Obfuscation, First
Monday (May 2, 2011), http://www.firstmonday.org/ojs/index.php/fm/article/view/3493/2955.
116
Joh, supra note 115, at 1002.
117
Id. at 1022–23; 1005 n.38.
118
Calo, supra note 115, at 36–39.
66 Performative Privacy in Theory and Practice

Nor am I suggesting that all people who engage in functional efforts to maintain
public privacy are enacting an expressive message at all times. People can seek privacy
for lots of reasons, and may engage in acts that help provide privacy for non-privacy
reasons. But part of my purpose is to show how those functional acts are frequently
expressive. As Kirstie Ball has observed, particularly in a world of big data, individuals
may not be fully conscious of interacting with particular surveillance practices and,
yet, their information is gathered and their bodies are read.119 And the flip side of that
coin, as underscored by John McGrath, is that the performative or perlocutionary
effects of people’s actions are not negated by the fact that certain people may be
unaware of their own effects.120 As such (and important for the First Amendment
doctrinal analysis of Chapter 3), the valence of a specific intent to express resistance at
a particular point seems diminished. An internalized or routinized form of resistance
may be more effective, and speak just as loudly, than any self-conscious effort.121

1 Hoodies, Masks, and Disrupting Facial Recognition

The hoodie has evolved from a functional apparel item to an iconic symbol of
resistance that simultaneously obscures one’s unique identity. The hoodie, by
providing a level of privacy while in public, is increasingly worn as an expression
of resistance against the government. As noted, this is not to say everyone who wears
a hoodie is self-consciously engaged in an act of expressive resistance. People wear
hoodies for many reasons (warmth, comfort, etc.). But the hoodie is sometimes worn
as a form of surveillance resistance. And even in instances where not worn for that
purpose, it may be understood by the state and other surveilling actors as a form of
resistance – highlighting its expressive role and, as will be explained in Chapter 3,
the arguable invalidity of attempts to target, strip, and criminalize efforts to conceal
oneself in public.122 A brief history helps illustrate the hoodie’s expressive pedigree
and current performative role.
In the 1970s, the hoodie was worn by graffiti artists to help them keep a low profile
while engaged in graffiti. The hoodie was subsequently adopted by hip-hop, skate,
and punk cultures – cultures that shared perhaps reciprocal antipathy with main-
stream society. As such, “the hoodie was further interwoven with a culture of
defiance.”123 As this history suggests, the hoodie has often been worn by individuals
engaged in expressive mediums (e.g., graffiti, music).
119
Ball et al., supra note 89, at 67.
120
McGrath, supra note 63, at 100.
121
Hoy, supra note 76, at 10–11 (explaining that for many critical theorists, “although resistance
should not be blind, agents need not know explicitly all their reasons and principles in
advance”).
122
Alison Kinney, Hood 7 (2016) (explaining that everyone wears hoods, but hoods nonetheless
provoke responses, including legislative responses).
123
Denis Wilson, The History of the Hoodie, Rolling Stone (Apr. 3, 2012), http://www
.rollingstone.com/culture/news/the-history-of-the-hoodie-20120403.
 Performative Privacy in Practice 67

Over time, the hoodie’s ability to cloak individuals became expressive in and of
itself as a sign of resistance. As author and poet Jarrett Neal articulated in his
collection What Color Is Your Hoodie, “[a]t various times in our lives we all cloak
ourselves in the same metaphorical hoodie whether the forces of our inequitable
society impose it upon us or we conceal ourselves in it of our own free will, an act of
rebellion or survival.”124 Similarly, Ta-Nehisi Coates relays the story of how the
mother of a black boy killed by the police extolled Coates’s son that “You matter.
You have value. You have every right to wear your hoodie, to play your music as loud
as you want. You have every right to be you. And no one should deter you from
being you.”125 In addition to these descriptive accounts, an empirical study of
students at three British schools revealed that some students would actively resist
CCTV surveillance cameras by putting up their hoods to avoid detection.126
And it is in part because the hoodie is a functional and yet expressive form of
resistance to surveillance, adopted by multiple marginalized groups, that the hoodie
is viewed with suspicion by state actors and others in positions of authority. Devon
Carbado and Mitu Gulati have explained that, “as a matter of both socialization and
formal or informal political advice, African Americans are encouraged to signal cooper-
ation by giving up their privacy” when confronted by law enforcement.127 The hoodie
can signal, particularly for black communities who are disproportionately targeted for
state surveillance (as documented in Chapter 1), a lack of cooperation with surveillance
efforts and the assertion of control and privacy over one’s identity and body.
Indeed, some have suggested that it was Trayvon Martin’s hoodie (coupled with
his race) that prompted George Zimmerman – a coordinator for a neighborhood
watch program (an outsourced form of community surveillance) – to become
suspicious of, and ultimately kill, the young, unarmed teenager in 2012.128 This is
not to say that racism played no role in Martin’s death or violence against black
individuals more broadly – just the opposite. Rather, it is to suggest that it is in part
because black bodies are disproportionately subjected to surveillance and structural
oppression that the wearing of a hoodie shielding those bodies can take on an
hyper-expressive tenor – one of refusal to be surveilled and resistance to racism.129

124
Jarrett Neal, What Color Is Your Hoodie? 163–65 (2015). Neal goes on to describe how a
hoodie can signify the “halo of an avenging angel,” the “cape of a superhero,” or the “mythic
cloak of invisibility.”
125
Coates, supra note 84, at 113.
126
Michael McCahill & Rachel Finn, The Social Impact of Surveillance in Three UK Schools:
“Angels,” “Devils” and “Teen Mums,” 7 Surveillance & Soc’y 273, 283–84 (2010).
127
Carbado & Gulati, supra note 67, at 102; see also Colson Whitehead, The Nickel Boys 58
(2019) (describing how black boys in a horrific Jim Crow “reformatory” school, were rewarded
for “demonstrations of compliance or docility”).
128
Coates, supra note 84, at 130 (explaining that dominant discourse suggested that “Trayvon
Martin’s hoodie got him killed”).
129
Nguyen, supra note 100, at 791 (noting that Martin’s friend, Rachel Jeantel, told Martin to pull
up his hoodie because he was being followed); cf. Rashawn Ray, “If Only He Didn’t Wear a
Hoodie . . .” Selective Perception and Stereotype Maintenance, in Getting Real About Race
68 Performative Privacy in Theory and Practice

To the extent that the physical bodies of black and Latinx people are the targets of
abuse and subjugation, the privacy barrier provided by the hoodie can serve the dual
role of shielding and concealing the body from the surveillance regime and com-
municating resistance to that same regime.130 In the wake of Trayvon’s tragic killing,
wearing of hoodies have taken on an even greater expressive dimension, with
activists and celebrities alike wearing hoodies (or images of Trayvon wearing a
hoodie) to express resistance to racism and embedded structural surveillance.
Massive protests dubbed the “Million Hoodie March” were organized to demand
an end to racial injustice.
Additional support for the notion that the state and its agents view hoodies or
other privacy-enhancing clothes as expressive and, from the state’s perspective,
“intimidating” can be found in the very existence of certain local laws that actually
criminalize wearing of a hoodie or mask while in public.131 For example, Georgia’s
criminal code provides that “[a] person is guilty of a misdemeanor when [they] wear
[] a mask, hood, or device by which any portion of the face is so hidden, concealed,
or covered as to conceal the identity of the wearer and is upon any public way or
public property.”132 The state often recognizes hoodies and masks – simply by being
worn – as a form of expressive resistance. As explained by Mimi Thi Nguyen,
“because it hides, camouflages . . . the hoodie (and its racial, colonial sister-other,
the hijab) becomes itself a criminal, even legally outlawed in some public places as a
mobile border zone, obstructing the security powers that wish to see the body-as-
information more perfectly.”133 As underscored by Margot Kaminski in her excep-
tionally thorough analysis of anti-mask laws, the anonymity provided by head and

81, 83–86 (Stephanie M. McClure & Cherise A. Harris eds., 2015) (arguing that to the extent
Martin’s hoodie motivated Zimmerman, it was because it was associated with his blackness).
130
Cf. Coates, supra note 84, at 14–17 (documenting how certain apparel items served as “armor”
against social structures that rendered the black body “naked” to the world through, for
example, stop-and-frisk policies); Colson Whitehead, The Underground Railroad 33
(2016) (“Putting on a show for the master was a familiar skill, the small angles and advantages
of the mask, and they shook off their fear as they settled into the performance”); Paul Laurence
Dunbar, “We Wear the Mask” (1896) (“We wear the mask that grins and lies, It hides our
cheeks and shades our eyes”).
131
E.g., Minn. Stat. § 609.735 (2019); N.C. Gen. Stat. § 14–12.7 (2019).
132
GA. Code Ann. § 16–11–38 (2019). The Georgia statute survived a First Amendment challenge
because the Georgia Supreme Court narrowed the statute to apply only to masks worn with the
intent to provoke “a reasonable apprehension of intimidation, threats or violence.” State
v. Miller, 398 S.E.2d 547, 552 (Ga. 1990). But courts nevertheless conclude that the mask
itself – and refusal to remove the mask – could evince an intent to intimidate giving rise to
arguable probable cause justifying an arrest, in effect turning the statute into an ex ante
determination that the mask itself is intimidating. E.g., Gates v. Khokhar, 884 F.3d 1290, 1301
(11th Cir. 2018).
133
Nguyen, supra note 100, at 802; see also Mark Joseph Stern, Oklahoma Republican Proposes
Bill Banning Hoodies in Public, Slate (Jan. 12, 2015), http://www.slate.com/blogs/the_slatest/
2015/01/12/hoodie_ban_oklahoma_republican_proposes_bill_to_outlaw_wearing_hoods_in.html.
(arguing that Oklahoma bill proposing to outlaw hoodies is targeted at symbolic speech).
 Performative Privacy in Practice 69

face coverings “is often seen as inherently threatening.”134 Coverings are viewed by
the state and its agents as a threat and criminalized. For example, police in England
recently detained people who covered their faces while in public to avoid being
scanned by facial recognition technology, deeming their behavior suspicious.135 Put
succinctly by Ruthann Robson, “the mask is prohibited because of what it
conveys.”136 And although there may (just may) be a legitimate law-enforcement
purpose for a law seeking to prevent those committing crimes from wearing masks,
often the anti-masks laws are untethered to any legitimate law enforcement pur-
pose – they apply broadly and are not limited to those otherwise engaged in
wrongdoing.137 The mask becomes a pretext for regulation and criminalization.
Moreover, while several existing anti-mask laws were originally passed in order to
target and criminalize the racist conduct of the Ku Klux Klan, more recently both the
legacy anti-Klan laws and new legislation have been used to target racial minorities,138
and political and indigenous rights protestors, such as those protesting the Dakota
Access Pipeline in North Dakota.139 As another example, members of the group
Anonymous, which works to undermine government surveillance (among other

134
Margot Kaminski, Real Masks and Real Name Policies: Applying Anti-Mask Case Law to
Anonymous Online Speech, 23 Fordham Intell. Prop. Media & Ent. L.J. 815 (2013). As
Kaminski documents, anti-mask statutes vary widely, and courts vary in their treatment of anti-
mask regulations, differing in their determinations of whether wearing a mask constitutes symbolic
speech or simply conduct. Compare Aryan v. Mackey, 462 F. Supp. 90, 90–92 (N.D. Tex. 1978)
(holding that masks used to protest the Shah of Iran were symbolic speech), and Knights of the Ku
Klux Klan v. Martin Luther King Jr. Worshippers, 735 F. Supp. 745, 751 (M.D. Tenn. 1990) (“In
the context of parades and demonstrations, certain masks and disguises may constitute strong
symbolic political expression that is afforded protection by the First Amendment”), with Ryan
v. Cty. of DuPage, 45 F.3d 1090, 1095–96 (7th Cir. 1995) (concluding that wearing of anti-filtration
mask in courthouse communicates intimidation and that the mask was not symbolic speech).
Sometimes the determination seems to hinge on the nature of the mask (i.e., is it worn in a parade,
is it a Guy Fawkes mask?). The concept of performative privacy helps highlight how a broader array
of masks or hoodies ought to be considered expressive because, even if they are bland, they may
express resistance and opposition to the surveillance regime.
135
Lizzie Dearden, Police Stop People for Covering Their Faces from Facial Recognition Camera
Then Fine Man £90 after He Protested, Independent (Jan. 31, 2019), https://www.independent
.co.uk/news/uk/crime/facial-recognition-cameras-technology-london-trial-met-police-face-cover-
man-fined-a8756936.html.
136
Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy
from Our Hairstyles to Our Shoes 125 (2013).
137
E.g., La. Stat. Ann. § 14:313 (2019); see also Rob Kahn, The Long Road Back to Skokie:
Returning the First Amendment to Mask Wearers, 28 J.L. & Pol’y 71 (2019-2020) (critiquing
legal decisions upholding mask bans as inconsistent with the First Amendment).
138
Gates, 884 F.3d 1290 (person protesting Ferguson, Missouri police violence arrested under anti-
Klan law for wearing Guy Fawkes mask); Meagan Flynn, Georgia Police Invoke Law Made for
KKK to Arrest Anti-Racism Protestors, Wash. Post (Apr. 23, 2018), https://www.washingtonpost
.com/news/morning-mix/wp/2018/04/23/georgia-police-invoke-anti-mask-law-made-for-kkk-to-
arrest-racism-protesters/?utm_term=.93a5cdf4e298; Stern, supra note 133.
139
Noah Feldman, The Constitution Has Masked Protestors Covered, Bloomberg (Mar. 2, 2017),
https://www.bloomberg.com/view/articles/2017–03–02/the-constitution-has-masked-protesters-
covered.
70 Performative Privacy in Theory and Practice

initiatives), often wear Guy Fawkes masks – as do many other protestors. That the
privacy afforded by face coverings can itself express resistance is evident from the fact
that several Occupy Wall Street protestors were issued citations for violating New
York’s anti-mask/hood law in 2011.140 At the federal level, so-called Unmasking Antifa
legislation has been introduced targeting protestors who wear “intimidating” masks.141
Nor is the expressive dimension of masks limited to the American context – as the
2019 mass civil rights protests in Hong Kong demonstrated, concealing one’s identity can
be an important political tool. In Hong Kong, throngs of protestors wore masks and
others spray-painted over surveillance cameras, concealing their identities from surveil-
lance, and expressing resistance. At the same time, some involved in the protests also tried
to learn the identities of police officers in order to harass or dox them, prompting the
police to cover their faces to protect their identities. The importance of identity – and
privacy – to the Hong Kong protests prompted the New York Times to suggest that faces
were becoming weapons.142 So significant were protestors’ efforts to mask their own
identities (and identify police officers), that the Hong Kong government outlawed the
wearing of masks by protestors, sparking further masked protests.143 This kind of mass
masked protest is an example of performative privacy at scale. In each of these instances,
the government’s own response to the masks highlights their inherent expressive con-
tent – the government finds the concealment expressive and intimidating and uses its
own reaction to the expressive masks to justify stripping individuals of privacy.144 As
explained by Rachel Hall, “[o]pacity effects raise suspicion by the mere fact that they dare
to present something that is not entirely visually accessible to the viewer or monitor.”145
And the Supreme Court has deemed ex ante state determinations that particular
expressive conduct is intimidating to be unconstitutional regulation of speech.146

140
Sean Gardiner & Jessica Firger, Rare Charge Is Unmasked, Wall Street J. (Sept. 20, 2011, at
A17; Matthew Haag, Is It Illegal to Wear Masks at a Protest? It Depends on the Place, N.Y.
Times (Apr. 27, 2017), https://www.nytimes.com/2017/04/26/us/protests-masks-laws.html (dis-
cussing application of New York’s 1845 anti-mask law against Occupy Wall Street protestors
in 2011 and 2012)
141
Unmasking Antifa Act of 2018, H.R. 6054, 115th Cong. (2018) (proposing to criminalize with up
to fifteen years’ imprisonment the wearing of a mask while “intimidat[ing] any person”).
142
Paul Mozur, In Hong Kong Protests, Faces Become Weapons, N.Y. Times (July 26, 2019), https
://www.nytimes.com/2019/07/26/technology/hong-kong-protests-facial-recognition-surveillance
.html.
143
Keith Bradsher, In Hong Kong’s Crackdown on Protests, Face Bask Ban May Be the Start, N.Y.
Times (Oct. 6, 2019), https://www.nytimes.com/2019/10/06/world/asia/hong-kong-protests-face-
mask-ban.html.
144
E.g., State v. Berrill, 474 S.E.2d 508, 514 (W. Va. 1996) (in upholding an anti-mask statute,
concluding that “[t]he obvious governmental interest here is the protection of citizens from
violence and from the fear and intimidation of being confronted by someone whom they
cannot identify”); cf. D.C. Code § 22–3312.03(a)–(b) (2019) (penalizing wearing of mask
“[w]ith the intent to intimidate”); Mass. Gen. Laws Ann. ch. 268, § 34 (2019) (same).
145
Rachel Hall, Terror and the Female Grotesque, in Feminist Surveillance Studies 127, 127
(Dubrofsky & Magnet, eds., 2015).
146
Virginia v. Black, 538 U.S. 343, 366–67 (2003) (O’Connor, J., plurality opinion).
 Performative Privacy in Practice 71

The flip side of resistance is compliance: the empirical study of British school-
children that documented instances where hoods were worn as an expression of
resistance documented other instances where students would take their hoods down
specifically because they knew that donning it up would mark them for additional
surveillance – the hoodie would be read as expressing resistance.147 And Carbado
and Gulati have explained that black individuals may “avoid wearing hoodies” as
part of their identity performances in order to avoid increased scrutiny from law
enforcement.148 In a different context, Virginia Eubanks has noted how parents may
avoid resisting or raising questions to so-called child welfare investigators because
any resistance is coded and registered by the state as guilt, evidence of high-risk
parenting behavior.149 And Rachel Hall has explained how airport passengers “per-
form transparency” and self-subdue in order to signal cooperation.150
The expressive power of attempts at physical obfuscation is further highlighted by
artistic public privacy endeavors. For instance, artist Adam Harvey has explored and
developed methods for avoiding facial recognition software through makeup and
hair styles – a project called CV Dazzle.151 The techniques attempt to change the
lighting contrast and space between features, disrupting certain surveillance soft-
ware’s ability to detect a face. Harvey labels CV Dazzle as a form of “expressive
interference” – the makeup and hairstyles gain political meaning and texture
because they are designed to thwart facial recognition surveillance.152 In a related
project in collaboration with Hyphen-Labs, an international collective focused on
subversive design, Harvey has created clothing – dubbed HyperFace – designed to
mimic the patterns that facial recognition technology interprets as a face in order to
confuse and subvert the technology.153 Relatedly, Isao Echizen has invented a
privacy visor that lets you see through it, but also interferes with facial recognition
technology.154 Harvey also created a Camoflash Anti-Paparazzi Clutch, which
detects camera flashes and then emits its own high-powered light burst capable of

147
McCahill & Finn, supra note 126, at 284 (documenting that “one pupil tried not to ‘raise the
red flag’ by avoiding walking ‘round wiv my hood up . . . even if it’s raining because they
[security guards] look at you real dodgy’, while another said ‘if I’ve got my hood up and I go into
a shop, I’ll take it down before’”) (citations omitted).
148
Carbado & Gulati, supra note 67, at 18.
149
Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile Police, and
Punish the Poor 128 & 165 (2017).
150
Hall, supra note 145, at 131.
151
Adam R. Harvey, CV Dazzle, AH Projects, https://ahprojects.com/cvdazzle/; CV Dazzle,
https://cvdazzle.com/ (both last visited Oct. 10, 2019).
152
Adam Harvey, How to Hide from Machines, DIS magazine, http://dismagazine.com/dystopia/
evolved-lifestyles/8115/anti-surveillance-how-to-hide-from-machines/ (last visited Aug. 13, 2019).
153
Alex Hern, Anti-Surveillance Clothing Aims to Hide Wearers from Facial Recognition, The
Guardian (Jan. 4, 2017), https://www.theguardian.com/technology/2017/jan/04/anti-surveil
lance-clothing-facial-recognition-hyperface.
154
Adam Toobin, Japanese Company Debuts Privacy Visor That Scrambles Facial Recognition
Software, Inverse (May 13, 2016), https://www.inverse.com/article/15620-japanese-company-
debuts-privacy-visor-that-scrambles-facial-recognition-software
72 Performative Privacy in Theory and Practice

overexposing the sensor of the camera, obscuring the subject of the photo and
holder of the Clutch.155 The Clutch – modeled after a fashion accessory – literally
emits an expressive light message that disrupts the attempt to surveil. Harvey has also
developed a line of hoodies and veils made of fabrics that block the thermal imaging
sometimes done by UAVs or drones. He dubbed this apparel “Stealth Wear.”156 To
Harvey, the apparel is both functionally privacy-enhancing and symbolic; communi-
cative. It “aims to make a tech statement.”157
In sum, while Harvey’s and Echizen’s quite self-conscious projects are more
obviously an expressive form of resistance to surveillance, part of this book’s purpose
is to illustrate how even quotidian, ordinary forms of functionally maintaining
privacy in public spaces are more than just functional – they are often expressive.
As John McGrath has explained, “[w]hile art and theatre work responding to
surveillance society can help us exist productively in this world, it is still the banal
experience of day-to-day footage and data that defines our encounter with surveil-
lance.” 158 In this way, the identification of widespread, culturally diverse forms of
“performative privacy” helps respond to critiques of aestheticized counter surveil-
lance resistance that according to critics does not account for how surveillance’s
harms are disproportionately felt by marginalized communities.159
As outlined above, the government often views the sartorial choice of a hoodie or
a mask as a form of resistance – views it as intimidating because it is interfering with
surveillance – and therefore targets such privacy-enhancing efforts with specific
criminal sanctions. And, drawing from post-structural social theory, the expressive
power of hoodies, masks, and outré forms of physical obfuscation gain additional
volume precisely because the surveillance regimes have made privacy and anonym-
ity such a scarce social resource. The wearing of identity-shielding apparel, and the
state’s reaction to that apparel, helps reveal the true scope of surveillance, and
illuminates a mode of doctrinally protected expressive opposition.

***
If in search of additional evidence regarding the expressive dimension of functional
face coverings, the currently unfolding social and political battles regarding whether
to wear a mask as a public health measure to slow the spread of COVID-19 further

155
Adam R. Harvey, Camoflash, AH Projects, https://ahprojects.com/camoflash/ (last visited
Aug. 13, 2019).
156
Adam R. Harvey, Stealth Wear, AH Projects, https://ahprojects.com/stealth-wear/ (last visited
Aug. 13, 2019); Tim Maly, Anti-Drone Camouflage: What to Wear in Total Surveillance, Wired
(Jan. 17, 2013), http://www.wired.com/2013/01/anti-drone-camouflage-apparel/.
157
Jenna Wortham, Stealth Wear Aims to Make a Tech Statement, N.Y. Times (June 29, 2013),
http://www.nytimes.com/2013/06/30/technology/stealth-wear-aims-to-make-a-tech-statement
.html.
158
McGrath, supra note 63, at viii.
159
Torin Monahan, The Right to Hide? Anti-Surveillance Camouflage and the Aestheticization of
Resistance, 12 Commc’n & Critical/Cultural Stud. 159, 160–62 (2015).
 Performative Privacy in Practice 73

underscore the point. Masks, even when functional – in this context, as a health
measure – serve an expressive role and are understood as such by many observers.160
Indeed, people have been targeted for harassment or exclusion for wearing a mask
because the mask signals something – agreement with health recommendations,
potential affinity or membership with certain racial groups (in this context, being of
Asian descent), and arguable resistance to the Trump narrative that there is no
pandemic. Similarly, in the context of the inspiring, nationwide anti-racist protests
that occurred in the wake of the killing of George Floyd by Minneapolis police,
protestors’ masks were functional in two respects (health and privacy), and yet were
also very clearly understood to be expressive.161 But, as detailed above and in contrast
to reporting on the COVID crisis suggesting that masks are newly political and
expressive,162 masks and other face coverings have for many years been political in
that they served as expressive statements of resistance to surveillance regimes.

2 Cyber Masks
The physical world is, of course, not the only “public” realm policed and surveilled.
The virtual world – to the extent it is even a separate domain from the physical,
particularly to the extent it reveals location data – is also under observation. Perhaps
even more so than the physical world. And as with efforts to mask one’s physical
identity and movements, efforts to maintain online and cellular privacy, anonymity,
or obscurity are also often acts of performative privacy intended to express resistance
to prevailing surveillance norms. Like hoodies or other physical face coverings,
technologies and tactics designed to obfuscate online activity also communicate.
What I dub “cyber masks” shield the user’s identity, activities, and location but also
express a particular, outward-facing message.
As noted, the online world is structured such that in order to “live” and participate
online, one often has to exchange or surrender one’s privacy.163 In opposition to this
dominant form of social participation sit those who obfuscate or hide their online or
cellular movements through sometimes simple and other times elaborate tech-
niques. Finn Brunton and Helen Nissenbaum’s book, Obfuscation: A User’s
Guide for Privacy and Protest, collects and highlights several of the obfuscation

160
Ryan Lizza & Daniel Lippman, Wearing a Mask Is for Smug Liberals. Refusing to Is for
Reckless Republicans, politico (May 1, 2020), https://www.politico.com/news/2020/05/01/
masks-politics-coronavirus-227765.
161
Josh Peter, Do Coronavirus Masks Provide Protest Protection?, USA Today (June 5, 2020),
https://www.usatoday.com/story/money/2020/06/05/coronavirus-masks-protests-identity-protec
tion/3124657001/.
162
Will Weissert & Jonathan Lemire, Face Masks Make a Political Statement in Era of
Coronavirus, AP (May 7, 2020), https://apnews.com/7dce310db6e85b31d735e81d0af6769c.
163
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control
Money and Information (2015).
74 Performative Privacy in Theory and Practice

techniques being used to avoid internet and/or cellular surveillance.164 Such tactics
include, among many others, TrackMeNot, which is designed to prevent profiling
of web searchers based on their internet search queries by interspersing genuine
queries with automated queries, making the individual’s authentic activity more
difficult for the search engine to discern, profile, and target.
Another relatively prominent internet obfuscation method is the use of Tor
relays.165 At a most basic level, Tor helps conceal internet activity by passing the
activity through a series of relays such that when a user accesses a particular web
page, the request is not directly linked to the user’s IP address but with an exit
node.166 As Brunton and Nissenbaum explain, the “labyrinth of relays” is
strengthened by the number of users who volunteer to serve as relays in the chain
of obfuscation.167 Relatedly, danah boyd has documented how teenagers living
public, networked lives actively attempt “to achieve [privacy] in spite of structural
or social barriers that make it difficult to do so.”168 They do this, in part, through
what boyd and Alice Marwick call “social steganography.”169 Aware that their online
conversations may be read by adults, teens deploy inside jokes, nicknames, or code
words to share information that cannot be understood by surveilling parents or
others. In this way, they mask or obfuscate the underlying meaning of their
conversations.
Obfuscation techniques such as TrackMeNot, Tor, and their many cousins,170
certainly serve the purpose of providing some functional level of privacy or obscurity.
And they also serve as a form of code, enabling communication. But they can serve
the dual purpose of “expressing protest.”171 As critical technologist Daniel Howe has
described, obfuscation tools are “expressive technologies” in that “they exist not only
to serve some instrumental function, but always also to amplify social, cultural or
political perspectives.”172 Many obfuscation techniques serve “to register discontent

164
Brunton & Nissenbaum, supra note 91, at 13–14.
165
Tor Metrics, Tor Project, https://metrics.torproject.org/ (last visited Aug. 13, 2019) (describing
Tor as “one of the largest deployed anonymity networks” and providing statistics on its scope).
166
Tor: Overview, Tor Project, https://2019.www.torproject.org/about/overview.html.en (last
visited Aug. 13, 2019) (explaining that “[t]o create a private network pathway with Tor, the
user’s software or client incrementally builds a circuit of encrypted connections through relays
on the network”).
167
Brunton & Nissenbaum, supra note 91, at 20.
168
danah boyd, It’s Complicated: The Social Lives of Networked Teens 60 (2014).
169
Id. at 65–66.
170
Joh, supra note 115, at 1000–01 (cataloging surveillance defense mechanisms including encryp-
tion, disposable phone numbers, and ad hoc Faraday cages, among others).
171
Brunton & Nissenbaum, supra note 91, at 4; see also id. at 59 (“Obfuscation can serve a
function akin to the hidden transcript, concealing dissent and covert speech and providing an
opportunity to assert one’s sense of autonomy – an act of refusal concealed within a gesture of
assent – or can provide more straightforward tools for protest or obscurity”).
172
Daniel C. Howe, Surveillance Countermeasures: Expressive Privacy via Obfuscation, 4:1 APRJA
(2015), http://www.aprja.net/surveillance-countermeasures-expressive-privacy-via-obfuscation.
 Performative Privacy in Practice 75

and refusal.”173 In fact, according to surveillance studies scholar Torin Monahan,

although countersurveillance practitioners may have short term practical goals,
“they are foremost engaged in acts of symbolic resistance.”174 And that discontent
is with the structures of surveillance.175
As with the physical world, the prevailing structural norm online is that one’s right
to privacy is either nonexistent, surrendered, or taken. The existence of the “no
privacy” norm is the product of surveillance capitalist rhetoric and priming by data-
harvesting companies such as Google and Facebook, whose entire business model is
premised on our acceptance of the fact that either privacy is dead or, to the extent it
remains, it can be contractually bargained away for their “free” services.176 The
existence of that structural norm means that any oppositional effort to maintain
privacy within that structure is amplified – the expressive component of cyber masks
gains amplification in part because of the prevailing expectation of privacy
surrender.
The expressive nature of “cyber masks” is brought into relief by the fact that, as
with physical hoodies or masks, the government responds to cyber masks with
additional scrutiny and surveillance. As the Snowden leaks revealed, “[t]he online
anonymity network Tor is a high-priority target for the National Security Agency.”177
There is also evidence that the NSA has tracked people who used an anonymous
email service, MixMinion; employed a privacy enhancing operating system, Tails;
and targeted people who searched the Internet for privacy tools.178 In the wake of
attacks by the Islamic State in Paris in November 2015, law enforcement’s targeting
of encryption users gained additional public attention.179 Moreover, there were
reports that an increasing number of Trump White House employees turned to
encrypted messaging software, such as Signal or Confide, to protect their

173
Brunton & Nissenbaum, supra note 91, at 90.
174
Torin Monahan, Surveillance in the Time of Insecurity 130 (2010).
175
Harcourt, supra note 26, at 270–71 (describing Tor and other encryption and anonymity tools
as weapons of resistance used to “fog up that plastic cube in which we are trapped”).
176
Shoshana Zuboff, The Age of Surveillance Capitalism (2019); Scott Skinner-Thompson,
Reclaiming the Right to the Future Tense, Law & Political Economy (Sept. 4, 2019), https://
lpeblog.org/2019/09/04/reclaiming-the-right-to-future-tense/.
177
Bruce Schneier, Attacking Tor: How the NSA Targets Users’ Online Anonymity, The Guardian
(Oct. 4, 2013), http://www.theguardian.com/world/2013/oct/04/tor-attacks-nsa-users-online-ano
nymity; cf. Calo, supra note 115, at 38 (“If encryption is not usable, or at any rate, if it is not
widely used, then those who do use encryption can wind up as targets”).
178
Kim Zetter, The NSA is Targeting Users of Privacy Services, Leaked Code Shows, Wired (July 3,
2014), https://www.wired.com/2014/07/nsa-targets-users-of-privacy-services/.
179
Haley Sweetland Edwards, Can Silicon Valley Help Beat ISIS?, Time (Nov. 19, 2015), http://
time.com/4119951/encryption-can-silicon-valley-help/ (noting that national-security officials are
increasingly concerned about encryption technologies). To a degree, Apple’s stand against
being forced to create a back door enabling law enforcement to subvert phone encryption, and
the public praise Apple received, also reflects the expressive value of encryption.
Advertisements highlighting the privacy protections of Apple devices, further underscore the
expressive value of privacy.
76 Performative Privacy in Theory and Practice

conversations. Those in positions of authority understood the use of encryption to be

a statement of resistance, prompting senior White House leadership, such as then
Press Secretary Sean Spicer, to conduct phone checks of staffers and prohibit the use
of secure messaging apps.180 More broadly, Gary Marx has described how systems of
surveillance and efforts to neutralize that surveillance are, in effect, engaged in a
dialectical back and forth – a game of cat and mouse.181 And that game is an
expressive, communicative one.

3 Gender Expression
Efforts to obtain rights and recognition for transgender and gender nonconforming
individuals sometimes involve the twin goals of guaranteeing a right to “gender expres-
sion” while at the same time ensuring that transgender individuals have the ability to
keep the fact that they are trans private, should they see fit. In this way, transgender
individuals are often engaged in performative privacy – they express or perform their
gender identity which, in turn, may keep aspects of their biology, medical history, and
administrative sex classification hidden. (Of course, that gender is performed does not
suggest that it is in any way inauthentic, as discussed in Chapter 1.)
As also outlined in Chapter 1, queer individuals – including trans and gender
nonconforming individuals – are subject to extensive administrative surveillance and
privacy violations. Restrictions to changing names and gender markers on government
identification documents, along with policies restricting access to sex-segregated
spaces, all have the potential to out intimate information about trans people. In
response, transgender individuals often engage in acts of performative privacy.
Examples of the performative privacy rightfully demanded by transgender indi-
viduals can be seen in the context of opposition to laws that forcibly out trans people
to potential employers through restrictive ID laws, or laws which out a person’s trans
status when attempting to use public restrooms. For instance, in response to laws
restricting the ability to change the gender marker on one’s driver’s license,
transgender individuals have argued that they have a right to privacy over their
transgender identity and a concomitant right to publicly live consistent with their
true gender identity.182

180
Jeff John Roberts, Trump’s Press Secretary Targets Messaging Apps in Leak Crackdown,
Fortune (Feb. 27, 2017), http://fortune.com/2017/02/27/spicer-phone-checks/.
181
Gary T. Marx, Opinion, A Tack in the Shoe and Taking off the Shoe: Neutralization and
Counter-Neutralization Dynamics, 6 Surveillance & Soc’y 294, 295–99 (2009); David Lyon,
Surveillance Studies 167–69 (2007) (agreeing with Marx that everyday acts of resistance to
surveillance do occur with some frequency).
182
E.g., Brief of Appellant at 12, K.L. v. Alaska, No. 3AN-11–05431 CI (Alaska Super. Ct., July 19,
2011) (challenging purported surgery requirement for changing gender on Alaska driver’s
license as a violation of privacy because it both “[r]estrict[s] [plaintiff’s] personal autonomy
and right to control her appearance” and “[f]orc[es] the involuntary disclosure of her sensitive,
personal information”); Complaint at 34, Love v. Johnson, 2:15-cv-11834-NGE-EAS (E.D.
 Performative Privacy in Practice 77

Similarly, in response to draconian bathroom bills that would forbid trans people
from using bathrooms consistent with their gender identity, transgender rights
advocates have pointed out, among other arguments, both how they infringe on
individuals’ ability to publicly live and express their true gender identity and infringe
on their privacy.183
Relatedly, students who argue that Title IX permits them to participate on sex-
segregated athletic teams consistent with their gender identity are literally
demanding the ability to perform in public in a way that also permits them to
potentially downplay or keep private their sex assigned at birth.184 And trans people
have continued to use sex-segregated spaces even when forbade – performing
privacy and using their gender expression enable trans people to live their lives all
while resisting efforts to administratively surveil and police their identities.
Certainly, one could (and should) assert that an individual’s right to express and
live their gender identity is not necessarily contingent on maintaining an element of
privacy over the sex one was assigned on a birth certificate or certain aspects of one’s
anatomy. And for many gender nonconforming and nonbinary people that is
certainly the case, depending on the context. That is, many people are open and
rightly proud about their trans or nonconforming identity and make no qualms or
efforts to pass as cisgender. And “passing” itself is a form of privilege, as many
people’s presentation do not fit neatly in a gendered box. As such, the existence of
sex-segregated bathrooms themselves are a form of administrative policing and
surveillance of gender, which may expose nonbinary or nonconforming people
who do not conform to a particular category of “male” or “female.” But even for
those who are open as to their transgender identity within certain confines or may

Mich. May 21, 2015) (arguing that restrictive gender marker law “discloses highly personal
information regarding Plaintiffs to each person who sees the license,” placing “Plaintiffs at risk
of bodily harm”).
183
E.g., First Amended Complaint, Carcano v. McCrory, No. 1:16-CV-00236-TDS-JEP
(M.D.N.C. Apr. 21, 2016) (asserting constitutional informational privacy claim); Stuart
Biegel, The Right to Be Out 190 (2010) (arguing that a student’s access to the bathroom
corresponding to their gender identity advances “the state’s compelling interest in protecting
the safety, equality, and privacy of all students”); Peeing in Peace: A Resource Guide for
Transgender Activists and Allies, Transgender L. Ctr. (2005), https://transgenderlawcenter
.org/resources/public-accommodations/peeing-in-peace (emphasizing that sometimes the best
strategy for avoiding harassment when using the bathroom corresponding to one’s gender
identity is to be as invisible as possible).
184
Scott Skinner-Thompson & Ilona M. Turner, Title IX’s Protections for Transgender Student
Athletes, 28 Wis. J.L. Gender & Soc’y 288, 297 (2013) (outlining the social benefits of
permitting trans students to participate on teams consistent with their gender identity, and
explaining how locker room related privacy concerns of both trans and cisgender students can
be respected); Scott Skinner-Thompson, The Department of Education’s Common-Sense
Approach to Transgender Inclusion, Slate (Nov. 4, 2015), http://www.slate.com/blogs/out
ward/2015/11/04/transgender_high_school_students_a_curtain_can_make_a_difference.html
(explaining that transgender privacy is part and parcel of ensuring equal participation in school
activities).
78 Performative Privacy in Theory and Practice

not identify with a particular gendered category, they may well reject forced revela-
tion of those intimate details in other contexts – for example, every time they attempt
to use a public restroom.
As Ruthann Robson has explained, rightly or wrongly, “[t]he doctrines that
develop to elaborate constitutional rights are hierarchal ones: rights of political
expression are valued more highly than rights of sexual expression.”185 Therefore,
to the extent that claims for gender expression are framed in terms of the politics of
expression and a refusal to be surveilled by the state, they may be on stronger
doctrinal and discursive footing, as elaborated more fully in Chapter 3.
In sum, many of the arguments raised by transgender rights advocates sound
simultaneously in rights to equality, expression, and privacy – they are, in some ways,
demanding a right to performative privacy, to be able to express one’s true identity
publicly186 while concealing other, potentially linked aspects of that identity. And
the importance of those gender and privacy performances cannot be overstated. As
Butler explained: “There is no gender identity behind the expressions of gender; that
identity is performatively constituted by the very ‘expressions’ that are said to be its
results.”187 As such, understanding the expressive, performative role of functional
efforts to maintain privacy (and providing protections for those expressions) is critical
to enabling the democratic constitution of privacy and gender norms. As Michael
Warner has explained, “[t]he public sphere as an environment, then, is not just a
place where one could rationally debate a set of gender or sexual relations that can
in turn be equated with private life; the public sphere is a principal instance of the
form of embodiment and social relations that are themselves at issue.”188 Queer
people’s efforts to appear in public consistent with their gender identity, expressing
and concealing as they deem appropriate, is an important example of this embodied,
performative contestation.

4 Head Veils
Women also engage in different kinds of performative resistance to gendered
surveillance. These performative endeavors often attempt to subvert the watchers’

185
Robson, supra note 136, at 2.
186
Cf. Robson, supra note 136, at 67 (“Clearly, prohibitions on gender nonconforming sartorial
choices implicate both equality and expressive constitutional concerns”); Nan D. Hunter,
Expressive Identity: Recuperating Dissent for Equality, 35 Harv. C.R.-C.L. L. Rev. 1, 4–5
(2000) (suggesting that minority identities are often themselves expressive in part because they
operate as a form of dissent); Nancy J. Knauer, “Simply So Different”: The Uniquely Expressive
Character of the Openly Gay Individual after Boy Scouts of America v. Dale, 89 Ky. L.J. 997,
1001 (2000–01) (arguing that because of heteronormative social structures, openly gay individ-
uals’ identity operates as both expressive and politicized).
187
Butler, supra note 67, at 34.
188
Michael Warner, Publics and Counterpublics 54 (2002).
 Performative Privacy in Practice 79

ability to observe aspects of the women’s identity.189 For example, women have
covered their faces in order to avoid being filmed as they enter abortion clinics to
exercise their rights to reproductive freedom.190 While women’s performative resistance
can take many forms, here I focus on the head coverings worn by some Muslim women.
Without question, as with other examples of performative privacy already discussed,
head coverings can have multiple meanings, including independent religious and
cultural significance.191 Of course, sometimes they are worn for no religious purpose
at all. But, as documented in Chapter 1, historically and with renewed vigor, Western
societies and governments have attempted to force Muslim women to remove their
veils. The veils have, in certain contexts, come to serve as an expressive demand for, and
claim to, modesty; at the same time they functionally provide a degree of privacy/
‌ odesty.192 And this is true with regard to head coverings that leave the face exposed,
m
such as a hijab, or veils that cover the face or the whole body, such as a niqab or burka.
(The fact that veils may not, in all instances, totally obscure the wearer’s identity does
not render them meaningless as privacy protections. As with hoodies, body and face
coverings still keep components of one’s identity secret – privacy is not all or nothing.)193
To reiterate, a head veil can be worn for many reasons – many of which have
nothing to do with privacy or religion.194 And, as with hoodies or questions of gender
expression, I would hesitate before speculating why a particular individual decided
to wear a veil.195 But for present purposes – for the purposes of discerning the role of
performative privacy – it is significant and telling that governments and corporations
189
Amanda Glasbeek, They Catch You Doing the Simple, Human Things: CCTV, Policing, and
Gendered Exposure, 12 J. of Law & Equality 63, 85–86 (2016).
190
Rachel Grady & Heidi Ewing, 12th & Delaware (Loki Films 2010). Another important
form of resistance to abortion shaming includes “coming out” about one’s abortion, as
underscored by the “Shout Your Abortion” movement. Skinner-Thompson et al., supra
note 51.
191
Fadwa El Guindi, Veil: Modesty, Privacy and Resistance (Dress, Body, Culture)
(1999) (extensively documenting the role of the veil across history, different countries and
cultures, sexes, and religions).
192
Id. at xvii (explaining that at the end of the twentieth century, veiling in certain Arab cultures
“is largely about identity, largely about privacy – of space and body,” and sometimes “symbol-
izes an element of power and autonomy and functions as a vehicle for resistance,” but also
observing that conceptions of privacy are not consistent across cultures).
193
Anita L. Allen, Unpopular Privacy 47 (2011) (“Clothing can conceal the precise look and
contours of a person’s body. Clothing can render age, sex, or race invisible. Clothing can be a
shelter, a cocoon, an emblem of reserve”).
194
John R. Bowen, Why the French Don’t Like Headscarves 70 (2007) (noting that
sociologists have “traced the range and variation in motives and meanings attached to scarf-
wearing” and that “these studies showed these motives and meanings to be complex, to be quite
different from one woman to the next, and to shift over a lifetime”).
195
Raja El Habti, Dir. of Research, KARAMA, The Veil Controversy: International
Perspectives on Religion in Public Life, Panel at Brookings Center of the United States
and Europe and the Pew Forum on Religion and Public Life (Apr. 19, 2004), http://www
.brookings.edu/~/media/events/2004/4/19france/20040419.pdf (explaining that Muslim women
“should have the right to speak for themselves and that we should ask them what this veils
means for them, not what it means for us”).
80 Performative Privacy in Theory and Practice

react to the wearing of head veils as if it were an expressive demand for control over
one’s body. That is, the veil is read and interpreted by surveillance regimes as a form
of expressive resistance.
Veils are often targeted for regulation and surveillance precisely because of their
expressive dimension. The rhetoric surrounding France’s 2004 ban on head veils in
public schools is a prime example.196 By its terms, the law targets all “conspicuous”
religious symbols, but the focus of the debate surrounding the law was on banning
Muslim head veils and scarves.197 In discussion leading up to the ban, then
President Jacques Chirac said that there was “something aggressive” in a head veil
and that “[w]earing a veil, whether we want it or not, is a sort of aggression that is
difficult for us to accept.”198 As in the context of US anti-mask laws, head coverings
are interpreted by the state as expressing something aggressive. They are read as
hostile, in part, because they cut off the ability of the state and dominant society to
surveil, to gaze.199 As Joan Wallach Scott has explained, French cultural imperial-
ism is built in part on the ability “to know one’s subjects” and part of knowing one’s
subject involves “‘tear[ing] off the veil which still hides the mores, customs, and
ideas’ of Arab society.”200 Put more bluntly by Scott, the veil is “an impenetrable
membrane, the final barrier to political subjugation.”201
Not content with banning head veils in public schools, in 2010 France banned the
wearing of full-face veils – including niqabs and burkas – in public places.202 The

196
Loi 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes
ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics
[Law 2004–228 of March 15, 2004 Governing, under the Principle of Secularism, the Wearing
of Symbols or Clothing Denoting Religious Affiliation in Schools, Colleges and Public High
Schools], Journal Officiel de la République Française [J.O.] [Official Gazette of
France], Mar. 17, 2004, p. 5190.
197
Joan Wallach Scott, The Politics of the Veil 151–56 (2007).
198
John Henley, Something Aggressive about Veils, Says Chirac, The Guardian (Dec. 5, 2003),
http://www.theguardian.com/world/2003/dec/06/france.jonhenley; see also Allen, supra note
193, at 53 (recounting incident where a retired French school teacher ripped the veil off a
Muslim woman in a retail store because “wearing the veil is an act of aggression”).
199
Cf. Timothy Mitchell, Colonising Egypt 33 (1988) (describing the importance of observa-
tion and ordering to the colonial enterprise); Sonia Dayan-Herzbrun, The Issue of the Islamic
Headscarf, in Women, Immigration and Identities in France 77 (Jane Freedman & Carrie
Tarr eds., 2000) (quoting one Algerian Muslim woman as explaining that: “In covering my
body, I present myself in such a way that men are only interested in my character and my
behavior, in short they consider me as a human being. In freeing myself from the male gaze
I affirm my liberty”); Allen, supra note 193, at 23 (“The Euro-Christian gaze at Muslim
culture . . . has been a gaze of violence, dominance, distortion and belittlement”).
200
Scott, supra note 197, at 49 (citing Julia Clancy-Smith, La Femme Arabe: Women and
Sexuality in France’s Northern African Empire, in Amira El Azhary Sonbol, ed., Women,
the Family, and Divorce Laws in Islamic History 56 (Syracuse Univ. Press, 1996)).
201
Id. at 67.
202
Loi 2010–1192 du 10 Octobre 2010 interdisant la dissimulation du visage dans l’espace public
[Law 2010–1192 of October 10, 2010 on prohibiting concealment of the face in the public
space], Journal Officiel de la République Française [J.O.] [Official Gazette of France],
Oct. 7, 2010.
 Performative Privacy in Practice 81

French ban was upheld by the European Court of Human Rights (ECtHR) in 2014. In
justifying the ban, the ECtHR specifically relied on the French government’s argument
that head veils interfered with people’s ability to “live together” because it limited social
interaction.203 The court viewed people’s ability to surveil and observe one another in
public as a key constitutional value. Public space, rather than being a place where people
are able to come and engage in and shape public discourse on their own terms, is instead a
site where they are stripped and exposed to surveillance, control, and conformity.204 In
short, while the French government’s motivation for such laws is complex, touching on
issues of race, religion, immigration, and sexuality, the laws are part of a history of
attempting to surveil and observe Muslim bodies, in particular female bodies.
As discussed in Chapter 1, France is not alone in its efforts to surveil Muslim
communities generally, nor in its attempts to force women to remove their head
coverings specifically. American efforts to target those who wear a veil for regulation
have also done so because of its expressive force.205 The New York Police
Department (NYPD) initiatives targeting Muslim communities for surveillance
had a specific effect on those who would otherwise wear a head or full-body
covering. A report co-led by three nongovernmental organizations documented
how the NYPD’s surveillance program was causing Muslim individuals to avoid
wearing clothes, including head coverings, that might identify them as Muslim out
of fear that such clothing would draw law enforcement suspicion.206 Such fear is no
surprise given that a 2007 NYPD report on its theory of Muslim radicalization
suggested that one “typical signature” of radicalization was the wearing of traditional
Islamic clothing.207 This radicalization theory “posits that decisions about dress or
appearance are no longer just signifiers of personal, religious choices or cultural
identities but rather serve as indicators of ‘dangerousness.’”208 The NYPD viewed
head coverings as expressing something dangerous, and responded to that expression
with additional surveillance and targeting by law enforcement.

203
S.A.S. v. France, App. No. 43835/11, 2 Eur. Ct. H.R. 55 (2014).
204
El Guindi, supra note 191, at 77–82 (explaining how, in certain contexts, Arab conceptions of
privacy are relational and public and that the veil can help negotiate boundaries within
public space).
205
Cf. Yvonne Yazbeck Haddad, The Post 9/11 “Hijab” as Icon, 68 Soc. of Religion 253, 263
(2007) (explaining that “in an America traumatized by 9/11, many Americans began to identify
the hijab as the standard of the enemy”).
206
Muslim Am. Civil Liberties Coal. et al., Mapping Muslims: NYPD Spying and its
Impact on Muslim Americans 15–16 (2013) (“Almost all our interviewees noted that appearing
Muslim, or appearing to be a certain type of Muslim, invites unwanted attention or surveil-
lance from law enforcement. Outward displays of Muslim identity could include the choice to
wear the hijab (headscarf ), the niqab (full covering), grow a beard, or dress in certain kinds of
traditional or Islamic clothing”).
207
Mitchell D. Silber & Arvin Bhatt, NYPD Intelligence Division, Radicalization in
the West: The Homegrown Threat 31 (2007), http://sethgodin.typepad.com/seths_blog/
files/NYPD_Report-Radicalization_in_the_West.pdf.
208
Mapping Muslims, supra note 206, at 15–16.
82 Performative Privacy in Theory and Practice

Of course, there may also be discriminatory racial and religious motivations for
such laws. But part of what colors Western society’s view that head veils are rhetoric-
ally aggressive is that it prevents the state and its agents from observing and surveil-
ling Muslim women’s bodies.209 Indeed, in the aftermath of the attacks by members/
sympathizers of the Islamic State in Paris and San Bernardino in the fall of 2015,
there was an uptick in targeting of women wearing head veils in the United
States210 – even when the veils were being worn by people out of sympathy with
Muslim women rather than any independent personal conviction.211
One may be inclined to believe that America’s protections for religious freedom
are enough to provide Muslims with the legal rights they need to wear a head
covering, and that conceptualizing head veils as acts of performative privacy is
redundant. That would be a mistake. The US Constitution and statutory protections
such as Title VII of the Civil Rights Act and Religious Freedom Restoration Acts
extend formal protections for religious free exercise. But, in practice, those pur-
ported safeguards fail to fully protect Muslim individuals’ ability to wear religious
apparel or fully embrace Muslim grooming requirements. For example, in Equal
Employment Opportunity Commission v. GEO Group Inc., the Third Circuit Court
of Appeals held that a private company that ran a Pennsylvania correctional
facility was entitled to summary judgment in a claim by a class of female Muslim
employees notwithstanding that the company refused to allow the women to
wear head coverings, called khimars, to work.212 While the employer purported to
ban head coverings of all kinds, including hats, for security and contraband pur-
poses, evidence suggested that the policy was inconsistently applied and that certain
hats were, in fact, permitted notwithstanding security concerns.213 The safety ration-
ale was further undermined by evidence suggesting that the employer made little
effort to enforce the policy until it became aware of a request by an employee to
wear her khimar.
There are several other examples of courts failing to protect women’s ability to
wear Muslim head coverings notwithstanding the existence of laws protecting
religious expression.214 As Robson has summarized, such cases “belie simplistic
[and I would add widespread] assumptions that the First Amendment’s religious
209
Scott, supra note 197, at 49.
210
Eric Lichtblau, Crimes Against Muslim Americans and Mosques Rise Sharply, N.Y. Times
(Dec. 17, 2015), http://www.nytimes.com/2015/12/18/us/politics/crimes-against-muslim-ameri
cans-and-mosques-rise-sharply.html.
211
Christine Hauser, Wheaton College Professor Is Put on Leave after Remarks on Islam, N.Y.
Times (Dec. 16, 2015), http://www.nytimes.com/2015/12/17/us/wheaton-college-professor-larycia-
hawkins-muslim-scarf.html (documenting suspension of professor who wore head veil in
solidarity with Muslims).
212
EEOC v. GEO Group, Inc., 616 F.3d 265, 277 (3d Cir. 2010).
213
Id. at 286 (Tashima, J., dissenting).
214
E.g., Tisby v. Camden Cnty. Corr. Facility, 152 A.3d 975 (N.J. Super. Ct. App. Div. 2017)
(refusal of employer to permit correctional officer to wear Muslim head covering did not
violate prohibitions on religious discrimination); Webb v. City of Phila., 562 F.3d 256, 258 (3d
 Performative Privacy in Practice 83

protections prevent prohibitions of women wearing the hijab or niqab.”215 Instead,

the religious protection that ought to be afforded to such head coverings is often
subverted in the courts.216 To be certain, as Kenji Yoshino has underscored, because
of pluralism anxiety, often legal protections for identity-based claims are only
enforced when that claim is coupled or linked with a nonidentity-based claim.217
The recent Supreme Court decisions in United States v. Windsor218 and Obergefell
v. Hodges219 help highlight this point. In both cases, the Supreme Court relied on
equal protection and substantive due process principles to protect the rights of same-
sex couples to marry.220 Moreover, while not explicit in the Court’s jurisprudence,
there is authority suggesting that within the scope of First Amendment protections,
freedom of speech sits at the top of the hierarchy, above the other rights included in
the First Amendment, including freedom of religion.221 As discussed more fully in
Chapter 3, there is therefore space for the concept of performative privacy to help
advance the doctrinal protections for head veils.
Thus, in ways similar to hoodies, the state reads the veil as an aggressive form of
resistance to its surveillance efforts and targets the veil for specific sanction, high-
lighting the ways in which a veil does, in fact, sometimes serve as a form of
performative privacy and expression against those surveillance regimes.

***
To conclude, post-structural social theory suggests that societal structures can imbue
certain functional acts with expressive meaning in relation to those social structures
and that deviations from hegemonic norms can begin to reshape the social tableau.
In the context of public privacy, the widespread surveillance regimes now in place
help steep individual efforts to maintain privacy with expressive value – the

Cir. 2009) (affirming grant of summary judgment for defendant City of Philadelphia notwith-
standing its refusal to permit plaintiff employee to wear her Muslim headscarf ); United States
v. Bd. of Educ., 911 F.2d 882, 891 (3d Cir. 1990) (refusal to permit substitute teacher to teach in
Muslim full body covering did not violate Title VII); Muhammad v. Paruk, 553 F. Supp. 2d
893, 900 (E.D. Mich. 2008) (denying woman relief when she was required to remove face veil
in order to testify in her own lawsuit); Freeman v. Dep’t of Highway Safety & Motor Vehicles,
924 So. 2d 48, 57 (Fla. App. 2006) (Florida’s Religious Freedom Restoration Act did not forbid
state from requiring Muslim woman to remove face veil for driver’s license photo).
215
Robson, supra note 136, at 151.
216
But see EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2037 (2015) (denying
employer summary judgment in Title VII employment discrimination where employer refused
to hire Muslim applicant because her headscarf would violate the employer’s dress code).
217
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 748–50 (2011).
218
570 U.S. 744 (2013).
219
135 S. Ct. 2584 (2015).
220
In Windsor, the Court also used federalism principles to bolster its holding. Neil S. Siegel,
Federalism as a Way Station: Windsor as Exemplar of Doctrine in Motion, 6 J. Legal Analysis
87, 144 (2014).
221
Martha M. McCarthy, Free Speech versus Anti-Establishment: Is There A Hierarchy of First
Amendment Rights?, 108 Ed. Law Rep. 475 (1996).
84 Performative Privacy in Theory and Practice

functional wearing of a hoodie, utilization of Tor, or refusal to comply with laws

designed to out one’s birth-assigned sex are not normatively neutral acts. They are
replete with meaning and often express opposition to the widespread attempts by
surveillance regimes to eradicate privacy while in public. As this chapter outlined,
evidence of performative privacy’s salience comes not just from theory, but also from
the state’s reaction to functional efforts to maintain privacy and individual instances
where people identify their efforts to maintain privacy as expressive – as resistance.
The next chapter discusses the doctrinal and discursive implications for conceiving
of efforts to maintain privacy in this way; for understanding acts of public privacy as
performative and expressive.
 3

Performative Privacy’s Payoffs

This chapter turns to the implications, or payoffs, of a theory of performative privacy.

There are both doctrinal and discursive benefits to conceptualizing efforts to
maintain privacy in public as acts of performative privacy.
First, doctrinally, identification of performative privacy as a conceptual theory of
public privacy may help bring acts of public privacy more squarely within the First
Amendment’s free speech doctrinal ambit, avoiding current barriers posed by the
secrecy paradigm. By demonstrating that demands for public privacy are often (but
not necessarily always) imbued with expression, the concept of performative privacy
helps establish that public privacy is grounded in the First Amendment’s speech
protections and that existing jurisprudence provides doctrinal support for a right to
performative privacy in public. Particularly so given jurisprudence protecting speech
by unpopular groups and representing minority views and identities, which often
applies to those engaged in acts of performative privacy.
Second, discursively, performative privacy may help redraw the line between
public and private, help positively frame acts of public privacy, and discursively
shape public attitudes toward attempts to obtain privacy in public (and the social
controversies that are often closely tied to such attempts). Understanding functional
efforts to maintain privacy as a form of outward-facing expression helps us appreciate
that privacy is not just important as a pre-political incubator for political thought,
speech, and association, as it is often characterized, but is, itself, directly political.
Conceptualizing privacy in such a manner accentuates privacy’s role in maintaining
the democratic balance between citizen and state, provides meaning to the currently
brittle public–private distinction, and dispels misplaced suspicion often associated
with those who demand their privacy. By helping society better understand the
expressive dimension of attempts to obtain privacy in public by, for example,
wearing a hoodie or face mask, the framework of performative privacy can help
remove the initial, negative reaction to such a practice and instead associate it as an
exercise of the freedom of speech – one of America’s most valued ideals. Moreover,

85
86 Performative Privacy’s Payoffs

the rubric of performative privacy has the potential to reinvigorate what courts deem
to be a “reasonable expectation” of privacy by underscoring the degree to which we
do take subtle, but significant, efforts to guard our privacy – which may, in turn, have
doctrinal implications for privacy protections in the Fourth Amendment and privacy
tort context. In these ways, performative privacy can shift the rhetorical landscape
currently surrounding many attempts to obtain privacy in public.
Third, on both a discursive and doctrinal level, while certainly not intended as a
substitute for identity-based claims against widespread structural racism, sexism,
Islamophobia, homo/transphobia, xenophobia (but instead as a complement), to
the extent that acts of performative privacy cut across laws disproportionately targeting
racial, religious, or gender minorities (regulation of hoodies, bans on head veils, and
laws that out transgender individuals are key examples), performative privacy could
deliver a collective and coalescing anti-subordination normative response to these
conflicts. Performative privacy operates as a form of individual and collective
resistance, helping many marginalized communities reassert and protect their very
existence within the public square, further enabling such communities to challenge,
alter, and transform homogeneous structural and cultural norms. Put differently,
performative privacy helps highlight the disparate burden of surveillance on margin-
alized communities and identifies a collective form of political resistance that serves
anti-subordination goals. And it helps link together both the expressive and anti-
subordination dimensions of public privacy, increasing judicial and societal appetite
for legal protections. As noted at the end of Chapter 2, because of pluralism anxiety,
courts are often more open to legitimizing identity-based claims when they simultan-
eously sound in the register of liberty-based claims – here, expressive liberty.
Fourth, and relatedly, performative privacy helps marginalized groups reclaim
space and exist within the public square, in turn permitting them to shape commu-
nity norms and push against the normalizing, hegemonic influences of surveillance
structures.

doctrinal implications
The First Amendment provides robust protections for freedom of expression. That
protection extends to what has been dubbed “expressive conduct” and “symbolic
speech,” and is not limited to so-called “pure speech.”1 Generally, the test applied to
determine whether government action unconstitutionally infringes on expressive
conduct or symbolic speech is the same as that applied to “pure” speech.2 If the
1
E.g., Texas v. Johnson, 491 U.S. 397, 405–06 (1989) (holding that flag burning is conduct
protected by the First Amendment); cf. Pierre Schlag, Laying Down the Law: Mysticism,
Fetishism, and the American Legal Mind 4–8; 117 (1996) (highlighting as facile some of the
speech–conduct distinctions animating First Amendment law).
2
R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992) (“The First Amendment generally prevents
government from proscribing speech, or even expressive conduct, because of disapproval of
 Doctrinal Implications 87

government regulation at issue is content-based (that is, targeted toward a particular

subject matter or message), it is subject to strict scrutiny (requiring a compelling
government interest that cannot be achieve through a less restrictive alternative) and
often found to be unconstitutional.3 However, as the Court held in United States
v. O’Brien, the government may impose content-neutral time, place, and manner
restrictions on expressive conduct so long as those restrictions serve an important
government interest and do not burden substantially more speech than necessary to
serve that interest.4 Importantly though, as the Supreme Court has reiterated, if a
generally applicable law is directed at an individual because of their expressive
conduct, the O’Brien intermediate scrutiny standard will not apply, and strict
scrutiny will continue to apply.5
To be clear, I am not suggesting that all regulation of acts of performative privacy
are necessarily content-based, subjecting the regulation to strict scrutiny, or would
fail the O’Brien intermediate scrutiny test. My objectives with regard to doctrine are
more modest – to show that the concept of performative privacy helps us understand
how acts of public privacy are expressive and, therefore, might trigger First
Amendment coverage and, potentially, First Amendment protection for acts of
public privacy. In other words, before it can be determined whether a particular
government regulation infringes on purported First Amendment speech rights, it
must first be determined that the speech is covered by the First Amendment at all –
that is, that it is the type of expression that falls within the First Amendment’s ambit.6
For, as the Supreme Court has explained, “the O’Brien test is not triggered – indeed
no First Amendment scrutiny is triggered – if the [individual] was not engaged in
‘expressive conduct.’”7 Thus, my purpose in this section is not to methodically
determine whether each of the regulations discussed in Chapter 2 are content-based
or content-neutral, thereby determining the appropriate level of scrutiny, strict or
intermediate. Both forms of scrutiny are relatively robust, requiring either compelling
or important government interests and well-tailored regulations. Rather, my goal is to
show how acts of performative privacy could be considered expressive conduct,
implicating First Amendment coverage and scrutiny in the first instance.
Therefore, most crucial for present purposes is whether acts of performative
privacy could satisfy the initial hurdle – that is, whether they could be classified as

the ideas expressed”); Melville B. Nimmer, The Meaning of Symbolic Speech under the First
Amendment, 21 UCLA L. Rev. 29, 33 (1973) (“Any attempt to disentangle ‘speech’ from
conduct which is itself communicative will not withstand analysis. The speech element in
symbolic speech is entitled to no lesser (and also no greater) degree of protection than that
accorded to so-called pure speech. Indeed, in one sense all speech is symbolic”).
3
Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002).
4
391 U.S. 367, 377 (1968); see also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
5
Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010).
6
Frederick Schauer, Speech and Speech – Obscenity and Obscenity: An Exercise in the
Interpretation of Constitutional Language, 67 Geo. L.J. 899, 905 (1979).
7
Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767, 772 (2001).
88 Performative Privacy’s Payoffs

covered expression or speech as those terms are used under First Amendment
doctrine.8 An analysis of Supreme Court jurisprudence scrutinizing whether a
particular act is expressive conduct – whether it is “speech” – and thus entitled to
First Amendment coverage, demonstrates that many of the acts of performative
privacy outlined in Chapter 2 ought to be protected against government incursion
by the First Amendment.
In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., the
Supreme Court articulated in detail the close relationship between conduct that is
also communicative and the right to free expression.9 In that case, the Court
considered whether the private organizers of a St. Patrick’s Day parade could be
forced by a local nondiscrimination ordinance to include a gay, lesbian, and
bisexual organization in the parade or whether the forced inclusion violated the
parade organizers’ First Amendment rights. The Court analyzed whether
the parade, while certainly involving conduct, was also a form of expression. The
Court rather easily concluded that parades are “a form of expression, not just
motion,” notwithstanding that they involve a large degree of conduct – marching,
waving, sign holding. The Court explained that “[t]he protected expression that
inheres in a parade is not limited to its banners and songs, however, for the
Constitution looks beyond written or spoken words as mediums of expression.”
The Court reiterated that “symbolism is a primitive but effective way of
communicating ideas.”
Importantly, as Stuart Benjamin has observed,10 in Hurley, the Court defined the
kinds of conduct entitled to First Amendment coverage expansively, holding that “a
narrow, succinctly articulable message is not a condition of constitutional protec-
tion” and that the expression need not convey a particularized message.11 In fact, the
Court noted that mere participation in the parade was expressive. By emphasizing
that no particularized message need be communicated by the conduct, the Hurley
opinion seemed to soften the standard articulated in Spence v. Washington, where
the Court had suggested that affixing a peace symbol to an American flag was
protected speech because “[a]n intent to convey a particularized message was
present.”12

8
Johnson, 491 U.S. at 403 (noting that the first step is to determine if the conduct is expressive
and, if so, then determine whether strict scrutiny or the more relaxed O’Brien standard applies).
9
515 U.S. 557, 568–70 (1995).
10
Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445, 1464 (2013).
11
Hurley, 515 U.S. at 569.
12
Spence v. Washington, 418 U.S. 405, 410–11 (1974); see also Condon v. Wolfe, 310 Fed.
App’x. 807, 819 (6th Cir. 2009) (“The Supreme Court subsequently minimized the ‘particular-
ized message’ requirement”); Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004)
(similar); cf. Joseph Blocher, Nonsense and the Freedom of Speech: What Meaning Means
for the First Amendment, 63 Duke L.J. 1423, 1423 (2014) (suggesting that “nonsense” may be
entitled to First Amendment protections).
 Doctrinal Implications 89

Consistent with its expansive approach to determining whether conduct counts as

covered speech, the Court has protected, to varying degrees, cross burning,13 flag
burning,14 black armbands worn to express a certain view,15 sit-ins at public librar-
ies,16 nude dancing, and other forms of entertainment,17 among many other
examples.18 Famously, the Court has also held that the expenditure of money in
political campaigns, while sometimes containing an element of conduct, is pro-
tected First Amendment speech.19
Within the specific context of clothing, relevant to multiple examples of per-
formative privacy, “[a]ttire bearing words or symbols is much more likely to meet the
expressive threshold necessary to invoke First Amendment protections . . . [but] even
unadorned apparel can speak volumes.”20 And while First Amendment challenges
to regulation of people wearing saggy pants for indecent exposure, disorderly
conduct, or violation of dress codes have met with mixed results (often because
courts mistakenly believe that it is not clear if a message is being communicated21 or
that the message is understood),22 the concept of performative privacy helps give
shape and contour to the message conveyed by hoodies, head veils, and the like – a
political message of resistance to surveillance.
That is, to the extent the Spence “particularized message” requirement does
survive Hurley, performative privacy helps distinguish hoodies and head veils from
other kinds of apparel (such as saggy pants) that have not received consistent First
Amendment protection.

13
R.A.V., 505 U.S. at 391.
14
Johnson, 491 U.S. at 405–06.
15
Tinker v. Des Moines Indep. Cty. Sch. Dist., 393 U.S. 503, 505–06 (1969).
16
Brown v. Louisiana, 383 U.S. 131, 141–42 (1966).
17
Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66 (1981).
18
Cf. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (holding fist in air during pledge
of allegiance was expressive conduct and possibly even pure speech); Mark Tushnet et al.,
Free Speech Beyond Words (2017) (documenting many wordless kinds of covered free
speech including instrumental music and nonrepresentational art). But see Zalewska v. Cty.
of Sullivan, 316 F.3d 314, 320 (2d Cir. 2003) (wearing a skirt when dress code required that
women wear pants was not protected because message was not particularized or easily
comprehensible by others).
19
Buckley v. Valeo, 424 U.S. 1, 16 (1976); cf. Citizens United v. FEC, 558 U.S. 310, 339 (2010).
20
Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy
from Our Hairstyles to Our Shoes 110 (2013); see also Onika K. Williams, Note, The
Suppression of a Saggin’ Expression: Exploring the “Saggy Pants” Style within a First
Amendment Context, 85 Ind. L.J. 1169, 1173 (2010) (explaining that “[b]ecause the saggy-pants
style communicates a message of fashionable disobedience . . . wearing saggy pants is an
expressive form of conduct through which the style assures individual self-fulfillment in a
democratic society, that saggy pants are a form of communication, and that the saggy-pants style
satisfies the expressive-conduct test of Spence v. Washington”).
21
Robson, supra note 20, at 121.
22
E.g., Bivens ex rel. Green v. Albuquerque Pub. Sch., 899 F. Supp. 556, 561 (D.N.M. 1995).
90 Performative Privacy’s Payoffs

Similarly, with regard to the requirement, also from Spence, that the audience be
able to “understand” the message,23 the government does, indeed, understand that
efforts to functionally resist surveillance by wearing a hoodie or head veil are
expressing a message of resistance to surveillance, deems that particular message
as one of resistance (or, often incorrectly, intimidation), and responds with regula-
tion, as outlined in Chapter 2.
Furthermore, acts of performative privacy are unlike the conduct involved in cases
such as Rumsfeld v. Forum for Academic and Institutional Rights.24 There, the Supreme
Court rejected a First Amendment challenge to the Solomon Amendment, which
required educational institutions to permit military recruitment on campus, because
the conduct at issue (refusal to permit recruiters) only gained expressive meaning when
accompanied by speech. Acts of performative privacy are more intrinsically expressive
even when unaccompanied by separate speech because of the context or structures of
surveillance. That is, like the wearing of black armbands in Tinker v. Des Moines,25 which
only became expressive in the social context of the Vietnam War, acts of performative
privacy are imbued with expression because of the social context of widespread surveil-
lance. In fact, Spence, too, emphasizes the importance of “surrounding circumstances” to
the determination of whether conduct is understood as expressive.26
In sum, in the same way that conduct can be audibly silent and yet protected
expression, merely because some conduct may involve an aspect of actual, oral
communication, does not dictate that the communication is protected by the First
Amendment, as explained in Rumsfeld.27 As emphasized by Erwin Chemerinsky, “[t]o
deny First Amendment protection for [symbolic] forms of communication would
mean a loss of some of the most effective means of communicative messages.”28 The
use of words is not the lynchpin, one way or another, in determining whether the First
Amendment applies.29 Speech is not the sine qua non of expression.
That said, reinforcing the view that functional demands for privacy may also be
viewed as legally protected speech – as expressive – is authority adopting a broad
view of what types of information, or data, counts as protected expression. While I do
not necessarily go this far, there is a growing body of law recognizing that mere

23
418 U.S. at 411.
24
547 U.S. 47, 66 (2006).
25
393 U.S. 503, 505 (1969).
26
Spence, 418 U.S. at 411; cf. Virginia v. Black, 538 U.S. 343, 367 (2003) (O’Connor, J., plurality
opinion) (noting the importance of “contextual factors” to determining expressive conduct’s
meaning).
27
547 U.S. at 66; see e.g., Pickup v. Brown, 740 F.3d 1208, 1229–30 (9th Cir. 2014) (holding that a
law banning the provision of gay conversion therapy to minors by state-licensed mental health
professionals regulated conduct, not protected speech, even though communication was
involved), cert. denied, 2014 U.S. LEXIS 4636.
28
Erwin Chemerinsky, Constitutional Law: Principles and Policies 1063 (5th ed. 2015).
29
Cf. Judith Butler, Notes Towards a Performative Theory of Assembly 45 (2015) (“It
cannot be that agency is a specific power of speech, and that the speech act is the model of
political action”).
 Doctrinal Implications 91

transmission of facts, or data, can communicate and that, in certain situations (but not
necessarily always), the relaying of data ought to be entitled to First Amendment
protections.30 There is also authority concluding that computer code itself is covered
speech.31 And others have documented authority suggesting that algorithm-based
search engine results might also be entitled to First Amendment coverage.32
Moreover – and particularly relevant to efforts to obfuscate online activity, which
sometime involve supplying inaccurate information – the Supreme Court suggested
in United States v. Alvarez that even false speech is entitled to First Amendment
protections.33 In that case, the Supreme Court held that the Stolen Valor Act, which
criminalized false claims about having a military medal, was unconstitutional under
the First Amendment. The Court specifically rejected the government’s contention
that “false statements generally should constitute a new category of unprotected
speech” and, instead, suggested merely that the falsity of a statement could be
relevant to the First Amendment analysis if the speech also fell within one of the
other, less protected categories of speech.34
Acts of performative privacy will often not fall into such categories. As the Court
recounted in Alvarez, categories of less protected speech include speech inciting
imminent lawless action, obscenity, defamation, fighting words, fraud, true threats,
and child pornography.35 And these categories themselves are narrowly defined and
subject to certain exceptions, which move the speech into the protected realm.
Indeed, even when speech is so generally offensive, such as the speech by Westboro
Baptist Church outside the funeral of a fallen marine, which included hateful signs
regarding soldiers and LGBTQ people, the expression is entitled to robust First
Amendment protections.36

30
Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57, 58, 70, 90 (2014) (explaining that “[d]ata
communicates,” that one fact is often more persuasive than thousands of opinions, and that
focusing on the government’s intent or motive for regulating a particular piece of data will shed
light on whether the data is entitled to First Amendment protections).
31
E.g., Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449 (2d Cir. 2001).
32
Benjamin, supra note 10, at 1458–71 (collecting authority suggesting that algorithm-based
search engine results were protected speech); cf. Brown v. Entm’t Merchs. Ass’n, 564
U.S. 786, 790 (2011) (concluding that video games are covered by the First Amendment).
For a contrasting view on whether computer-generated communications are entitled to First
Amendment coverage, see Tim Wu, Machine Speech, 161 U. Pa. L. Rev. 1495, 1498 (2013).
33
132 S. Ct. 2537, 2539–40 (2012).
34
Id. at 2546–47; see also Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the
First Amendment, 68 Vand. L. Rev. 1435, 1438 (2015) (documenting when lies may be entitled
to First Amendment protection); Helen Norton, Lies and the Constitution, 2012 Sup. Ct. Rev.
161, 171–72 (2012) (suggesting that regulation of lies should be limited by First Amendment
interests in limiting the government’s ability to serve as the ultimate judge of truth).
35
Alvarez, 132 S. Ct. at 2544 (collecting authority). For an important critique of whether the
diminished protection provided to so-called low-value speech is supported by First Amendment
history, see Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166,
2182–92 (2015).
36
Snyder v. Phelps, 562 U.S 443, 448 (2011).
92 Performative Privacy’s Payoffs

Further, while the Supreme Court has noted a broad number of goals served by
the First Amendment, it has on multiple occasions emphasized that one of the
primary objects of the First Amendment’s protection is political speech. As recently
as 2011, the Court has held that “[t]he Free Speech Clause exists principally to
protect discourse on public matters.”37 Put differently, political speech sits at the top
of the expressive hierarchy entitled to constitutional protection. As Chapter 2 dem-
onstrated, acts of performative privacy are at their heart political in nature – state-
ments of resistance to surveillance structures and expressions of anti-subordination.
Nor is it irrelevant to any consideration of the scope of protections afforded to
performative privacy that the Supreme Court has long protected anonymous
speech.38 Significantly, as briefly discussed in Chapter 2, in Watchtower Bible &
Tract Society of New York v. Village of Stratton, the Supreme Court held that the
First Amendment’s protections for anonymous speech extended to invalidate an
ordinance prohibiting canvassers from going onto private property to promote any
cause unless they had first received a permit to do so, and the resident had not opted
to display a “no solicitation” sign.39 The Court noted that the registration require-
ment “necessarily results in a surrender of anonymity” because the canvasser is
identified in the application, which in turn is available for public inspection.
Notwithstanding the fact that a canvasser known to a resident would “reveal their
allegiance to a group or cause when they present themselves at the front door to
advocate an issue or to deliver a handbill,” canvassers who were “strangers to the
resident certainly maintain their anonymity” absent the registration requirement.
The Court directly rejected an appeal to infect the First Amendment with the third-
party doctrine. It recognized the importance of practical anonymity when engaged
in public expression. Even upon entering the public realm to advocate a particular
idea, the Court held that permitting the canvasser to remain anonymous (to the
extent possible) was critical under the First Amendment.40
Accordingly, depending on the context in which they arise, many of the acts of
performative privacy discussed in Chapter 2 may be construed as expressive, political
conduct entitled to First Amendment coverage and protection. In the context of the
living history of state-sanctioned violence against black bodies, wearing a hoodie can

37
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011); see also Citizens United v. FEC, 558
U.S. 310, 329 (2010) (characterizing political speech as “central to the meaning and purpose of
the First Amendment”); Black, 538 U.S. at 365 (explaining that conduct, including cross
burning, can mean “that the person is engaged in core political speech”).
38
E.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362
U.S. 60, 64 (1960).
39
536 U.S. 150, 154, 166–69 (2002).
40
But see Doe v. Reed, 561 U.S. 186, 194–99 (2010) (recognizing the First Amendment interest in
anonymously petitioning the government for a referendum, but concluding, as a general
matter, that there is no First Amendment violation where the identity of petition signatories
is publicly disclosed because of overriding interest in preserving integrity of the electoral
process).
 Doctrinal Implications 93

be an attempt to maintain public anonymity and a statement of resistance against a

surveilling, violent state. In the context of attempts to force trans people to publicly
disclose intimate information in order to access public restrooms or participate on
public sports teams, demands for privacy by trans people are performative expres-
sions of their true gender identity. In the context of state and corporate efforts to strip
Muslim women of their coverings, refusal to do so is not only a statement of religion,
but can also serve as a responsive call for privacy/modesty in the face of public gaze.
In the context of attempts to identify and intimidate peaceful, lawful protestors, the
wearing of masks is an expressive refusal to succumb to the surveillance state.41
Likewise, in the context of panoptic state and corporate surveillance of online
activity, attempts to obfuscate cyber activity (in effect, donning a “cyber mask”) are
also performative privacy acts.
Doctrinally, once these activities are deemed to include expressive conduct they
become subject to the First Amendment’s coverage, meaning that any attempt by
the government to regulate the content of the expression is likely subject to strict
scrutiny and any content-neutral time, place, and manner restriction must neverthe-
less satisfy intermediate scrutiny. This is in contrast to the Fourth Amendment
reasonable expectation of privacy inquiry, which often amounts to little more than
a balancing test tilted in favor of the government. In Alvarez, the Supreme Court
reiterated its rejection of a balancing test for First Amendment claims, explaining
that “a free-floating test for First Amendment coverage . . . [based on] an ad hoc
balancing of relative social costs and benefits” would be “startling and dangerous.”42
While case-by-case application of scrutiny is beyond the scope of this book, many
of the laws targeting acts of performative privacy would seem to fail such scrutiny.43

41
But see Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 206–07 (2d
Cir. 2004) (upholding New York’s anti-mask law against First Amendment challenge and
concluding that KKK’s desire to wear masks was not protected expressive conduct because it
was “redundant” of the rest of the expression).
42
132 S. Ct. 2537, 2544 (2012) (alteration in original) (quoting United States v. Stevens, 559
U.S. 460, 470 (2010)).
43
This is not to say that there may never be legitimate government interests for regulating acts of
public privacy or that law enforcement will be paralyzed. But instead of the Fourth
Amendment’s milquetoast balancing test, those interests should be substantial/important or
compelling. Nor is it to suggest that expressive conduct can never form the basis of reasonable
suspicion or probable cause that a separate crime has occurred, warranting further police
investigation or arrest. People’s words and expression often function as evidence and serve as
the basis for reasonable suspicion or probable cause for another crime. E.g., Egolf v. Witmer,
421 F.Supp.2d 858, 866 (E.D. Pa. 2006); Eugene Volokh, Crime-Facilitating Speech, 57 Stan.
L. Rev. 1095 (2005). But the expression must be suggestive of a separate crime and, as
discussed, ex ante criminalization of particular communications itself is unconstitutional.
Virginia v. Black, 538 U.S. 343, 366–67 (2003). To conclude otherwise would eviscerate speech
protections and turn the Fourth Amendment probable cause/reasonable suspicion standards
into a broad license to police and suppress speech. Nothing about maintaining one’s privacy –
standing alone – is suggestive of criminal activity other than the criminalized expression itself.
Elizabeth E. Joh, Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion, 55
Ariz. L. Rev. 997, 1002 (2013). Moreover, as the Supreme Court recently held, even when
94 Performative Privacy’s Payoffs

For example, bathroom bills that limit transgender individuals’ ability to express
their gender identity by using the restrooms that correspond to that identity, are
often specifically designed to restrict and punish gender expression.44 Similarly, laws
that specifically target hoodies for criminalization could be considered content-
based limitations on the ability to express opposition to the state’s surveillance
regime and the corresponding structural oppression of racial minorities.
Nor is it doctrinally irrelevant that many of the attempts to regulate acts of
performative privacy suggest that the government is itself motivated by an illicit
attempt to target a particular message. As then Professor Elena Kagan explained,
First Amendment doctrine “has as its primary, though unstated, object the discovery
of improper governmental motives” and that the “doctrine comprises a series of tools
to flush out illicit motives and to invalidate actions infected with them.”45
Indeed, as the Supreme Court concluded in Heffernan v. City of Paterson, the
First Amendment is implicated when the government intends to regulate a particu-
lar message, even if the regulated individual intended no such message and was
engaged in no speech.46 In Heffernan, a city police department demoted an officer
in response to the purportedly mistaken belief that the officer supported a challenger
running against the city’s incumbent mayor (the officer was, in fact, merely picking
up a sign supporting the mayoral challenger for his ailing mother). Despite the fact
that the officer himself intended no political speech, the Court concluded that the
First Amendment was implicated because of the government’s belief that he was
engaged in speech – speech that motivated the city’s discipline of the officer. In this
way, Heffernan illustrates that the First Amendment operates not just as a liberty
granting provision, entitling individuals to speech, but also operates as a negative
limitation on government power – irrespective of whether someone is actually
intending to affirmatively exercise their First Amendment rights.
Importantly, the protection provided by the First Amendment is also not limited
by the “secrecy paradigm” that would circumscribe arguments that these laws run
afoul of traditional privacy protections. Village of Stratton makes that very clear.47
A comparison of how a law infringing on acts of performative privacy might fare
under the Fourth Amendment and First Amendment helps illustrate the importance

there is probable cause to arrest someone, if there is evidence that the actual motivation is
suppression of their speech, the First Amendment may be violated. Lozman v. City of Riviera
Beach, 138 S. Ct. 1945 (2018).
44
See Doe v. Yunits, No. 00–1060-A, 2000 Mass. Super. LEXIS 491, at *10 (Oct. 11, 2000)
(concluding that a transgender female student’s desire to dress in female clothes was protected
expressive conduct likely to be understood by others).
45
Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First
Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996).
46
136 S. Ct. 1412, 1418 (2016).
47
536 U.S. 150, 166 (2002); see also Margot Kaminski, Real Masks and Real Name Policies:
Applying Anti-Mask Case Law to Anonymous Online Speech, 23 Fordham Intell. Prop.
Media & Ent. L.J. 815, 838 (2013) (observing that the Court in Stratton acknowledges “that
anonymity may be contextual rather than absolute”).
 Doctrinal Implications 95

of avoiding the secrecy paradigm or third-party doctrine. For instance, consider a

person subject to a bathroom bill requiring that they show their birth certificate to
confirm that they were using the bathroom corresponding to their birth-assigned sex.
If such a person challenged enforcement of the law under the Fourth Amendment,
a court may conclude that because a transgender individual’s identity as trans was
partially public (because they had shared that information with friends, or had
already been forced to disclose that information by the government in other
contexts), the individual therefore has no reasonable expectation of privacy.
Conversely, under the First Amendment, individuals’ expressive efforts to resist
attempts to surveil aspects of their anatomy when using a restroom would be
protected as speech notwithstanding that aspects of their identity might be publicly
available and accessible elsewhere.48 As such, once conceptualized as acts of
performative, expressive resistance, attempts to maintain privacy in public against
government surveillance may fare better under the First Amendment’s protections
for expressive conduct than under traditional Fourth Amendment privacy protec-
tions, which have been severely hamstrung by doctrines such as the third-party
doctrine.
In concluding this section, it is worth noting that by embracing the First
Amendment as a means of advancing privacy protections, the performative approach
to privacy might be accused of contributing to what some have dubbed the “imperial
First Amendment,”49 and to what others have deemed First Amendment
Lochnerism, whereby the First Amendment is used to strike down otherwise valid
and commonplace government regulations.50 While sensitive to this concern, my
sense is that the concept of performative privacy is much more modest in its
formulation of what constitutes protected “speech” than say, for example, cases
which identify pure data as speech or corporations as speakers. In short, while wary
of a deregulatory First Amendment, the concept of performative privacy does not
dramatically expand doctrine. Instead, performative privacy fits more squarely with
traditional notions of expressive conduct, as outlined in this chapter.
Relatedly, there may be concern that an approach to expression focused on social
context and structural relationships unwittingly buttresses expression-based attacks

48
As noted at several points, it is not my contention that all functional efforts to maintain privacy
are necessarily expressive. But that point does not severely limit the doctrinal impact of the
concept of performative privacy. Certainly, for those who do intend something expressive, they
are more likely to be covered by the First Amendment. But to the extent that a government
regulation is overly broad and regulates expressive and non-expressive conduct, the First
Amendment’s overbreadth doctrine may still limit the regulation and provide privacy protec-
tions. E.g., United States v. Stevens, 559 U.S. 460, 481–82 (2010) (statute criminalizing the
creation, sale, or purchase of depictions of animal cruelty was overbroad under the First
Amendment).
49
Paul D. Carrington, Our Imperial First Amendment, 34 U. Rich. L. Rev. 1167, 1209–10 (2001).
50
Howard M. Wasserman, Bartnicki as Lochner: Some Thoughts on First Amendment
Lochnerism, 33 N. Ky. L. Rev. 421, 433, 457 (2006).
96 Performative Privacy’s Payoffs

on LGBTQ antidiscrimination ordinances such as those at issue in Masterpiece

Cakeshop, Ltd. v. Colorado Civil Rights Commission.51 In such cases, wedding
photographers, florists, or cake bakers argue that when antidiscrimination laws
require them to serve queer patrons, including providing services related to gay
weddings, the merchants are being compelled to express a particular view. But there
are important differences between the theory of performative privacy and the
compelled speech arguments raised in cases like Masterpiece. First, it is unclear
that requiring merchants who routinely take a variety of photographs or bake a
variety of cakes to comply with antidiscrimination law compels embrace of any
message, unlike Hurley and Boy Scouts of America v. Dale, where groups purport-
edly dedicated to a specific expressive association were implicated.52 Second, the
compelling government interest of ensuring LGBTQ equality likely outweighs any
purported speech interest, even assuming it exists.53 Finally, as Tobias Wolff has
explained, even assuming that merchants may engage in expressive mediums, they
themselves do not design the particular message requested by the customer.54 No
reasonable person imputes the message on a wedding photograph to the photog-
rapher, the icing message to the baker, or the billboard message to the advertising
company. It is rightly imputed to the person with control over the message – the
customer who paid for the message. Indeed, why would a customer pay a merchant
to spread the merchant’s own message? So understood, cases challenging LGBTQ
antidiscrimination laws on expressive grounds are quite distinct from Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, because in Hurley the
organizers of a privately arranged parade – an inherently politically expressive
activity – were required to include a group that would alter their message. But
importantly, it was their message to control from the outset. In the merchant cases,
the merchant is not being forced to alter their speech but is simply facilitating the
customer’s.

discursive implications
In addition to providing stronger doctrinal protections for public privacy demands,
conceptualizing acts of public privacy as expressive also has the potential to help

51
138 S.Ct. 1719 (2018).
52
Elane Photography, LLC v. Willock, 309 P.3d 53, 65–66 (N.M. 2013) (“The United States
Supreme Court has never found a compelled-speech violation arising from the application of
antidiscrimination laws to a for-profit public accommodation”); State v. Arlene’s Flowers, 193
Wash.2d 469, 513 (Wa. 2019) (floral arrangement is not covered expressive conduct).
53
Erwin Chemerinsky & Catherine Fisk, The Expressive Interest of Associations, 9 Wm. & Mary
Bill Rts. J. 595, 596 (2001) (arguing that Dale was flawed because it failed to recognize the
compelling interest in achieving equality).
54
Tobias Barrington Wolff, Anti-discrimination laws do not compel commercial-merchant speech,
SCOTUSblog (Sept. 14, 2017), http://www.scotusblog.com/2017/09/symposium-anti-discrimin
ation-laws-not-compel-commercial-merchant-speech/.
 Discursive Implications 97

alter how efforts to maintain public privacy are perceived by American society –
perhaps an even more important step than changing law.55 I analyze several
potential discursive, societal benefits to understanding privacy as performative/
expressive.

1 From Suspicion to Embrace

As it stands, certain privacy-supplementing acts, such as wearing a hoodie, head veil,
mask, or demanding gender privacy, are viewed with suspicion. As outlined in
Chapter 2, there are examples of laws, policies, or bills specifically targeting each
of these activities, reflecting at least some level of discomfort with these practices by
certain portions of the populace.
But while many view acts of public privacy as suspicious – influenced by the
inaccurate adage that those who seek privacy have something to hide56 – freedom of
expression maintains broad and deep support among the American public.57 In fact,
in a 2013 survey, nearly half (47 percent) of those surveyed identified freedom of
speech as the single most important freedom citizens enjoy.58 The runner-up –
freedom of religion – was selected by only 10 percent of those surveyed. And in a
2019 survey of First Amendment rights, freedom of speech was the most frequently
recalled right by a significant margin (64 percent of respondents recalled that the
First Amendment protected the freedom of speech, while the next recalled right was
the freedom of religion with 29 percent).59 And as discussed above, judicial under-
pinnings also suggest that freedom of speech occupies the top spot in an implicit
hierarchy of constitutional rights. Whinging by both the political right and left over
the demise of the First Amendment (from different threats) further underscores free
expression’s relatively universal embrace – at least when pitched as an abstract

55
Khiara Bridges, The Poverty of Privacy Rights 10, 63 (2017) (arguing that changing
discourse regarding marginalized communities may be more critical than changing law).
56
For example, in 2009, Google CEO Eric Schmidt remarked that “[i]f you have something that
you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Richard
Esguerra, Google CEO Eric Schmidt Dismisses the Importance of Privacy, Electronic
Frontier Found. (Dec. 10, 2009), https://www.eff.org/deeplinks/2009/12/google-ceo-eric-
schmidt-dismisses-privacy.
57
Cf. First Amendment Ctr., State of the First Amendment: 2014 (2014), https://www
.newseum.org/wp-content/uploads/2014/08/State-of-the-First-Amendment-2014-report-06–24–14
.pdf (reflecting that relatively consistently since 1997 a large majority of Americans express
support for the First Amendment, with most disagreeing that the First Amendment goes too far
in protecting rights (though in more recent years, the number of those agreeing that the First
Amendment goes too far has increased)).
58
First Amendment Ctr., State of the First Amendment: 2013 (2013), https://www
.freedomforuminstitute.org/wp-content/uploads/2014/08/FAC_sofa_2013report.pdf.
59
Freedom Forum Institute, The 2019 State of the First Amendment 3 (2019), https://
www.freedomforuminstitute.org/wp-content/uploads/2019/06/SOFAreport2019.pdf.
98 Performative Privacy’s Payoffs

constitutional value.60 As such, there is reason to believe that if acts of public privacy
are framed less as defensive efforts for secrecy, and more as affirmative acts of
expression, they may be viewed more receptively by American society.
Changing social attitudes toward acts of public privacy may be just as important for
providing doctrinal protections for those acts and could go a long way in reducing
societal violence against those engaged in acts of public privacy. For “[i]n order to
perpetuate itself, every oppression must corrupt or distort those various sources of
power within the culture of the oppressed that can provide energy for change.”61 As it
stands, this has meant rhetorically crafting efforts to secure privacy – a powerful tool
for many marginalized individuals – into a suspicious security threat. But if a hoodie is
viewed as an exercise of the cherished right to expression rather than a defensive
attempt at concealment, law enforcement officials and private individuals alike may
hesitate before engaging in regulation and violence against those who wear a hoodie.
As a concept, performative privacy could help change the starting point for any
conversation regarding public privacy from one of suspicion to one of sympathy or
even embrace. As others have explained, “[h]ow we name [a] struggle seems to matter
very much, given that sometimes a movement is deemed antidemocratic, even
terrorist, and on other occasions or in other contexts, the same movement is under-
stood as a popular effort to realize a more inclusive and substantive democracy.”62 The
same holds true for efforts to maintain privacy. As Julie Cohen has emphasized, “[t]he
way that we talk about privacy shapes our understanding of what it is – and what it is
not.”63 Privacy has been deemed suspicious – but it could be understood as the
expressive articulation of a desire to be free from oppression.

2 From Inward to Outward

Equally important, even when demands for privacy are not viewed as raising a red
flag of suspicion and are viewed “positively,” privacy has nevertheless been critiqued
as inward-looking, conservative, and potentially self-oppressive. For example,
framing women’s abortion rights or rights to contraception64 as rights to privacy
has been critiqued as rhetorically reinforcing Victorian values that relegate women
to the private sphere – the home – which, in turn, is often a site of oppression and
even violence against women.65 Similarly, efforts to advance queer rights through a
60
David E. Pozen, Introduction to The Perilous Public Square: Structural Threats to
Free Expression Today 1,1 (David E. Pozen, ed., 2020).
61
Audre Lorde, Sister Outsider 53 (rev. ed. 2007).
62
Butler, supra note 29, at 2.
63
Julie E. Cohen, Configuring the Networked Self 125 (2012); see also Woodrow Hartzog,
The Fight to Frame Privacy, 111 Mich. L. Rev. 1021, 1021–26 (2013).
64
E.g., Roe v. Wade, 410 U.S. 113, 153 (1973); Griswold v. Connecticut, 381 U.S. 479,
485–86 (1965).
65
Catharine A. MacKinnon, Reflections on Sex Equality under the Law, 100 Yale L.J. 1281, 1311
(1991) (“The problem is that while the private has been a refuge for some, it has been a hellhole
 Discursive Implications 99

privacy lens66 have been questioned as suggesting that there is something shameful
about non-heteronormative sexual identities.67 From this perspective, privacy has
been criticized as a demand to remain in the “closet.”68 Broadly speaking, demands
for privacy rights often appear inward looking or pre-political. And those that
advance public privacy with reliance on its instrumental benefits arguably feed into
the notion that privacy is, in fact, inward looking and pre-political, serving merely as
an incubator for later public thought.
Performative privacy alters the conceptual landscape and helps us understand that
efforts to maintain privacy – refusals of the surveillance gaze – are in fact outward-
facing political acts that are public exercises of an individual’s agency. Privacy does
not simply serve as an incubator, creating space for subsequent political expression
(though it does do that). It is more than just a passive virtue – it is frequently an
exercise and expression of power. Privacy is not pre-political – it is political.
Relatedly, by understanding that privacy demands are outward-facing and not
merely pre-political, the concept of performative privacy can help destabilize gen-
dered conceptions of privacy as “feminine” and, correspondingly, of “feminine” as
inward and passive. In this way, and as discussed more fully in Chapter 4, the
concept of performative privacy can also help turn the First Amendment into a
sword for privacy rights; whereas currently the First Amendment is often used to
limit regulatory enforcement of privacy under the belief that limiting the exchange
of (private) information is limiting the exchange of speech.
When a transgender person refuses to show their “papers” in order to access the
bathroom that corresponds with their true gender identity, they are not hiding in the
closet, but instead are expressing a political message and living their agency and
identity.69 The same holds true for those who use encryption or wear a hoodie to
subvert public surveillance.70 And this discursive implication – this way of thinking
about privacy – may, in turn, have doctrinal effects because it can help both society

for others, often at the same time. In gendered light, the law’s privacy is a sphere of sanctified
isolation, impunity, and unaccountability”).
66
E.g., Lawrence v. Texas, 539 U.S. 558, 564, 567 (2003).
67
Kendall Thomas, Beyond the Privacy Principle, 92 Colum L. Rev. 1431, 1455 (1992) (suggesting
that the problem with privacy as a foundation for lesbian and gay rights is that the closet is “less
a refuge than a prisonhouse” that perpetuates heterosexual privilege).
68
Cathy A. Harris, Note, Outing Privacy Litigation: Toward a Contextual Strategy for Lesbian
and Gay Rights, 65 Geo. Wash. L. Rev. 248, 265 (1997). But see Anita L. Allen, Privacy Torts:
Unreliable Remedies for LGBT Plaintiffs, 98 Calif. L. Rev. 1711, 1764 (2010) (observing that as
long as intolerance against LGBT individuals persists, privacy rights will remain an important
protection for nonnormative sexualities).
69
Significantly, certain acts of performative privacy may rely on the act of obfuscation being
visible, at the same time they refuse the regulatory regime’s power to recognize, or constitute,
the actor. John E. McGrath, Loving Big Brother 77 (2004) (while advocating for perform-
ance critiques of surveillance, explaining that “we should not fall into the representational trap
of equating value with exposure to view”).
70
To the extent regimes are surveilling for particular purposes – for particular information –
overwhelming self-exposure or inundation can also be a form of resistance. Kirstie Ball,
100 Performative Privacy’s Payoffs

and the courts better appreciate privacy’s value, the weight of which is historically
underappreciated relative to other societal concerns (namely, security).
Relatedly, to the extent that the concept of performative privacy isolates, labels,
and identifies certain arguably quotidian tasks as privacy-enhancing, it could help
shape where we locate the battle lines between the public and private sphere. As
discussed, the state and corporate actors are continually expanding what is deemed
“public” and therefore subject to regulation. Expanded surveillance erodes societal
expectations of privacy, and expands what is subject to regulation in the public
sphere. Consequently, surveilled “public” space is no longer for the people, the
body politic – but is instead a space where the state and corporate interests have
unchecked control. Conversely, private space is for the individual, and individuals
collectively, as a public.
What, then, of performative privacy? Performative privacy helps us understand
that efforts are being made to lay claim to purportedly “public” space by refusing to
be surveilled, and keeping that space for one’s self and other community members.
It recognizes that efforts are being made to push back the encroaching front line of
the “public” sphere.71
This discursive, conceptual implication, too, has a potential legal impact on
Fourth Amendment and privacy tort law. Because Fourth Amendment protections
for privacy continue to hinge on where there is an expectation of privacy society is
prepared to recognize as “reasonable,” the concept of performative privacy helps us
identify certain acts as privacy-enhancing, as laying claim to certain spaces as
“private,” and, therefore, reasonably entitled to legal protection.72 Similarly, the
concept of performative privacy also has doctrinal implications for tort law which
could be used to limit corporate surveillance. As discussed in Chapter 1, tort claims
for invasion of privacy against private parties – including corporations – are
hampered by the secrecy paradigm/third-party doctrine. But to the extent performa-
tive privacy helps change societal norms regarding what is reasonably understood as
private, it can increase the sphere of protected space deemed “private” under tort
jurisprudence.

Exposure, 12 Info., Comm. & Soc’y 639, 653 (2009). Similarly, the Surveillance Camera
Players, who perform plays critical of surveillance regimes in front of CCTV surveillance
cameras, highlight another form of performative resistance to surveillance regime that is based
on being seen – not remaining private. Torin Monahan, Surveillance in the Time of
Insecurity 137–39 (2010). But acts of performative privacy are even more powerful than efforts
to ape or flaunt surveillance because performative privacy acts maintain integrity and fidelity to
the value they are designed to protect – privacy or anonymity – instead of potentially surren-
dering one’s identity.
71
Cf. Butler, supra note 29, at 75 (describing how public occupation efforts “exercise the
performative power to lay claim to the public”); Ruha Benjamin, Race After Technology
91 (2019) (describing public space as a battleground for those challenging architectural
hierarchies).
72
Joh, supra note 43, at 1023 (arguing that “privacy protests can demonstrate the shifting
boundaries of privacy norms”).
 Discursive Implications 101

3 From Silos to Universality, from Discrimination to Anti-Subordination

To the degree that performative demands for privacy are made by many marginal-
ized groups including racial, religious, and sexual minorities, as well as socioeco-
nomically marginalized people, the concept of performative privacy has the
potential to serve as a unifying organizing principle across identity-based move-
ments. This is not to suggest that movements should not continue to foreground
how discrimination and surveillance are often motivated by engrained structural
animus against minority groups – not at all. The fact that the concept of performa-
tive privacy advances anti-subordination goals is one of the principal reasons for
framing them as such. Nor am I suggesting that performative privacy could serve as a
panacea to all the social problems afflicting various minority groups, that performa-
tive privacy should replace other attempts at equitable redistribution, or that minor-
ity groups are the only ones targeted for surveillance. But the range of those
impacted by surveillance underscores how the concept of performative privacy
can foreground that different marginalized people are all targeted by state and
private surveillance regimes (to differing degrees and in differing ways). This, at
the very least, could help such groups recognize the shared aspects of their struggles
and, somewhat more ambitiously, provide a legal/social project around which to
collectively organize. As Butler notes, “identity politics fails to furnish a broader
conception of what it means, politically, to live together, across differences, some-
times in modes of unchosen proximity.”73 In other words, while identity-based
claims remain of critical importance, performative privacy helps illustrate how a
universalist right nominally available to all – privacy – can be exercised to further
anti-subordination goals.74
Further, to the extent that purely identity-based equality claims, when advanced
in isolation, tend (unfortunately, and as discussed previously) to be viewed skeptic-
ally by both American society and the courts,75 framing issues of targeted surveil-
lance against racial, religious, and sexual minorities in terms of performative privacy
and freedom of expression has the potential to provide a more universal and
coalescing normative response to these conflicts while not sidelining – but fore-
grounding – the distributive and subordinating impacts of surveillance. In contrast
to the Court’s anxiety regarding pure “equality” claims, the Supreme Court has, on
numerous occasions discussed above, protected the right to engage in anonymous
speech particularly when the speech was being advanced on behalf of marginalized

73
Butler, supra note 29, at 27; see also id. at 50 (“[T]he struggle to form alliances is paramount,
and it involves a plural and performative positing of eligibility where it did not exist before”).
74
That said, in order to avoid re-enshrining certain identity categories, efforts at coalition politics
should be open to “an emerging and unpredictable assemblage of positions,” not assume the
content of any particular identity, and leave space for the annunciation of distinct identity.
Judith Butler, Gender Trouble 20 (Routledge Classics 2006) (1990).
75
Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 751–55 (2011).
102 Performative Privacy’s Payoffs

groups or viewpoints: people of color or those advocating for racial justice,76

religious minorities,77 or those with unpopular political viewpoints (sometimes tied
to their identities).78
In each of these cases, either explicit or implicit in the Court’s decision is the
belief that privacy over someone’s identity can serve important heterogeneity inter-
ests. As the Court explained in Talley, anonymity in speech is of acute importance
for “[p]ersecuted groups and sects” who “from time to time throughout history have
been able to criticize oppressive practices and laws either anonymously or not at
all.”79 Put differently in McIntyre, “[t]he decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by concern about social
ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”80
In short, while the Court has expressed some reservations regarding expanding the
kinds of identities entitled to robust constitutional equality protection,81 the Court
has nevertheless robustly protected expression – including anonymous expression –
when linked to diversity, equality, and anti-subordination interests.82 According to
several accounts, protecting the speech of minority view points and speakers is a “a
cardinal free speech principle.”83 Consequently, framing acts of privacy in public as
expressive efforts to protect marginalized groups – as expressions of anti-
subordination – could help lead to greater legal protection for the privacy of many
groups in public while also providing a common rallying cry among the groups.

4 Reclaiming and Diversifying the Public Square

Acts of performative privacy also serve anti-subordination goals by pushing back on
government and private-party surveillance, reclaiming space for marginalized indi-
viduals within the public square. As documented with examples such as anti-mask
76
Talley v. California, 362 U.S. 60, 65 (1960) (protecting the right to anonymously pamphlet
against businesses that were discriminating against racial minorities); NAACP v. Patterson, 357
U.S. 449, 449–50 (1958) (protecting from disclosure the membership lists of the National
Association for the Advancement of Colored People).
77
Watchtower Bible & Tract Society of New York v. Village of Stratton, 536 U.S. 150, 166–67
(protecting Jehovah’s Witnesses from loss of anonymity).
78
Talley, 362 U.S. at 65 (emphasizing that Federalist Papers were published using pseudonyms);
cf. Hollingsworth v. Perry, 558 U.S. 183, 189 (2010) (forbidding limited broadcast of the
Proposition 8 marriage equality trial because witnesses’ politically charged views would be
disseminated); Watkins v. United States, 354 U.S. 178, 198–99 (1957) (concluding that there are
limits on the Committee on Un-American Activities’ ability to invade individual privacy).
79
362 U.S. at 64.
80
514 U.S. 334, 341–42 (1995).
81
Cf. Russell K. Robinson, Unequal Protection, 68 Stan. L. Rev. 151, 169 (2016).
82
Timothy C. Shiell, African Americans and the First Amendment 33 (2019); Robert
L. Tsai, Practical Equality: Forging Justice in a Divided Nation 188 (2019).
83
Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not
Censorship ix (2018); see also Chicago v. Mosley, 408 U.S. 92 (1972) (protecting anti-racist
speech)
 Discursive Implications 103

laws, bathroom bills, and government action targeting head veils, increasingly, in
order for people to enter into and engage with the public square, they are forced to
reveal their identities or intimate information about their identities.
These laws have different motivations, and each impose unique threats: suppres-
sion of political speech, sex discrimination, racial animus, classism, and religious
bias. But these seemingly disparate laws also have a common effect – they invade
privacy in order to impose barriers to the public square, and, therefore, participation
in a democratic society.84 Access to a vibrant public sphere where politics can be
contested is what distinguishes a free society from a feudal one.85 Put powerfully by
Habermas, the effectiveness of a public sphere and civil society more broadly stands
or falls “with the principle of universal access” – a “public sphere from which
specific groups [are] excluded [is] less than merely incomplete; it [is] not a public
sphere at all.”86 Each of these laws concerns who can access public space and on
what terms and, as such, they threaten to disenfranchise people from forms of
embodied, participatory democracy even more fundamental and cherished than
the voting booth.87
By invading their privacy, anti-mask laws discourage activists – including anti-
racist activists and people of color – from taking to the streets and exercising their
right to embodied democracy.
By invading their privacy, restrictive gender identity laws force transgender people
from the public square, deny their existence, and exclude them the places where
they could rightfully assert their identities.
By invading their privacy, laws or practices that target people who wear head veils
impose obstacles on Muslim women’s ability to appear in the public square.
These laws (and many others) are all a form of surveillance that transform the
public square from a place where divergent ideas can be expressed by diverse
people, to a homogeneous zone where only those who look, act, and believe the
same thing can participate. If access to the square is limited or lost in this way, it will
be harder still to change these discriminatory laws in the minds of public opinion, at
the ballot box, and in the courts.

84
Cf. Khiara Bridges, The Poverty of Privacy Rights 96 (2017) (observing that privacy-
invading policies, such as New York’s racially applied stop-and-frisk policy forced marginalized
people to avoid public spaces to “retain some semblance of privacy”).
85
Jurgen Habermas, The Structural Transformation of the Public Sphere 29 (Thomas
Burger, trans., MIT Press 1991) (1962)
86
Id. at 85.
87
Cf. Michael Warner, Publics and Counterpublics 70 (2002) (explaining that externally
organized forms of political participation, like voting, are poor substitutes for self-organized
forms of public participation); Chantal Mouffe, For a Left Populism 41 (2018) (arguing
that with the collapse of any meaningful difference between political parties and the embrace
of “common sense” neoliberal norms, participatory democracy remains critical, as embodied in
the political motto of the indignados in Spain: “We have a vote but we do not have a voice”);
Timothy Zick, Speech Out of Doors xi (2009) (underscoring importance of public
contestation).
104 Performative Privacy’s Payoffs

Should people brave the public square, widespread surveillance has profound
conforming effects. Public socialization processes tend to “fix” identities through
social discipline that encourages individuals to cultivate consistent, legible iden-
tities.88 Surveillance exacerbates conforming tendencies and puts people under a
microscope.89
As addressed more squarely in Chapter 4, privatized surveillance – including
corporate surveillance and widespread citizen recording – works with surveillance
laws to intensify the privacy burdens on entering the public square and participating
in society, particularly if that recording is directed toward those engaged in
embodied forms of participatory democracy.90 Historically, public assembly has
provided “each participant with a measure of anonymity or disguise, thereby
lowering the risk of being identified personally.”91 And that anonymity helps
embolden people to assemble, allowing them to communicate power to their
adversaries through their numbers and presence.
Surveillance’s negative impact on the ability to appear in public is being intensi-
fied with the deployment of facial recognition software by both state and private
actors to identify those in public and the privatized practice of doxing toward
protestors as a means of galvanizing harassment toward the protestor.92 The
increased availability of facial recognition software makes identifying the protestor,
and subjecting them to further government surveillance or private-party doxing and
harassment, all the easier.93 Indeed, technology is being developed by surveillance
firms and technology startup companies that would allow real-time facial recogni-
tion analysis of live video.94 As civil liberty organizations have highlighted while

88
Erving Goffman, The Presentation of Self in Everyday Life 56 (1959).
89
Margot Kaminski & Shane Witnov, The Conforming Effect: First Amendment Implications of
Surveillance, Beyond Chilling Speech, 49 U. Rich. L. Rev. 465 (2015); Shoshana Zuboff, In
the Age of the Smart Machine 356 (1988); Daniel J. Solove, The First Amendment as
Criminal Procedure, 82 N.Y.U. L. Rev. 112, 153 (2007).
90
E.g., Meagan Flynn, Georgia Police Invoke Law Made for KKK to Arrest Anti-Racism Protestors,
Wash. Post (Apr. 23, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/04/
23/georgia-police-invoke-anti-mask-law-made-for-kkk-to-arrest-racism-protesters/?utm_term=
.93a5cdf4e298 (explaining that anti-racist counter-protestors wore masks “to hide their iden-
tities to avoid being targeted by the white-power groups”).
91
James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts
65–66 (1990).
92
Maha Ahmed & Madison Pauly, Wearing Masks at Protests Didn’t Start with the Far Left,
Mother Jones (Sept. 29, 2017), https://www.motherjones.com/politics/2017/09/masks-protests-
antifa-black-bloc-explainer/ (explaining that the threat of doxing or police harassment motivates
some protestors to wear masks).
93
Charles Costa, The Future of Doxing in a World of Facial Recognition, SitePoint (Sept. 7,
2016), https://www.sitepoint.com/the-future-of-doxing-in-a-world-of-facial-recognition/ (high-
lighting that FindFace facial recognition website has been used to dox people on Russian
social media).
94
Drew Harwell, Facial Recognition May Be Coming to a Police Body Camera Near You, Wash.
Post (Apr. 26, 2018), https://www.washingtonpost.com/news/the-switch/wp/2018/04/26/facial-
recognition-may-be-coming-to-a-police-body-camera-near-you/?utm_term=.c6f7bea6c833.
 Discursive Implications 105

opposing the use of such technology with police-worn body cameras, “[r]eal-time
face recognition would chill the constitutional freedoms of speech and association,
especially at political protests.”95 But facial recognition technology’s power is not,
and cannot, be limited to police-worn body cameras, and is proliferating into the
private sphere where it is widely available. As described by one commentator, for-
purchase facial recognition tools, such as Amazon’s Rekognition product, mean that
“the democratization of mass surveillance is upon us” – anyone can be empowered
to be a surveiller.96 For instance, the proliferation of networked home surveillance
cameras, such as Amazon Ring, coupled with facial recognition software and law
enforcement partnerships, pose a substantial threat to embodied political expression,
including door-to-door canvassing.
Critically, the surveillance laws discussed above and outsourced corporate and
citizen recording often target embodied political action – namely, acts of performative
privacy. Embodied political action – for example, showing up to a protest, wearing a
head veil when it is frowned upon, visiting the bathroom consistent with one’s gender
identity, or using encryption technology, such as Signal, to communicate and avoid
surveillance – is powerful, in part, because it is performative. In other words, in addition
to verbal critiques of the hegemonic laws at issue, embodied political acts themselves
directly communicate and offer reimagined methods of social organization.97 They are
quintessential First Amendment activities, yes. But beyond that, as Bernard Harcourt
has emphasized with regard to embodied political movements, such as Occupy,
reclaiming public space is a form of political disobedience more radical than civil
disobedience (which accepts the legitimacy of prevailing political structures) in that it
challenges and rejects accepted forms of democratic governance – it challenges and
reclaims “the public.”98 Similarly, as Michael Warner has explained, “when people
address publics, they engage in struggles – at varying levels of salience to conscientious-
ness, from calculated tactic to mute cognitive noise – over the conditions that bring
them together as a public.”99 And appearance in public on your own terms is one of the
most cogent ways of addressing the public – indeed, participation in public is the entry
point and gateway for any challenge to the hegemonic constructions of the public and
marginalized identities (representations of which the state tries to control and to create
in order to perpetuate systems of domination).100

95
Letter to Axon AI Ethics Board regarding Ethical Product Development and Law
Enforcement, The Leadership Conference (Apr. 26, 2018), http://civilrightsdocs.info/pdf/
policy/letters/2018/Axon%20AI%20Ethics%20Board%20Letter%20FINAL.pdf.
96
Thomas Fox-Brewster, We Built a Powerful Amazon Facial Recognition Tool for under $10,
Forbes (June 6, 2018), https://www.forbes.com/sites/thomasbrewster/2018/06/06/amazon-facial-
recognition-cost-just-10-and-was-worryingly-good/#56e6372f51db.
97
Butler, supra note 29, at 8–11.
98
Bernard Harcourt, Political Disobedience, in Occupy: Three Inquires in Disobedience 45,
46–47 (Mitchell et al. eds. 2013).
99
Warner, supra note 87, at 12.
100
bell hooks, Black Looks: Race and Representation 2–3 (Routledge 2015) (1992).
106 Performative Privacy’s Payoffs

That is, pursuant to the secrecy paradigm, “public” space has been claimed
by the state and corporate entities (not the people – the public). Acts of
performative privacy help reclaim it for the people, rejuvenating a key platform
for exercises of popular sovereignty by a heterogeneous people. As theorists
ranging from Jurgen Habermas to Chantal Mouffe have underscored, conflict
(or, at least, discussion) in the public square – not uncritically examined
common sense or groupthink – is foundational to a functional, free society.101
Put differently, not only do acts of performative privacy expand access to the
public sphere by enabling those targeted for surveillance to appear in public,
but they also alter and enhance the nature and quality of public space by bringing
a critical, discursive dimension to it, rather than merely a unthinking, conformist
identity.102
The diversifying and reclaiming function of performative privacy is
multiplied because, not only are the acts of privacy themselves deviations from
the transparency norm, but to the extent that efforts to maintain privacy in
public permit people who otherwise may feel stigmatized to appear in public on
their own terms and as they desire to appear, protecting privacy and anonymity
in public helps push back on the conforming effects of surveillance and
citizen recording.

***
By way of chapter coda: in response to aggressive surveillance regimes by the
government and private sector, many individuals engage in acts of performative
privacy – expressive demands for privacy in public that communicate a refusal to be
surveilled. Conceptualizing such functional demands for public privacy as expres-
sive acts has doctrinal and social implications. Doctrinally, as expressive conduct,
such acts may be entitled to strict First Amendment protections and be given more
weight relative to the security concerns that often trump privacy’s indirect benefits –
benefits that currently dominate theoretical conceptions of public privacy’s value.
Discursively, linking demands for privacy with the broadly supported freedom of
expression may engender societal acceptance of acts of performative privacy, while
also shifting rhetorical norms on the dividing line between public and private. At the
same time, to the extent acts of performative privacy traverse many different margin-
alized communities and helps reclaim public space for those groups, the concept

101
Habermas, supra note 85, at 66; Chantal Mouffe, Agonistics: Thinking the World
Politically 92 (2013); cf. Bernard E. Harcourt, Critique & Praxis 23 2020) (embracing in
the context of critical philosophy “the unity in constant confrontation that pushes both our
critical practices and our critical theory”).
102
Habermas, supra note 85, at 140 (emphasizing that expansion of public sphere means little if
quality of that space does not involve an element of critique).
 Discursive Implications 107

has the potential to help us better appreciate the commonality of our struggles
against social structures that maintain control, in part, through the surveillance of
marginalized bodies, reducing subordination. And performative privacy links expres-
sion with anti-subordination, a combination which has at times received robust
protection from the Court.
 4

Containing Corporate and Privatized Surveillance

As I’ve intimated to at several turns but now fully confront, government surveillance
is not the only threat to the privacy of marginalized communities. Privatized
surveillance – by corporations and by other individuals – also exacts a heavy toll.
Privatized surveillance has many lenses focused on many targets: employers at their
employees, surveillance capitalists at consumers, and individuals at one another.1
Each instantiation of privatized surveillance renders us less legally protected from
additional surveillance, both because it erodes the degree to which we have kept
information “secret” ex ante (a precondition for legal privacy rights, as discussed in
Chapter 1), and because the surveillance data itself is often used by other surveillers –
the government and corporations.
Put differently, even diffuse (and sometimes beneficial) individual, citizen
recording of public space can trample, pierce, and burden other individuals’ efforts
to maintain privacy in public, making it more difficult and costly to maintain
effective privacy shields. The background norm seemingly permitting widespread
private-party surveillance of public space is in many respects an outgrowth of the
First Amendment’s protections for information gathering. That is, the First
Amendment’s protections for information gathering have been used to defend the
secrecy paradigm as applied to private-party surveillers.2 This chapter seeks to
intervene into the purportedly permissive legal landscape enabling widespread
surveillance by private parties of public space by highlighting how constitutional
law – including the First Amendment – actually empowers the government to
regulate private-party surveillance in certain instances (either through direct

1
E.g., Ifeoma Ajunwa et al., Limitless Worker Surveillance, 106 Cal. L. Rev. 736 (2017); Karen
Levy & Solon Barocas, Refractive Surveillance: Monitoring Customers to Manage Workers, 12
Int’l J. of Comm. 1166 (2018).
2
The First Amendment provides no defense for government surveillance of public space,
examples of which are highlighted in Chapter 1, because the government does not enjoy
First Amendment rights.

108
 Containing Corporate and Privatized Surveillance 109

legislation or through tort law). Taking individual, citizen recording as my focus

because it is the most beneficial, least pernicious, and most democratic form of
privatized surveillance, I demonstrate how even this kind of sometimes useful,
sometimes troublesome surveillance can be subject to limitations consistent with
the Constitution. All the more so if data-harvesting companies and employers are
subject to government-imposed privacy regulation limiting their surveillance
activities.
Citizen video and audio recording of public space, particularly when aimed at
public officials – police officers, politicians, and other government officers – can
serve important democratic functions. It creates a record of government action,
rendering that action susceptible to critique and helping ensure government
accountability. For instance, citizen recording of police officers’ excessive use of
force against people of color served as a catalyst for public debate regarding
embedded racism, catapulting these tragic deaths into the public limelight and
engendering scrutiny of police brutality. Although attention focuses on police
violence against black men, black women are also frequently overlooked victims
of police violence, and citizen recording has documented instances of that abuse.3
The role of recordings in spurring large-scale protests and social movements, both in
the United States and abroad, further underscores the power of recording to create
political change.4
Beyond serving a post hoc accountability function, citizen recording also serves as
an in-the-moment form of expressive resistance to government officials – communi-
cating a message of critique,5 influencing official behavior,6 and reclaiming public
space for the people. As both a record of government action enabling future
expressive critique and a direct form of expression, citizen recording serves import-
ant First Amendment values. It is an indispensable “weapon of the weak” and a
critical form of participatory democracy.7
For these reasons, courts and scholars have begun to coalesce around recognition
that governmental restrictions on recording often clash with the First Amendment.8

3
Kimberlé Williams Crenshaw & Andrea J. Ritchie, Say Her Name: Resisting Police
Brutality Against Black Women, African American Policy Forum (2015), https://static1
.squarespace.com/static/53f20d90e4b0b80451158d8c/t/555cced8e4b03d4fad3b7ea3/
1432145624102/merged_document_2+%281%29.pdf.
4
Zeynep Tufekci, Twitter and Tear Gas: The Power and Fragility of Networked
Protest 6–7 (2017).
5
Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104
Geo. L.J. 1559, 1573 (2016).
6
Fields v. City of Phila., 862 F.3d 353, 360 (3d Cir. 2017) (“[J]ust the act of recording, regardless
[of] what is recorded, may improve policing”).
7
James C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance 278–84
(1985) (documenting the methods by which marginalized peasant farmers lacking formal
means of democratic participation nevertheless engaged in quotidian acts of resistance).
8
E.g., Fields, 862 F.3d at 360; Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 608 (7th
Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011).
110 Containing Corporate and Privatized Surveillance

But this growing consensus in favor of the emerging First Amendment “right to
record” fails to fully incorporate recording’s concomitant cost to another weapon of
the weak – one that also furthers important First Amendment principles:9 the right
to privacy.10 If the current lopsided trajectory persists, the largely unencumbered
right to record will further weaken privacy-respecting norms and sanction privacy-
invading behavior – by both individuals and corporations, which have also been
granted First Amendment rights.11 Indeed, private surveillance companies, such as
Clearview AI, have begun relying on First Amendment protections for collection of
public information to justify scraping social media accounts for images used to
develop Clearview’s facial recognition software – that Clearview then sells to law
enforcement agencies.12
Citizen recording, although preferable to state surveillance in the form of police
body-worn cameras or other forms of carceral surveillance,13 has negative implica-
tions for the lived privacy and privacy rights of other citizens – including bystanders
who may be unwittingly caught up in videos monitoring government officials.
A recording can expose people to unwanted publicity and capture them engaging
in stigmatized behavior, which may have devastating downstream consequences.14
Depending on the context, a recording can out someone’s sexuality or nonconform-
ing gender identity to unintended audiences, capture and expose intimate areas of
someone’s body, and make widely known that a person was engaged in unpopular
kinds of political activity. As events on the National Mall in January 2019 between
students from Covington Catholic High School and Native American
activists suggest recordings can also be misinterpreted, obscuring more than they
reveal.15

9
Finn Brunton & Helen Nissenbaum, Obfuscation: A User’s Guide for Privacy and
Protest 55–57 (2015) (detailing how efforts to maintain some marginal form of anonymity can
operate as “weapons of the weak,” challenging surveillance systems).
10
Others, most notably Margot Kaminski, have attempted to balance the right to record with the
right to privacy and have gestured toward how privacy may advance First Amendment values.
E.g., Margot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 218 (2017).
Here, I attempt to build on this important work by explaining precisely how privacy’s First
Amendment values might alter the doctrinal landscape.
11
Citizens United v. FEC, 558 U.S. 310 (2010).
12
Margot E. Kaminski & Scott Skinner-Thompson, Free Speech Isn’t a Free Pass for Privacy
Violations, Slate (Mar. 9, 2020), https://slate.com/technology/2020/03/free-speech-privacy-
clearview-ai-maine-isps.html?via=recirc_recent.
13
Dia Kayyali & Jackie Zummuto, Police Body Cameras Won’t Solve Our Problems, Witness,
https://lab.witness.org/police-body-cameras-wont-solve-our-problems/ (last visited July 27, 2020).
14
For that reason, the Witness organization, which provides training on effectively filming law
enforcement, cautions that activists should consider if a particular video will negatively impact
any of the people recorded. Witness, 10 Tips for Filming: Protests, Demonstrations, &
Police Conduct, https://s3-us-west-2.amazonaws.com/librarywebfiles/Training+Materials/
Training+PDFs/WITNESS+Tip+Sheets/English/FilmingProtests_PoliceConduct_v1_0.pdf
(last visited Aug. 3, 2019).
15
In this case, recording of a conservative high school student confronting a Native American
man at a rally made headlines in part for painting an incomplete picture. Sarah Mervosh &
 Containing Corporate and Privatized Surveillance 111

These privacy threats are exacerbated by advances in technology and the prolifer-
ation of recording devices, including smartphone video cameras, wearable cameras,
telephoto lenses that permit surreptitious recording from long distances, and lives-
treaming technology such as Periscope or Facebook Live that empowers people to
broadcast their recordings in real time across the globe. Increasingly available facial-
recognition software that allows identification of individuals captured on film
further intensifies these privacy dangers.16 And widespread distribution networks
available on the Internet allow any incursion to go viral.17
Building on Chapters 2 and 3, which articulate the First Amendment values of
privacy while in public, this chapter takes an additional step, explaining that once
the First Amendment values of privacy are more comprehensively understood,
existing doctrine permits regulation of privatized surveillance of public space
because privatized surveillance – including citizen recordings – can impose corol-
lary costs on free expression values. By way of brief recap, efforts to maintain privacy
while in public advance expressive, democratic functions in several ways. The right
to anonymity or privacy while in public is critical to the freedom of association,
enabling people to gather together and politically organize without having their
identities disclosed. Privacy in public may also be critical to the cultivation of ideas/
feelings and serve as an incubator for future speech. Indeed, without privacy, private
speech itself may be limited or chilled. Like recording, functional efforts to maintain
privacy while in public can serve as direct statements of resistance and critique to
surveillance regimes. To the extent that citizen recording further burdens or
infringes on individual efforts to maintain privacy, it erodes the expressive First
Amendment purposes served by public privacy. In this way, citizen recording can
threaten not just privacy rights, but also the expressive values upon which the right to
record itself is often defended.
How can the law mediate the democratic First Amendment purposes served by
citizen recording with the similar purposes served by efforts to maintain privacy in
public? How can both expressive tools of resistance to the government – citizen
recording and efforts to maintain privacy in public – be preserved without one
dismantling the other? Calibrating the balance between these two important rights is
no easy feat. But a necessary first-order task in correcting the current disequilibrium
(and ensuring that citizen’s right to record is not used to bolster and successfully defend
widespread corporate surveillance) is to comprehensively understand the competing

Emily S. Rueb, Fuller Picture Emerges of Viral Video of Native American Man and Catholic
Students, N.Y. Times (Jan. 20, 2019), https://www.nytimes.com/2019/01/20/us/nathan-phillips-
covington.html.
16
Clare Garvie et al., Geo. Law Ctr. on Privacy & Tech. The Perpetual Line-Up:
Unregulated Police Face Recognition in America 1 (2016), https://www.perpetuallineup
.org/report.
17
Josh Blackman, Omniveillance, Google, Privacy in Public, and the Right to Your Digital
Identity: A Tort for Recording and Disseminating an Individual’s Image over the Internet, 49
Santa Clara L. Rev. 313, 369 (2009).
112 Containing Corporate and Privatized Surveillance

expressive interests served both by recording and by privacy in public. Then, we can
examine whether doctrine provides insight on how to referee those interests.
Once privacy’s expressive, democratic purposes are fully appreciated, the First
Amendment, rather than serving only as a limit on government regulation of citizen
recording (as the present legal trajectory suggests), actually enables government
protection for the right to privacy and to resist recording.18 Existing doctrine –
including the concept of the “heckler’s veto” – provides a path forward in terms of
harmonizing the competing First Amendment interests at stake. Specifically, juris-
prudence permitting the government to regulate a heckler’s disruptive speech
toward another speaker – thereby preventing a “heckler’s veto”19 – provides insight
into how courts should permit government regulation of private-party recording
(including corporate surveillance) when it infringes on the corresponding First
Amendment rights of those trying to maintain their privacy.
Of course, the First Amendment generally does not directly prevent private
citizens from infringing on one another’s attempts at expression. However, heckler’s
veto doctrine, supplemented by other First Amendment jurisprudence, suggests that
where a heckler’s speech disrupts the speech of another, government intervention
via regulation of the heckler’s speech is constitutionally permissible. That is, where
the speech regulation is justified in the name of protecting expression, the regula-
tion is more likely to survive either strict or intermediate scrutiny under the First
Amendment (depending on whether it is content-neutral, or not).20 As recent high-
profile protests on college campuses against controversial guest speakers underscore,
facilitating First Amendment values sometimes requires limiting another person’s
disruptive speech. Courts and society have successfully struck this balance when
dealing with traditional conflicts between two competing forms of oral speech. And
once we have a comprehensive understanding of the expressive dimensions of both
privacy and recording, we can use that understanding to successfully adjudicate
these First Amendment interests without jeopardizing either the right to privacy or
the citizen right to record. In this way, the important democratic functions of both
citizen recording and efforts to maintain privacy can be protected while paving the
way for modest, bespoke regulation of privatized surveillance of public space.
In short, we must understand that speech rights are implicated on both sides of
the ledger: by those recording and by those trying to avoid being recorded. By
appreciating that speech, including recording, sometimes has tangible impacts on

18
Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension between Privacy and
Disclosure in Constitutional Law, 140 U. Pa. L. Rev. 1, 6–7 (1991) (observing that in contests
between government disclosures and privacy, although “scholarly analysis of the First
Amendment disposes us toward the proposition that more information is better[,]” the consti-
tutional interests served by information dissemination and privacy must be balanced).
19
Erwin Chemerinsky & Howard Gilman, Free Speech on Campus 124 (2017).
20
E.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 26–27, 46 (2010) (explaining that strict
scrutiny applies when the regulation targets expression because of its content, and that
intermediate scrutiny applies when the regulation is content-neutral).
 First Amendment Values of Citizen Recording 113

other forms of speech,21 we can strike the proper equipoise between guaranteeing
the right to record in most instances and preserving the interests of private citizens
seeking to remain anonymous. The heckling analogy creates a fair fight between two
sets of expressive interests. In contrast, current attempts to weigh privacy against
recording tend to result in privacy losing because of the privileged doctrinal position
of the expressive interests of recording. The heckling framework also best captures
how courts resolve live conflicts between competing speakers, which occurs when
one person or entity is recording and another is trying to maintain privacy in real
time and real space.
More broadly, in a jurisprudential moment at which the Court is finding pro-
tected speech where it previously failed to exist and transforming the First
Amendment into a deregulatory tool,22 this chapter provides a model for how the
Supreme Court’s capacious understanding of what counts as “expressive” could be
used to rehabilitate certain welfare-promoting regulations – in this instance, protec-
tions for privacy.
This chapter develops these arguments in two parts. Having already articulated
the sociolegal and sociotechnical account of the important expressive, democratic
functions served by a right to privacy (Chapters 2 and 3), this chapter does the same
with the right to record. In the process, I highlight how litigation protecting the right
to record vis-à-vis police officers could give the mistaken impression that the privacy
rights of citizens ought to uniformly take a backseat to the right of others to record,
threatening privacy rights. I then analyze how these competing First Amendment
priorities interact with existing doctrine. Specifically, I explain that once the expres-
sive, democratic dimensions of both privacy and recording are better understood,
First Amendment jurisprudence will chart a true course for reconciling those
competing rights, principally through the heckler’s veto framework. In sum, this
chapter intervenes at a moment in which First Amendment protections for the right
to record risk overwhelming competing rights to privacy. A comprehensive under-
standing of First Amendment interests dictates a more measured approach to the
right to record, enabling modest regulation – most importantly of corporate surveil-
lance of public space (including digital space).

the first amendment values of citizen recording

Supplementing long-standing precedent recognizing that the First Amendment
circumscribes the government’s ability to regulate or punish information

21
J.L. Austin, How to Do Things with Words (J. O. Urmson & Maria Sbisà eds., 2d ed. 1975)
(explaining that certain utterances have a downstream impact on the listener).
22
Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501–02 (2018)
(Kagan, J., dissenting) (lamenting the First Amendment’s transformation “into a sword” used
aggressively “against workaday economic and regulatory policy”).
114 Containing Corporate and Privatized Surveillance

dissemination,23 courts and scholars have increasingly concluded that citizen

recording of public officials in public space – information collection – is covered
by the First Amendment and is subject to its robust protections.24 Recent jurispru-
dence has embraced the right to record as protected by the First Amendment25 while
largely neglecting, or pushing aside, the right to privacy and privacy’s First
Amendment values. This section comprehensively explores, expands on, and cata-
logues citizen recording’s potential First Amendment benefits, with attention to the
impact of technological change. This might seem like an odd thing to do for a book
devoted to developing more robust privacy protections. But I do so, in part, because
citizen recording is the most sympathetic and democratic form of privatized surveil-
lance. If, even after understanding citizen recording’s First Amendment pedigree,
government regulation of that recording is, in some instances, permissible, then the
same will hold true to an even greater extent for efforts to regulate corporate
surveillance, which, as noted with regard to Clearview AI’s attempt to justify its
scraping of social media, have been defended with reliance on the secrecy paradigm
and, when applied to private-party surveillers, its underlying First Amendment
justifications.26
Recording advances First Amendment values along at least two dimensions.27
Instrumentally, recording: (1) creates a record of an activity and is a form of infor-
mation gathering, which (2) enables future dissemination and critique of the
recorded activity, and (3) facilitates a diversity of views. Directly, recording the
police and other government officials (4) serves as an in-the-moment statement of
resistance and critique of the government officials’ actions, helping to hold them
immediately accountable. It also (5) helps to directly reclaim public space for the
people, pushing back against efforts to police publicly owned land.

23
Bartnicki v. Vopper, 532 U.S. 514, 535 (2001); Florida Star v. B. J. F., 491 U.S. 524, 541 (1989);
Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975).
24
Clay Calvert, The Right to Record Images of Police in Public Places: Should Intent, Viewpoint,
or Journalistic Status Determine First Amendment Protection?, 64 UCLA L. Rev. Disc. 230, 234
(2016); Kaminski, supra note 10, at 177; Kreimer, supra note 18, at 339.
25
1 Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 8:53 (Oct. 2019 update)
(“There is essential consensus, however, on the underlying proposition that citizens do have a
First Amendment right to record police activity, subject only to reasonable time, place, and
manner restrictions”).
26
Cf. Sandvig v. Session, 315 F.Supp.3d 1 (D.D.C. 2018) (private researches arguing that access
limitations of Computer Fraud and Abuse Act infringed on their First Amendment rights);
Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019) (professional video recording
of wedding is protected First Amendment speech); Memorandum in Support of Verizon’s
Motion to Dismiss at 32, In re N.S.A. Telecommunications Records Litigation, MDL No. 06-
1791 VRW (N.D. Cal. Apr. 30, 2007) (arguing that relaying surveillance information about
customers to government is protected speech).
27
The categories of “instrumental” and “direct” First Amendment values certainly blur and are
not perfectly precise. But the categories serve as helpful guideposts or organizing tools
underscoring that recording – like privacy – indirectly helps facilitate future speech or
discourse and, in certain instances, is directly expressive.
 Recording’s Instrumental/Indirect First Amendment Benefits 115

recording’s instrumental/indirect first amendment

benefits

1 Recording as Information Gathering

The First Amendment protects not just the right to espouse beliefs, but also the
predicate right to gather and receive information upon which to base those beliefs.28
The ability of individuals to obtain information, to listen, and to learn plays a
foundational role in the American system of citizen self-governance, of which the
First Amendment is the cornerstone.29 In our “method of political self-government,
the point of ultimate interest is not the words of the speakers, but the minds of the
hearers . . . The voters, therefore, must be made as wise as possible.”30 In theory,
access to information helps guarantee that citizens are able to develop wise thoughts,
utter wise words, and vote wisely. Indeed, according to Alexander Meiklejohn’s
influential development of the First Amendment’s role in self-governance, “[t]he
primary purpose of the First Amendment is . . . that all the citizens shall, so far as
possible, understand the issues which bear upon our common life. That is why no
idea, no opinion, no doubt, no belief, no counterbelief, no relevant information,
may be kept from them.”31 The importance of citizens’ abilities to gather infor-
mation is at its zenith when the information sought pertains to the government
itself.32 More specifically, as underscored by Vincent Blasi’s work on the “checking
value” served by the First Amendment, the First Amendment’s protections – includ-
ing protections for newsgathering – serve a critical role “in checking the abuse of
power by public officials.”33
Consistent with these theoretical perspectives, the Supreme Court has protected
citizen and press attempts to collect and receive information – particularly about
government operations. Although the right to gather information is not unlimited,34

28
Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the
People 19 (1960).
29
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 8 (1986) (“The constitutional
guarantee of free speech ‘serves significant societal interests’ wholly apart from the speaker’s
interest in self-expression . . . By protecting those who wish to enter the marketplace of ideas
from government attack, the First Amendment protects the public’s interest in receiving
information”) (citations omitted).
30
Meiklejohn, supra note 28, at 26; Helen Norton, Powerful Speakers and Their Listeners, 90 U.
Colo. L. Rev. 441, 441–42 (2019) (explaining that consistent with the First Amendment, the
government can “regulate the speech of comparatively knowledgeable or powerful speakers
when that expression frustrates their listeners’ autonomy, enlightenment, and self-governance
interests”).
31
Meiklejohn, supra note 28, at 75.
32
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980).
33
Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J.
521, 527.
34
E.g., Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (holding that the press have no special
right to record within a county jail); McKay v. Federspiel, No. 14-cv-10252, 2014 WL7013574, at
116 Containing Corporate and Privatized Surveillance

the Court has protected: the right of the public and the press to attend criminal
trials;35 the right of corporations and unions to participate in elections because it
would otherwise limit “the stock of information from which members of the public
may draw;”36 and the right of individuals to receive pornography.37
Lower courts have applied the First Amendment right to gather information
about governmental affairs to citizen efforts to record police activity.38 According
to some accounts, information gathering and its role in furthering self-government
has been the principal First Amendment value identified by courts for the right to
record.39 For example, in Glik v. Cunniffe, the First Circuit Court of Appeals
protected the right to record the police under the First Amendment as a logical
extension of protections for newsgathering.40

2 Recording as Creating Future Speech

Closely related to the notion that the First Amendment protects information
gathering is the premise that it also protects the creation of future speech. If only
dissemination of speech were protected and the productive process of speech
creation unprotected, governments could “simply proceed upstream and dam the
source” of speech.41 The Court has concluded that “[w]hether government regula-
tion applies to creating, distributing, or consuming speech makes no difference.”42
Based on this reasoning, the Court has struck down laws that criminalize the
creation of videos depicting cruelty to animals43 and so-called “Son of Sam” laws
that prohibit individuals convicted of crimes from selling their stories for profit,
disincentivizing the creation of work.44

*18 (E.D. Mich. Dec. 11, 2014) (upholding a prohibition on the use of recording devices in a
courtroom against a First Amendment challenge).
35
Richmond Newspapers, 448 U.S. at 580; see also Jocelyn Simonson, The Criminal Court
Audience in a Post-Trial World, 127 Harv. L. Rev. 2173, 2197–200 (2014).
36
First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978).
37
Stanley v. Georgia, 394 U.S. 557, 564 (1969); see also Scott Skinner-Thompson, The First Queer
Right, 116 Mich. L. Rev. 881, 886 (2018) (discussing cases protecting the right to receive gay-
themed erotic publications).
38
Fields v. City of Phila., 862 F.3d 353, 359 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d
678, 688–89 (5th Cir. 2017); Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 597 (7th
Cir. 2012; Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d
1332, 1333 (11th Cir. 2000; Gerskovich v. Iocco, 15 Civ. 7280 (RMB), 2017 WL 3236445, at *8
(S.D.N.Y. July 17, 2017); State v. Russo, 407 P.3d 137, 148–49 (Haw. 2017).
39
Simonson, supra note 5, at 1569.
40
655 F.3d at 82–84 (holding that the arrest of an individual filming police as they forcibly
arrested another individual in the Boston Common – “the oldest city park in the United States
and the apotheosis of a public forum” – violated the First Amendment right to record).
41
Buehrle v. City of Key West, 813 F.3d 973, 977 (11th Cir. 2015).
42
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 792 n.1 (2011).
43
United States v. Stevens, 559 U.S. 460, 482 (2010).
44
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 123 (1991).
 Recording’s Instrumental/Indirect First Amendment Benefits 117

Extending this rationale, lower courts have protected the right to record as a form
of speech creation. For example, when invalidating the Illinois anti-eavesdropping
statute as applied to recordings of the police, the Seventh Circuit reasoned that:
The act of making an audio or audiovisual recording is necessarily included within
the First Amendment’s guarantee of speech and press rights as a corollary of the
right to disseminate the resulting recording. The right to publish or broadcast an
audio or audiovisual recording would be insecure, or largely ineffective, if the
antecedent act of making the recording is wholly unprotected.45

By the same token, the Third Circuit in Fields v. City of Philadelphia concluded
that for the protection of dissemination (that is, expression or speech) “to have
meaning the Amendment must also protect the act of creating [the recording].”46
According to the court, “[t]here is no practical difference between allowing police to
prevent people from taking recordings and actually banning the possession or
distribution of them.” Other courts have reasoned similarly.47
This logic finds even more strength when considering that with the advent of live
streaming, as through social media channels such as Facebook Live or Periscope,
the formerly distinct acts of collecting, creating, and disseminating collapse into a
single, indistinguishable activity. Collecting the recording immediately communi-
cates and transmits a message to the viewing world.

3 Recording as Facilitating Diversity of Views

Citizen recording also increases the diversity of views – in the most literal sense. In
addition to facilitating self-governance, one of the other key functions of the
freedom of speech is to safeguard a marketplace of divergent ideas from which
“truth”48 can emerge.49 But for public discourse to so operate there must indeed be
different viewpoints – there must be options from which to select; there must be
contestation. And, so, the Supreme Court has held that in order to promote a

45
Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595–97 (7th Cir. 2012).
46
862 F.3d 353, 358 (3d Cir. 2017).
47
See Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1189, 1203–04 (9th Cir. 2018);
W. Watersheds Project v. Michael, 869 F.3d 1189, 1197 (10th Cir. 2017); Turner v. Lieutenant
Driver, 848 F.3d 678, 689 (5th Cir. 2017); see also Ashutosh Bhagwat, Producing Speech, 56
Wm. & Mary L. Rev. 1029, 1040 (2015).
48
In contrast to this standard account of the normative value of the search for truth, the idea that
truth or even consensus can emerge from public debate (or should even be the goal), is
questioned by, among others, Chantal Mouffe. She explains that public space is a hegemonic
one involving agonistic contestations among ideological adversaries – and that the contestation,
rather than consensus, is the key value of public deliberation. Chantal Mouffe, Agonistics:
Thinking the World Politically 91–92 (2013).
49
W. Wat Hopkins, The Supreme Court Defines the Marketplace of Ideas, 73 Journalism &
Mass Comm. Q. 40 (1996) (documenting the Court’s use of the marketplace of ideas
metaphor).
118 Containing Corporate and Privatized Surveillance

diversity of ideas within the marketplace: students must be allowed to wear arm-
bands of protest in schools;50 states cannot prohibit government employees from
being members of the Communist Party;51 and cable companies can be required to
carry local television stations because of the government’s interest in “promoting the
widespread dissemination of information from a multiplicity of sources.”52
The same principles extend to visual depictions. Diversity of perspective
matters.53 Dashboard cameras and police body-worn cameras privilege the physical
perspective and experience of the government. As Seth Stoughton’s innovative
research has highlighted, the same conduct can look quite different from different
perspectives.54 From the perspective of a body camera, a dance may look like a fight,
and a person attempting to evade a bee may appear threatening. Moreover, people’s
life experiences, prior attitudes, and cognitive biases can influence how they view
the same supposedly objective video evidence.55
The Supreme Court’s most prominent foray into the evaluation of video evidence
further underscores the role of perspective in shaping people’s understanding of
supposedly objective and neutral evidence. In Scott v. Harris, the Court considered
whether a dash-cam video of a high-speed chase established, as a matter of law, that
the officer acted reasonably when he used deadly force to apprehend the fleeing
suspect.56 In an 8–1 decision, Justice Scalia wrote for the majority concluding that
there was only one way to view the facts based on the video – and that the lower
courts erred when they held that a reasonable jury could conclude that deadly force
was unwarranted. But at least one justice, Justice Stevens, in addition to the district
court and court of appeals judges, believed that the facts – including the video –
were susceptible to multiple interpretations, warranting resolution by the jury.57
Beyond the divergent perspectives of these judiciary members, a study of 1,350
people conducted by Dan Kahan and coauthors confirmed that individuals’ percep-
tion of the dash-cam video at issue in Scott v. Harris varied based on their demo-
graphic characteristics including race, geography, and political affiliation/ideology:

50
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511–13 (1969).
51
Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603, 609–10 (1967).
52
Turner Broad. Sys., Inc., v. FCC, 512 U.S. 622, 661–64 (1994).
53
Mervosh & Rueb, supra note 15 (observing that varied video footage provided differing context
to standoff between Native American man and white high school student wearing “Make
America Great Again” hat on steps of Lincoln Memorial).
54
Timothy Williams et al., Police Body Cameras: What Do You See?, N.Y. Times (Apr. 1, 2016),
https://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html.
55
Seth W. Stoughton, Police Body-Worn Cameras, 96 N.C. L. Rev. 1363, 1408 (2018); Roseanna
Sommers, Note, Will Putting Cameras on Police Reduce Polarization?, 125 Yale L.J. 1304, 1312
(2016); see also Anna Spain Bradley, The Disruptive Neuroscience of Judicial Choice, 9 U.C.
Irvine L. Rev. 1 (2018) (explaining that even purportedly neutral decisionmakers – judges – are
not able to completely escape bias).
56
550 U.S. 372 (2007).
57
Id. at 389–91 (Stevens, J., dissenting).
 Recording’s Direct First Amendment Benefits 119

“Our empirical study found that when we ‘allow the videotape to speak for itself,’
what it says depends on to whom it is speaking.”58
Given the important role of perspective in gathering and evaluating facts, the use
of citizen video recording serves an important diversity function. It provides add-
itional perspectives to supplement those recorded on rapidly proliferating police
body-worn cameras and other state surveillance tools.59 Although it has received less
emphasis from courts compared to the information-gathering and speech creation
rationales, the diversity rationale has also been extended to protect citizen recording
by at least one federal appellate court. In Fields, the Third Circuit emphasized that
citizen recording enriches public discourse on issues of public concern and provides
different perspectives than police body-worn cameras and dashboard cameras.60

recording’s direct first amendment benefits

1 Recording as Expressive Resistance

Watching isn’t always about gathering information for future use or understanding.
Sometimes watching expresses and even exerts control.61 Although the use of state-
operated surveillance technologies and architectures as a means of social control is
well known,62 increasingly recognized is the role of “sousveillance” – or observation
from below – to turn the tables on the government or powerful private surveillers.63
Open and visible sousveillance of government actors serves as an expression of
critique of their behavior, and can begin to exert influence on the actors.64 That
is, separate and apart from any subsequent accountability function that recording
may serve, the act of openly and defiantly recording the government can, as Jocelyn

58
Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of
Cognitive Illiberalism, 122 Harv. L. Rev. 837, 903 (2009).
59
The Leadership Conference on Civil and Human Rights & Upturn, Police Body
Worn Cameras: A Policy Scorecard (2017), https://www.bwcscorecard.org/static/pdfs/
LCCHR%20and%20Upturn%20-%20BWC%20Scorecard%20v.3.04.pdf.
60
862 F.3d 353, 360 (3d Cir. 2017).
61
Michel Foucault, Discipline and Punish 200–01 (Alan Sheridan trans., Pantheon Books
1977) (1975); Alan F. Westin, Privacy and Freedom 33 (1967).
62
Torin Monahan, Surveillance in the Time of Insecurity 8 (2010) (explaining that
“[s]urveillance is, by definition, about power”); David Lyon, Surveillance Society:
Monitoring Everyday Life 52–54 (2001).
63
bell hooks, Black Looks: Race and Representation 115 (Routledge 2015) (1992) (“There is
power in looking”); Steve Mann & Joseph Ferenbok, New Media and the Power Politics of
Sousveillance in a Surveillance-Dominated World, 11 Surveillance & Soc’y 18, 25 (2013)
(same); cf. Audre Lorde, Sister Outsider 114 (rev. ed. 2007) (“For in order to survive, those
of us for whom oppression is as american as apple pie have always had to be watchers, to
become familiar with the language and manners of the oppressor, even sometimes adopting
them for some illusion of protection”).
64
Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public
Places, 59 Fla. L. Rev. 1, 66 (2007).
120 Containing Corporate and Privatized Surveillance

Simonson has highlighted, express dissent and opposition to the government. It is an

“in-the-moment” statement of resistance.65 And it is understood by the state as
expressing a message of critique.66 For example, police departments and individual
officers sometimes object to or try to prevent recording because it communicates
resistance to their activities.67
To the extent that the act of recording expresses a message of resistance at the
moment the recording occurs, it is a direct form of speech entitled to First
Amendment coverage under the long line of Supreme Court authority recognizing
that embodied conduct is often expressive.68 And that expression directly furthers
individual autonomy, another important First Amendment value. That is, in add-
ition to the collective, societal benefits of robust public discourse, protection for
freedom of speech also advances individualistic autonomy, permitting self-
exploration and self-determination. The act of recording operates as an assertion
of the recorder’s agency toward the object being filmed – often the government –
establishing the recorder’s independence through the communicative act of
recording qua resisting. Although courts have not yet heavily adopted the “recording
as direct expression” thesis, it is nevertheless a critical reason that recording is entitle-
d to First Amendment coverage.

2 Recording as Reclaiming the Public Square

First Amendment protections are at their most robust in public forums – public land
such as sidewalks, parks, and town squares that are, at least in theory, open to all
people and all forms of expression. But access to such public forums is increasingly
limited. For one, the increased privatization of historically publicly owned space has
decreased the venues available for public expression and embodied forms of popular
sovereignty.69 First Amendment protections do not usually extend to private property
because of the lack of state action.70

65
Simonson, supra note 5, at 1568 (explaining that the “[t]he transfer of power inherent in the act
of observation turns the filming of a police officer in public into a form of resistance – into a
challenge to their authority”).
66
Mann & Ferenbok, supra note 63, at 20 (“[W]hen citizens point their cameras at the architects
of the ‘surveillance superhighway’, or when photographers simply take pictures of bridges or
buildings, they often come under attack, especially as police have placed photographers under
suspicion”).
67
Tina Moore & Sarah Trefethen, City Has “Epidemic” of Bystanders Recording Cop Arrests:
Bratton, N.Y. Post (May 25, 2016), https://nypost.com/2016/05/25/city-has-epidemic-of-bystand
ers-recording-cop-arrests-bratton/.
68
As discussed in detail in Chapter 3, examples of covered expressive conduct include flag
burning, raised fists, armbands, and nude dancing.
69
Timothy Zick, Speech Out of Doors 200–01 (2009); Kevin Francis O’Neill, Privatizing
Public Forums to Eliminate Dissent, 5 First Amend. L. Rev. 201, 202–07 (2007); Smolla,
supra note 25, at § 8:1.
70
Hudgens v. NLRB, 424 U.S. 507, 520–21 (1976).
 Recording’s Direct First Amendment Benefits 121

But through a variety of mechanisms, people are being excluded even from the
spaces that remain state-owned and therefore subject to First Amendment protec-
tions. As documented in Chapter 1, surveillance and overpolicing, particularly
within communities of color, Muslim communities, queer communities, and indi-
gent communities, claims public space for the state and for hegemonic, white,
straight, wealthy, cisgender communities. Policing works with privatization to deny
popular sovereignty and public representation.71 Policing and surveillance discour-
age marginalized identities from entering the public square in the first instance for
fear that they might be taken forcibly from that square to prison, or even worse. As
explained by Judith Butler, the “freedom of assembly is haunted by the possibility of
imprisonment.”72 And, of course, imprisoned communities are foreclosed from
appearing directly in the public square at all.
As discussed in Chapter 3 but underscored here, this exclusion has at least two
impacts. First and most plainly, it denies people the right and ability to participate in
civil society – a personal liberty. Second, it prevents the excluded from contributing
to and shaping the social fabric and community norms through their presence.73
That is, the exclusion of various identities from public space helps maintain and
reinforce the hegemonic stasis.74 To the extent any “other” cannot conform, it is
pushed from the public sphere, rendered invisible to avoid being visible and
rendering neutral the threat posed by difference. Social structures are maintained
in part by “the socially structured and culturally patterned behaviour of groups, and
practices of institutions, which may indeed be manifested in individuals’ inaction.”75
Excluding certain groups from public space – from public life – ensures that they
are unable to shape or challenge the social structures of their exclusion.76 This, in

71
Michael Warner, The Trouble with Normal 190 (1999) (“Urban space is always a host
space. The right to the city extends to those who use the city. It is not limited to property
owners”); Judith Butler, Notes Toward a Performative Theory of Assembly 174 (2015)
(“[T]he seizure of public space from popular sovereignty is precisely the aim of both privatiza-
tion and police assaults on freedom of assembly”).
72
Butler, supra note 71, at 173.
73
Cf. Michael Warner, Publics and Counterpublics 204 (2002) (underscoring how land-use
laws restricting the number of sexually oriented businesses prevented concentration of gay
businesses – and therefore gay people – in public).
74
Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing
Democracy, 25/26 Soc. Text 56, 63–65 (1990) (explaining how the idealized civic republican
public sphere operated to exclude women formally and informally through, for example,
gendered norms of speech and comportment).
75
Steven Lukes, Power: A Radical View 22 (1974).
76
Hannah Arendt, The Human Condition 9 (1958) (“[People] are conditioned beings because
everything they come in contact with turns immediately into a condition of their existence. . .
[T]hings that owe their existence exclusively to [humans] nevertheless constantly condition
their human makers. . . [People] constantly create their own, self-made conditions, which, their
human origin and their variability notwithstanding, possess the same conditioning power as
natural things. . . This is why [people], no matter what they do, are always conditioned beings”)
(gendered language revised).
122 Containing Corporate and Privatized Surveillance

turn, ensures the maintenance of homogeneity within society, characterized not just
by whiteness and heteronormativity, but by docility.77 It is characterized by compli-
ance with and ambivalence toward the dominant social structures and norms. As
Hannah Arendt put it, “society expects from each of its members a certain kind of
behavior, imposing innumerable and various rules, all of which tend to ‘normalize’
its members, to make them behave.”78
To the extent recording, as discussed above, helps mitigate aggressive policing of
the public square and helps disrupt some of the exclusionary tactics, it can help
reclaim public space for marginalized communities, allowing them greater per-
formative influence on the social tableau. Because the very existence of public space
is a precondition for the exercise of participatory democracy and embodied acts of
public assembly, citizen recording of the police can help mark that space for the
people. Recording is a direct challenge to the state’s efforts to regulate and control
who appears in public through policing.
In short, recording reclaims public space in two ways. First, by expressively
challenging police regulation, the deviation from business-as-usual acceptance of
policing helps demarcate the space for the public – in particular, those marginalized
communities that are the principal targets for exclusion from public space. And,
second, because marginalized identities themselves help reshape social structures
and norms (and are viewed by the state as threats), the space created for these
communities by recording will help further erode government control of the space
and reconstitute the space for the body politic, in particular society’s most
marginalized.

***
On multiple levels, then, recording furthers critical First Amendment interests.
Taken up by citizens informally and in formal networks,79 recording is a kind of
everyday resistance to policing and the power structures represented by the police.
The videos do not always go viral; they don’t always serve as “flashes in the pan”
igniting greater social protest.80 Nevertheless, by gathering information on the
government, facilitating speech, diversifying perspectives, expressing resistance,
and reclaiming public space, citizen recording can play a powerful role in fulfilling
the First Amendment’s guarantee of participatory democracy and popular
sovereignty.

77
Foucault, supra note 61, at 141–49 (explaining how the control and partitioning of space
contributes to the maintenance of “docile bodies” subject to control by the state).
78
Arendt, supra note 76, at 40; cf. Scott, supra note 7, at 305 (explaining that normative social
environments are shaped by the material conditions of the environments).
79
Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 408–09 (2016) (juxtaposing organized
copwatching efforts with spontaneous citizen recording of police).
80
Scott, supra note 7, at 29 (contrasting often menial struggles of day-to-day peasant resistance
with open rebellion, which may attract more attention while achieving less).
 Lopsided First Amendment Trajectory 123

the lopsided first amendment trajectory

Although courts and scholars have yet to comprehensively capture all of the
expressive interests served by recording (documented above), they are nevertheless
correct that the First Amendment covers recording of government officials. But the
developing law regarding the right to record the police coupled with broader law
rejecting tort claims of privacy-invading recording in public is creating a lopsided
jurisprudence in favor of a largely unfettered right to record in public space. Courts
have recognized some of the First Amendment values to protecting recording while
ignoring or downplaying the First Amendment values of privacy.
In case after case, courts have recognized a seemingly broad right to record
government officials, often without squarely incorporating the ambient privacy
harms that such a right may have on private citizens captured in the video.81 The
Seventh Circuit arguably came closest to integrating privacy into the doctrinal
framework in 2012, but still fell short. In American Civil Liberties Union v. Alvarez,
the court held that an Illinois eavesdropping statute impermissibly burdened the
First Amendment when applied to recordings of law enforcement officers because
the “statute operates at the front end of the speech process by restricting the use of a
common, indeed ubiquitous, instrument of communication . . . suppress[ing]
speech just as effectively as restricting the dissemination of the resulting
recording.”82 Although the court found the eavesdropping statute content-neutral
and therefore applied the intermediate scrutiny test, requiring an important public-
interest justification and a reasonably close fit between the law’s means and ends,
instead of strict scrutiny, it nevertheless struck down the statute as applied to
recording of the police in public. The court recognized that the government’s
theoretical interest in protecting conversational privacy was an important govern-
mental interest – and indeed, that “protection of personal conversational privacy
serves First Amendment interests.” But the court neglected to meaningfully inte-
grate those privacy interests into its analysis because it concluded that the case “has
nothing to do with private conversations or surreptitious interceptions.”83 Perhaps
the case’s procedural posture – a preenforcement challenge devoid of actual facts –
facilitated the court’s ability to presume that recording of police would not endanger
bystander privacy interests. The end result is that the expressive privacy interests of
those captured by citizen recording (including citizen recording that includes both
police and other citizens or bystanders) were diminished.

81
E.g., Turner v. Lieutenant Driver, 848 F.3d 678, 688–90 (5th Cir. 2017); Smith v. City of
Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Gerskovich v. Iocco, 15 Civ. 7280 (RMB),
2017 WL 3236445, at *8 (S.D.N.Y. July 17, 2017); State v. Russo, 407 P.3d 137, 148–49
(Haw. 2017).
82
679 F.3d 583, 595–96 (7th Cir. 2012).
83
Id. at 605-06.
124 Containing Corporate and Privatized Surveillance

Similarly, as noted, in Fields v. City of Philadelphia, the Third Circuit held that
citizen efforts to digitally record the police were protected pursuant to First
Amendment safeguards over collecting information.84 In Fields, while observing
that the right to record was not absolute and could be subject to time, place, and
manner restrictions, the court was less than clear about what level of scrutiny it
applied to the challenged police suppression of recording because the defendants, in
fact, offered no government interest to justify the suppression of the recordings.
As a final example, in Glik v. Cunniffe, the First Circuit also upheld the right to
record police as falling within the First Amendment’s protection of gathering and
disseminating information.85 There, as in Fields, the court recognized that “the right
to film is not without limitations” and “may be subject to reasonable time, place,
and manner restrictions.” But, based on the facts of the case which involved police
arrest of an individual attempting to film the officers arresting another person, the
court found no occasion to consider which government interests could justify
limitations on the right to record.
In short, although courts have gestured to theoretical limitations on the right to
record in the form of content-neutral, time, place, and manner restrictions, they
have rarely upheld any restrictions. Put differently, though the outcomes of these
particular cases may have been correct because ambient or bystander privacy harms
were not vociferously raised, the gestalt of this jurisprudence risks the impression
that the right-to-record activity in public space and government actors is not suscep-
tible to meaningful constitutional limitation.
The arc of the right-to-record police jurisprudence is perhaps not surprising given
that even when the recording of public space or disclosure of sensitive information
has been targeted at private citizens (as opposed to government officials), courts have
often rejected civil law suits seeking to regulate such recording. The Supreme Court
has confirmed that tort law is a form of state action or regulation because judges
make the rule of law and enforce the decision.86 Pursuant to this reasoning, privacy
tort suits or other civil remedies run afoul of the First Amendment when they punish
information gathering (e.g., recording) and/or speech that further disseminates
information already in the public sphere.87 As outlined in Chapter 1, in public
disclosure tort suits, courts have often embraced a requirement of complete secrecy –
concluding that once information is exposed to the public at all, it is fair game for
further dissemination.88 And that same principle has been used to limit efforts to

84
862 F.3d 353, 359 (3d Cir. 2017).
85
655 F.3d 78, 79, 84 (1st Cir. 2011).
86
E.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
87
Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975); Florida Star v. B.J.F., 491 U.S. 524, 532
(1989); cf. Bartnicki v. Vopper, 532 U.S. 514, 533–35 (2001).
88
Andrew Jay McClurg, Bringing Privacy Out of the Closet: A Tort Theory of Liability for
Intrusions in Public Places, 73 N.C. L. Rev. 989, 1070–71 (1995); Scott Skinner-Thompson,
Privacy’s Double Standards, 93 Wash. L. Rev. 2051, 2056 (2018).
 Lopsided First Amendment Trajectory 125

impose civil liability for intrusions – recording or information gathering – of infor-

mation exposed to public view.89 Based on the requirement of complete secrecy
(grounded in the First Amendment), courts have rejected: efforts to regulate a
magazine that published photos of a woman briefly exposing her torso among a
group of friends because it occurred in a public place;90 tabloids that publish photos
of people taken through the windows of their homes;91 people who take photos up
the skirts of women in public.92 As Elizabeth Paton-Simpson has summarized,
“Plaintiffs have been denied any right to privacy not only on the street but also in
shops, laundromats, restaurants, health spas, parking lots, airports, common areas of
cruise ships, and school buildings.”93 And tort law rejects these suits attempting to
regulate recording and/or dissemination of images of public space in part because
such regulation would purportedly violate the First Amendment.94 Indeed, on
multiple occasions, courts have rejected laws purporting to impose civil penalties
on those who record or photograph at private-property animal facilities (so-called ag-
gag laws), because the laws regulate speech – the recordings.95 Similarly, scholars
have argued that digital mapping of public space – for example, Google Street
View – is covered by the First Amendment,96 as is privatized drone surveillance
(though these scholars believe privacy regulations of such activities may nevertheless
be consistent with the First Amendment).97

89
Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57, 85 (2014) (advocating for a broad right-
to-record public space).
90
Barnhart v. Paisano Publ’ns, LLC, 457 F. Supp. 2d 590, 593 (D. Md. 2006).
91
Solomon v. Nat’l Enquirer, Inc., Civ. A. No. DKC 95-3327, 1996 WL 635384, at *3 (D. Md.
June 21, 1996).
92
Gary v. State, 790 S.E.2d 150, 151, 154 (Ga. Ct. App. 2016); Danielle Keats Citron, Sexual
Privacy, 128 Yale L.J. 1870, 1914–15 (2019) (explaining that “up-skirt photos” have sometimes
not been protected by privacy torts).
93
Elizabeth Paton-Simpson, Privacy and the Reasonable Paranoid: The Protection of Privacy in
Public Places, 50 U. Toronto L.J. 305, 310–11 (2000) (citations omitted).
94
McClurg, supra note 88, at 1070–71 (explaining that the First Amendment has been applied to limit
the public disclosure tort and attempts to regulate the dissemination of information); cf. Eugene
Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop
People from Speaking about You, 52 Stan. L. Rev. 1049, 1123 (2000) (arguing that tort restrictions on
the disclosure of someone’s personal information could violate the First Amendment).
95
E.g., Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203–05 (9th Cir. 2018);
W. Watersheds Project v. Michael, 869 F.3d 1189, 1195–97 (10th Cir. 2017); Animal Legal
Defense Fund v. Kelly, 2020 WL 362626 (D. Kan. Jan. 22, 2020); see also Mark V. Tushnet
et al., Free Speech Beyond Words 174 (2017). But see Shulman v. Group W Productions,
Inc., 955 P.2d 469 (Cal. 1998) (noting that while there are First Amendment interests in
newsgathering, that interest is not unfettered and recording of accident victims’ medical
transport may be actionable intrusion).
96
Marc Jonathan Blitz, The Right to Map (and Avoid Being Mapped): Reconceiving First
Amendment Protection for Information-Gathering in the Age of Google Earth, 14 Colum. Sci.
& Tech. L. Rev. 115 (2012).
97
Marc Jonathan Blitz et al., Regulating Drones under the First and Fourth Amendments, 57 Wm.
& Mary L. Rev. 49, 88 (2015); Margot E. Kaminski, Drone Federalism: Civilian Drones and the
Things They Carry, 4 Calif. L. Rev. Cir. 57, 61 (2013).
126 Containing Corporate and Privatized Surveillance

There are important exceptions to this general trajectory toward an unbounded

right to record. There are instances of courts recognizing that privacy is not all-or-
nothing and that it exists along gradations – even in public.98 But such rulings seem
far from dominant. By foregrounding the expressive interests served by privacy in
public, a stronger normative and doctrinal framework for privacy in public can be
built – one grounded in the First Amendment itself.

the heckler’s shift

That recording may serve important First Amendment interests does not make it
immune to modest regulations.99 And despite its First Amendment pedigree,
recording also has costs – costs to privacy and its equally critical role in furthering
democratic, First Amendment values.100 As outlined in Chapter 2 and 3, privacy,
like recording, furthers First Amendment interests on both instrumental and
direct or inherent levels. Instrumentally, privacy can: (1) serve as an incubator for
future speech, (2) enable simultaneous speech that would not occur without
anonymity, and (3) facilitate the freedom of association. Directly, efforts to maintain
privacy can: (4) operate as a direct statement of expression, (5) help reclaim public
space for the people, and (6) prevent homogenization and further anti-
subordination.
Although scholars, including myself, have trumpeted some of the First
Amendment interests served by privacy,101 thus far comparatively little attention
has been paid to how privacy’s First Amendment interests might be used to justify
modest regulation of citizen recording in public or its more troublesome corporate
corollary. That is, although a connection has been drawn between privacy’s ability to
promote certain First Amendment values on a general level, there has been less
effort to explain how those values interact with doctrine to justify limitations on
recording. Instead, in efforts to satisfy the First Amendment requirements that
restrictions on speech satisfy strict scrutiny if the restriction is content-based or
intermediate scrutiny if content-neutral, litigation and scholarship have attempted

98
E.g., Safari Club Int’l v. Rudolph, 862 F.3d 1113, 1116, 1126 (9th Cir. 2017) (explaining that the
mere fact that the defendant recorded a conversation with plaintiff in a public restaurant did
not automatically defeat claims that the recording and subsequent posting on YouTube were
privacy violations because privacy is “relative”); Daily Times Democrat v. Graham, 162 So. 2d
474, 477–78 (Ala. 1964).
99
Cf. Neil M. Richards, Why Data Privacy Law Is (Mostly) Constitutional, 56 Wm. & Mary L.
1501 (2015) (explaining that just because something may be speech does not mean it is
incapable of government regulation).
100
J. Alex Halderman et al., Privacy Management for Portable Recording Devices, Proc. of
2004 ACM Workshop on Privacy in Electronic Soc’y (documenting privacy threats
imposed by ubiquitous portable recording devices such as cell phone cameras).
101
E.g., Paul M. Schwartz, Free Speech vs. Information Privacy: Eugene Volokh’s First Amendment
Jurisprudence, 52 Stan. L. Rev. 1559, 1572 (2000).
 Heckler’s Shift 127

to justify limitations on recording largely by emphasizing privacy regulations’

content-neutrality and the situated, physical harms imposed by recording.102 Here,
I bridge that gap. To the extent that either a compelling or significant government
interest must justify restrictions on recording, this book’s emphasis on the expressive
and anti-subordination values of privacy most comprehensively satisfies that
requirement by capturing the true scope of the interests that privacy serves.
Moreover, the analogy between recording and heckling helps underscore how
courts can – and should – mediate live conflicts between competing forms of speech
(recording and privacy).
Although in many contexts the First Amendment only protects speakers from
suppression by state actors (so-called “vertical violations”),103 heckler’s veto cases
provide the clearest insight into how courts adjudicate and resolve competing
private speech claims occurring in real time and provide guidance for how courts –
and society – could more appropriately navigate the expressive interests of privacy
and recording. These cases suggest that when expression by a heckling speaker
(Speaker B) inflicts harm upon another speaker’s (Speaker A) free expression
interests (a “horizontal violation”), government regulation of Speaker B’s heckling
speech may be constitutionally permissible under the First Amendment. And,
indeed, the Supreme Court has recognized in other First Amendment contexts that
speech directed at another person in real space and time is a factor that militates
toward the speech being more taunting and, perhaps, subject to regulation.104 So too
with recording directed at an individual.
In other words, a horizontal violation between private citizens may, in certain
instances, justify a vertical intervention by the government,105 helping the govern-
ment regulation survive First Amendment scrutiny (either strict scrutiny if the
regulation is a content-based or intermediate scrutiny if it is a neutral time, place,
manner restriction). Conversely, when the harm from Speaker B’s speech is not
itself a speech harm, overcoming the First Amendment coverage provided to
Speaker B’s speech is more difficult, largely preventing state regulation of that

102
Kaminski, supra note 10, at 224 (arguing that “[t]he government interest in governing recording
is . . . an interest in managing the qualities of physical space so as not to allow one person’s
behavior to disrupt the behavior of others”); Kreimer, supra note 18, at 395–403 (suggesting that
narrowly tailored protections for privacy might sometimes be permissible under the First
Amendment but doubting that privacy trumps in context of filming public space); Blitz, supra
note 96, at 190–201 (foregrounding individual interests in avoiding identification and avoiding
being tracked).
103
Jeremy Waldron, Heckle: To Disconcert with Questions, Challenges or Gibes, 2017 Sup. Ct.
Rev. 1, 1.
104
Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942) (emphasizing the role of being
individually addressed face-to-face in heightening the provocation of particular speech).
105
Gregory P. Magarian, When Audiences Object: Free Speech and Campus Speaker Protests, 90
U. Colo. L. Rev. 551, 572 (2019) (“Shouting down [a speaker] presumptively offends free
speech principles for the obvious reason that it disrupts speech”).
128 Containing Corporate and Privatized Surveillance

speech.106 That is, when the harm from a speaker is a speech harm to another
speaker, the First Amendment protection traditionally provided to a speaker, in a
sense, partially shifts to and is shared with the speaker whose voice is being
diminished.107
The analogy of “recording” to “heckling” underscores that sometimes expression
is itself expression-reducing, helping us more nimbly weigh the sometimes compet-
ing expressive interests served by recording and privacy. It provides the most con-
crete context of permissible government regulation of competing private speech.
What follows expands on these themes by first explaining in further detail the
concept of the heckler’s veto and how it would transform privacy from a First
Amendment antagonist to First Amendment coverage, and then applies the heck-
ler’s framework to some real-world examples in which privacy is threatened by
citizen recording or photography.108

***
Neither efforts to resist surveillance nor citizen recording are cure-all remedies to
the multitude of threats to public participation and social marginalization. But both
operate in distinct but often complementary ways as forms of harm reduction –
mitigating affronts to democracy – and as forms of symbolic confrontation to
prevailing regimes.109 Here I explain how First Amendment doctrine can keep these
different forms of democratic expression from eroding each other.

from first amendment antagonist to first

amendment coverage
As documented above, in many of the right-to-record cases and privacy tort cases
involving intrusions in “public,” the expressive dimension of recording is given

106
Id. at 572–73 (“When dissenting speech disrupts private expression rather than action or
government speech, the dissent transgresses the boundaries within which we ordinarily value
the contribution civil disobedience makes to the system of free expression”).
107
Brett G. Johnson, The Heckler’s Veto: Using First Amendment Theory and Jurisprudence to
Understand Current Audience Reactions against Controversial Speech, 21 Comm. L. & Pol’y
175, 178–79 (2016) (suggesting that “the heckler’s veto represents an example of affirmative state
intervention to secure a fair functioning of the marketplace of ideas”).
108
Expanding the heckler’s veto concept – where the government is lawfully mediating competing
private speakers – also helps break down the widely critiqued, general First Amendment rule
that there is no affirmative right to access a particular speech platform, but only a requirement
that the government remain neutral as to private speakers’ competing free speech interests.
Gregory P. Magarian, The Jurisprudence of Colliding First Amendment Interests: From the Dead
End of Neutrality to the Open Road of Participation-Enhancing Review, 83 Notre Dame
L. Rev. 185 (2007).
109
Cf. About, Defend Our Movements, https://defendourmovements.org/about/ (last visited
July 27, 2020) (conceptualizing efforts to resist surveillance as a form of self-defense or harm
reduction)
 First Amendment Antagonist to First Amendment Coverage 129

weight, while the expressive dimension of privacy is often discounted or put on the
back burner. As a result, once either the First Amendment’s onerous strict scrutiny
test or the intermediate scrutiny time, place, and manner test is applied to any
restriction on recording, the regulation is struck down as unconstitutional because
recording’s expressive interests dominate. Similarly, tort suits against those recording
or documenting private dimensions marginally exposed to the public are routinely
dismissed, either explicitly or implicitly based on First Amendment principles
protecting access to “public” information.
Appreciating the directly expressive dimensions of public privacy as outlined in
Chapters 2 and 3 militates toward a different First Amendment analysis – derived in
part from heckler’s veto law – when the recording at issue implicates the privacy of
other citizens. This framework provides the asserted privacy right a more meaningful
prospect of overcoming either strict or intermediate scrutiny. Again, admittedly, the
facts of many of the right-to-record cases involving recordings of police have not
squarely implicated the privacy interests of others caught in the camera – enabling
courts to more easily dismiss or ignore potential privacy problems.110 Unfortunately,
that is leading to growing momentum suggesting a largely unfettered right to
record.111 But, as noted, even outside the police context, privacy tort law itself
(a form of state regulation) has been overwhelmingly structured to emphasize the
First Amendment rights of those invading privacy, while ignoring the First
Amendment rights of those seeking to maintain privacy.112
The heckler’s veto line of cases suggests an altered landscape for analyzing the
right to record when it implicates citizen privacy. There are two related conceptions
of the heckler’s veto in American law. The first provides that, absent state interven-
tion regulating a heckler, a heckler’s disruptive speech would silence another
speaker, thereby justifying government regulation of the heckler’s speech under
the First Amendment notwithstanding that it is government silencing of a person’s
speech.113 In other words, the law recognizes that, in certain instances, facilitating
the speech of Speaker A may justify limiting Speaker B’s disruptive speech.114 This

110
Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum.
L. Rev. 991, 1055 (2016) (“[T]he privacy intrusion narrative is oftentimes a canard”).
111
Although some proponents of the right to record have openly embraced limits on that right,
see, for example, Kreimer, supra note 18, at 392–93, others seem to take a much more capacious
view of the right, see, for example Marceau & Chen, supra note 110, at 1023–24 (suggesting that
the First Amendment right to record also extends to private property).
112
Restatement (Second) of Torts §§ 652B cmt. c, 652D cmt. B (1977).
113
John J. McGuire, Comment, The Sword of Damocles Is Not Narrow Tailoring: The First
Amendment’s Victory in Reno v. ACLU, 48 Case W. Res. L. Rev. 413, 417 n.16 (1998)
(observing that “[c]ourts are loathe to allow one person (the ‘heckler’) in the audience who
objects to the speaker’s words to silence a speaker”).
114
E.g., Carlson v. City of Tallahassee, 240 So.2d 866, 868 (Fla. Dist. Ct. App. 1970) (“Petitioner’s
contention that he can speak while another citizen already has the floor can only serve to
diminish the right of both to the unfettered exercise of constitutional freedoms”); cf. Dempsey
v. People, 117 P.3d 800, 805–06 (Colo. 2005) (explaining that the government has a legitimate
130 Containing Corporate and Privatized Surveillance

framing of the heckler’s veto is often used to defend shutting down protests of a
public speaker when those protests begin to prevent or disrupt the public speaker
from continuing. As explained by Erwin Chemerinsky, “[t]he law is well established
that the government can act to prevent a heckler’s veto – to prevent the reaction of
the audience from silencing the speaker. There is simply no 1st Amendment right to
go into an auditorium and prevent a speaker from being heard, no matter who the
speaker is or how strongly one disagrees with his or her message.”115 Put in context by
Chemerinsky and coauthor Howard Gilman, “[c]ampuses can and should prevent
or punish disruptive efforts designed to deny others their free speech rights.”116 This
conception of the heckler’s veto also finds parallels in law recognizing that students
have a right to free speech at school until their speech becomes disruptive to other
students’ educational attainment (another First Amendment interest).117
The second conception of the heckler’s veto found in American law is that a
heckler’s disruptive, protesting speech or reaction to another’s speech cannot be
used to justify government regulation or silencing directed toward Speaker A – the
non-heckler.118 In other words, the state cannot “silence a speaker to appease the
crowd.”119 Here, the heckler’s veto operates on the other speaker indirectly through
the government. For example, in Bible Believers v. Wayne County, the Sixth Circuit
sitting en banc held that so long as the non-heckler’s speech does not fall into a
category of less-protected speech, such as fighting words or incitement of violence,
the government cannot silence the speech based on the negative reactions of other
speakers.120 According to the court, “[w]hen a peaceful speaker, whose message is
constitutionally protected, is confronted by a hostile crowd, the state may not silence
the speaker as an expedient alternative to containing or snuffing out the lawless
behavior of the rioting individuals.”121 The court held that the police violated the
First Amendment when they silenced a group of evangelical Christians spreading

interest in ensuring that individuals’ free speech rights do not encroach on others’ free speech
rights); In re Kay, 464 P.2d 142, 149 (Cal. 1970) (“[T]he state retains a legitimate concern in
ensuring that some individuals’ unruly assertion of their rights of free expression does not
imperil other citizens’ rights of free association and discussion. Freedom of everyone to talk at
once can destroy the right of anyone effectively to talk at all. Free expression can expire as
tragically in the tumult of license as in the silence of censorship”) (citation omitted).
115
Erwin Chemerinsky, UC Irvine’s Free Speech Debate, L.A. Times (Feb. 18, 2010), http://articles
.latimes.com/2010/feb/18/opinion/la-oe-chemerinsky18-2010feb18.
116
Chemerinsky & Gilman, supra note 19, at 124–25.
117
Cf. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512–13 (1969).
118
Cantwell v. Connecticut, 310 U.S. 296, 302–03, 311 (1940); Munroe v. Central Bucks Sch. Dist.,
805 F.3d 454, 475 (3d Cir. 2015).
119
Bible Believers v. Wayne Cty., 805 F.3d 228, 234 (6th Cir. 2015) (en banc).
120
Id. at 243–46; cf. Feiner v. New York, 340 U.S. 315, 320 (1951) (“[T]he ordinary murmurings and
objections of a hostile audience cannot be allowed to silence a speaker”).
121
Bible Believers, 805 F.3d at 252; cf. Watson v. City of Memphis, 373 U.S. 526, 534–35 (1963)
(rebuffing the city’s contention that desegregation of city parks would lead to disturbances and
turmoil by explaining that “constitutional rights may not be denied simply because of hostility
to their assertion or exercise”).
 First Amendment Antagonist to First Amendment Coverage 131

anti-Islamic speech at the Arab International Festival in Dearborn, Michigan. This

second conception of the heckler’s veto is less relevant to the battle between
recording and privacy because the government is not directly infringing on privacy
(a form of speech) in order to facilitate other citizens’ recording. But this strand of
law nevertheless confirms the broader principle that hecklers should not – directly
or indirectly – be permitted to silence other speakers.
The heckler’s veto cases are supplemented by other First Amendment contexts in
which courts evaluate competing speech values often concluding that regulating
expression is justified in the name of preserving other forms of democratic expres-
sion. In other words, courts have been much less reluctant to protect asserted First
Amendment interests from regulation when the regulation itself is justified by other
First Amendment, democratic values.
For example, in Silberberg v. Board of Elections of New York, strict scrutiny was
applied to a New York State law that prohibited anyone from showing their
completed ballot to another person, including through a ballot “selfie” – a self-
portrait photograph taken by the voter with their completed ballot – posted on social
media.122 The court seemingly acknowledged that ballot selfies were core political
speech at the heart of First Amendment protection. Yet, the court nevertheless
upheld the prohibition on this form of political speech because of competing
democratic interests. According to the court, the restriction was narrowly tailored
to achieve the state’s compelling interest in protecting the freedom to vote because it
prevented a means of verifying that a voter had complied with any attempt to buy,
intimidate, or coerce the voter’s vote. In other words, although the restriction
targeted core political speech, it was justified by the competing need to ensure a
critical form of freedom of democratic expression – the free exercise of franchise.
The Silberberg court also upheld a New York City policy prohibiting photography
in polling sites. Here, too, the court recognized that photography was entitled to
First Amendment coverage, but, in applying intermediate scrutiny, found that the
significant government interests of ensuring the integrity of the election process and
protecting voter privacy justified the limitation. That is, when competing demo-
cratic values were burdened by the freedom to record, the court accepted sanctions
on recording and photography.
The holding in Silberberg that restrictions on efforts to document voting activity
were constitutionally permissible was based, in large part, on the Supreme Court’s
prior recognition that even orally expressive political speech could be restricted in
and around a polling site. In Burson v. Freeman, the Supreme Court upheld a state
law that prohibited the distribution of campaign materials or solicitation of votes
within 100 feet of polling locations.123 According to the Court, the law implicated

122
272 F. Supp. 3d 454 (S.D.N.Y. 2017).
123
504 U.S. 191, 193, 216 (1992). But see Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876
(2018) (prohibition on “political” apparel within interior of polling places was too broad/vague)
132 Containing Corporate and Privatized Surveillance

three central concerns of the First Amendment because it targeted (1) political
speech (2) in a public forum (3) based on the content of the speech. But despite
implicating these three talismans of First Amendment coverage, the Court upheld
the speech restriction because of the competing democratic concerns over the
freedom to vote without undue influence from candidates or special interests.124
Similarly, in Turner Broadcasting Systems v. FCC,125 the Court noted that although
the FCC’s must-carry rules requiring cable companies to include local television
stations implicated the cable companies’ First Amendment rights, the government’s
competing First Amendment concerns in “promoting the widespread dissemination
of information from a multiplicity of sources” was an important government interest.
Relatedly, feminist scholarship by Danielle Citron and others has emphasized that
cyber harassment can be regulated consistent with the First Amendment because
such harassment silences others online, often women and other marginalized
groups.126
Finally, in addition to suggesting that the government has the ability, consistent
with the First Amendment, to regulate speech in order to protect the speech as well
as fundamental democratic interests of others, there is also a vein within heckler’s
veto law suggesting that the government may have a duty or affirmative obligation to
do so.127 That is, the government may have a duty to maintain the conditions under
which expression can continue.128 For example, in Bible Believers (discussed above),
the Sixth Circuit suggested that when mediating conflicts between speakers and
hecklers, officers cannot “sit idly on the sidelines – watching as the crowd imposes,
through violence, a tyrannical majoritarian rule – only later to claim that the
speaker’s removal was necessary for his or her own protection.”129 According to the

124
Burson, 504 U.S. at 199; see also Citizens United v. FEC, 558 U.S. 310, 473 (2010) (Stevens, J.,
dissenting) (suggesting that corporate campaign speech could be limited because of the
competing First Amendment need to facilitate and preserve breathing room for other speech
within the marketplace of ideas).
125
512 U.S. 622, 661–63 (1994).
126
Danielle Keats Citron, Restricting Speech to Protect It, in Free Speech in the Digital Age
122, 129 (Susan J. Brison & Katherine Gelbers eds., 2019).
127
E.g., Hague v. Comm. For Indus. Org., 307 U.S. 496, 516 (1939) (“[U]ncontrolled official
suppression of the privilege [of free expression] cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right”); Hedges v. Wauconda Cmty. Unit
Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1999) (“[T]he police are supposed to preserve
order, which unpopular speech may endanger. Does it follow that the police may silence the
rabble-rousing speaker? Not at all. The police must permit the speech and control the crowd;
there is no heckler’s veto”); Glasson v. City of Louisville, 518 F.2d 899, 906 (6th Cir. 1975) (“A
police officer has the duty not to ratify and effectuate a heckler’s veto nor may he join a moiling
mob intent on suppressing ideas”).
128
Johnson, supra note 107, at 206–07 (concluding that the state arguably has a duty to protect
speakers from each other and facilitate the conditions of speech); cf. Philip Pettit, On the
People’s Terms: A Republican Theory and Model of Democracy 5 (2012) (explaining
that a key precept of republican theory of government is that the state will work to prevent
domination of one citizen over another).
129
805 F.3d 228, 253 (6th Cir. 2015) (en banc).
 Heckler’s Framework Applied 133

court, when confronted with competing speech claims, where one speaker risks
drowning out or infringing on the other speaker, the state has a handful of options:
“The police may go against the hecklers, cordon off the speakers, or attempt to
disperse the entire crowd if that becomes necessary.” As explained by the Sixth
Circuit in an earlier case, “Ideally, police officers will always protect to the extent of
their ability the rights of persons to engage in First Amendment activity.”130
Importantly, concluding that the government does have a duty to protect speakers
from hecklers is not at all necessary to justify such government regulation – what is
clear is that the government is empowered, consistent with the First Amendment, to
regulate the hecklers qua recorders if and when the government chooses to do so to
facilitate the competing speech of non-hecklers.131
In sum, this line of cases suggests that when regulation of expressive activity,
including expressive documentation such as photography, is contraposed to other
forms of democratic expression, the regulation is likely to be justified by a compel-
ling or legitimate government interest and thus upheld. As applied to the tension
between the right to record and the right to privacy, the authority suggests that if the
expressive dimensions of privacy are emphasized to justify regulation of recording,
the regulation may stand a stronger chance of being upheld.
Put differently, the Supreme Court has recognized that a cable operator’s power
to “silence the voice of competing speakers with a mere flick of the switch,” justifies
government regulation of the cable company’s speech so as to require it to carry
local television stations, ensuring a broader diversity of voices.132 So too does the flick
of the camera phone’s switch silence others, invade their expressive privacy, and
encourage public conformity – justifying government regulation of recording.

the heckler’s framework applied

As observed at the outset of this chapter, calibrating the appropriate solution for
conflicts between privacy and citizen recording is a delicate task, one that will often
depend on the specific, highly contextual facts of a given case. But having now fully
identified the expressive interests of privacy and recording and having documented
doctrine’s approach to resolving expressive conflicts, we can apply the heckler’s veto
framework to some examples where the right to record (or photograph) is in tension
with the right to privacy to determine if government regulation of the recording

130
Glasson, 518 F.2d at 909.
131
Of course, the Supreme Court is reticent to recognize that the Constitution imposes affirmative
duties on the government or entitles citizens to so-called positive rights. DeShaney
v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989).
132
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 655–56 (1994); see also Turner Broad. Sys., Inc.
v. FCC, 520 U.S. 180, 190 (1997) (reiterating that the government has a compelling interest in
ensuring that a multiplicity of voices can be heard).
134 Containing Corporate and Privatized Surveillance

(including through civil causes of action) is consistent with First Amendment

principles. These examples are taken from actual controversies.

1 Recording of Victims, Bystanders, and Police

In the context of citizen recordings of police that also have collateral privacy harms
on victims of police violence and bystanders, the heckler’s veto line of cases suggests
that the government is empowered (potentially through privacy torts) to impose
tailored restrictions on those recordings, including limits on dissemination, such as
requiring the recorder to redact or blur the identities of victims and bystanders
captured in the recording before disseminating. The law could also encourage
recorders to respect the privacy of victims and bystanders when making the actual
recording by taking steps to avoid recording their identities or notifying bystanders
that they are being filmed. Protecting an individual’s expressive interest in privacy is
a compelling government interest, justifying modest, narrowly tailored regulations
that still preserve the right of individuals to record police activity.
Take the case of Fordyce v. City of Seattle, for example.133 In that case, Fordyce,
who was participating in a protest and filming activity around the protest, filmed not
just police officers but, subsequently, allegedly attempted to film some bystanders
against their wishes. Specifically, Fordyce allegedly “refused to stop videotaping two
boys after an adult relative supervising them asked him to stop and complained to
the police.” When the police asked Fordyce to stop, he allegedly refused and was
arrested for violating Washington’s state law prohibiting the recording of conversa-
tions without first obtaining the consent of all parties.
Fordyce sued the officers for violating his First Amendment rights. Neither the
district court nor the Ninth Circuit ultimately addressed the First Amendment issue.
Instead, the appellate court affirmed the district court’s determination that the
officers were entitled to qualified immunity with regard to their decision to arrest
Fordyce for filming the bystanders because it was unclear whether recording
conversations on public streets fell within the ambit of the Washington statute.
But, more importantly, the events of this case illustrate the ambient or collateral
privacy harms that can come with the specific right to record the police, or, more
generally, public space. If we understand the bystanders’ assertion of their right to be
left alone – their right to privacy – as triggering their expressive interests in solitude
and perhaps resistance, and we understand Fordyce’s actions as heckling those
expressive interests, then enforcement of the Washington statute against Fordyce –
even though he was recording activity in public space – is perfectly consistent with
the First Amendment. It furthers the government’s significant interest in protecting
the bystanders’ expressive interest in privacy. In the same vein, a privacy tort suit
by the bystanders against Fordyce for intruding on their seclusion or, if he broadcast
133
55 F.3d 436 (9th Cir. 1995).
 Heckler’s Framework Applied 135

the video, public disclosure, would also be perfectly consistent with the First
Amendment because the recording is infringing on the bystanders’ First
Amendment privacy interests.
Moreover, once we acknowledge that the First Amendment interests served by
recording and privacy are nuanced, we can also imagine taking advantage of
technological developments to inject nuance into the law and individuals’ obliga-
tions. As Seth Kreimer has emphasized, because the “predictable impacts on consti-
tutional rights are intensely sensitive to empirical conditions,” legal doctrine “must
leave open an opportunity for citizens to focus the attention of courts on the real and
concrete coercion of compelled disclosure.”134 The law must be responsive to the
empirical condition of technological advancement, including by taking advantage
of technology’s flexibility and adaptability to give effect to more bespoke legal
obligations.
For example, in situations in which a citizen recorder may have a First
Amendment interest in recording the police, to the extent that bystanders – poten-
tially including victims of police abuse – have a First Amendment privacy interest in
not having their identities recorded and broadcast, the law could, consistent with the
First Amendment, require the recorder to redact or blur the identity of the
bystander. Indeed, Witness, one of the leading civil society groups providing training
on how to effectively film law enforcement and protests for the purposes of account-
ability, nevertheless cautions that, where possible, filmers should preserve crowd
anonymity through, for example, only filming the back of people’s heads or their
feet,135 or using YouTube’s custom blur tool.136 Indeed, as Safiya Umoja Noble has
powerfully argued, recordings of violence against black people – including citizen
recordings – are often commodified by social media companies and surveillance
capitalists who recirculate the images all the while advertising products next to the
images, in effect commodifying black death and potentially retraumatizing people
of color.137 That is, while the videos may help increase political consciousness, they
are not an unqualified public good and there may be important reasons to circum-
scribe aspects of the recordings including the identity of the victim. Bespoke and
contextual privacy-respecting limits on such recordings may be one way to harness

134
Kreimer, supra note 18, at 107–08.
135
Witness, supra note 14 (providing ten suggestions for recording “protests, demonstrations, &
police conduct”).
136
Witness, Best Practices for Uploading Human Rights Video, http://www.mediafire
.com/download/a7v3t7k2b3z6la9/BestPractices_UploadingHRVideo_20160407_v2_0.pdf; see
also Policing Project, Filming the Police: Tips for Police Officers and Those
Who Film Them (2019), https://static1.squarespace.com/static/58a33e881b631bc60d4f8b31/t/
5c6c25b8ee6eb079bf3967be/1550591417017/Filiming+Police+-+Double+sided+card+%281%29
.pdf (suggesting that people should not secretly record the police’s interactions with others).
137
Safiya Umoja Noble, Critical Surveillance Literacy in Social Media: Interrogating Black Death
and Dying Online, 9 Black Camera 147–60 (2018).
136 Containing Corporate and Privatized Surveillance

the recordings’ First Amendment accountability function, while also limiting the
recording’s privacy, commodification, and retraumatization harms.
At first blush, any such requirements might appear onerous or difficult to enforce.
But the law – particularly common law – routinely imposes context-specific, highly
nuanced obligations or restrictions on individuals vis-à-vis other individuals. One
need not look further than tort law’s general negligence “reasonableness” standard as
an example.138 As privacy-invading technology continues to develop, the law can
and should evolve too, helping to reflect and shape changing norms regarding
appropriate limits on the use of such privacy-invading technology.

2 Recording of Private Intimate Activity

Sometimes recording or photographing people in public, or people who are view-
able from public space, will capture and expose intimate activity intended to remain
obscure and private. Understanding the First Amendment interests served by keep-
ing such activity private can help lead to an appropriate evaluation of the competing
expressive interests, whereas current law often protects the recording at the expense
of privacy. For example, in Foster v. Svenson, a New York appellate court narrowly
interpreted the state’s invasion of privacy statute so as to exclude from coverage artist
Arne Svenson’s photographs of his neighbors in their homes with a telephoto
camera.139 Despite that some of the photos were of young children, the court
concluded that the informational value of Svenson’s expressive photographs
rendered them exempted from coverage under the statute’s judicially created news-
worthiness and public interest exceptions.
But if the First Amendment privacy interests of those being photographed had
been acknowledged, perhaps the court would have reached a different result.
Although the neighbors were photographed through their un-shuttered windows,
it was clear that many had not forfeited an expectation of privacy and that many
viewed themselves as protected by the curtilage of their home (and, in fact, some of
the photos were of people through their shades). They were ensconced inside their
homes and, indeed, the artist surreptitiously hid himself within his own apartment so
that the neighbors could not see him – suggesting that they did not expect to be
photographed and that, but for his efforts to hide himself, they would have taken
additional efforts to protect their privacy. In other words, privacy was critical to
Svenson’s own expression. As Michael Warner explained when discussing surveil-
lance of purportedly “public” gay sex, “[t]he need to resort to an undercover camera
contradicts the claim that these places are already ‘very public.’”140 Some of the
images captured by Svenson literally showed children engaged in the kind of

138
Restatement (Third) of Torts: Physical & Emotional Harm § 7(a) (2010).
139
7 N.Y.S.3d 96 (N.Y. App. Div. 2015).
140
Michael Warner, The Trouble with Normal 176 (1999).
 Heckler’s Framework Applied 137

creative, expressive play that privacy affords – Svenson captured a young girl
dancing, partially undressed in her tiara. The child was ostensibly engaged in some
of the identity exploration provided by privacy, literally incubating and developing
her identity in the protection of her home. Svenson also photographed people
engaged in First Amendment-protected intimate associations or activities in bath-
robes or taking naps.141 And his photographs disrupted and infringed on the First
Amendment interests of the neighbors, prompting some of them to seek legal redress
once they learned of Svenson’s actions.
As discussed, in part as a result of the First Amendment’s protections for news-
worthy information or information regarding public affairs, privacy tort law (and
constitutional informational privacy law) has been shaped so as to foreclose liability
for intrusions into or dissemination of information that is left open – even margin-
ally – to the public view.142 As a consequence, lawsuits seeking to recover for
photographs taken of people in compromising or embarrassing positions have often
met little success under privacy tort law or constitutional privacy law.143 But if we
recognized privacy’s corollary First Amendment values, the draconian privacy torts
rule that information – however slightly – exposed to the public negates any privacy
claim might be made more nuanced and contextual, creating space for
privacy claims that serve First Amendment interests. The expressive dimensions of
privacy could be used to alter privacy tort law so as to not render public access the
only underlying protected First Amendment interest.

3 Recording that Pierces Political Privacy

Finally, consider examples in which recording is used to burden or infringe on the
political rights of assembly and association. Recording people entering abortion
clinics or attending political protests, sometimes accompanied by subsequent doxing
or online harassment of those recorded, are examples of weaponizing recording to
burden others’ expressive choices, over which some modicum of privacy is needed.
In failing to recognize the expressive, First Amendment value of the recorded
activities, as noted in Chapter 1, courts have sometimes rejected attempts to regulate
or impose limits on recording people entering abortion clinics, whether they be
patients or physicians.144 Often these decisions rest on the belief that there cannot be
restrictions on information exposed to the public, a premise which, as discussed, is
141
The Neighbors, Arne Svenson, http://arnesvenson.com/theneighbors.html (last visited July
29, 2019).
142
Restatement (Second) of Torts §§ 652B cmt. c, 652D cmt. b (1977).
143
Cf. Chaney v. Fayette Cty. Pub. Sch. Dist., 977 F. Supp. 2d 1308, 1318 (N.D. Ga. 2013) (holding
that there was no cognizable constitutional privacy claim where a teacher used a picture of a
student in a bikini that he found on her Facebook page in a classroom PowerPoint presentation
because the information was already public).
144
Cf. United States v. Vasquez, 31 F. Supp. 2d 85, 90–91 (D. Conn. 1998); Valenzuela v. Aquino,
853 S.W.2d 512, 513–14 (Tex. 1993).
138 Containing Corporate and Privatized Surveillance

largely based on the First Amendment value of public information.145 But if we

admitted that people’s desire to maintain privacy over certain, sometimes unpopular
political and personal activities served expressive interests, then the First
Amendment analysis would not be one-sided, and modest regulations of recordings
outside abortion clinics or other centers of controversial association could be
legitimately defended consistent with the First Amendment because they serve a
compelling government interest (and, indeed, the Court has upheld certain setbacks
from abortion clinics, limiting how close anti-abortion protestors can come146 – if
that speech regulation is permissible, why not limitations on recording outside of
abortion clinics?).

***
There are both analytical and doctrinal benefits to understanding contests between
those who want to record public activity with those who want to maintain privacy as
contests over expression – as battles between a heckler and another speaker. On an
analytical level, the framework helps us appreciate that expressive values are impli-
cated on both sides of the debate. Currently, the expressive value of privacy plays a
less prominent role in the discussions, with the expressive importance of recording
taking precedent. But the heckling frame also foregrounds that democratic govern-
ance plus liberated and vibrant public space is contingent on a balance between the
ability to maintain privacy in public and the ability to information gather in public.
On a doctrinal level, the heckling frame makes it easier to strike that balance in
courts of law. Otherwise, if the right to record is viewed only in light of its expressive
values, that right will likely continue to supersede any efforts to maintain privacy,
including for corporations and surveillance capitalists who record vast amounts of
our physical and digital movements in physical public. The analogy to the heckler’s
veto helps augment and enhance arguments that recording infringes on situated and
physical harms to privacy and, therefore, that recording can be regulated pursuant to
time, place, and manner restrictions, by highlighting the expressive harms to
recording. As the above discussion of heckler’s veto law makes clear, the government
has a freer hand in regulating speech (recording) when that speech infringes on
other people’s expressive rights. Recognizing the expressive value of privacy helps
justify regulation of privacy invading acts by private parties (including corporations)
and helps highlight how recording may be disruptive to other speech qua privacy.

145
Vasquez, 31 F. Supp. 2d at 90; Valenzuela, 853 S.W.2d at 513.
146
Hill v. Colorado, 530 U.S. 703 (2000). But see McCullen v. Coakley, 134 S.Ct. 2518 (2014).
 5

Outing Privacy as Anti-Subordination

Perhaps not surprisingly given the government’s widespread criminal and adminis-
trative surveillance regimes, the government possesses – and then sometimes dis-
closes – large amounts of our personal information. As in the case of a police officer
threatening to out a teenage boy’s queer sexuality to a relative,1 sometimes these
disclosures are ad hoc or one-off. But other times, such as pill lines in prisons where
people’s HIV or mental health medications may be disclosed or broadcast to others
in the line, the outings are more systematic and routine.2 Thus far, I have focused
largely on solutions to problems of privacy while navigating (physical or online/
cyber/digital) public space. This chapter and the next turn from problems of public
privacy to issues of so-called informational privacy – unconsented to disclosure of
information about someone. In other words, problems of outing. Here, I focus on
government disclosures before turning in the final chapter to private-party
disclosures.
To date, while the Supreme Court has assumed that the Constitution’s protec-
tions for substantive due process limit government disclosures in certain instances,
the contours of any such right remain ill-defined, with the federal circuit courts
applying variant standards. While prevailing theories of privacy beneficially encour-
age us to broadly imagine informational privacy’s benefits, often focusing on info
privacy’s ability to promote individual dignity (the value most closely associated with
the Fourth Amendment’s prohibition on intrusive searches) and autonomy (the
value directly safeguarded by decisional privacy protections), there is a disconnect
when courts attempt to translate these theories into feasible doctrine when dealing
with constitutional informational privacy problems – disclosures. However, as
I argue here, embedded in many constitutional informational privacy cases is the
suggestion that when the disclosure threatens further subordination of marginalized

1
Sterling v. Borough of Minersville, 232 F.3d 190, 192–93 (3d Cir. 2000).
2
Nunes v. Mass. Dep’t of Corr., 766 F.3d 126, 141 (1st Cir. 2014).

139
140 Outing Privacy as Anti-Subordination

groups or beliefs, then the disclosure is more likely to be constitutionally impermis-

sible. (In this way, the informational privacy case law resonates with some of the
First Amendment case law providing special consideration to stigmatized view-
points/identities.)
Put differently, substantive due process protections against disclosure of personal
information are at their apex when they further anti-subordination or equality
principles. And litigants and advocates will have greater success with such claims
if they emphasize the material and direct consequences of government disclosures.
Such direct harms are most likely to be present when the information disclosed is
intimate information (perhaps related to an individual’s minority status) or political
information related to their marginalized political beliefs. By “intimate information”
I mean, for example, sexual, medical, or mental health information. “Political
thought” includes information arguably pertaining to countermajoritarian view-
points. This is not to say that limits on government disclosures don’t also further
other values traditionally associated with privacy – such as autonomy or dignity – or
that constitutional informational privacy protections are only available to certain
groups of people. But, for example, in contrast to the Fourth Amendment search
context, where courts are able, in essence, to take for granted that dignity is harmed
because the intrusion is more palpable, courts grapple to understand how seemingly
mundane bureaucratic or administrative employment questionnaires, financial dis-
closure laws, or birth certificate amendment requirements all infringe on one’s
dignity. Similarly with autonomy, while (some) courts understand how laws restrict-
ing access to abortion burden a woman’s right to decide to have an abortion, courts
must make more connective steps to conclude that, for example, a government
database regarding who uses prescription drugs for which there are both a legitimate
and illicit purpose unduly burdens an individual’s ability to decide whether to take
the medicine in the first instance.
As then Justice Rehnquist described it, “[t]he concept of ‘privacy’ can be a coat of
many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in
the law.”3 With regard to constitutional informational privacy problems, advocates
would be served by, in effect, picking a color lest informational privacy protections
remain ill-defined and under recognized. I argue that the color both most likely to
be seen and appreciated by courts and the one most important to marginalized
communities is one that centers the anti-subordination harms caused when intimate
and political information is disclosed. Courts are in search of concrete, material
harms, which are present when intimate information is disclosed and individuals are
consequently more likely to be exposed to discrimination or marginalization based
on their identities, practices, and beliefs. That is, normatively, public disclosure of
intimate information and political thought more directly and palpably leads to
material consequences or harms. Informational privacy’s value in preventing such

3
Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 546 n.1 (1977) (Rehnquist, J., dissenting).
 Outing Privacy as Anti-Subordination 141

harms is particularly significant for communities in transition4 – that is, commu-

nities who have not yet attained full liberty and equality under the law or in lived
reality, such as LGBTQ communities and individuals living with disabilities,
including HIV.5 Importantly, because courts can more readily perceive (or foresee)
those tangible consequences than any harm to dignity or autonomy, and therefore
more readily perceive the value of privacy over intimate information and political
thought, they may be more prone to definitively recognize a right to informational
privacy if framed in terms of those two values as opposed to the traditional privacy
values of dignity and autonomy, which are more abstract and only indirectly
implicated by informational privacy violations.6
This chapter’s ambition, then, is to hone extant theories of informational privacy
and articulate a conceptual, theoretical framework that more precisely captures
informational privacy’s distinct, perhaps more narrow, normative values. In addition
to more precisely identifying the values underlying an informational privacy right,
this chapter’s reconstituted theory of constitutional informational privacy will trans-
late more fluidly into a coherent and robust doctrinal framework likely to find
judicial purchase.
In short, this chapter suggests that informational privacy’s two principal, more
narrow and concrete values are preventing intimate or political information from
serving as the basis of potential discrimination and subordination. So conceived, this
chapter also demonstrates that the proper test for evaluating informational privacy
claims that implicate those two interests is one of heightened or strict scrutiny, in
contrast to the less muscular balancing test employed by several courts. Normatively,
it is in part because intimate and political information tend, by their nature, to
involve a higher likelihood of direct material consequences (such as employment
discrimination resulting from the disclosed intimate information or marginalization
caused by the monitoring of political thought) that they are entitled to special
protection relative to other forms of information. Doctrinally, strict scrutiny is
warranted because political thought and intimate information are closely related
to already recognized fundamental rights such as marital privacy, bodily integrity,
and freedom of association. These categories, intimate information and political

4
Cf. Robin L. West, The Nature of the Right to an Abortion: A Commentary on Professor
Brownstein’s Analysis of Casey, 45 Hastings L.J. 961, 965–66 (1994) (abortion privacy rights
serve as a necessary though inadequate transitional right that must exist until the participatory
rights of women are no longer unequally burdened); Marc S. Spindelman, Reorienting Bowers
v. Hardwick, 79 N.C. L. Rev. 359, 368 n.14 (2001) (collecting authority viewing privacy as a
liminal right or doorway enabling people to come out of the closet).
5
Cf. Christy Mallory & Brad Sears, Discrimination Against State and Local Government LGBT
Employees, 4 LGBTQ Pol’y J. 37, 51 (2014) (documenting that many LGBT employees remain
closeted in the workplace out of fear of discrimination).
6
Robert C. Post, Privacy, Speech, and the Digital Imagination, in Free Speech in the Digital
Age 104, 104 (Susan J. Brison & Katherine Gelbers eds., 2019) (lamenting that efforts to define
privacy in terms of “dignity” and “autonomy” often “obscure as much as they reveal”).
142 Outing Privacy as Anti-Subordination

thought, are isolated and supported by a combination of doctrinal and normative

judicial undercurrents. That is, in addition to bearing a close relationship to
fundamental rights already recognized by courts under the Due Process Clause
and the First Amendment of the Constitution, these two categories track and reflect
judicial discourse, suggesting that intimate information and political thought are (or
at least ought to be) entitled to special constitutional protection. Until this time, in
part because of the theoretical emphasis on dignity, autonomy, and “intrusion,”
courts have at times lacked a coherent doctrinal framework to animate their
normative intuition regarding the importance of intimate information and political
thought.
The need for the development of a narrow but exacting informational privacy
framework is acute. As outlined in Chapter 1, informational privacy is threatened by
a host of seemingly routine government actions, including ministerial bureaucratic
requirements. Surgery requirements to change the gender marker on a government
ID is one important example. Notwithstanding that need, the Supreme Court has
failed to definitively recognize a constitutional right to informational privacy in favor
of reluctantly assuming (without deciding) that such a right exists on three occa-
sions, most recently in 2011.7 As Justice Scalia bemoaned, the Court has applied “a
constitutional informational privacy standard without giving a clue as to the rule of
law it is applying . . . provid[ing] no guidance whatsoever for lower courts.”8 The
Court has thereby added to the conceptual confusion regarding the scope of an
informational privacy right and left lower courts and litigants grappling to determine
how to enforce the right – should it exist at all.
This chapter provides courts, government actors, litigants, and other scholars a
blueprint for the development of an enforceable informational privacy cause of
action – one that cannot be dismissed as overly broad or bearing little connection to
the purported interests advanced by the right. In this way, we can out a right to
informational privacy.

dignity and autonomy bear indirect and abstract

relationship to informational privacy problems
Scholarship is rich with attempts to craft comprehensive theories or definitions of
privacy and attempts to link privacy with other rights, with dignity and autonomy at
times, dominating discussions of privacy’s value.9 Positively, these attempts have
challenged courts to expansively envision what role the “right to privacy” plays in a
7
NASA v. Nelson, 562 U.S. 134, 138 (2011).
8
Id. at 166 (Scalia, J., concurring in the judgment).
9
E.g., Stanley I. Benn, Privacy, Freedom, and Respect for Persons, in NOMOS XIII: Privacy 1 (J.
Roland Pennock & John W. Chapman eds., 1971); see also Khiara Bridges, The Poverty of
Privacy Rights 11 (2017) (observing that dignity, personhood, and autonomy have often
predominated theoretical discussions of privacy’s individualistic values).
 Dignity and Autonomy’s Indirect Link to Informational Privacy 143

democratic society and to identify privacy’s many values. But as a consequence, by

broadly and flexibly defining privacy writ large as promoting dignity and autonomy
(sometimes ethereal concepts), discourse has perhaps buried informational privacy’s
more nuanced contributions to the constitutional fabric and unintentionally
reinforced the judicial perception that informational privacy rights are undefinable
and unenforceable.10 The emphasis on dignity and autonomy has distracted courts
from informational privacy’s more palpable, and perhaps circumscribed underlying
interests – how protection of intimate information and political thought can contrib-
ute to anti-subordination and lived equality.11 Put differently, “universalist argu-
ments obscure the topography of power” and “[s]urveillance is not at all the same
thing at higher and lower elevations on the contour map of privilege.”12
As frequently framed, a dignity theory of informational privacy posits that any
privacy intrusion itself is an inherent harm to the individual, regardless of the subject
matter of the information intruded upon or any consequent, downstream impacts
from the intrusion.13 Without dismissing the relationship between informational
privacy and dignity, dignity is, by itself, an insufficient organizing principle for a
workable informational privacy cause of action. And defining a broad concept such
as privacy in terms of an equally if not more malleable concept such as dignity
does little to aid courts in their attempts to construct an enforceable informational
privacy right.14
The scholarly focus on informational privacy’s connection to dignity emerged
almost as soon as privacy began to be theorized as an American jurisprudential right.
In their oft-analyzed article, Samuel Warren and Louis Brandeis advocated for a
common-law right to informational privacy.15 Warren and Brandeis were attempting

10
See Russell v. Gregoire, 124 F.3d 1079, 1093 (9th Cir. 1997) (doubting a right to informational
privacy because plaintiffs “do not pinpoint the source of the right or identify its contours”);
DeSanti, 653 F.2d at 1089 (concluding that absent a framework, “[a]nalytically we are unable to
see how such a constitutional right of privacy can be restricted to anything less than the general
‘right to be let alone’” (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis,
J., dissenting))).
11
Of course, others have also suggested that to varying degrees both intimacy and political
thought deserve special privacy protections. E.g., Tom Gerety, Redefining Privacy, 12 Harv.
C.R.-C.L. L. Rev. 233, 236 (1977); W.A. Parent, Privacy, Morality, and the Law, 12 Phil. &
Pub. Aff. 269, 269–70 (1983). Part of my contribution is to explain how recentering these two
categories in the constitutional informational privacy context can garner informational privacy
more widespread judicial acceptance and a stronger doctrinal foothold.
12
Barton Gellman & Sam Adler-Bell, The Disparate Impact of Surveillance 2, The
Century Foundation (2017), https://production-tcf.imgix.net/app/uploads/2017/12/03151009/
the-disparate-impact-of-surveillance.pdf.
13
E.g., Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Posser,
39 N.Y.U. L. Rev. 962, 974 (1964).
14
Daniel J. Solove, Understanding Privacy 39 (2008) (“[P]rivacy conceptions that are too
broad fail to provide much guidance; they are often empty of meaning and have little to
contribute to the resolution of concrete problems”).
15
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 205 (1890);
see also Erwin Chemerinsky, Rediscovering Brandeis’s Right to Privacy, 45 Brandeis L.J. 643,
144 Outing Privacy as Anti-Subordination

to demonstrate that a common-law right to informational privacy had a tradition in

intellectual property protections, but that privacy causes of action should not be
limited to claims implicating property rights. For example, their right to privacy was
not restricted to intrusions into literary compositions (which have a property value),
but would extend to personal letters (which often do not).16 To expand the right to
privacy beyond a mere property right, Warren and Brandeis broadly conceived of the
right as protecting the “immunity of the person” and the “right to one’s personal-
ity.”17 They painted the right to privacy as focused on invasions into one’s dignity.18
Because Warren and Brandeis broadly framed informational privacy as protecting
one’s dignity in part to avoid limiting it to property claims, it is understandable that,
to a degree, we have lost track of the fact that Warren and Brandeis did not view all
privacy invasions equally as problematic regardless of subject matter. According to
several accounts, the principal motivating factor for the article was the publication of
intimate details regarding Samuel Warren’s family.19 At the outset of their article,
Warren and Brandeis specifically lamented, “the details of sexual relations are
spread broadcast in the columns of the daily papers.”20 However, they broadly
characterized the right as being instrumental to the preservation of human dignity.
The importance of certain paramount categories of information has been lost, or at
least glossed over.
The scholarly focus on dignity as the underlying value of an informational privacy
right continued from there. In his important 1964 article, Edward Bloustein argued
that human dignity was also the key interest at stake in instances where private
information was disseminated publicly.21 Similarly, in his analysis of what he labeled
“the emerging unencumbered constitutional right to informational privacy,”

644 (2007) (“there has been minimal judicial protection for informational privacy” notwith-
standing that it was “the primary focus of Brandeis and Warren”).
16
Warren & Brandeis, supra note 15, at 205 (“The principle which protects personal writings and
all other personal productions, not against theft and physical appropriation, but against
publication in any form, is in reality not the principle of private property, but that of an
inviolate personality”).
17
Id. at 207.
18
David A.J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in
Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 973–74 (1979)
(Brandeis’s conception of information privacy had a “deep connection with personal dignity”);
Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging
Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479, 484
(1990) (“The core theoretical concepts and assumptions employed in the [Warren and
Brandeis] article view privacy as a condition and right that is essentially tied to human dignity”).
19
Amy Gajda, What If Samuel D. Warren Hadn’t Married a Senator’s Daughter?: Uncovering the
Press Coverage that Led to the “Right to Privacy,” 2008 Mich. St. L. Rev. 35, 59–60.
20
Warren & Brandeis, supra note 15, at 196.
21
Bloustein, supra note 13, at 982 (“Physical intrusion upon a private life and publicity concern-
ing intimate affairs are simply two different ways of affronting individuality and human dignity.
The difference is only in the means used to threaten the protected interest”).
 Dignity and Autonomy’s Indirect Link to Informational Privacy 145

Richard Turkington, too, saw the right as rooted in “the human dignity respect for
persons theory of privacy.”22
While envisioning a right to informational privacy as protecting human dignity
helps us understand how privacy works with other constitutional rights to create a
patchwork of protections for individual liberty and restrained government, it fails to
pinpoint informational privacy’s specific normative value and distinguish informa-
tional privacy from other constitutional values and rights (such as the Fourth
Amendment protection against search and seizure and Due Process protections
for decisional privacy). Moreover, in practice and as discussed more below, at times
dignity appears of limited value to courts in actually crafting an enforceable (and
circumscribed) constitutional informational privacy right.
A dignity theory of privacy makes more sense, and is palatable to American courts,
in situations where the state exercises its police power to conduct an intrusive search
without an individual’s permission. As James Whitman observed, “the really easy
cases in the American tradition are the ones involving, or resembling, criminal
investigations” and that one “can count on Americans to see privacy violations . . .
where the issue can be somehow analogized to penetration into the home, or
sometimes the body.”23 Given that tradition, the preoccupation with framing infor-
mational privacy questions as dignity-depriving governmental intrusions is not
surprising. In such instances where the state’s law enforcement agents physically
or remotely invade a person’s body or property, a person’s dignity is obviously
implicated and the Fourth Amendment presumably governs and protects that
dignity interest.24 A dignity theory of privacy is also more intuitive where the state
is intervening directly to forbid, or even merely unduly burden, a woman’s ability to
make an independent choice regarding whether to continue with a pregnancy.25
These points are vividly illustrated by the contrasting opinions in Obergefell
v. Hodges, where the Supreme Court struck down state bans on same-sex marriage.
In dissent, Chief Justice Roberts dismissed the majority’s apparent reliance on “right
of privacy” precedent (such as Griswold) as irrelevant to the issue of same-sex
marriage because those cases involved intrusions into people’s lives and bedrooms.26
Conversely, the majority found those cases potent in large part because of their
22
Turkington, supra note 18, at 481, 490.
23
James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L.J.
1151, 1215 (2004).
24
Schmerber v. California, 384 U.S. 757, 767 (1966) (“The overriding function of the Fourth
Amendment is to protect personal privacy and dignity against unwarranted intrusion by the
State”).
25
Cf. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/
Carhart, 117 Yale L.J. 1694, 1694 (2008) (arguing that dignity is the motivating value behind the
Supreme Court’s undue burden test, “which allows government to regulate abortion to
demonstrate respect for the dignity of human life so long as such regulation also demonstrates
respect for the dignity of women”).
26
135 S. Ct. 2584, 2620 (2015) (Roberts, C.J., dissenting) (“Unlike criminal laws banning contra-
ceptives and sodomy, the marriage laws at issue here involve no government intrusion”).
146 Outing Privacy as Anti-Subordination

relationship to intimate activity, demonstrating the salience of intimacy, as discussed

more fully below.27
But in the informational privacy context, many times there is no forced intrusion
or covert invasion at all, and the information is “voluntarily” provided to the state.28
For example, in the Supreme Court’s most recent case addressing constitutional
informational privacy, NASA v. Nelson, the Court held that no constitutional right
to informational privacy was violated where government contractors were required
to fill out an employment questionnaire that included questions about, inter alia,
drug treatment and counseling.29 In such questionnaire situations, the relationship
between dignity and the asserted privacy claim is more difficult to grasp. The
“intrusion” itself is less graphic. Because informational claims generally involve less
visceral invasions, courts are searching for a harm other than the purported harm to
human dignity.30
To summarize, because of the historical focus on the Fourth Amendment and
government intrusions, scholars and litigants have at times emphasized intrusion
and its threat to dignity. That is, they have often been attempting to make infor-
mational claims sound in the Fourth Amendment. The constitutional right to
informational privacy, if it is to mean something different than or in addition to
the Fourth Amendment, is more properly and specifically oriented toward the threat
of government dissemination of intimate information and nascent political thought
and the social harms that directly flow from such collection and dissemination.
Alongside the focus on intrusions and dignity – closely associated with Fourth
Amendment doctrine – advocates and scholars have also attempted to justify the
right to informational privacy by suggesting that it advances personal autonomy. In
this way, advocates have attempted to link informational privacy and the more

27
Id. at 2597 (majority opinion) (holding that Due Process “liberties extend to certain personal
choices central to individual dignity and autonomy, including intimate choices that define
personal identity and beliefs”). While Justice Kennedy’s majority opinion discusses both
autonomy and dignity, which is only proper in the context of evaluating limits on individuals’
freedom to marry, even in the marriage context, the concepts of autonomy and dignity are
given teeth and limits through reliance on intimacy.
28
To the extent the information is provided as part of, for example, a job application requirement
or in exchange for state benefits, there is at least a degree of compulsion in providing the
information. Bridges, supra note 9, at 84–86.
29
526 U.S. 134 (2011).
30
Gerety, supra note 11, at 252 n.66 (dignity serves “no indispensable purpose” in privacy cases);
Bridges, supra note 9, at 166 (noting that courts have been reluctant to recognize a dignity
harm in the informational privacy context). Griswold itself illustrates the outsized role that
intrusion and dignity have played in analyzing informational privacy claims. Notwithstanding
that the police in Griswold never actually intruded into the bedrooms of any couples to
determine if contraception was being used (the plaintiffs were doctors who prescribed contra-
ception), the Court relied on the specter of such an intrusion to bolster its
holding. 381 U.S. 479, 485–86 (1965). See Chemerinsky, supra note 15, at 650 (Griswold’s
“focus on intrusion was misplaced because the case did not involve that at all; no one’s
bedroom or house had been searched”).
 Dignity and Autonomy’s Indirect Link to Informational Privacy 147

well-established (but under attack) right to decisional privacy, which directly impli-
cates the right to make autonomous decisions and be left alone. The right to
decisional privacy, as embodied in cases such as Loving v. Virginia, Griswold
v. Connecticut, and Roe v. Wade, provides that there are certain areas of life so
fundamentally important and private that the government may not, absent satisfying
a heightened level of scrutiny, infringe or burden an individual’s autonomy or
freedom to make those decisions. Examples include the rights to marry, use contra-
ception, and to have an abortion. But, as with dignity, informational privacy’s ability
to promote autonomy of decision-making over areas of such fundamental import-
ance is often indirect, providing courts a comparatively weak theoretical foundation
for development of an informational privacy right.
For example, in Privacy and Freedom, Alan Westin argued that one of privacy’s
key functions was to promote individual freedom and, correspondingly, autonomy.31
Pursuant to Westin’s framing, even casual burdens into one’s privacy could threaten
an individual’s autonomy – Westin’s informational privacy right was content-neu-
tral.32 Similarly, philosopher Elizabeth Beardsley argued that the norm of privacy
was animated by both a concern for individual autonomy and selective disclosure
(that is, informational privacy).33 But Beardsley saw “no alternative to justifying the
norm of selective disclosure directly in terms of the norm of autonomy, and to
recognizing the latter as an ultimate moral principle, standing on its own feet.”
While Beardsley viewed informational privacy as “the conceptual core of the norm
of privacy,” the norm of autonomy gives privacy its “moral rationale.”
Relatedly, Francis Chlapowski has argued that “[i]nformational privacy should be
protected under the right to privacy because it is an element of personhood, integral
to an individual’s identity.”34 To Chlapowski, informational privacy rights are rooted
in personhood because “the state, by disclosing personal information, deprives the
individual of the opportunity to ‘define’ herself.” Neil Richards, too, has noted the
trend among information privacy scholars of focusing on informational privacy’s
relationship to autonomy.35

31
Alan F. Westin, Privacy and Freedom 33 (1967).
32
See Fred H. Cate, Privacy in the Information Age 23 (1997) (observing that under
Westin’s conception, “[i]nformation privacy does not depend on the content or merit of the
information at issue” and has an “inherent neutrality”).
33
Elizabeth L. Beardsley, Privacy: Autonomy and Selective Disclosure, in NOMOS XIII: Privacy,
supra note 9, at 56, 70.
34
Francis S. Chlapowski, Note, The Constitutional Protection of Informational Privacy, 71 B.U.
L. Rev. 133, 154 (1991).
35
Richards, supra note 18, at 1102–03; see also Hyman Gross, Privacy and Autonomy, in NOMOS
XIII: Privacy, supra note 9, at 169, 173–74, 181 (informational privacy is desirable because it
permits individual self-determination over how one appears and to whom); Joel Feinberg,
Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 Notre Dame
L. Rev. 445, 454 (1983) (autonomy includes the right to decide “what personal information
to disclose”); Adam D. Moore, Toward Informational Privacy Rights, 44 San Diego L. Rev.
148 Outing Privacy as Anti-Subordination

While informational privacy no doubt enhances individual autonomy at least at

the abstract level and further facilitates individual identity development, the dif-
ficulty of an individual autonomy-focused theory at the lower level of doctrine is that
it often involves too many causal steps between the information disseminated and
the harm to autonomy. As outlined in detail in following section, courts struggle to
understand how collection or dissemination of certain information directly infringes
on one’s ability to make independent decisions. Moreover, even if one were able to
draw a more direct line between disclosure of private information and its effect on
decision-making, framing the harm in terms of self-creation or self-realization is too
ethereal and is difficult for a court to weigh against the government’s purported
interest in the information.36 (Conversely, as discussed in Chapters 2 and 3, when
the government is itself directly intruding on or forbidding an individual’s expressive
privacy barriers (as opposed to informational privacy context where the government
is itself speaking information about the individual), the burden on a person’s
expression, including privacy expression that bears on identity formation, is more
perceptible and familiar to courts.)
To recapitulate, advocates at times have attempted to justify informational privacy
by suggesting it advances individual autonomy. The prominent role of decisional
privacy among constitutional jurisprudence seems to have bled into analysis
regarding the role of informational privacy, underwriting the slowness with which
a distinct, precise, and coherent doctrine of informational privacy has developed.37

lingering uncertainty regarding constitutional

informational privacy
Partly influenced by the traditional privacy discourse broadly conceptualizing priv-
acy as advancing individuals’ interest in autonomy and dignity, the Supreme Court
and lower federal courts have been cautious to recognize the existence of the right
out of fear that it will be all-encompassing, paralyze government action, and
inundate courts with claims.38 Unable to understand the particular concrete

809, 812–13 (2007) (favoring a “control-based definition of privacy” that affords individuals the
space to develop, “while maintaining autonomy over the course and direction of one’s life”).
36
Helen Nissenbaum, Privacy in Context 10, 83–84 (2010) (observing that while incursions
into privacy may have a subtle impact on the ability to follow through on decisions, the line
between acceptable and unacceptable burdens on decision-making is difficult to discern); see
also Plante v. Gonzalez, 575 F.2d 1119, 1130–32 (5th Cir. 1978) (holding that the effect of
financial disclosure laws on autonomy is indirect).
37
Chemerinsky, supra note 15, at 650–51 (fearing that “the federal courts are unlikely to expand
protection for any aspect of constitutional privacy because of the enormous controversy over
privacy as autonomy” and explaining that “any aspect of privacy now suffers guilt by
association”).
38
NASA v. Nelson, 562 U.S. 134, 168 (2011) (Scalia, J., concurring in the judgment) (seeking to
avoid “dramatically increase[ing] the number of lawsuits claiming violations of the right to
informational privacy”); see also Denoncourt v. Commonwealth of Pa., State Ethics Comm’n,
 Uncertainty over Informational Privacy 149

interests served by an informational privacy right, courts have failed to consistently

and clearly outline the purported right’s structure and limitations.39 This section
analyzes Supreme Court and circuit precedent and demonstrates that the confusion
and disinclination toward a meaningful constitutional informational privacy right is
in part reflective of the broad autonomy–dignity focus that often predominates
discussions of privacy’s value. However, both explicit and implicit in these decisions
is a judicial undercurrent recognizing, as this chapter argues, that informational
privacy claims threatening intimate information or political thought should be given
a privileged position and protected because such protection will prevent negative
consequences, such as discrimination and political marginalization. Put differently,
informational privacy ought to be protected because it furthers anti-
subordination goals.

1 Supreme Reluctance
The Supreme Court has been squarely confronted with whether there exists a
constitutional right to informational privacy on three occasions. Each time, the
Court has avoided explicitly recognizing the right. Instead, the Court has assumed
for the sake of argument that such a right exists but found no violation under the
facts of the case presented. The Supreme Court’s reluctance appears to have been
influenced by the way that privacy scholarship and jurisprudence developed, with
the Fourth Amendment and decisional privacy (and their attendant focus on dignity
and autonomy) receiving detailed attention prior to and instead of the right to
informational privacy. I discuss each of the three Supreme Court cases in detail.

A Whalen v. Roe
The Court first considered the existence of a right to informational privacy in the
1977 case of Whalen v. Roe.40 Decided in 1977, Whalen was issued just four years
after that other, more famous “Roe” case – Roe v. Wade. In Roe v. Wade, the Court
advanced the right to decisional privacy first recognized in 1965 in Griswold to
include a woman’s right to have an abortion.
Whalen involved a challenge to a New York State statute that recorded the names
and addresses of any patient who had obtained, pursuant to a prescription, drugs for

470 A.2d 945, 950 (Pa. 1983) (Hutchinson, J., concurring and dissenting) (expressing concern
over “the shadowy reaches of the right of [informational] privacy”).
39
For cases noting the vagaries and ill-defined scope and contours of the right to informational
privacy, see, e.g., Denius v. Dunlap, 209 F.3d 944, 955–56 (7th Cir. 2000); Statharos v. N.Y.C.
Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999); Am. Fed’n of Gov’t Emps.
v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 793 (D.C. Cir. 1997); Eagle v. Morgan, 88 F.3d
620, 625 (8th Cir. 1996); Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206 (3d Cir. 1991);
Kimberlin v. U.S. Dep’t of Justice, 788 F.2d 434, 438 (7th Cir. 1986).
40
429 U.S. 589 (1977).
150 Outing Privacy as Anti-Subordination

which there was both a lawful and illicit purpose, such as opium, amphetamines,
and methadone. New York’s Department of Health would maintain the prescription
record for five years, after which time the record was destroyed. The records were
physically secured and the number of government officials with access to the records
was limited. Public disclosure of a patient’s identity was punishable by a year’s
imprisonment and a $2,000 fine. The purpose of the law was to help ensure that
drugs with a legitimate purpose were not being abused.
Though the most significant harm of the statute came from potential dissemin-
ation of the personal prescription information (as opposed to its mere collection)
and the downstream consequences of such dissemination, the plaintiffs at times
crafted their argument against the law as infringing on their autonomy and dignity.
For example, in a direct appeal to the autonomy concern underlying Roe v. Wade,
the plaintiffs argued that the statute amounted to “state interference with the doctor–
patient relationship.”41 They suggested that the statute would chill “the decisions
[patients] make.”42 The plaintiffs argued that the New York statute infringed on their
“individual autonomy.”43
Elsewhere, the plaintiffs in Whalen framed their argument with appeals to the
patients’ dignity. They repeatedly characterized the government’s action as an
intrusion.44 They invoked the seminal Fourth Amendment case of Katz v. United
States and referred to the statute as a prosecutorial “dragnet.” The plaintiffs, in
essence, were attempting to analogize the New York statute to a police search and
argue that it intruded onto their dignity. It is questionable whether the New York
recording statute amounted to the kind of intrusion triggering the Fourth
Amendment. That is, the case did not involve the kind of invasive, dignity-depriving
search courts are accustomed to forbidding absent probable cause under the Fourth
Amendment. The Supreme Court noted this dissonance.
Discussing the risk of dissemination, the Court held that mere disclosure to the
Department of Health was not “meaningfully distinguishable from a host of other
unpleasant invasions of privacy that are associated with many facets of health care.”45

41
Appellees’ Brief at 15, Whalen v. Roe, 429 U.S. 589 (1977) (No. 75-839), 1976 WL 181402, at *15
[hereinafter Whalen Appellees’ Brief].
42
Id. at *23; see also Motion for Leave to File Brief of Amici Curiae and Brief of Amici Curiae for
the Nat’l Ass’n of Mental Health et al., at 9–10, Whalen v. Roe, 429 U.S. 589 (1977) (No. 75-
839), 1976 WL 194624, at *9–10 (characterizing Whalen as focused on the patients’ right to
make an autonomous decision about their healthcare).
43
Whalen Appellees’ Brief, supra note 41, at *43.
44
Id. at *22, *24–25, *32–33, *43 (characterizing the central issue as whether a “state may
systematically intrude into the physician–patient relationship,” arguing that patients expect
“freedom from the intrusion of the state,” and that the “systematic intrusion into the physician–
patient relationship unquestionably implicates their constitutionally protected right of privacy,”
requiring the court “to determine if the intrusion is justified,” and raising the specter of
“frightening intrusion by even more subtle state surveillance”). In fact, the plaintiffs in
Whalen mention their concern over government intrusion at least ten times.
45
429 U.S. at 602.
 Uncertainty over Informational Privacy 151

According to the Court, the provision of some healthcare information to public

health agencies is relatively routine and “does not automatically amount to an
impermissible invasion of privacy.” The Court directly refuted plaintiffs’ efforts to
compare the New York statute to a Fourth Amendment police search.46
Nor did the Court believe there was a significant impingement on patients’
autonomy. The Court held that the statute did not infringe on patients’ decision
to take prescription drugs, noting that access was not conditioned on preapproval of
any state official and that the decision to prescribe or use the drug was left to the
physician and patient. The Court acknowledged that some patients may be con-
cerned about their reputations should it become public that they were prescribed
drugs that have both a permissible and illicit purpose, but that such a threatened
impact was insufficient to implicate any autonomy interest.47
Finding no violation of a right to informational privacy, the Court left unclear
whether there exists such a right and its contours. The Court recognized that
unsecured collection and unwarranted disclosure of “potentially embarrassing or
harmful” information may implicate a constitutional right to informational priv-
acy.48 But the Court believed the New York statute at issue did not implicate those
security concerns, and so did not more fully inquire into the constitutional ground-
ings of a right to informational privacy.
The test applied to determine whether the New York statute violated any assumed
right to informational privacy was unclear. At times, the Court characterized the law
as a “rational legislative decision” that was not “unreasonable,” perhaps suggesting
that a rational basis test was applied. The Court also characterized the state’s interest
in controlling dangerous drugs as “vital,” arguably indicating that a more rigorous
standard of scrutiny was employed.

B Nixon v. Administrator of General Services

The Supreme Court had an opportunity to clarify its approach to informational
privacy in a case argued just two months after Whalen was decided. In Nixon
v. Administrator of General Services, former President Richard Nixon challenged a
federal statute directing the Administrator of General Services to take possession of

46
Id. at 604 n.32 (“The Roe appellees also claim that a constitutional privacy right emanates from
the Fourth Amendment, citing language in Terry v. Ohio, at a point where it quotes from Katz
v. United States. But those cases involve affirmative, unannounced, narrowly focused intrusions
into individual privacy during the course of criminal investigations. We have never carried the
Fourth Amendment’s interest in privacy as far as the Roe appellees would have us. We decline
to do so now”) (citations omitted).
47
Id. at 603–04; cf. Paul v. Davis, 424 U.S. 693, 712–13 (1976) (rejecting claim that police violated
right to privacy when they publicly disclosed that a person had been arrested for shoplifting,
seeing no connection between the disclosure and the Fourth Amendment or plaintiff’s
decisional privacy interests).
48
Whalen, 429 U.S. at 605-06.
152 Outing Privacy as Anti-Subordination

Nixon’s presidential papers and tape recordings and promulgate regulations for the
screening of materials into those which should be returned to Nixon as personal and
those which should be retained for potential future public access.49 The materials
consisted of over 42 million pages of documents and 880 recordings.
Relying heavily on the Fourth Amendment, Nixon argued that the statute violated
his right to informational privacy, contending that it was “tantamount to a general
warrant” permitting a search of all his papers. In a portion of Nixon’s brief quoted by
the Court, Nixon claimed, “the real evil aimed at by the Fourth Amendment is the
search itself.” The Court dismissed this comparison, distinguishing an “intrusion
into an individual’s home to search and seize personal papers in furtherance of a
criminal investigation” from the purported impact of an archivist reviewing Nixon’s
papers for “the sole purpose of separating private materials to be returned” to Nixon
from nonprivate papers to retained as a record of his presidency.
So, once again, the litigant bringing an ostensible informational privacy claim
appealed to his dignity interest in avoiding an intrusive search. Once again, the
Court found that no dignity interest was implicated by the informational privacy
claim.50
The Court also failed to take advantage of Nixon to clarify the test for evaluating
informational privacy claims. The Court, perhaps as a result of the way Nixon
framed the claim as sounding in the Fourth Amendment, suggested that to the
extent there was an intrusion, it “must be weighed against the public interest” in
preserving a president’s official documents.51 Continuing, the Court characterized
the law as not “an unreasonable solution.” The Court’s analysis, therefore, was
similar to the traditional Fourth Amendment analysis employed when nonprosecu-
torial government action not amounting to a “search” is at issue, or when
determining whether an exception to the warrant requirement is satisfied.

C NASA v. Nelson
More than three decades passed before the Supreme Court again addressed the
constitutional right to informational privacy. Those years of silence did not prompt
the Court to say much more. In NASA v. Nelson, government contractors at the JET
Propulsion Laboratory challenged government background check questionnaires
that went to both the contractors and their references.52 The questionnaire to the
contractor probed whether the contractor had ever used, supplied, or manufactured

49
433 U.S. 425 (1977).
50
J.P. v. DeSanti, 653 F.2d 1080, 1089 n.4 (6th Cir. 1981) (the Supreme Court’s “analysis of the
privacy issue in Nixon appears to be based on the fourth amendment’s requirement that all
searches and seizures be reasonable”).
51
Nixon, 433 U.S. at 458.
52
562 U.S. 134 (2011).
 Uncertainty over Informational Privacy 153

illegal drugs and, if so, whether the contractor had sought any treatment for such
drug use. The questionnaire noted that the information could not be used as
evidence in a criminal proceeding. The form sent to references similarly scrutinized
whether the contractor had ever abused alcohol or drugs or whether there were
reasons to question the contractor’s mental stability. All responses to the question-
naires were protected by the Privacy Act, which restricts public access to the
completed questionnaires subject to certain (debatably broad) exceptions.
While the Nelson plaintiffs emphasized that the questionnaires constituted an
intrusion into their privacy even if the information was not disseminated publicly,53
their arguments relied less heavily on dignity and autonomy and much less on
Fourth Amendment precedent and decisional privacy, than did the plaintiffs’
arguments in Whalen and Nixon.54 Instead, the Nelson plaintiffs highlighted first
and foremost that the questionnaires targeted highly “sensitive personal” and “intim-
ate health” information, and that this category of information was entitled to consti-
tutional protection.55 Plaintiffs also noted that, as part of NASA’s “suitability matrix”
used to evaluate employees, NASA considered such factors as sodomy,
homosexuality, adultery, and mental or psychological issues.56
The Court seemed not to take issue with the assertion that the questionnaires
implicated privacy interests of constitutional significance. This is in contrast to the
Whalen and Nixon decisions, where the Court downplayed the privacy interests at
stake because it could not see the intrusion. In Nelson, to overcome the privacy
interest in intimate, personal information, the Court spent the lion’s share of its
opinion trumpeting the countervailing governmental interests in this information,
including the importance of the positions to the nation’s space program. The Court
also distinguished the government’s role as employer (where background checks are
not uncommon) from its policing function, concluding that the government has
more latitude when acting in its capacity as employer. Finally, as in Whalen and
Nixon, the Court emphasized that there were statutory protections limiting the risk
of public dissemination of this information and any consequent downstream harm.
While the Court in Nelson seemed compelled by the plaintiffs’ concern over
intimate, personal information, in its efforts to override that interest, the Court once
again left unclear the appropriate test or framework for evaluating informational
privacy claims. The Court emphasized the reasonableness of the government
questionnaire no less than ten times in its opinion. The Court also rejected a

53
Brief for Respondents at 36, NASA v. Nelson, 562 U.S. 134 (2011) (No. 09-530), 2010 WL
3048324, at *36 [hereinafter Nelson Respondents’ Brief].
54
That said, the Nelson plaintiffs did not totally abandon appeals to dignity. See id. at *40. Nor
did Nixon totally neglect to highlight the intimate nature of some of the information at stake.
See, e.g., Brief for Appellant at 22, Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977) (No. 75-
1605), 1977 WL 189790, at *22.
55
Nelson Respondents’ Brief at *17, *20.
56
Id. at *29–30.
154 Outing Privacy as Anti-Subordination

requirement that the government demonstrate that its questionnaires are “‘neces-
sary’ or the least restrictive means of furthering its interests,” at least in the context of
when it is issuing an employment background check.
But as Justice Scalia’s concurrence noted, the majority opinion did little to clarify
the “doctrinal obscurity” surrounding the right to informational privacy, and used
the “vague” opinions in Whalen and Nixon to justify issuing another vague opinion
regarding the assumed informational privacy right.57 Justice Scalia continued,
lambasting the majority for listing a “multiplicity of unweighted, relevant factors”
all of which could be used to evaluate the hypothetical right to informational
privacy.
The Supreme Court has therefore confronted, and avoided, the constitutional
right to informational privacy on three occasions. Each time, the Court has assumed
that such a right exists but found no violation under the facts as no further disclos-
ure/dissemination by the government had yet occurred. The Court’s reluctance
appears in part to be a result of unclear conceptions of the interests directly served by
constitutional informational privacy. The Court’s hesitant and inconsistent analysis
has sewn confusion among the circuit courts.

2 Circuit Confusion
Faced with this “doctrinal obscurity,” circuit courts continue to wrestle with consti-
tutional informational privacy. As the Supreme Court observed in Nelson but did
little to correct, “[s]tate and lower federal courts have offered a number of different
interpretations of Whalen and Nixon over the years.”58 While the majority of circuits
have concluded that a constitutional right to informational privacy does exist, the
circuits are divided.59 Those circuits that do recognize the right have rarely vindi-
cated it.60
The circuits have also been unclear on the appropriate level of scrutiny for
evaluating informational privacy claims.61 Several employ a rational basis-like “bal-
ancing test” tilted in favor of the government,62 some utilize what sounds like

57
562 U.S. at 165–67 (Scalia, J., concurring in the judgment).
58
Id. at 146 n.9 (majority opinion).
59
Dillard v. O’Kelley, 961 F.3d 1048, 1054 (8th Cir. 2020) (expressing uncertainty as to whether
the right to informational privacy exists).
60
E.g., Doe v. Se. Pa. Transp. Auth. (SEPTA), 72 F.3d 1133, 1138, 1143 (3d Cir. 1995) (acknow-
ledging existence of right to informational privacy over HIV status, but failing to enforce right).
61
Mary Fan, Camera Power: Proof, Policing, Privacy, and Audiovisual Big Data 957–58
(2019) (“The courts – including the Supreme Court – have wavered and seesawed between
flexible reasonableness interest-balancing all the way up to what looks like strict scrutiny”).
62
E.g., In re Crawford, 194 F.3d 954, 959 (9th Cir. 1999); Borucki v. Ryan, 827 F.2d 836, 848 (1st
Cir. 1987); Hester v. City of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985); United States
v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980); Duplantier v. United States,
606 F.2d 654, 670 (5th Cir. 1979).
 Uncertainty over Informational Privacy 155

intermediate scrutiny,63 and others require strict scrutiny in certain circumstances.64

Others still reflect internal, intra-circuit confusion and seem to employ some
permutation of the traditional three levels of scrutiny.65 Some apply a different test
depending on the content of the information at stake.66 Finally, some at times
appeared to apply the Fourth Amendment reasonable expectation of privacy test,67
and others hint at the applicability of the undue burden test governing decisional
privacy cases in the abortion context.68
As with the Supreme Court, the circuits’ confusion regarding the appropriate
standard and reluctance to rigorously enforce a right to informational privacy
appears, at least partially, to be a product of the lack of a direct connection between
the purported informational privacy violation and a concrete, material harm. Some
examples are instructive.
Arguably, the Sixth Circuit has been the most reticent to embrace a constitutional
right to informational privacy. In J.P. v. DeSanti, the court considered the constitu-
tionality of an Ohio law that permitted the “social histories” of juvenile offenders to
be made available to over fifty-five government, social, and religious agencies.69 The
social histories included “intimate biographical details.” Following the Supreme
Court’s example in Nixon, the Sixth Circuit relied on Katz – one of the leading
Fourth Amendment intrusion cases – to downplay the extent of the intrusion caused
by the law.70 The court retorted (quoting Katz) that “[v]irtually every governmental
action interferes with personal privacy to some degree.” With that, the court
concluded that courts could not possibly be called upon to review and balance
“every government action against the corresponding intrusion on individual priv-
acy.” Not only did the court fail to see how the purportedly limited disclosure of the
social histories constituted an actionable intrusion analogous to those protected by
the Fourth Amendment, but it could not fathom policing every such potential
privacy claim. The court seemed to be searching for some limiting principle.

63
Denius v. Dunlap, 209 F.3d 944, 956 (7th Cir. 2000); Am. Fed’n of Gov’t Emps. v. Dep’t of
Hous. & Urban Dev., 118 F.3d 786, 793 (D.C. Cir. 1997); Doe v. City of New York, 15 F.3d 264,
269 (2d Cir. 1994); Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981); Plante v. Gonzalez,
575 F.2d 1119, 1131–34 (5th Cir. 1978).
64
Bloch v. Ribar, 156 F.3d 673, 686 (6th Cir. 1998); Walls v. City of Petersburg, 895 F.2d 188, 192
(4th Cir. 1990); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986).
65
Doe v. Att’y Gen. of the U.S., 941 F.2d 780, 796 (9th Cir. 1991); Fraternal Order of Police
v. City of Philadelphia, 812 F.2d 105, 110 (3d Cir. 1987); Taylor v. Best, 746 F.2d 220, 225 (4th
Cir. 1984); Barry v. City of New York, 712 F.2d 1554, 1559, 1564 (2d Cir. 1983); Thorne v. City of
El Segundo, 726 F.2d 459, 469 (9th Cir. 1983).
66
Lambert v. Hartman, 517 F.3d 433, 443–46 (6th Cir. 2008); J.P. v. DeSanti, 653 F.2d 1080, 1091
(6th Cir. 1981). In this way, the Sixth Circuit’s approach, which has been criticized by some as
the most restrictive, is perhaps most consistent with the approach advocated here.
67
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998); Kimberlin
v. U.S. Dep’t of Justice, 788 F.2d 434, 438 (7th Cir. 1986).
68
Seaton v. Mayberg, 610 F.3d 530, 538–39 (9th Cir. 2010).
69
653 F.2d at 1082.
70
Id. at 1089–91.
156 Outing Privacy as Anti-Subordination

It held that “not all rights of privacy or interests in nondisclosure of private infor-
mation are of constitutional dimension, so as to require balancing government
action against individual privacy,” seemingly leaving the door open to a more
nuanced, categorical approach to informational privacy claims.
The DC Circuit has characterized itself as sharing the Sixth Circuit’s trepida-
tion.71 In American Federation of Government Employees v. Department of Housing
and Urban Development, members of the American Federation of Government
Employees and the union itself challenged two employment questionnaires issued
by federal agencies.72 The forms were not unlike those subsequently addressed by
the Supreme Court in Nelson, and included questions regarding the employees’
drug use, mental health history, and financial stability. Although part of the court’s
decision rested on the government safeguards against public dissemination of the
collected information, the court also criticized as “Delphic” the Supreme Court’s
attempt to support the existence of an informational privacy right with reliance on
Fourth Amendment case law. The DC Circuit also specifically took issue with the
district court’s characterization of one questionnaire as “so vast an intrusion.”73 In
the end, the court was unpersuaded by attempts to analogize the right to infor-
mational privacy to the Fourth Amendment and failed to see the questionnaires as
directly implicating the dignity interest served by the Fourth Amendment.74
Courts have likewise been unpersuaded by attempts to argue that disclosure of
private information violates an informational privacy right implicating an autonomy
interest. For example, in Barry v. City of New York, employees of the New York City
police and fire departments challenged the constitutionality of certain financial
disclosure laws.75 They argued that “public disclosure will impair their autonomy

71
In re U.S. Office Pers. Mgmt. Data Security Breach Litigation, 928 F.3d 42, 72 (D.C.
Cir. 2018); see also Leiser v. Moore, 903 F.3d 1137, 1145 (10th Cir. 2018) (casting doubt on the
scope of a constitutional right to informational privacy post-Nelson).
72
118 F.3d 786, 788-89 (D.C. Cir. 1997).
73
Id. at 794; see also Big Ridge, Inc. v., Fed. Mine Safety & Health Review Comm’n, 715 F.3d 631
(7th Cir. 2013) (analyzing miners’ informational privacy claims to medical records under the
Fourth Amendment and finding no violation).
74
The outsized role of dignity in discussion of informational privacy claims emerged early on in
circuit jurisprudence, perhaps because informational privacy claims were brought in tandem
with cases that also clearly implicated traditional Fourth Amendment searches. For example, in
York v. Story, 324 F.2d 450, 451–52 (9th Cir. 1963), the Ninth Circuit addressed whether a
woman’s informational privacy rights were violated when she came to report a sexual assault to
the police, the police subsequently photographed her nude, and then distributed the photos
among the department for no law enforcement purpose. The case was an easy one for the court
because it fit nicely into the dignity–intrusion paradigm. There was a search (the photographs),
which by itself infringed on her dignity, and the distribution further denigrated her dignity. But
when there is no illegitimate search or intrusion in the first instance (as “intrusion” is classically
conceived under the Fourth Amendment), courts struggle to isolate and limit the harms caused
by government dissemination of information.
75
712 F.2d 1554 (2d Cir. 1983).
 Uncertainty over Informational Privacy 157

interests by forcing them to redefine their marital and family relationships.”

When the court balanced the purported privacy interests against the governmental
interests, it noted that disclosure could be “personally embarrassing,” but
seemed to give little weight to any autonomy injury. Evidently, the court
believed that such a harm was too specious and concluded that the
government’s interests in deterring official malfeasance outweighed any possible
disclosure of personally embarrassing facts. Similarly, in Seaton v. Mayberg,
the Ninth Circuit rejected a medical informational privacy claim in part
because the plaintiff failed to allege that disclosure of the information would have
placed an “undue burden” on or discouraged the plaintiff from obtaining medical
assistance.76
At the same time that they have been largely unpersuaded by generic appeals
to dignity or autonomy, circuits have expressed greater concern over dissemination
than mere government collection.77 This intensified concern highlights the
shortcomings of the traditional intrusion-based dignity approach to informational
privacy claims. The types of government action at play in informational
privacy claims, frequently involving government questionnaires or information
obtained through less obviously coercive means than a police search, simply do
not register with courts as constituting an intrusion implicating the plaintiff’s
personal dignity.78
Judicial emphasis on the dangers of dissemination of private information not only
demonstrates the relatively tangential role of an intrusion–dignity theory of infor-
mational privacy, but also the pertinence of a categorical approach79 focused on
direct, social consequences. Courts appear more open to informational privacy
claims when the dissemination of certain categories of information presages direct
consequences, such as potential discrimination.
As outlined more completely in the following section, in the constitutional
context, not all categories of information are treated equally (nor should they be)
and courts have been particularly sympathetic toward informational privacy claims
where plaintiffs have been able to demonstrate that either intimate information or
political thought are being jeopardized.

76
610 F.3d 530, 538–39 (9th Cir. 2010).
77
Kerns v. Bader, 663 F.3d 1173, 1186 (10th Cir. 2011); Am. Fed’n of Gov’t Emps. v. Dep’t of Hous.
& Urban Dev., 118 F.3d 786, 793 (D.C. Cir. 1997); Fraternal Order of Police v. City of
Philadelphia, 812 F.2d 105, 111, 118 (3d Cir. 1987); Barry, 712 F.2d at 1561; Statharos v. N.Y.C.
Taxi & Limousine Comm’n, 198 F.3d 317, 326 (2d Cir. 1999).
78
Hester v. City of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985) (characterizing as “limited
intrusion[s]” general polygraph control questions to fire department employees that did not
touch on sexual relations).
79
Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (“must examine the nature of the material
opened to public view to assess whether” it is protected); Thorne v. City of El Segundo,
726 F.2d 459, 471 (9th Cir. 1983) (suggesting that different levels of scrutiny apply based on the
type of privacy interest at stake).
158 Outing Privacy as Anti-Subordination

the uncovered categorical blueprint

We now know where we are (confusion over the existence of the right to infor-
mational privacy and its contours) and how we got here (in part, the imprecise extant
focus on autonomy and dignity as the principal values of informational privacy).
I argue that a solution relies, in part, on more forceful recognition of a straightfor-
ward proposition: as it happens, not all types of information are created equal.80 By
acknowledging (and then following) this simple edict, a more precise and concrete
theory of informational privacy that is conceptually distinguishable from the Fourth
Amendment and decisional privacy right can take shape. This acknowledgment will
also help courts move beyond the dignity and autonomy myopia and give shape to
an enforceable right to informational privacy that safeguards the proffered right’s
precise underlying interests – the right to privacy over intimate information and
political thought. As this section’s evaluation of precedent elucidates, there is an
undercurrent within constitutional informational privacy jurisprudence suggesting
that, normatively, both intimate information and information pertaining to political
thought are sui generis and should be subject to strict constitutional protection
under an informational privacy rubric. Doctrinally, both categories are closely
related to already recognized fundamental rights. And disclosure of intimate and
political information is more likely to result in tangible, negative consequences in
addition to any intrinsic harm resulting from disclosure, heightening their norma-
tive importance.81 In recognizing fundamental rights and subjecting them to
heightened scrutiny, courts have historically done so when such negative conse-
quences would result absent constitutional protection.82 Certain categories of infor-
mation (intimate and political) are more likely to result in material consequences
(such as discrimination or stifled political discourse) and, as such, are entitled to
more fundamental protection. In that sense, this chapter’s categorical approach to
apprehending informational privacy’s true value finds support in constitutional
doctrine and is poised to harness underlying normative judicial intuition.83

80
Pew Research Ctr., Public Perceptions of Privacy and Security in the Post-Snowden
Era 3 (2014), http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofPrivacy_111214
.pdf (observing that “[d]ifferent types of information elicit different levels of sensitivity among
Americans”).
81
Cf. Paul Ohm, Sensitive Information, 88 S. Cal. L. Rev. 1125 (2015) (documenting that laws
designed to protect sensitive information do so because the information is believed to cause
some sufficiently high probability of harm if shared publicly; in other words, whether infor-
mation causes harm goes a long way in determining whether it is considered sensitive and
entitled to protection under regulatory frameworks).
82
E.g., Lawrence v. Texas, 539 U.S. 558, 567 (2003) (highlighting the “far-reaching conse-
quences” of criminalizing sodomy); Loving v. Virginia, 388 U.S. 1, 12 (1967) (emphasizing in
its Due Process analysis that denying interracial couples the right to marriage denied a right
fundamental to “our very existence and survival” and resulted in discrimination).
83
Jerome Frank, Law and the Modern Mind 104 (1930) (explaining that jurisprudence and
case law reflect judicial “hunches,” which in turn shape doctrine).
 Uncovered Categorical Blueprint 159

By focusing on intimate information, political thought, and the role of material

consequences, the framework is reflective of courts’ hunch that these factors are of
constitutional import. While I suggest that case law demonstrates the existence of a
judicial hunch or intuition that intimate information and political thought deserve
greater constitutional protection, particularly when coupled with downstream con-
sequences, I am not making a reductive, cynical realist argument that this “hunch”
has resulted in a clear shift in doctrine based on what judges view, in their supposed
“unfettered” discretion, as right and wrong. Nor am I advocating that judges decide
cases based purely on their “hunches.”84 Quite the opposite. I believe that in this
instance, the relatively widespread “hunch” supports the existence of a right and
serves as evidence of a positive constitutional norm in favor of intimate and political
information, but that courts have struggled to animate that hunch in their judicial
decisions because of multiple doctrinal barriers resulting from the imprecise focus
on dignity and autonomy. In other words, one of the goals of this chapter is to
provide a doctrinal solution or outlet for the normative judicial appetite in favor of
intimate information and political thought. Viewed accordingly, my argument is, in
some ways, a simple exegesis of preexisting currents within existing jurisprudence.
The approach is not a departure from standard modes of constitutional interpret-
ation. Finally, by isolating these two categories of information, this chapter’s
approach also shapes the right to informational privacy as manageable and limited
in scope, increasing its likelihood of judicial acceptance.

1 Intimate Information
Intimate information is entitled to strict constitutional protection under the Due
Process Clause of the Fifth and Fourteenth Amendments. As used here, intimate
information includes highly personal information: principally, sexual, medical, and
mental health information.
Despite confusion regarding the existence of a right to informational privacy and
the right’s contours, the circuit courts have been most sympathetic when claims
implicate intimate information. For example, several courts have recognized (at
least rhetorically) that medical information should be entitled to constitutional
protection.85 Others have specifically indicated that mental health information is

84
Cf. Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex.
L. Rev. 267, 268 (1997) (critiquing as inaccurate the received view of realism as positing that
judges exercise unfettered discretion and use doctrine to after-the-fact rationalize their precon-
ceived beliefs).
85
Hancock v. Cty. of Rensselaer, 882 F.3d 58, 65 (2d Cir. 2018); Tucson Woman’s Clinic v. Eden,
379 F.3d 531, 553 (9th Cir. 2004); Herring v. Keenan, 218 F.3d 1171, 1173 (10th Cir. 2000; Denius
v. Dunlap, 209 F.3d 944, 956 (7th Cir. 2000); Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999);
Norman-Bloodshaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998); Eagle
v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996); Doe v. City of New York, 15 F.3d 264, 267 (2nd
160 Outing Privacy as Anti-Subordination

protected.86 The circuits have also widely recognized that sexual information,
including but not limited to information regarding an individual’s sexual orientation
and gender identity, is subject to constitutional safeguards.87 At a higher level of
abstraction, there seems to be a growing consensus that “highly personal infor-
mation” is encompassed within the right to informational privacy.88 These decisions
serve as evidence of a judicial intuition or undercurrent that certain categories of
intimate information normatively ought to be entitled to robust constitutional
protection. But notwithstanding their instinct that intimate information is subject
to heightened protection, lacking a clear and robust framework, circuit courts have
frequently failed to actually protect such information in their holdings.89
There are also hints within the Supreme Court’s informational privacy trifecta
that the Court may be prepared to acknowledge that certain types of information are
subject to more rigorous constitutional protection. For example, in Nixon, the Court
seemed to recognize – at least in the abstract – that Nixon’s communications with
his wife and physician were of special importance, but concluded that the statutory
safeguards in place were sufficient.90 Chief Justice Burger’s dissent in Nixon also
provides powerful support for distinguishing intimate information as constitutionally

Cir. 1994); Alexander v. Peffer, 993 F.2d 1348, 1351 (8th Cir. 1993); Doe v. Att’y Gen. of the U.S.,
941 F.2d 780, 795 (9th Cir. 1991); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105,
113 (3d Cir. 1987); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980).
But see Lee v. City of Columbus, 636 F.3d 245, 261 (6th Cir. 2011). But see Leiser, 903 F.3d at
1145 (suggesting that some kinds of stigmatized medical information may be subject to protec-
tion, but nonstigmatized medical conditions may not be); Matson v. Board of Ed., 631 F.3d 57,
69 (2d Cir. 2011)(while other conditions may be protected, fibromyalgia not entitled to consti-
tutional privacy protections)
86
Cf. Am. Fed’n of Gov’t Emps. v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 794 (D.C.
Cir. 1997).
87
Lambert v. Hartman, 517 F.3d 433, 441 (6th Cir. 2008); Sterling v. Borough of Minersville,
232 F.3d 190, 196 (3d Cir. 2000); Powell, 175 F.3d at 111; Bloch v. Ribar, 156 F.3d 673, 685–86
(6th Cir. 1998); ACLU v. Mississippi, 911 F.2d 1066, 1070 (5th Cir. 1990); Eastwood v. Dep’t of
Corr., 846 F.2d 627, 631 (10th Cir. 1988); Thorne v. City of El Segundo, 726 F.2d 459, 468 (9th
Cir. 1983; York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). But see Walls v. City of Petersburg,
895 F.2d 188, 193 (4th Cir. 1990).
88
Fraternal Order, 812 F.2d at 112–13 (“The more intimate or personal the information, the more
justified is the expectation that it will not be subject to public scrutiny”); Barry v. City of New
York, 712 F.2d 1554, 1562 (2d Cir. 1983) (concluding that “highly personal” information is
subject to constitutional protection, in contrast to nonpersonal information).
89
Leiser, 903 F.3d at 1145 (concluding that post-Nelson, right to informational privacy over certain
kinds of medical information was not clearly established); Bloch, 156 F.3d at 686–87 (finding
that a right to informational privacy was not sufficiently clearly established to defeat qualified
immunity); Powell, 175 F.3d at 115 (same); Doe v. Se. Pa. Transp. Auth. (SEPTA), 72 F.3d 1133,
1143 (3d Cir. 1995) (under a balancing test, no violation where a public employee’s HIV status
was disclosed to his government employer by a government doctor); Borucki v. Ryan, 827 F.2d
836, 849 (1st Cir. 1987) (finding that a right to informational privacy was not sufficiently clearly
established to defeat qualified immunity); J.P. v. DeSanti, 653 F.2d 1080, 1089–90 (6th
Cir. 1981) (rejecting a universal balancing approach to informational privacy in favor of a
case-by-case inquiry into whether the plaintiff claims a “fundamental” right).
90
433 U.S. 425, 459, 465 (1977).
 Uncovered Categorical Blueprint 161

protected. In concluding that the legislative scheme for perusing Nixon’s papers did
violate Nixon’s informational privacy rights, Burger highlighted the personal nature
of some of the documents to distinguish them from other types of records, such as
commercial records.91 Burger also noted that when fundamental liberties were
threatened, the burden was on the government to demonstrate that a compelling
government interest was at stake and that the legislation was “needed to achieve
those goals.” Then Justice Rehnquist echoed many of Burger’s concerns in a
separate dissent.92 Additionally, as discussed above, in Nelson the Court was very
attentive to the fact that intimate information – including mental health infor-
mation – was at issue.93
Outside the context of cases characterized as asserting informational privacy
claims, the Supreme Court has also signaled that intimate information – as a
category of information – is subject to greater constitutional protection. For
example, in Riley v. California, a Fourth Amendment case involving the search of
a cell phone incident to an arrest, the Court recognized that “certain types of data
are also qualitatively different.”94 The principal example was that a cell phone could
reveal that a person had researched “certain symptoms of disease, coupled with
frequent visits to WebMD.”95 The Court also noted that a cell phone’s “apps” could
disclose information regarding a person’s romantic life and alcohol or drug addic-
tions. Similarly, in Carpenter, the Court highlighted that prolonged periods of
physical location data provided an “intimate window” into someone’s life, including
their political, religious, and sexual activities.96 And as the Court’s decision in
United States v. Windsor illustrates, the Constitution protects individuals’ “moral
and sexual choices.”97 As a final constitutional law example, in Obergefell v. Hodges,
the Court emphasized the importance of intimacy.98

91
Id. at 527, 529, 534 & n.27 (Burger, C.J., dissenting).
92
Id. at 546–47 n.1 (Rehnquist, J., dissenting).
93
See also Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America
48 (2000) (“And sexual identity is the most personal of all aspects of identity”); James P. Nehf,
Recognizing the Societal Value in Information Privacy, 78 Wash. L. Rev. 1, 33 (2003) (noting
that “courts have occasionally found a constitutionally protected right to information privacy
when the records involve highly personal issues such as sexual practices or medical condi-
tions”); Elbert Lin, Note, Prioritizing Privacy: A Constitutional Response to the Internet,
17 Berkeley Tech. L.J. 1085, 1126 (2002) (observing that courts more routinely recognize a
right to informational privacy when “intimate or highly personal information” is at stake); Julie
C. Inness, Privacy, Intimacy, and Isolation 56 (1992) (suggesting that intimacy is the
touchstone of the right to informational privacy).
94
573 U.S. 373, 395 (2014).
95
Id.; cf. Sorrell v. IMS Health Inc., 564 U.S. 552, 557 (2011) (in a First Amendment challenge to
a pharmaceutical marketing law, acknowledging that the government’s interest in safeguarding
medical privacy is significant).
96
138 S.Ct. 2206, 2217 (2018).
97
570 U.S. 744, 772 (2013).
98
135 S.Ct. 2584, 2597 (2015).
162 Outing Privacy as Anti-Subordination

The solicitude for intimate information extends beyond constitutional law to

regulatory privacy efforts. While Congress’s attempts to enact privacy protections
have been piecemeal (and insufficient), the modern federal privacy statutes have
been largely influenced by concerns over “governmental collection and abuse of
intimate information.”99 As Paul Ohm has highlighted, attempts to pass laws
regulating and protecting what he calls “sensitive information” have been much
more successful than attempts to regulate channels of communication, in part
because sensitive information is both narrower in scope and more emotionally
salient to lawmakers.100 Likewise, on the state level, new legislation attempting
to regulate nonconsensual pornography often emphasizes the critical role that
intimate/sexual information plays and the direct harms that can result from
disclosure of such information.101 That intimate information, as a category, ought
to be entitled to protection is also supported by common-law invasion of
privacy jurisprudence. Pursuant to the Restatement of Torts, an individual is
liable for public disclosure of private facts if the publicized information “would be
highly offensive to a reasonable person” (although, as analyzed in the final
chapter, other requirements of the tort greatly limit its utility for marginalized
communities).102
Of course, the Supreme Court is not in the habit of impulsively recognizing
“new” fundamental constitutional rights under the Due Process Clause. Instead, the
Court recognizes as fundamental those substantive due process rights that have a
foundation in the nation’s history and tradition.103 That being said, the Court has
been very clear that rights need not be specifically delineated in the text of the Fifth
and Fourteenth Amendment to be considered fundamental. As the Court held in
Obergefell, “[h]istory and tradition guide and discipline [the Due Process] inquiry
but do not set its outer boundaries. That method respects our history and learns from
it without allowing the past alone to rule the present.”104 Similarly, in Lawrence,
when the Court struck down antisodomy laws as violating Due Process, it held that:
[h]ad those who drew and ratified the Due Process Clauses of the Fifth
Amendment or the Fourteenth Amendment known the components of liberty in
its manifold possibilities, they might have been more specific. They did not
presume to have this insight. They knew times can blind us to certain truths and
later generations can see that laws once thought necessary and proper in fact serve

99
Erin Murphy, The Politics of Privacy in the Criminal Justice System: Information Disclosure, the
Fourth Amendment, and Statutory Law Enforcement Exemptions, 111 Mich. L. Rev. 485, 495
(2013).
100
Ohm, supra note 81.
101
E.g., 720 Ill. Comp. Stat. Ann. § 5/11-23.5 (2020); Wis. Stat. Ann. § 942.09 (2020).
102
Restatement (Second) of Torts § 652D (1977); Mark Bartholomew, Intellectual Property’s
Lessons for Information Privacy, 92 Neb. L. Rev. 746, 772 (2014) (observing that tort law has
taken a categorical approach to information privacy).
103
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997).
104
135 S. Ct. at 2598.
 Uncovered Categorical Blueprint 163

only to oppress. As the Constitution endures, persons in every generation can

invoke its principles in their own search for greater freedom.105

Significantly, intimate information, as defined here, bears a striking similarity to

already recognized fundamental rights. As Chief Justice Rehnquist explained, “we
have held that … the ‘liberty’ specially protected by the Due Process Clause
includes the rights to marry, to have children, to direct the education and upbring-
ing of one’s children, to marital privacy, to use contraception, to bodily integrity, and
to abortion.”106 The right to limit the government’s ability to disseminate and collect
sexual or medical information is closely related to the subject matter of these
fundamental rights. In order for many of these fundamental rights to have real,
practical meaning, as an antecedent right, privacy over intimate information seems
required. For example, the right to make decisions about contraception use or
engage in consensual sexual activity will be of little use if the government is able
to learn of and disseminate information regarding that activity, policing one’s
behavior. (Importantly, that the right to informational privacy may help give life to
preexisting fundamental rights – including decisional autonomy rights – does not
mean that plaintiffs are required to show that, in fact, the government’s actions did
chill their activity, lest the right to informational privacy become indistinguishable
and merely duplicative of these other fundamental rights and lest the approach
advocated here become indistinguishable from the autonomy-based approach pre-
viously critiqued.)
Accordingly, existing Supreme Court and circuit precedent implicitly supports
recognition of a fundamental right to limit dissemination of intimate information.
The next step is for the courts to make that underlying principle explicit.
Government imposition on fundamental rights is subject to strict scrutiny, sug-
gesting that, rather than a milquetoast balancing test adopted by many circuits for
informational privacy claims, heightened scrutiny is the proper standard of review
for privacy claims implicating intimate information.107 Skeptics of this position will
be quick to point out that the Court in Nelson seemed to suggest that strict scrutiny
was not appropriate. The Court “reject[ed] the argument that the Government,
when it requests job-related personal information in an employment background
check, has a constitutional burden to demonstrate that its questions are ‘necessary’ or
the least restrictive means of furthering its interests.”108 Importantly, the Court’s
pronouncement was a limited one – directed specifically to the context where the
government is an employer and has more latitude than when serving as regulator or

105
539 U.S. 558, 578–79 (2003).
106
Glucksberg, 521 U.S. at 720 (citations omitted).
107
Whalen v. Roe, 429 U.S. 589, 606 (1977) (Brennan, J., concurring) (“Broad dissemination by
state officials of [medical] information, however, would clearly implicate constitutionally
protected privacy rights, and would presumably be justified only by compelling state interests”).
108
562 U.S. 134, 153 (2011).
164 Outing Privacy as Anti-Subordination

exercising police powers. Moreover, while the Court seems to reject the second half
of the strict scrutiny test analyzing the closeness of the relationship between the
government’s objective and the means chosen for achieving that objective, the
Court notably did not hold that the government’s interest must be anything less
than compelling. Put succinctly, NASA v. Nelson does not wholesale reject strict
scrutiny for informational privacy claims. Conversely, as noted earlier, some circuits
have concluded that strict scrutiny is the most appropriate standard of review for
informational privacy claims.109
While there is a general aversion to applying strict scrutiny, it is important to
recognize that the right advanced herein is a very narrow one that has been carefully
described, keeping with the Supreme Court’s preferences when recognizing funda-
mental rights. Not all information implicates a fundamental right. Not all infor-
mation is entitled to strict scrutiny. To the extent that information falls outside these
narrow categories, the government action is subject to less rigorous review. Only
intimate information and, as discussed in the following section, political thought,
are fundamental and entitled to strict scrutiny.

2 Political Thought
Like intimate information, data pertaining to political thought (including religious
thought) is subject to strict, constitutional protection. The fundamental value of
political information is evinced by the history and very purpose of the Constitution,
circuit precedent directly addressing informational privacy claims, and related First
Amendment precedent.
A key goal of the Constitution, and the Revolution that preceded it, was ensuring
a pluralistic political process (at least for privileged white men). Any constitutional
right to privacy must be viewed through this history. As observed by others, one of
informational privacy’s principal values is in creating space for countermajoritarian
ideas to take seed, ensuring a fruitful marketplace of ideas and a democratic
society.110 The Constitution itself was drafted and discussed in a closed-door meeting
in Philadelphia, illustrating the importance of informational privacy to the demo-
cratic process.111

109
See Vincent J. Samar, The Right to Privacy: Gays, Lesbians, and the Constitution 185
(1991) (explaining that Nixon may be consistent with requiring informational privacy violations
to be justified by a compelling state interest).
110
Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 456 (1980) (“[I]ndividuals must
have the right to keep private their votes, their political discussions, and their associations if they
are to be able to exercise their liberty to the fullest extent … [d]enying the privacy necessary for
these interactions would undermine the democratic process”); Nehf, supra note 93, at 69
(informational privacy “is necessary to the proper functioning of a democratic political
system”).
111
Westin, supra note 31, at 46–47.
 Uncovered Categorical Blueprint 165

As outlined extensively in Chapter 2, other scholars have also observed the

relationship between privacy, freedom of thought, association, and democracy.112
Recognition that informational privacy plays an important role in preserving the
structure of our democracy, and accordingly, that privacy of political discourse and
thought is of constitutional relevance, is not limited to scholarly, historical descrip-
tions. The Supreme Court has also highlighted the important role privacy plays in
advancing political thought. For example, in Riley, mentioned previously, the Court
highlighted that political information and thought were of heightened importance,
observing that warrantless cell phone searches were prohibited because cell phones
contained political information revealing whether the person looked “for
Democratic Party news and Republican Party news.”113 The Court made similar
observations in Carpenter.114
Circuit courts that have addressed informational privacy claims touching on
political thought have also emphasized its constitutional importance. For example,
in ACLU v. Mississippi, the Fifth Circuit concluded that the constitutional right to
informational privacy restricted the state’s ability to publicly disclose files from the
Mississippi State Sovereignty Commission, the state’s disbanded secret intelligence
arm previously committed to perpetuating racial segregation.115 Because the
Commission reports included documentation of “extreme political and religious
views” and other sensitive information, the Court reasoned that the “plaintiffs
undeniably have an interest in restricting the disclosure of” that information and
vacated the district court’s order publicly releasing the files without restriction.
In addition to the fact that the nation’s history and tradition indicate that protec-
tion of political thought is one of the fundamental interests served by an infor-
mational privacy right, protection of political thought information is also supported
by First Amendment jurisprudence (again, as outlined in Chapter 2). Beginning
with NAACP v. Alabama ex rel. Patterson, the Supreme Court has held that
organizations cannot, absent a compelling government interest, be forced to disclose
their membership.116 In concluding that forced disclosure of private membership
lists is “subject to the closest scrutiny,” the Court has noted the link between private
points of view, freedom of expression, and democratic governance.117 This First
112
David Alan Sklansky, Too Much Information: How Not to Think About Privacy and the Fourth
Amendment, 102 Calif. L. Rev. 1069, 1094–1101 (2014) (cataloguing other scholars who have
noted the relationship between informational privacy and democracy).
113
573 U.S. at 396.
114
138 S.Ct. 2206, 2217 (2018).
115
911 F.2d 1066 (5th Cir. 1990).
116
357 U.S. 449, 463–66 (1958); cf. Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) (collecting authority
and concluding that disclosure requirements within electoral context are subject to “exacting
scrutiny”); Hollingsworth v. Perry, 558 U.S. 183, 195 (2010) (refusing to permit even limited
broadcast of Proposition 8 trial in part because witnesses’ politically charged views would be
disseminated).
117
Patterson, 357 U.S. at 460–62 (holding that “[e]ffective advocacy of both public and private
points of view, particularly controversial ones, is undeniably enhanced by group association,”
166 Outing Privacy as Anti-Subordination

Amendment right to limit the government’s ability to disclose one’s membership in

a political organization directly supports a due process right to limit the govern-
ment’s ability to collect and disseminate one’s political thoughts.118 Of course,
membership in an organization is but one way that private, political thoughts may
be expressed. It is certainly not the only way. And the Court’s predilection for
protecting the privacy of political association (and freedom of expression more
broadly) logically directly extends to protection of private political thought,119 even
if not expressed via associational membership.120 In addition, the First Amendment’s
heightened protection for free expression of religion provides additional doctrinal
support for viewing political and religious thought as subject to strict constitutional
protections.121
In sum, undercurrents within informational privacy jurisprudence, supported by
First Amendment authority, suggest that information pertaining to political thought
is subject to heightened protection under the Due Process Clause, and protection of
such thought is particularly significant for marginalized communities, whose views
and ideas on how to advance anti-subordination may otherwise be subject to
government dissemination and then stigmatization.
If intimate and political information is subject to strict constitutional protection,
what is excluded? One prominent example might be financial information.
Financial information does not bear a close relationship to already existing consti-
tutional rights. Moreover, in contrast to intimate information and political thought,
courts have rather routinely minimized the privacy interests affected by financial

that “[i]t is beyond debate that freedom to engage in association for the advancement of beliefs
and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause,” and that
there is a “vital relationship between freedom to associate and privacy in one’s associations”);
see also Am. Fed’n of Gov’t Emps. v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 792 (D.C.
Cir. 1997) (suggesting that one potential reading of Whalen is that the Constitution limits
disclosure where it threatens particularized rights “such as the associational rights protected by
the First Amendment”); Anita L. Allen, Associational Privacy and the First Amendment:
NAACP v. Alabama, Privacy and Data Protection, 1 Ala. C.R. & C.L. L. Rev. 1, 3 (2011)
(associational privacy “minimizes the risk of stigma or reprisal flowing from group
membership”).
118
Arthur R. Miller, The Assault on Privacy: Computers, Data Banks, and Dossiers 199,
203–04 (1971) (suggesting that First Amendment protections for freedom of association could
provide the basis for a right to informational privacy).
119
Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in
Cyberspace, 28 Conn. L. Rev. 981, 1006–07 (1996) (explaining that “[t]houghts and opinions,
which are the predicates to speech, cannot arise in a vacuum” and that “[i]t is this iterative
process of ‘speech-formation’ – which determines, ultimately, both the content of one’s speech
and the particular viewpoint one espouses – that the First Amendment should shield from
scrutiny”).
120
Similarly, to the extent that the Constitution protects the fundamental right to vote, those
protections also support a right to informational privacy over political thought. Yick Wo
v. Hopkins, 118 U.S. 356, 370 (1886) (declaring the right to vote a “fundamental political right”).
121
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (a law,
which burdens religious practice and is not of general applicability, must meet strict scrutiny).
 Uncovered Categorical Blueprint 167

disclosure laws – that is, there is not as robust a social or judicial undercurrent
recognizing that financial information is of such constitutional importance to
warrant heightened scrutiny.122 With time, attitudes toward financial information
may (and should) change, particularly as government disclosure and subsequent
abuse of others’ financial information grows,123 with members of different marginal-
ized groups particularly vulnerable to the direct consequences of such disclosures.

3 Direct Material Consequences

At various points, this chapter argues that direct material consequences play a role in
establishing the normative value of intimate information and political thought and
in influencing judicial evaluation of informational privacy claims. Let me be clear
about what that role is. First, I am not suggesting that to state a claim a plaintiff must
plead or prove that the collection and dissemination of information caused a
concrete, economic, or physical harm.124 Rather, my claim regarding judicial
decision-making, based on a review of informational privacy jurisprudence, is that
informational privacy claims are more likely to prevail and find doctrinal footing
when the plaintiff can show that there are such consequences to information
dissemination. As Ann Bartow has underscored, for privacy rights to be vindicated,
privacy advocates must refrain from framing “privacy harms in dry, analytical terms
that fail to sufficiently identify and animate the compelling ways that privacy
violations can negatively impact the lives of living, breathing human beings beyond
simply provoking feelings of unease.”125 In this way, while the presence or absence of
direct material consequences may have limiting or funneling effect on the right to

122
E.g., Moore v. WesBanco Bank Ltd. 612 Fed. App’x. 816, 823 (6th Cir. 2015) (financial records
not protected); Lambert v. Hartman, 517 F.3d 433, 44 (6th Cir. 2008) (good credit not
constitutionally protected); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 115
(3d Cir. 1987) (certain financial information may be less intimate than medical information);
Duplantier v. United States, 606 F.2d 654, 671 (5th Cir. 1979) (financial information “has
received little constitutional protection” (quoting O’Brien v. DiGrazia, 544 F.2d 543, 546 (1st
Cir. 1976)); see also Flint v. Stone Tracy Co., 220 U.S. 107, 174–76 (1911) (Fourth Amendment
did not prohibit public inspection of tax returns as means of ensuring “fullness and accuracy” of
tax returns).
123
A. Michael Froomkin, Government Data Breaches, 24 Berkeley Tech. L.J. 1019 (2009).
124
Nothing in the Supreme Court’s standing jurisprudence suggests that a plaintiff must plead
such an injury to satisfy Article III standing. Cf. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,
1154–55 (2013) (concluding that plaintiffs had no standing to challenge certain provisions of the
Foreign Intelligence Surveillance Act because they could not demonstrate that they have been
surveilled, but suggesting that if they had evidence they had been surveilled, they would satisfy
Article III standing requirements); Seth F. Kreimer, “Spooky Action at a Distance”: Intangible
Injury in Fact in the Information Age, 18 U. Pa. J. Const. L. 745 (2016) (documenting that
despite rhetorical insistence on direct, tangible and palpable injuries, intangible informational
harms are often permitted into the courthouse).
125
Ann Bartow, A Feeling of Unease about Privacy Law, 154 U. Pa. L. Rev. PENNumbra 52, 52
(2006).
168 Outing Privacy as Anti-Subordination

informational privacy, the absence of such harms is not necessarily and should not
be a per se bar.126
How, then, do direct material consequences interact with the two categories of
information subject to strict scrutiny and help establish their normative import as the
values underlying informational privacy? This is the second point. Intimate
information and political thought are the values underlying an informational privacy
right (and are entitled to strict scrutiny) in part because they are likely to result in
negative palpable consequences, such as discrimination, marginalization, or even
violence.
While such harms ought not be required to vindicate an informational privacy
claim, the presence or absence of material consequences appears to have a signifi-
cant impact on judicial appetite for privacy claims.127 The Second Circuit’s decision
in Powell v. Schriver128 is a good example. There, a prison guard disclosed that a
particular inmate was HIV-positive and had undergone a so-called sex-change
operation to other inmates and guards (the increasingly preferred term is “gender
confirmation surgery”). In concluding that the inmate did have a constitutional
right to privacy over this information – even in the prison setting – the court
emphasized that disclosing the information exposed the inmate to potential discrim-
ination and harassment. The court observed that the potential for such downstream
discrimination was “obvious” when dealing with intimate information such as one’s
HIV status or gender identity.129 Conversely, in cases such as Nixon, where the
former president was unable to articulate a direct harm to having his voluminous
papers reviewed where personal papers were segregated from publication, courts
have been reluctant to find informational privacy violations.130 Similarly, in Nelson,
the Supreme Court emphasized that the responses to the employment

126
Cf. Solove, supra note 14, at 30 (arguing that “demanding more palpable” privacy harms may
be problematic); Ryan Calo, Privacy Harm Exceptionalism, 12 Colo. Tech. L.J. 361, 364 (2014)
(arguing that privacy victims should not be required “to move theoretical or evidentiary
mountains before they see recovery”).
127
Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004); In re Crawford, 194 F.3d
954, 959–60 (9th Cir. 1999; Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999; Kallstrom v. City
of Columbus, 136 F.3d 1055, 1062–63 (6th Cir. 1998); In re Doe, 15 F.3d 264, 267 (2d Cir. 1994);
Alexander v. Peffer, 993 F.2d 1348, 1350 (8th Cir. 1993); Fadjo v. Coon, 633 F.2d 1172, 1174 (5th
Cir. 1981); United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir. 1980); Tosh
v. Buddies Supermarkets, Inc., 482 F.2d 329, 332 (5th Cir. 1973). But see Plante v. Gonzalez,
575 F.2d 1119, 1135 (5th Cir. 1978) (“When a legitimate expectation of privacy exists, violation of
privacy is harmful without any concrete consequential damages”).
128
175 F.3d 107 (2d Cir. 1999).
129
The fact that the court in Powell ultimately denied the claim based on qualified immunity, id.
at 114, highlights the need for the clear doctrinal framework outlined in this chapter. See also
King v. Montgomery Cty., No. 19-5500, 2020 WL 41908 (6th Cir. Jan. 3, 2020) (limiting
informational privacy claims to situations where bodily harm could result or sexual privacy is
implicated); Matson, 631 F.3d at 68 (affirming dismissal of claim in part because plaintiff failed
to allege that medical disclosure led to discrimination or intolerance).
130
433 U.S. 425, 458 (1977) (privacy claim “cannot be considered in the abstract”).
 Uncovered Categorical Blueprint 169

questionnaires could not be used as evidence in any criminal proceeding, mitigating

any downstream harm.131
Judicial emphasis on the presence of direct material consequences in privacy
cases has occurred in other contexts as well. For example, in Lawrence, the Court
emphasized that the proscription of sodomy did much more than prohibit a specific
sex act, but instead had “more far-reaching consequences, touching upon the most
private human conduct, sexual behavior.”132 The importance of downstream conse-
quences is also consistent with the Supreme Court’s constitutional jurisprudence
suggesting that vulnerable groups are entitled to enhanced protection. For example,
in Windsor, the Supreme Court emphasized that laws that impose a legal impair-
ment on vulnerable groups are constitutionally suspect.133
The saliency of direct material harms is, in a way, corollary to the analysis
indicating that courts, outside of the Fourth Amendment intrusion context, are
unable to see the connection between informational privacy claims and dignity
harms. Absent direct, forceful government searches, courts expect more than an
injury to mere dignity. They expect a direct material harm. That harm is often
inherently and palpably present in cases involving disclosure of intimate information
and political thought. This chapter’s framework recognizes that reality and provides
courts a clear course to follow in adjudicating informational privacy claims.
A brief review of some of the government informational privacy problems high-
lighted in Chapter 1 shows how intimate information and political information
directly lead to harm. For example, purportedly vanilla/neutral policies requiring
individuals to provide proof of surgery before changing gender designations on
government-issued identification documents directly infringe on transgender indi-
viduals’ informational privacy.134 For the many transgender people who are unable
or choose not to have gender confirmation surgery, the government’s surgery
requirement publicly outs the individual to anyone (such as an employer) who
observes the dissonance between the person’s identification and gender

131
526 U.S. 134, 141 (2011).
132
539 U.S. 558, 567 (2003). See Nehf, supra note 93, at 26 (“The more cognizable and immediate
problem with a loss of information privacy, and the problem that is most likely to produce a
political resolution, is our inability to avoid circumstances in which others control information
that can affect us in material ways – whether we get a job, become licensed to practice in a
profession, obtain a critical loan, or fall victim to identity theft”); see also Hollingsworth
v. Perry, 558 U.S. 183, 195-96 (2010) (prohibiting limited broadcast of Proposition 8 trial because
witnesses could be subject to harassment as a result of the broadcast of their testimony)
133
570 U.S. 744, 772 (2013); see also Romer v. Evans, 517 U.S. 620, 635 (1996) (emphasizing the
“immediate, continuing and real injuries” inflicted on LGBT individuals), City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985) (“mere negative attitudes, or fear . . . are not
permissible bases” for differential treatment).
134
K.L. v. State of Alaska, No. 3AN–11–05431 CI, 2012 WL 2685183, at *8 (Alaska Super. Ct.
Mar. 12, 2012). The author provided early research assistance to the ACLU, plaintiff’s counsel in
K.L. v. State of Alaska, on fertile jurisdictions for an informational privacy lawsuit challenging
strict gender marker modification requirements.
170 Outing Privacy as Anti-Subordination

presentation, subjecting them to real harm. As explained by Lisa Mottet, “[t]his is

not an abstract issue; inspection of one’s birth certificate (or documents it generates)
can lead directly to discrimination and even violence, especially when a situation
involves interactions with security officers, employment, or access to sex-segregated
facilities.”135 To the extent transgender individuals do comply with the surgery
requirement, they are forced to provide intimate medical and sexual details to the
state, in many cases leaving a public record.136 In addition, transgender people are
also outed when governments, schools, or employers refuse to let them use a
bathroom consistent with their gender expression, and force them to use bathrooms
that align with the sex assigned at birth or segregate them in unisex restrooms.
Providing privacy to LGBTQ individuals is particularly important given that federal
law and many states do not provide comprehensive or explicit discrimination
protections based on gender identity and sexual orientation.137 In other words,
privacy serves as a liminal right while queer individuals continue to fight for full
inclusion. Moreover, because even when they do exist on the books anti-
discrimination laws are difficult to enforce and access to justice barriers persist,
preventing discrimination at the outset by limiting information remains an import-
ant avenue of ensuring lived equality even when formal equality may be attained.
Indeed, many employment discrimination statutes recognize this very point, forbid-
ding not only hiring and firing on the basis of a protected characteristic, but also
preventing collection of certain information related to that characteristic ex ante to
prevent the discrimination before it happens.138
Similarly, while there are antidiscrimination protections for people living with
HIV through the Americans with Disability Act,139 providing robust privacy protec-
tions for people living with HIV is an important antecedent protection that will help
ensure that the discrimination does not happen in the first instance. Because the
government overtly and covertly collects vast amount of our health information140

135
Lisa Mottet, Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender
Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of
Transgender People, 19 Mich. J. Gender & L. 373, 391–92 (2013); see also Dean Spade,
Documenting Gender, 59 Hastings L.J. 731, 754–57 (2008) (describing the employment con-
sequences caused by lack of an accurate identification document).
136
Mottet, supra note 135, at 432 (arguing that policies which provide access to records indicating
that a person changed their gender marker create privacy concerns).
137
While the Supreme Court recently held in Bostock v. Clayton County, GA, No. 17-1618 (June
15, 2020), that federal prohibitions on sex discrimination in employment extend to discrimin-
ation on the basis of sexual orientation or gender identity, Title VII does not apply to businesses
with fewer than fifteen employees and federal protections also do not exist in other contexts,
such as discrimination by public accommodations.
138
Helen Norton, Discrimination, The Speech that Enables It, and the First Amendment, 2020 U.
Ch. L. For. forthcoming 2020)
139
Scott Skinner-Thompson, HIV and Employment, in AIDS and the Law (Skinner-Thompson
ed., 6th ed. 2020).
140
For instance, in addition to states’ names-based reporting systems for people who test positive
for HIV, for a time, the federal Department of Health and Human Services (HHS) failed to
 Uncovered Categorical Blueprint 171

and because misunderstandings of and stigma toward people living with HIV
remains prevalent in the United States,141 people living with HIV must retain the
ability to keep their medical status confidential. Despite the limited privacy protec-
tions afforded by statutory regimes such as the Health Information Portability and
Accountability Act (HIPAA), which provides no private cause of action and gener-
ally only applies to healthcare entities and providers,142 state officials, such as
corrections officers or police officers, have repeatedly disclosed individuals’ HIV
statuses, exposing the individual to discrimination and possible violence.143
To be clear, privacy alone will not solve persistent stigma and discrimination
regarding HIV (or other marginalized characteristics). Education regarding the virus
is the most potent antidote toward continued misunderstanding. But privacy is a
necessary tool to protect people living with HIV while discrimination persists, and,
from a public health perspective, is key to encouraging people to be tested and
discover their HIV status, lest they fear that if they are HIV-positive, it will become
public, causing them to be ostracized. Similarly, while some have suggested that in
some ways “privacy” perpetuates the oppression of LGBTQ individuals and forces
them into the closet,144 privacy remains an important safeguard as individuals
decide – on their own terms and not on the government’s – when and to whom
to discuss their sexuality or gender identity.
Moreover, at the risk of understatement, we live in an increasingly polarized,
politically charged time, requiring that individuals’ political beliefs remain within
their power to disclose if and when they see fit. Otherwise, individuals risk being
exposed to subtle forms of discrimination if their unpopular beliefs are collected and
forcibly disclosed by the government. While government employees are protected
from employment discrimination based on their political beliefs,145 private sector
employees lack comprehensive protections.146 Accordingly, ensuring that political
thought is not collected and disclosed is a key preliminary bulwark against potential

encrypt, and therefore risked exposing, the identities of visitors to AIDS.gov, a HHS-operated
website that provides visitors with information on services for the treatment of HIV and AIDS.
See Craig Timberg, Federal Sites Leaked the Locations of People Seeking AIDS Services for
Years, Wash. Post: The Switch (Nov. 7, 2014), http://www.washingtonpost.com/blogs/the-
switch/wp/2014/11/07/federal-sites-leaked-the-locations-of-people-seeking-aids-services-for-years/.
141
Kaiser Family Foundation, National Survey of Young Adults on HIV/AIDS (2017), https://www
.kff.org/hivaids/report/national-survey-of-young-adults-on-hiv-aids/.
142
45 C.F.R. § 160.102–03 (2019) (defining covered entities under HIPAA as healthcare plans,
providers, or clearinghouses).
143
E.g., Herring v. Keenan, 218 F.3d 1171, 1172 (10th Cir. 2000) (public disclosure of HIV status by
probation officer); A.L.A. v. West Valley City, 26 F.3d 989, 990 (10th Cir. 1994) (similar).
144
E.g., Kendall Thomas, Beyond the Privacy Principle, 92 Colum L. Rev. 1431, 1455 (1992); cf.
Shannon Gilreath, The End of Straight Supremacy 9 (2011).
145
Rutan v. Republican Party of Ill., 497 U.S. 62, 65 (1990).
146
Cf. Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996) (extending constitutional
protections to government contractors, but presumably leaving other private sector employees
unprotected).
172 Outing Privacy as Anti-Subordination

discrimination, particularly against marginalized groups or viewpoints. For example,

it is sadly not hard to imagine someone being fired for advocacy related to Black
Lives Matter or efforts to redistribute funds currently spent on policing (so-called
#defundthepolice).

4 Heightened Scrutiny
In addition to more squarely capturing harms to certain marginalized communities,
a more categorical approach to informational privacy also has the potential to clarify
that the appropriate test for disclosure of covered information by the government is
strict scrutiny, not the rational basis balancing tests employed by many circuits (as
discussed earlier in the chapter). Such balancing tests that flexibly weigh the
government’s interest in either obtaining or disseminating the information with
the plaintiff’s interest in maintaining confidentiality. This balancing test, which
resembles the test employed for evaluating much government conduct under the
Fourth Amendment, takes a handful of forms, and has been advocated by several
scholars. It provides no real protection.147
A brief review of cases employing a balancing test illustrates the test’s limitations.
The Third Circuit has provided the most guidance regarding the factors to be
considered in weighing the competing interests of the state and an individual’s
privacy. In United States v. Westinghouse Electric Corp., the court established that
multiple factors must be weighed, including the type of record requested, any
potential for harm from any subsequent nonconsensual dissemination, the adequacy
of any safeguards limiting further dissemination, the degree of need for access, and
the existence of any express statutory mandate for access.148 Other circuits are less
precise. For example, the Eleventh Circuit has simply employed a balancing test
“comparing the interests the action serves with those it hinders.”149 In practice, the
balancing test – whether multifactored or open-ended – rarely results in the vindi-
cation of privacy rights150 and amounts to little more than rational basis review.151
There are two principal reasons for the balancing test’s failure. First, because of
the influence of the intrusion–dignity theory of privacy on informational privacy
jurisprudence, the balancing test is a product of Fourth Amendment case law.

147
Christina P. Moniodis, Moving from Nixon to NASA: Privacy’s Second Strand – A Right to
Informational Privacy, 15 Yale J. L. & Tech. 139, 158–63 (2012).
148
638 F.2d 570, 578 (3d Cir. 1980); see also Seaton v. Mayberg, 610 F.3d 530, 539 (9th Cir. 2010).
149
Hester v. City of Milledgeville, 777 F.2d 1492, 1497 (11th Cir. 1985) (quoting Plante v. Gonzalez,
575 F.2d 1119, 1134 (5th Cir. 1978)).
150
E.g., Westinghouse, 638 F.2d at 580 (no violation under balancing test, notwithstanding that
sensitive medical information was at stake).
151
Jon L. Mills, Privacy: The Lost Right 124–25 (2008) (noting that some courts have utilized
a balancing test amounting to rational basis review for informational privacy claims). But see
Plante, 575 F.2d at 1131–34 (employing a balancing test, but suggesting it is somehow more
rigorous than rational basis review).
 Uncovered Categorical Blueprint 173

Under the Fourth Amendment, absent a narrowly defined criminal “search” (not
present in the context of many governmental administrative collection practices that
give rise to subsequent informational privacy disclosures), the government’s actions
are generally governed by a balancing of interests test that resembles rational basis
review.152 Because that balancing test was originally designed to redress intrusions
into one’s dignity (harms that are more evident and intuitively obvious in the search
and seizure and decisional privacy contexts where, as discussed, courts can easily
determine that entry into one’s home is affront to dignity), it is ill-suited to address-
ing the separate interests served by an informational privacy right. In other words,
because harms to human dignity and autonomy are incidental in the informational
privacy context, often not involving forcible searches or a direct impact on one’s
decisional freedoms, informational privacy claims rarely prevail under the non-
rigorous balancing test. The test’s vague contours contain no specific mechanism
to give weight to claims not involving what courts traditionally encounter as
“intrusions” within the Fourth Amendment context.153 That is, the test does not
speak directly to, and undervalues, the interests served by an informational
privacy right.
Second, and relatedly, the test is fundamentally subjective.154 Courts are accus-
tomed to hearing Fourth Amendment cases that involve actual, physical intrusions
implicating the dignity interest, as well as decisional privacy claims directly
burdening on a person’s autonomy. No such interests are directly implicated in
most informational privacy claims. Given the subjectivity of the test, and courts’ lack
of experience outside the intrusion and decisional contexts, courts’ natural tendency
to defer to the state is amplified even more than in the Fourth Amendment or
decisional privacy contexts.155
Notwithstanding that the balancing test has proved to be a relatively meaningless
restraint on government incursions into individual informational privacy, the test

152
Eve Brensike Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254, 256–57
(2011).
153
Julie E. Cohen, What Privacy Is For, 126 Harv. L. Rev. 1904, 1904 (2013) (“Pleas to ‘balance’
the harms of privacy invasion against the asserted gains lack visceral force”); Solove, supra
note 14, at 88 (“Balancing privacy against opposing interests has suffered from systemic
difficulties that often result in the undervaluation of privacy interests”).
154
Chlapowski, supra note 34, at 157 (“Vague balancing tests lend themselves too easily to the
subjective choices of the presiding judge”); Louis Henkin, Privacy and Autonomy, 74 Colum.
L. Rev. 1410, 1431 (1974) (“[T]he jurisprudence of judicial balancing remains essentially ad hoc
and subjective”).
155
David H. Flaherty, On the Utility of Constitutional Rights to Privacy and Data Protection,
41 Case W. Res. L. Rev. 831, 833 (1991) (balancing tests may be tilted in favor of governmental
interest and values); Solove, supra note 14, at 88 (agreeing that balancing “is often done in a
perfunctory manner or in ways that skew the result in one way or another” and suggesting that
the challenge is to ensure “that the balancing process be as rigorous and thoughtful as
possible”).
174 Outing Privacy as Anti-Subordination

has been advocated by several scholars.156 For instance, Richard Turkington seemed
to endorse a “flexible balancing of interest approach.”157 Turkington critiqued a
categorical approach separating rights into those deemed fundamental and non-
fundamental as perpetuating “a rigid classification system” or “caste system of
rights.” Instead, Turkington’s balancing approach involved two questions: first, an
examination of whether the information acquired was “intimate” or of a “personal
nature”; second, if so, it is weighed against the government’s interest. In this way,
Turkington recognized that certain types of information are entitled to more
protection than others, but nevertheless advocated subjecting those privacy interests
to a mere balancing test (although he believed the balancing test had judicial teeth).
Turkington therefore seemed unable to escape what he labeled the “caste” system of
rights. For example, Turkington noted that medical information, such as a person’s
HIV status, has “special force” because of “both the intrinsic and consequential
features of such information.”
Instead, I advocate that the primary interests served by an informational privacy
right be given explicit, structural recognition within the test itself, providing courts
concrete guidance on informational privacy’s underlying value. The categorical
approach advanced herein has the advantage of avoiding the vagaries of a “flexible”
balancing approach, and, in a more intellectually direct (and judicially efficient)
way, explicitly recognizes that certain types of information (intimate and political)
are entitled to greater protection.158 The test then provides that greater protection in
the form of strict scrutiny, whereas under the status quo system, all claims to
informational privacy, even those involving intimate or political information, are
vulnerable as a result of the “flexible” and unclear rule of law.159
A strict scrutiny test would also make it clear that certain categories of information
were entitled to constitutional protection, limiting the extent to which qualified
immunity could be invoked (as it frequently is) to bar informational privacy claims
based on the conclusion that the right is not “clearly established.” Private suits for
money damages against government officials are one of the principal methods of
enforcing the Constitution. Qualified immunity shields government officials from
liability for such suits if the officials’ conduct did not violate clearly established

156
E.g., Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension between Privacy and
Disclosure in Constitutional Law, 140 U. Pa. L. Rev. 1, 145–47 (1991); Sara E. Stratton, Note,
Passwords Please: Rethinking the Constitutional Right to Informational Privacy in the Context of
Social Media, 41 Hastings Const. L.Q. 649, 677–78 (2014).
157
Turkington, supra note 18.
158
Kreimer, supra note 156, at 144 (suggesting that for certain types of information, balancing may
be unnecessary and, instead, constitutional bulwarks should be established, which provide
shortcuts for vindicating such claims without the need for ad hoc balancing).
159
In contrast to the amorphous balancing test, a strict scrutiny test would streamline the analysis
and save the judiciary resources because in claims involving intimate or political information,
courts would not be bogged down comparing the unweighted factors, as criticized by Justice
Scalia in Nelson. 562 U.S. 134, 166–67 (Scalia, J., concurring in the judgment).
 Uncovered Categorical Blueprint 175

constitutional or statutory rights “of which a reasonable person would have

known.”160 Despite the fact that many circuits have recognized – in broad strokes –
a right to informational privacy for nearly four decades, defendants and courts still
routinely invoke qualified immunity to defeat informational privacy claims because
the right’s contours remain ill-defined.161 A firmly and clearly established judicial
framework for evaluating informational privacy claims is necessary to avoid qualified
immunity, be meaningful in practice, and provide victims with redress.
In addition to the (over-) limiting effect of the balancing test and qualified
immunity, the third-party doctrine is often used to deny informational privacy
claims, as outlined in Chapter 1. Like balancing tests, the third-party doctrine,
requiring that information not be shared with another party ex ante in order to
receive legal protection, is also a product of the Fourth Amendment jurisprudence,
which only protects individuals from government searches when they have a
“reasonable expectation” of privacy. According to well-established formulations of
that test, an individual’s reasonable expectation of privacy is destroyed if they share
the information with a third party. Unfortunately, just as the Fourth Amendment
balancing test has influenced the development of informational privacy law, the
third-party doctrine, too, has infected evaluation of informational privacy claims.
But a formulation of informational privacy that is more divorced from the Fourth
Amendment and the reasonable-expectation-of-privacy test would also have the
salutary effect of divorcing informational privacy from the anachronistic third-party
doctrine. Privacy claims would not be hamstrung by concerns regarding whether the
information was shared within a small circle. By highlighting that intimate infor-
mation and political thought are almost de jure entitled to privacy protections absent
a compelling interest and narrowly tailored law, courts could largely sidestep the
“expectation” test and related third-party inquiry. A categorical emphasis on intimate
information and political thought would recognize that such information is often
but not always shared with other individuals. Sexuality is rarely expressed or dis-
cussed in a vacuum. Nor is political dialogue. But the mere fact that the information

160
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Absent a more clearly defined informational
privacy right, qualified immunity will continue to delay the development of informational
privacy law in the wake of the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223,
236 (2009), permitting courts to skip over the first step of determining if a constitutional
violation had been alleged, and move directly to the question of whether the right was clearly
established at the time of the defendant’s conduct. As long as courts skip over that crucial first
step, the law on any given point will never become clearly established, permitting government
officials to avoid liability based on the murkiness of the law.
161
E.g., Dillard v. O’Kelley, 961 F.3d 1048, 1054 (2020); Wyatt v. Fletcher, 718 F.3d 496, 508, 510
(5th Cir. 2013); Kerns v. Bader, 663 F.3d 1173, 1187 (10th Cir. 2011); Ismail v. Fulkerson, No. SA
CV 10-00901-VBF-AJW, 2014 WL 3962488, at *16 (C.D. Cal. Aug. 12, 2014); Ward v. Bolek,
No. 3:12-cv-00136-SI, 2014 U.S. Dist. LEXIS 25155, at *36–37 (D. Ore. Feb. 27, 2014); Hubacz
v. Protzman, No. 2:12-cv-39, 2013 WL 1386287, at *8–9 (D. Vt. Apr. 4, 2013); and O’Neill
v. Bannister, No. 3:12-cv-00030-LRH (WGC), 2012 U.S. Dist. LEXIS 185433, at *9 (D. Nev.
Aug. 29, 2012).
176 Outing Privacy as Anti-Subordination

had been shared within a close circle would not stymie informational privacy claims
based on intimate information or political thought because the individual’s legitim-
ate expectation or interest in that information is already acknowledged as presump-
tively entitled to protection by the test.

5 In Defense of a Categorical Approach

Before closing this chapter, it is necessary to respond to critiques of categorical
approaches to privacy. Some have argued that isolating certain types of information
as protected should not be the principal regard of a privacy regime162 in part because
any attempt to define categories of information deserving special consideration is
insufficiently flexible to deal with modern-day privacy problems, may leave signifi-
cant gaps, and instead, that a contextual approach to privacy claims ought to be
adopted.163 While I am sympathetic to concerns of creating privacy gaps, at least in
the constitutional informational privacy arena, the structural playing field is cur-
rently tilted far away from privacy interests, causing privacy interests to be routinely
undervalued. As such, privacy concerns should be triaged to put the constitutional
right to informational privacy on firmer normative and doctrinal ground, with future
gap-filling embellishments potentially to follow. In other words, a categorical
approach at least gets informational privacy’s foot more firmly in the constitutional
door. Moreover, some gaps may, in fact, be warranted – again, at least with regard to
constitutional privacy. That is to say that when confronting a constitution of limited
rights, there are bound to be certain gaps. As outlined above, the categories of
information identified herein as entitled to enhanced constitutional protection have
the virtue of being supported by constitutional provisions and precedent; it is not
clear that can be said for all types of information.
What is more, this chapter’s approach is consistent with a contextual approach to
privacy, such as that insightfully advanced by Helen Nissenbaum.164 A categorical
approach privileging certain subject matters as deserving special treatment
merely helps us identify the contexts where privacy is entitled to meaningful
protection.165
Nor does this approach completely ignore that there may be certain contexts in
which the government does have legitimate reasons for collecting, or even dissemin-
ating, certain data – including intimate information (particularly where de-
identified). And de-identified data can, in fact, sometimes bolster recognition of a
group by, for example, helping society have a better understanding of the size and
162
Jeffrey Rosen, The Purposes of Privacy: A Response, 89 Geo. L.J. 2117, 2121 (2001).
163
Nissenbaum, supra note 36, at 232 (suggesting that efforts “to define a category of sensitive
information deserving special consideration” be laid to rest).
164
Nissenbaum, supra note 36 (advancing theory of contextual integrity).
165
Cf. Ohm, supra note 81, at 1145 (observing that attempts to identify certain categories of
sensitive information are not necessarily in conflict with Nissenbaum’s contextual approach).
 Uncovered Categorical Blueprint 177

scope of particular marginalized identities.166 The government is faced with

immense challenges and one can easily imagine circumstances where it might
actually be compellingly important for the government and, for example, the
transgender community to know how many people identify as transgender. For
instance, if treatment for transgender-related medical care becomes increasingly
covered by government-sponsored health insurance (as it should),167 it might be
beneficial to ascertain for actuarial or budgetary purposes the number of transgender
people that will require coverage or services. Rather, a categorical approach suggests
that when dealing with intimate or political information, the government’s needs
must be compelling and the means must be narrowly tailored. It does not, in fact,
paralyze government action, but alters the playing field for when context is ultim-
ately considered by courts.
Finally, there may also be apprehension that a categorical approach privileging
intimate and political information, but not, for example, financial information, may
not be an effective tool to limit wide sweeping government surveillance programs
(and the disclosure that may follow) that do not exclusively target intimate infor-
mation (arguably such programs do target political information). Not necessarily so.
If the government’s broad collection or dissemination includes the intimate infor-
mation or political information of certain individuals (but is not restricted to that
information), then those individuals whose information was gathered would pre-
sumably have a cause of action – and one with teeth: strict scrutiny. The fact that
some, but not all, of the people observed by the surveillance program may not have
robust causes of action does not make the informational privacy claim a less effective
means of private regulation of government surveillance. As in the First Amendment
speech context, the Supreme Court has recognized that where laws prohibit both
protected and unprotected speech, they are overbroad and constitutionally imper-
missible.168 Here, too, if a surveillance regime infringes on intimate information or
political thought, in addition to nonprotected information, it could be deemed
constitutionally overbroad.
Relatedly, there may be concern that emphasizing the concrete harms that flow
relatively directly from disclosure of intimate and political information, I am contrib-
uting to or feeding narrow conceptions of privacy harms. In various privacy contexts,
courts have at times been critiqued for requiring (at least rhetorically) – direct,

166
Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States?,
Williams Institute (June 2016), https://williamsinstitute.law.ucla.edu/wp-content/uploads/
Trans-Adults-US-Aug-2016.pdf (relying on government population-based surveys and surveil-
lance to estimate number of transgender people in the United States).
167
Nat’l Convergence Determination 140.3, Transsexual Surgery, Decision No. 2576, Docket No.
A-13-87 (Dep’t of Health & Human Servs. May 30, 2014) (lifting ban on Medicare coverage for
gender confirmation surgery).
168
United States v. Stevens, 130 S. Ct. 1577, 1592 (2010); R.A.V. v. City of St. Paul, 505 U.S. 377,
397–98 (1992) (White, J., concurring in judgment) (law that “criminalizes not only unprotected
expression but expression protected by the First Amendment” is unconstitutional).
178 Outing Privacy as Anti-Subordination

individualized, particular, and tangible harms, sometimes dismissing privacy-related

lawsuits for lack of standing and particularized injury.169 Broadly speaking, I have no
objection to a capacious understanding of the kinds of injury caused by different
privacy violations including, for example, anxiety or risk that may flow, from
example, from data breaches – and, again, I do not think that a privacy plaintiff is
required to show concrete harm to have standing. But my emphasis on intimate and
political information is, in essence, a form of triage, attempting to secure robust
privacy protections for the most important information most likely to negatively
impact the most vulnerable populations. As explained by The Century Foundation,
while “[p]rivacy advocates have sometimes struggled to demonstrate the harms of
government surveillance [and, I would add, privacy more broadly] to the general
public . . . [t]here is a lot less mystery for the poor and disfavored for whom
surveillance takes palpable and often frightening forms.”170 In that way, it is also
consistent with harm reduction approaches to public health policy that seek to
mitigate and lessen harm to people even if it is not a panacea.
Moreover, it is important to bear in mind that an extremely broad theory of harm
that, for example, incorporates speculative or unfounded anxiety can be damaging to
marginalized communities in other contexts. For example, litigants have brought
fear of HIV/AIDS cases against people living with HIV when the chance of
transmission was extremely speculative, fueling misunderstanding and stigma
regarding people with HIV. A capacious understanding of “risk” arguably supports
these claims (and some privacy advocates have relied on these cases to bolster their
standing arguments).171

***
Moving beyond dignity and autonomy and reorienting the right to informational
privacy toward those categories of information of paramount importance for many
marginalized communities not only more precisely captures the underlying norma-
tive value of an informational right, but could also increase judicial recognition of
the right. By centering intimate information and political thought and demonstrat-
ing their close relationships to other fundamental rights, we may move the judicial
needle toward robust, heightened judicial protection for intimate and political

169
Daniel J. Solove & Danielle Keats Citron, Risk and Anxiety: A Theory of Data-Breach Harms,
96 Tex. L. Rev. 737 (2018); Margot Kaminski, Standing after Snowden: Lessons on Privacy from
National Security Surveillance Litigation, 66 DePaul L. Rev. 413 (2017); Ryan Calo, Privacy
Harm Exceptionalism, 12 Colo. Tech. L.J. 361, 364 (2014). But see Kreimer, supra note 124
(documenting that intangible informational harms are not infrequently deemed sufficient to
support standing).
170
Barton Gellman & Sam Adler-Bell, The Disparate Impact of Surveillance 3, The
Century Foundation (2017), https://production-tcf.imgix.net/app/uploads/2017/12/03151009/
the-disparate-impact-of-surveillance.pdf.
171
Scott Skinner-Thompson, Negligence and Intentional Torts, in AIDS and the Law, supra note
139.
 Uncovered Categorical Blueprint 179

information, preventing (among other things) the forced outing of LGBTQ individ-
uals, individuals with stigmatized medical issues, such as HIV or mental health
impairments, by the government.
Consistent with this reorientation to the confusion over informational privacy, the
Supreme Court seems comfortable with a categorical approach to the right to
privacy. Bifurcation of rights into those that are fundamental and nonfundamental
is almost by definition a categorical approach. The categories, of course, have
limitations and exclude vigorous constitutional protection for certain activities.
But it is preferential (and at the very least strategic) to harness those categories in
the interest of protecting various, private activities.
 6

Equal Protection Privacy

If a right exists, bedrock principles of American law generally demand that the right
be equally available to all. So unassailable is this tenet that the US Supreme Court
etched the phrase, “Equal Justice Under Law,” on the front of the court building in
the 1930s. A plaintiff who is black should have the same substantive law applied to
their claim as a plaintiff who is white, with similar results for similar claims.1 And
although concrete evidence of systematic, unequal judicial results is sometimes hard
to uncover, it is widely acknowledged that in many contexts the law does not, in fact,
operate with an even hand.2 The white plaintiff prevails where the black plaintiff
fails. Can equality, as a principle of American law, become more than hortatory?
How can the law be adjusted to operate more equally, and how can those adjust-
ments be doctrinally justified and grounded? This chapter seeks to answer these
questions in a particular legal context – the tort of public disclosure of private facts –
and to draw lessons from those results for privacy tort reform and the constitutiona-
lization of tort law more broadly. “Constitutionalization of tort law” refers to the
injection of constitutional principles, such as equal protection, into the substance of
common-law causes of action.3
Continuing with the prior chapter’s focus on informational privacy but shifting to
disclosures by private parties, this chapter systematically reviews public disclosure
tort cases over a recent decade-long period. In the process, I reveal that instead of

1
Paul Gowder, Equal Law in an Unequal World, 99 Iowa L. Rev. 1021, 1023 (2014) (describing
the ideal that the law must apply equally as “a fundamental demand of legal morality”).
2
Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender,
and Tort Law 46 (Debbie Gershenowitz ed., 2010) (explaining that while “[g]ender and race
may have vanished from the face of tort law,” they play an outsized role in determining whether
a plaintiff’s injury will be recognized); Russell K. Robinson, Unequal Protection, 68 Stan.
L. Rev. 151, 154–55 (2016) (outlining how the US Supreme Court has interpreted the Equal
Protection Clause more favorably in claims brought by same-sex couples compared to race or
gender discrimination claims).
3
Thomas B. Colby, The Constitutionalization of Torts?, 65 DePaul L. Rev. 357, 357–58 (2016).

180
 Equal Protection Privacy 181

being applied equally and universally, the public disclosure tort has at times been
used to great effect by people of privilege and has been largely ineffective for those in
precarious social positions.4 For example, despite doctrine suggesting that public
figures surrender privacy protections because they have exposed themselves to the
public,5 publicity-hungry celebrities, such as former professional wrestler, Hulk
Hogan, have succeeded in their privacy claims where others,6 such as outed gay
men and female victims of revenge porn, have not infrequently failed.7
But why use the public disclosure tort and privacy law as a means of examining whether
the common law more broadly can be made more equal in practice? The public disclosure
of private facts tort provides fertile ground for investigating whether the common law
benefits the privileged at the expense of the marginalized because the tort, by its terms, is
supposed to disfavor privileged plaintiffs.8 As noted, under black-letter privacy tort law,
celebrities and public figures are purportedly entitled to diminished privacy rights because
of the newsworthiness of their lives – meaning that the First Amendment right to free
speech protects efforts to disclose information about such privileged individuals. Therefore,
any disparity in results between privileged and marginalized plaintiffs is all the more
suggestive that the common law – on the ground – is not operating equally.
Moreover, building on this book’s normative project, privacy law is a uniquely
appropriate area for examining inequality because privacy rights are particularly
important for marginalized communities. As outlined in Chapter 1, marginalized
communities are disproportionately surveilled and subject to privacy violations, and,
to the extent persons from marginalized groups experience privacy violations, they
may be less able to absorb the social and economic costs that flow from the exposure
of their sensitive information. And, as discussed, privacy can serve as a liminal or
transitional right until such communities gain both formal antidiscrimination
protections and lived equality. For example, privacy over intimate images shared

4
A chart cataloging each of the cases is available at https://www.law.uw.edu/wlr/online-edition/
scott-skinner-thompson. For a detailed discussion of the research methodology used to locate,
analyze, and code public disclosure tort cases and the limitations to that methodology, see Scott
Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev. 2051, Appendix A (2018). By
providing a detailed research methodology, I attempt to pick up the mantle of critiques
regarding the lack of systematic rigor and transparency in legal scholarship attempting to make
claims about trends within doctrine. E.g., William Baude, Adam S. Chilton, & Anup Malani,
Making Doctrinal Work More Rigorous: Lessons from Systematic Reviews, 84 U. Chi. L. Rev.
37, 40 (2017); Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial
Opinions, 96 Calif. L. Rev. 63, 63 (2008).
5
Restatement (Second) of Torts § 652D cmt. e (1977).
6
Nick Madigan & Ravi Somaiya, Hulk Hogan Awarded $115 Million in Privacy Suit Against
Gawker, N.Y. Times (Mar. 18, 2016), http://www.nytimes.com/2016/03/19/business/media/gaw
ker-hulk-hogan-verdict.html.
7
E.g., Doe v. Peterson, 784 F. Supp. 2d 831, 834, 843 (E.D. Mich. 2011) (dismissing invasion of
privacy claims in revenge porn case because pictures at issue had already been posted on
another website); Bilbrey v. Myers, 91 So. 3d 887, 892 (Fla. Dist. Ct. App. 2012) (dismissing
public disclosure claim by outed, allegedly gay man because of insufficient publicity).
8
Restatement (Second) of Torts § 652D cmt. e (1977).
182 Equal Protection Privacy

with a lover-turned-vindictive-ex may serve important gender-equality principles.9

But privacy tort law cannot begin to achieve anti-subordination goals if it is not
operating equally in practice.
Beyond revealing concrete evidence of disparate outcomes, which, by itself, is
important to document, the disparate results suggest that certain doctrinal reforms
are necessary for privacy tort law to provide meaningful protections for all – includ-
ing marginalized people. And this chapter’s approach represents one of the few
examples of an emerging field taking a critical lens to tort theory and tort law, which
is often dominated by economic approaches.10
Specifically, the cases explored in this chapter demonstrate that two of the public
disclosure tort’s requirements – the complete secrecy requirement and the widespread
disclosure requirement – combine to create what I call the “secrecy double standard.”
This double standard – requiring plaintiffs to keep their information totally secret prior
to bringing a claim but, at the same time, not permitting claims unless the defendant
disclosed the information to a significant number of people – greatly limits public
disclosure tort claims. And, in practice, there is reason to believe that the tandem effect
of these two requirements disproportionately impacts marginalized communities who
are forced to live in situations where they are unable to keep information private ex ante.
Furthermore, the standard itself is unequally applied, with those in privileged
positions (often celebrities) being permitted more leeway with their privacy claims –
notwithstanding that under established doctrine, public figures are, at least in
theory, entitled to less privacy. In this way, the tort’s unequal application among
plaintiffs operates as a second double standard. Together, these various double
standards operate to erase marginalized people’s formal privacy tort rights – a process
that Khiara Bridges refers to as “informal disenfranchisement.”11 Documenting these
trends will be central to the deconstruction of the secrecy double standard and will
aid efforts to revitalize privacy tort law.
In particular, unearthing evidence that tort law is operating with unequal results
suggests that there may be a place for constitutional equality and anti-subordination
principles to influence the shape and direction of common-law doctrine.12 For over
fifty years,13 the US Supreme Court has accepted that tort law – even though it
involves suits between private parties – implicates state action, because governments

9
Danielle K. Citron, Hate Crimes in Cyberspace 13–17 (2014).
10
Chamallas & Wriggins, supra note 2, at 16 (explaining that the “body of critical torts
scholarship is still quite small”).
11
Khiara Bridges, The Poverty of Privacy Rights 13 (2017).
12
As will be discussed in more detail but important to emphasize at the outset, I do not envision
actual lawsuits challenging the constitutionality of privacy tort law, but instead suggest that
there is a doctrinal foundation for the use of constitutional norms as substantive guideposts
when judges craft the common law of privacy torts, and common-law torts writ large.
13
New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964) (holding that the Constitution
applies even in “a civil lawsuit between private parties” because in adjudicating the suit, “the
Alabama courts have applied a state rule of law”).
 Equal Protection Privacy 183

(judges) both enforce the law and separately make the common law; they establish
the rules of the game.14 Accordingly, the First Amendment applies to efforts to limit
speech through tort law. Thus far, as it relates to the substantive contours of a given
tort, courts and scholars have focused on the First Amendment’s grant of free speech
to cabin tort law efforts to regulate and penalize those who spread secrets or
falsehoods.15 But if state action attaches to tort law and the First Amendment
therefore applies, other constitutional provisions ought to apply too, including equal
protection principles. Here, I suggest one way that constitutional equality principles
could be used to invigorate the substance of privacy tort law and, more broadly,
open the door to a more capacious understanding of how constitutional law and
norms can influence substantive tort doctrine. In other words, this chapter moves
beyond a mere normative call for “equal justice under law,” by connecting the
documented inequality with a doctrinally based theory for adjusting tort law to
operate more equitably.
This chapter builds on these themes by first outlining the black-letter require-
ments of the public disclosure tort, explaining how the tort’s rigid requirements
operate, and situating the discussion within existing critiques of the public disclos-
ure tort. Importantly, thus far academic critiques of the public disclosure tort’s flimsy
protections have lacked a doctrinal foothold to justify reforming the black letter,
which is where this chapter intervenes. I then systematically review a decade of
public disclosure tort cases, demonstrating the significant role the secrecy double
standard plays in limiting tort claims, while analyzing examples of unequal results
that highlight how privileged people tend to be treated more leniently under the
applicable standards when they bring public disclosure lawsuits. Many of the public
disclosure tort cases demonstrate that privacy law is often applied in a way that has
disparate negative impacts on certain marginalized populations and, in some
instances, evidence of disparate treatment also exists. This disparity creates a second
double standard.
Finally, the chapter uses the evidence of inequality to suggest doctrinal reforms
that could help privacy torts better achieve their goals. Here, I muster evidence of
disparate treatment and impact to suggest that while certain constitutional prin-
ciples, such as the First Amendment, have been used to limit privacy torts,16 other
constitutional principles are also implicated and could be used to expand privacy

14
David A. Anderson, First Amendment Limitations on Tort Law, 69 Brook. L. Rev. 755, 768–69
(2004).
15
Neil M. Richards, The Limits of Tort Privacy, 9 J. on Telecomm. & High Tech. L. 357, 365
(2011); Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling
Implications of a Right to Stop People from Speaking About You, 52 Stan. L. Rev. 1049, 1123
(2000).
16
E.g., Florida Star v. B.J.F., 491 U.S. 524, 538, 541 (1989) (holding that imposing civil liability
against newspaper that published name of rape victim it obtained from a publicly released
police report was inconsistent with the First Amendment); Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 496–97 (1975) (holding that it is unconstitutional under the First Amendment to
184 Equal Protection Privacy

tort protections. I demonstrate that courts have been unprincipled and selective in
which constitutional provisions they apply to the common law, while demonstrating
how constitutional equality principles could shape privacy tort law by promoting a
more nuanced, contextual approach to determining whether information was suffi-
ciently safeguarded and whether the dissemination was sufficiently public to cause
injury.17 This approach would bear in mind the plaintiff’s unique social position.
For example, equal application of the widespread disclosure or publicity require-
ment could include consideration of the fact that non-privileged, non-famous
people are less likely to have their information disclosed to the press or to the world
precisely because they are not famous. But disclosure within limited confines may
be no less damaging. The chapter then concludes by addressing potential limitations
to injecting constitutional equality into privacy tort law.

the secrecy double standard

This section provides a brief overview of the public disclosure tort’s black-letter
requirements, details the built-in substantive inequality of the tort, and situates this
chapter’s analysis within existing critiques that highlight how the tort’s rigid require-
ments prevent it from fulfilling justice. Although existing critiques are sometimes
followed by suggestions for reforming the public disclosure tort, often the reforms
are not buttressed by or grounded in a doctrinal defense – that is, other than pointing
to a desire for more privacy, it is unclear how desired and suggested common-law
reforms will overcome existing black-letter tort law. This chapter goes further by
providing concrete evidence that the black letter is not providing privacy protection
and by using that evidence to bolster a doctrinal, constitutional justification for
adapting the common law – namely, that just as First Amendment principles have
been used to limit the tort, so too can equality principles be used to bolster it.

1 The Black-Letter’s Built-in Inequality

The public disclosure of private information tort is one of four privacy torts included
in the Restatement of Torts. Its early origins are credited to Samuel Warren and
Louis Brandeis.18 The disclosure tort, along with the other three privacy torts,19 was

impose civil liability for publishing the name of a rape victim, which was obtained from a
public judicial record).
17
See generally Helen F. Nissenbaum, Privacy in Context 2–4 (2010) (discussing the import-
ance of social context to determining whether a privacy violation has occurred).
18
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198–207,
213–16 (1890).
19
The other three privacy torts are (1) intrusion upon seclusion, (2) appropriation of name or
likeness, and (3) false light. Intrusion upon seclusion creates liability against those who make
highly offensive invasions into one’s solitude by, for example, peering into someone’s bedroom
with binoculars. Appropriation occurs, for example, when the defendant uses an image of the
 Secrecy Double Standard 185

further refined by William Prosser.20 Prosser, who served as the chief reporter for the
Second Restatement of Torts, included his privacy tort taxonomy in the Restatement,
and it has been adopted by many states.21
Today, the Restatement provides in Section 652D that:
One who gives publicity to a matter concerning the private life of another is subject
to liability to the other for invasion of [their] privacy, if the matter publicized is of a
kind that (a) would be highly offensive to a reasonable person, and (b) is not of
legitimate concern to the public.22

Distilled, the tort includes four elements. To succeed, a plaintiff must demon-
strate that the defendant (1) gave “publicity” to (e.g., widely disseminated), (2)
completely private/secret information, (3) that was “highly offensive,” and (4) not
of legitimate public concern.
Importantly, as the Restatement clarifies, the publicity requirement “means that
the matter is made public, by communicating it to the public at large, or to so many
persons that the matter must be regarded as substantially certain to become one of
public knowledge.”23 This requirement is in direct contrast to the less onerous
“publication” requirement of the defamation tort targeting dissemination of false
(as opposed to true) information, which requires only “that the defamatory matter be
communicated to someone other than the person defamed.”24 In other words, to
be liable for the tort of public disclosure, the dissemination of the information must
be fairly broad and widespread.
Conversely, with regard to the “private information” requirement, the
Restatement provides that “[t]here is no liability when the defendant merely gives
further publicity to information about the plaintiff that is already public. Thus there
is no liability for giving publicity to facts about the plaintiff’s life that are matters of
public record.”25 Similarly, “there is no liability for giving further publicity to what
the plaintiff himself leaves open to the public eye.” As demonstrated by the survey of

plaintiff in an advertisement without the plaintiff’s permission. The tort of false light occurs
when a defendant gives publicity to information about the plaintiff knowingly portraying them
in a false light, similar to the tort of defamation. Restatement (Second) of Torts § 652A
(1977).
20
William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389–407 (1960).
21
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 487–88 (1975) (noting the impact of both the
article by Warren and Brandeis and Prosser’s contribution to the development of privacy
tort law).
22
Restatement (Second) of Torts § 652D (1977) (gendered language removed).
23
Id. § 652D cmt. a; see David A. Elder, Privacy Torts § 3.3 (2018) (collecting several cases
where the publicity requirement has been interpreted narrowly and describing application of
the rule as often “knee-jerk”); Robert C. Post, The Social Foundations of Privacy: Community
and Self in the Common Law Tort, 77 Calif. L. Rev. 957, 987 (1989) (describing the
consequences of the publicity requirement as “undoubtedly harsh”).
24
Restatement (Second) of Torts § 577 cmt. b (1977).
25
Id. § 652D cmt. b.
186 Equal Protection Privacy

public disclosure tort cases outlined below and related discussion in Chapter 1, this
requirement is often interpreted to bar a plaintiff’s claim even if the plaintiff
previously shared the information at issue within extremely limited confines. This
requirement for complete secrecy is, at least in part, an outgrowth of the First
Amendment’s application to the substance of the privacy torts – the Restatement
cites to the Supreme Court’s decision in Cox Broadcasting Co. v. Cohn, as requiring
that “under the First Amendment there can be no recovery for disclosure of and
publicity to facts that are a matter of public record.”26
Together, these first two requirements work to form what I refer to as the “secrecy
double standard.” To have a claim, plaintiffs must essentially keep the information
at issue totally private, whereas defendants, to be liable, need to so widely distribute
the information that it becomes truly public information – known to many.27
As to the highly offensive requirement, the Restatement provides that offensive-
ness is to be judged relative “to the customs of the time and place, to the occupation
of the plaintiff and to the habits of his neighbors and fellow citizens.”28 Somewhat
ironically given its requirement for complete secrecy under the “private informa-
tion” requirement, the Restatement notes that “[c]omplete privacy does not exist in
this world except in a desert, and anyone who is not a hermit must expect and
endure the ordinary incidents of the community life of which he is a part.” The
Restatement further emphasizes that, “Thus [plaintiffs] must expect the more or less
casual observation of [their] neighbors as to what [they do], and that [the] comings
and goings and [their] ordinary daily activities, will be described in the press as a
matter of casual interest to others.” So, while the Restatement recognizes that
complete secrecy is impossible, it nevertheless imposes Herculean secrecy require-
ments on plaintiffs.
Finally, even if the information is highly offensive, a plaintiff cannot prevail if it is
a matter of legitimate public concern.29 Here, the Restatement provides a circular
definition of the scope of public concern: noting that “news” items are of legitimate
public concern, and that “[t]o a considerable extent, in accordance with the mores
of the community, the publishers and broadcasters have themselves defined the
term, as a glance at any morning paper will confirm.”30 As to the “legitimate public
26
Id. § 652D, Special Note on Relation of § 652D to the First Amendment to the Constitution
(citing Cox Broadcasting, 420 U.S. at 496–97).
27
Jonathan B. Mintz, The Remains of Privacy’s Disclosure Tort: An Exploration of the Private
Domain, 55 Md. L. Rev. 425, 441 (1996) (“[D]efendants may disclose a private fact about a
plaintiff to two persons without invading that plaintiff’s privacy at all, but plaintiffs who expose
the same fact to the same two persons ‘in public’ have destroyed their privacy interest in that
fact entirely”).
28
Restatement (Second) of Torts § 652D cmt. c (1977).
29
Id. § 652D, cmt. d.
30
Id. § 652D, cmt. g; see also Amy Gajda, The First Amendment Bubble: How Privacy and
Paparazzi Threaten a Free Press 226 (2015) (“News, at least as it currently stands in a legal
sense, is what newspeople say it is”); Rodney A. Smolla, Accounting for the Slow Growth of
American Privacy Law, 27 Nova. L. Rev. 289, 302 (2002); Diane L. Zimmerman, Requiem for a
 Secrecy Double Standard 187

concern” and the “private information” requirements, the Restatement largely

provides that public figures are entitled to greatly diminished privacy. Those “who
voluntarily place[] [themselves] in the public eye,” including “by engaging in public
activities, or by assuming a prominent role in institutions or activities having general
. . . public interest, or by submitting [themselves or their] work for public judgment,
cannot complain when [they are] given publicity that [they have] sought, even
though it may be unfavorable.”31

2 Existing Critiques Fail to Justify Privacy Tort Reform

Other scholars have also observed that privacy tort law suffers from major shortcom-
ings. Indeed, some have suggested that the public disclosure tort is more or less
dead.32 Another group, while less pessimistic in their analysis, has nevertheless
documented the tort’s limited vitality.33 While these critiques sometimes accompany
suggestions for reforming privacy tort law, thus far, the suggestions have been largely
result-oriented and have neglected to provide a rationale based in existing law for
those modifications. While I share their normative impulse that more robust privacy
tort protections are useful and important,34 in order for the common law to actually
adapt, courts must be pointed toward a doctrinal basis for doing so.
For example, Neil Richards and Daniel Solove have argued that privacy tort law
has been severely limited by Prosser’s formulation, and that we must move beyond
his conception of privacy torts.35 In particular, they lament that the rigid four
categories of privacy torts prevent tort law from adapting “to new privacy problems
such as the extensive collection, use, and disclosure of personal information by
businesses,” and that privacy torts “have struggled in recognizing more nuanced

Heavyweight: A Farewell to Warren & Brandeis’s Privacy Tort, 68 Cornell L. Rev. 291, 303
(1983).
31
Restatement (Second) of Torts § 652D, cmt. e (1977) (gendered language revised).
32
E.g., Samantha Barbas, The Death of the Public Disclosure Tort: A Historical Perspective, 22
Yale J.L. & Human. 171, 172 (2010); Harry Kalven, Jr., Privacy in Tort Law: Were Warren and
Brandeis Wrong?, 31 L. & Contemp. Probs. 326, 328 (1966); Mintz, supra note 27, at 426.
33
Anita L. Allen, Privacy Torts: Unreliable Remedies for LGBT Plaintiffs, 98 Calif. L. Rev. 1711
(2010); Erwin Chemerinsky, Rediscovering Brandeis’s Right to Privacy, 45 Brandeis L.J. 643,
657 (2007); Julie E. Cohen, Privacy, Ideology, and Technology: A Response to Jeffrey Rosen, 89
Geo. L.J. 2029, 2043 (2001); Ruth Gavison, Too Early for a Requiem: Warren and Brandeis
Were Right on Privacy vs. Free Speech, 43 S.C. L. Rev. 437, 451 (1992).
34
In contrast to the several scholars who have noted the limited viability of the public disclosure
tort, Amy Gajda has recently argued that “courts are showing a new willingness to limit public
disclosure of truthful information.” Gajda, supra note 30, at 3. Gajda suggests that privacy
rights are threatening the First Amendment’s guarantee of freedom of the press. However, as
my systematic review of public disclosure tort cases suggests, Gajda’s claim may hold true for
plaintiffs in privileged positions, but it is far less clear that that the public disclosure tort is
operating with great effect generally.
35
Neil M. Richards & Daniel J. Solove, Prosser’s Privacy Law: A Mixed Legacy, 98 Calif. L. Rev.
1887, 1891 (2010).
188 Equal Protection Privacy

understandings of privacy in terms of levels of accessibility of information.”36 Among

other suggestions for improving privacy tort law, Richards and Solove rightly recom-
mend that tort law better appreciate the “gradations between purely public and
purely private.”37 Relatedly, Lior Strahilevitz has persuasively suggested that social
networks theory could be used to reorient the disclosure tort away from the vague
reasonable expectation of privacy inquiry toward an empirical one centered on
whether “the defendant’s actions materially affect[ed] the extent of subsequent
disclosure.”38 In other words, if there was a preexisting ex ante likelihood that the
information at issue would be spread beyond the plaintiff’s existing social network
when the plaintiff first disclosed the information, then the defendant’s disclosure of
the information beyond that network would be less likely to be actionable.
Danielle Keats Citron has also astutely observed that, in its current form, privacy tort
law is ill-suited to deal with today’s modern technologies.39 Specifically, she has argued
that privacy torts could be reinvigorated with a returned focus to Warren and Brandeis’s
concept of the “right to be left alone” – that is, she advocates a more expansive
understanding of the harms at stake in privacy violations. And while Citron does a
laudable job of mustering real-world evidence to show how technology magnifies the
harm of privacy disclosures, we still lack a doctrinal, authoritative justification for a
broader conception of harm, other than the Warren and Brandeis article.
Finally, a number of scholars have argued that if plaintiffs are able to somehow
link their disclosure claim to an intrusion claim and show that improper collection
followed by improper dissemination occurred, they are more likely to succeed.40 For
example, Rodney Smolla has suggested that if plaintiffs are able to show that both
intrusion and disclosure interests are implicated, their privacy claims will be
stronger.41 And, indeed, the Restatement itself seems to recognize that many privacy
invasions will involve both intrusion upon seclusion and dissemination.42

36
Id. at 1918, 1920; see also Allen, supra note 33, at 1749 (observing how the narrowly constructed
“publication” and “private fact” requirements have stymied LGBT plaintiffs and that courts will
need to rethink the degree to which they penalize plaintiffs who selectively disclose their
minority sexual orientation or transgender status); Katheleen Guzman, About Outing: Public
Discourse, Private Lives, 73 Wash. U. L.Q. 1531, 1590 (1995) (arguing that the public disclosure
tort provides little refuge to LGBT “outing” victims and suggesting courts recognize that private
information “embraces much more than pure secrecy” and that a “contrary view actually
perpetuates the closet as the proper milieu for lesbians and gay men”).
37
Richards & Solove, supra note 35, at 1922.
38
Lior J. Strahilevitz, A Social Networks Theory of Privacy, 72 U. Chi. L. Rev. 919, 975 (2005).
39
Danielle K. Citron, Mainstreaming Privacy Torts, 98 Calif. L. Rev. 1805 (2010); see also Jessica
Litman, Information Privacy/Information Property, 52 Stan. L. Rev. 1283, 1291 (2000).
40
Allen, supra note 33, at 1715; Josh Blackman, Omniveillance, Google, Privacy in Public, and the
Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image
over the Internet, 49 Santa Clara L. Rev. 313, 314–15 (2009); Richards, supra note 15, at
383–84.
41
Smolla, supra note 30, at 321–22.
42
Restatement (Second) of Torts § 652A cmt. d, illus. 1 (1977); Elder, supra note 23, § 1.1; cf.
Lior J. Strahilevitz, Reunifying Privacy Law, 98 Calif. L. Rev. 2007, 2008 (2010).
 Public Disclosure Tort in Practice 189

These critiques – and others43 – are all on point. They help us understand how
privacy doctrine has failed to keep up with technological changes and help us
appreciate the importance of robust tort privacy protections, while suggesting some
useful doctrinal reforms. In the next sections, this chapter enhances these critiques
by providing meaningful evidence of the current doctrinal shortcomings, efficiently
framing those shortcomings in terms of the “secrecy double standard,” and then
pointing to a doctrinal basis for altering the current black-letter law: constitutional
equality principles.

the public disclosure tort in practice: a second

double standard
In practice, the requirement that plaintiffs keep information at issue completely
secret and that defendants widely disseminate the information (together, the
“secrecy double standard”) are sometimes applied differently to different classes of
plaintiffs and also have a disparate impact on certain marginalized communities. In
other words, there is evidence that the secrecy double standard itself is enforced
inconsistently among different kinds of plaintiffs, creating a second double standard.
This section discusses the results of a systematic review of public disclosure tort cases
over a decade-long period. This review suggests that the tort’s requirements are, at
times, applied inconsistently to different kinds of plaintiffs, with plaintiffs in
privileged social positions receiving preferential treatment and outcomes compared
to those in non-privileged positions.

1 Overview of Systematic Review

For starters, it is important to understand how unlikely plaintiffs are to succeed in
public disclosure tort lawsuits and how limiting the widespread disclosure and
complete secrecy requirements are in practice. A national review of both state and
federal public disclosure tort cases over a roughly decade-long period from 2006 to
2016 highlights the rigor of the current tort requirements.44 In total, decisions
relating to dispositive motions (or those that functioned as effectively dispositive
43
Feminist scholars have also observed the potential for privacy law, including privacy torts, to
reinforce stereotypical conceptions of female modesty that work to subjugate sexual freedom
and autonomy. E.g., Anita L. Allen & Erin Mack, How Privacy Got Its Gender, 10 N. Ill. U.L.
Rev. 441, 459 (1990); Amy Kapczynski, Note, Same-Sex Privacy and the Limits of
Antidiscrimination Law, 112 Yale L.J. 1257, 1284–90 (2003); Catherine A. MacKinnon,
Reflections on Sex Equality Under the Law, 100 Yale L.J. 1281, 1286 (1991). As discussed below,
it is my hope that importing constitutional equality principles can help rebuff some of the
stereotyped norms Anita Allen and others document.
44
As noted previously, the methodology for locating, analyzing, and coding these cases is outlined
in Skinner-Thompson, supra note 4, Appendix A. The cases themselves are catalogued in a
chart, available at https://www.law.uw.edu/wlr/online-edition/scott-skinner-thompson.
190 Equal Protection Privacy

table 1 Public disclosure tort decisions (2006–2016)

No. of Percent of case Percent of all case

Reason for judgment judgments dismissals outcomes

Not widely disclosed 39 30% 25%

Already public/not 37 29% 24%
completely secret
Newsworthy 23 18% 15%
Not offensive 15 12% 10%
Pleading/insufficient facts 26 20% 17%
Litigation privilege 8 6% 5%
Other 21 16% 13%
Survived motion 28 N/A 18%
Total case outcomes 157 N/A 100%

motions) occurred in 155 public disclosure tort cases, with 157 separate case out-
comes.45 In 129 of those instances, a judgment was entered against the party bringing
the public disclosure claim.46 In other words, a privacy claim only survived twenty-
eight times, or roughly 18 percent.47 As Table 1 illustrates, the two principal reasons
courts rejected privacy claims were (1) the information at issue was not disclosed
widely enough by the defendant and (2) the plaintiff had not kept the information
sufficiently secret in advance. More important than the specific figures (which are
subject to some variation based on how one categorized borderline cases) is the
general theme that the secrecy double standard operated to bar the lion’s share of
the public disclosure cases. The chart below includes the reasons for decision in
each of these 155 cases.48
A closer, qualitative examination of the cases further highlights the limiting
role of both the widespread publication and complete secrecy requirements
and the degree to which they are applied unequally among different kinds of
plaintiffs.49

45
In two cases, there were different outcomes as to different parties, bringing the total number of
case outcomes to 157.
46
Occasionally, the public disclosure claim was brought by the defendant as a counterclaim.
47
This does not mean the privacy claimant ultimately prevailed, only that they survived the
dispositive motion with the ultimate merits of their claim to be determined subsequently.
48
The total number of reasons for judgment accounted for in Table 1 amounts to more than the
157 outcomes because, in several cases, the court gave two or more justifications for granting
judgment against the privacy claimant.
49
Often, the court decisions did not discuss the parties’ demographic information (e.g., their race,
age). This prevents statistically based claims (for example, that white plaintiffs tended to fare
better than people of color). But, as will be highlighted, qualitative comparative evidence
suggests that people of privilege – broadly defined – tend to fare better in public
disclosure suits.
 Public Disclosure Tort in Practice 191

2 The Widespread Disclosure Requirement Prevents Claims

by the Marginalized
The widespread disclosure requirement has sometimes been employed in a draco-
nian (and arbitrary) fashion against plaintiffs from various marginalized commu-
nities, stopping claims that raise serious privacy concerns.50 For example, in Bilbrey
v. Myers,51 a Florida appellate court (with little explanation) affirmed dismissal for
insufficient publicity where the defendant, plaintiff’s former pastor, allegedly broad-
cast that plaintiff was gay to plaintiff’s church, including to plaintiff’s fiancée’s father.
The defendant also allegedly told the plaintiff’s new pastor that the plaintiff was gay
after the plaintiff had moved away and called off his wedding.
Similarly, in Beyene v. Hilton Hotels Corp.,52 summary judgment was granted against
plaintiff, a room service food server and native of Ethiopia, where it was alleged that his
employer, Hilton Hotels, had disclosed to two or three of plaintiff’s coworkers that the
plaintiff had received medical injections from a particular doctor. The court ruled that
the disclosure was not widespread enough to survive summary judgment. Likewise, in
Williams v. Wicomico County Board of Education,53 the court dismissed a public
disclosure claim brought by an African-American special education teacher against his
former employers because the disclosure was not made to the public, but instead, only to
various individuals at plaintiff’s prospective places of employment. The information
disclosed related to an altercation plaintiff had with a student. The plaintiff was acquitted
of wrongdoing and the criminal charge ordered expunged. Notwithstanding that the
disclosures by defendants were allegedly preventing plaintiff from obtaining new
employment, the claim was dismissed for lack of sufficient publicity. And in DeBlasio
v. Pignoli,54 a Pennsylvania appeals court held that there was inadequate disclosure to
state a claim where surveillance cameras of a town’s holding cells allegedly broadcast
video of the cells into the mayor’s home, where the mayor could monitor the detainees.
There are several other examples of the widespread publication requirement
being imposed strictly against individuals in precarious social positions.55 The

50
See also Ari Ezra Waldman, Privacy as Trust: Information Privacy for an Information
Age 111 (2018) (underscoring the negative impact of the widespread publicity requirement on
victims of revenge pornography).
51
91 So. 3d 887 (Fla. Dist. Ct. App. 2012).
52
815 F. Supp. 2d 235 (D.D.C. 2011).
53
836 F. Supp. 2d 387 (D. Md. 2011).
54
DeBlasio v. Pignoli, 918 A.2d 822, 824 n.3 (Pa. Commw. Ct. 2007).
55
E.g., Edwards v. Nat’l Vision, Inc., 946 F. Supp. 2d 1153, 1179 (N.D. Ala. 2013), aff’d, 568 Fed.
Appx. 854 (11th Cir. 2014) (insufficient publicity where information that plaintiff, who was
black, allegedly took anger management classes was not spread outside of employment
confines); Opperman v. Path, 87 F. Supp. 3d 1018, 1062 (N.D. Cal. 2014) (finding allegation
that defendants transmitted plaintiffs’ cell phone address books in unencrypted manner over
public WiFi making it available to third parties and service providers insufficient to satisfy
publicity requirement); Armstrong v. Thompson, 80 A.3d 177, 189 (D.C. 2013) (holding that
publicity element was not satisfied where defendant sent a “handful of letters [six] to a handful
192 Equal Protection Privacy

widespread disclosure requirement is strictly imposed against these unprivileged

persons notwithstanding the fact that if the person is not a public figure, his or her
information is less likely to be of public interest and therefore disseminated to “the
world.” Nonetheless, disclosure of that information within certain confines (for
example, a person’s church, a person’s place of employment, or someone else’s
home), may be no less damaging to the individual plaintiff who may lack the
structural safeguards of privileged public figures to deal with and cope from the
fallout from the disclosure.

3 The Complete Secrecy Requirement Prevents Claims by the Marginalized

In addition to the examples discussed in Chapter 1 involving a revenge porn
victim,56 an individual who had their mental health history disclosed,57 and the

of employees at a single agency” informing the agency that plaintiff was under internal
investigation, preventing plaintiff from obtaining employment at the agency); Galaria
v. Nationwide Mut. Ins. Co., 998 F. Supp. 2d 646, 662 (S.D. Ohio 2014), rev’d on other
grounds, 663 Fed. Appx. 384 (6th Cir. 2016) (finding allegation that defendant permitted
hackers to obtain plaintiff’s personal identifying information insufficient to satisfy publicity
requirement because disclosure was not made to the general public); Gonnering v. Blue Cross
& Blue Shield, 420 F. Supp. 2d 660, 667 (W.D. Tex. 2006) (finding that alleged disclosure of
plaintiff’s gay sexual orientation between recruiter and potential employer was insufficiently
widespread to state a claim for invasion of privacy); Purcell v. Am. Legion, 44 F. Supp. 3d 1051,
1061 (E.D. Wash. 2014) (finding disclosure of plaintiff’s health information to two unprivileged
coworkers insufficient to satisfy publicity requirement); Mayor & City Council of Richmond
Hill v. Maia, 336 Ga. App. 555, 567–68 (2016), rev’d on other grounds, City of Richmond Hill
v. Maia, 800 S.E.2d 573 (Ga. 2017) (alleged disclosure by police officer of photographs
documenting injuries sustained by teenage girl who attempted suicide to his own daughter,
who attended school with the teen who had attempted suicide, deemed insufficient publicity
notwithstanding that there was evidence suggesting that the photos were subsequently further
shown among students at the school); Snavely v. AMISUB of S.C., Inc., 379 S.C. 386, 397
(S.C. Ct. App. 2008) (holding that alleged disclosure of plaintiff’s hepatitis to two individuals
did not constitute “publicity” because the medical condition was not distributed to the “public
at large”); Sorensen v. Barbuto, 143 P.3d 295, 301 (Utah Ct. App. 2006), aff’d and remanded, 177
P.3d 614 (Utah 2008) (affirming dismissal of privacy suit against plaintiff’s former doctor who
allegedly disclosed information regarding plaintiff’s medical condition because disclosure was
to a limited number of people, but permitting duty of confidentiality claim to proceed); cf.
Cordts v. Chi. Tribune Co., 860 N.E.2d 444, 453 (Ill. App. Ct. 2006) (affirming dismissal of
public disclosure tort where the disability claim evaluator of plaintiff’s employer disclosed
plaintiff’s mental health information to plaintiff’s ex-wife on theory that ex-wife had “natural
and proper interest” in the information given its potential relevance to plaintiff’s ability to pay
support for their children as required by marital settlement agreement). But see Hudson v. Dr.
Michael J. O’Connell’s Pain Care Ctr., Inc., 822 F. Supp. 2d 84, 97 (D.N.H. 2011) (finding
sufficient evidence of public disclosure to deny motion to dismiss where defendant employers
allegedly made plaintiff’s medical information, including information regarding her herpes
infection, available to fellow colleagues at medical center where plaintiff was also a patient, and
colleagues talked about her infection).
56
Doe v. Peterson, 784 F. Supp. 2d 831, 834–35 (E.D. Mich. 2011).
57
Lentz v. City of Cleveland, No. 1:04CV0669, 2006 WL 1489379, at *4 (N.D. Ohio May
22, 2006).
 Public Disclosure Tort in Practice 193

older case of Oliver Sipple whose gay sexual identity was outed in multiple news-
papers, there are many other examples where the requirement that the information
publicized be completely secret has also been routinely enforced, even in egregious
situations.58 For example, in Dumas v. Koebel, a court found no privacy violation
where a TV station disclosed on air that the plaintiff female bus driver had a
nearly decade-old misdemeanor conviction for sex work because the information
was in a public record.59 Likewise, in Barnhart v. Paisano Publications, a court
granted summary judgment in favor of defendant magazine publisher that published
a photo of plaintiff, a retail clerk, taken when she briefly exposed her torso at a public
pig roast, notwithstanding that she allegedly lifted her shirt within a group of about
only ten people whom she knew and trusted.60 These examples, too, are part of a
long list.61

58
This is not to say that the complete secrecy requirement has always been strictly applied, even
as to plaintiffs from marginalized communities. There are examples of marginalized people
prevailing in their disclosure claims notwithstanding that the information at issue had been
disclosed in limited circles prior to the defendant’s further dissemination. Strahilevitz, supra
note 38, at 921 n.4 (discussing Multimedia WMAZ, Inc. v. Kubach, 443 SE.2d 491, 494 (Ga. Ct.
App. 1994), which held that plaintiff’s previous disclosure that he had AIDS to allegedly sixty
people did not render the information public as a matter of law foreclosing his tort claim).
59
841 N.W.2d 319, 325–26 (Wis. Ct. App. 2013).
60
457 F. Supp. 2d 590, 593 (D. Md. 2006).
61
See Adamski v. Johnson, No. 7824 CV 2005, 2006 WL 4129308, at *77 (Pa. Com. Pl. Mar. 2,
2006) (dismissing privacy claim because plaintiff told some of her coworkers about medical
surgery she claimed was private and that her employer also allegedly disclosed); Holloway
v. Am. Media, Inc., 947 F. Supp. 2d 1252, 1269 (N.D. Ala. 2013) (finding no tort violation where
tabloid purported to describe death/burial of child where mother had previously contacted
media to put pressure on authorities to find her missing child); Buzayan v. City of Davis, 927
F. Supp. 2d 893, 902–06 (E.D. Cal. 2013) (finding no privacy violation where defendant
prosecutor disclosed audiotape interview with Muslim teenager to newspaper after charges
against the teen had been dropped because the teen’s family had also disclosed information
about the incident to the media, including copies of the audiotape); Purzel Video GmbH
v. Smoak, 11 F. Supp. 3d 1020, 1028 (D. Colo. 2014) (finding information about files shared
through BitTorrent file sharing protocol are not protected by privacy tort because the files were
shared and therefore public); Budik v. Howard Univ. Hosp., 986 F. Supp. 2d 1, 12
(D.D.C. 2013) (finding no privacy violation where defendant allegedly disclosed photograph
of plaintiff because, as a doctor at a university hospital, the information was purportedly already
public); McMann v. Doe, 460 F. Supp. 2d 259, 268–69 (D. Mass. 2006) (no privacy violation
when picture of plaintiff was allegedly used on surreptitiously created website whose domain
name was plaintiff’s name and website said that plaintiff “turned lives upside down,” among
other comments); Brown v. CVS Pharmacy, L.L.C., 982 F. Supp. 2d 793, 807–08 (M.D.
Tenn. 2013) (barring suit against pharmacy for disclosing to patients that physician was under
investigation because physician filed suit challenging the investigation, making it public);
Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125, 1130 (2009) (finding no privacy
violation where high school principal allegedly submitted MySpace posting of a college student
to the town newspaper, which republished the posting with the student’s full name, because
student posted the writing on her public MySpace page for six days); Keller v. Patterson, 819
N.W.2d 841, 846 (Wis. Ct. App. 2012) (finding no privacy violation where defendant posted
fliers indicating that sex offender was living at particular house because information was already
in public record). There are also examples where marginalized individuals’ intrusion upon
194 Equal Protection Privacy

But as discussed in Chapter 1, for marginalized populations subjected to higher

levels of government and private surveillance, lived privacy – the precondition for
legal privacy – is a practical impossibility. Indeed, sharing the stigmatized infor-
mation within limited confines may be necessary to mental health, identity explor-
ation/play, and existence, as even the Supreme Court has recognized.62 Yet, the
complete secrecy requirement punishes those who do share their intimate
information within limited confines.

4 The Privileged Prevail

In contrast to these cases stand those like Hulk Hogan’s suit against Gawker. In the
Hogan suit, former professional wrestler Hulk Hogan, whose real name is Terry
Bollea, sued Gawker Media seeking damages from Gawker’s posting of excerpts of a
sex tape between Bollea and a woman named Heather Clem with whom he had an
affair in 2006, and an injunction barring Gawker from further publishing the video
and related report.63 Excerpts of the video were posted by Gawker in October 2012,
though media reports regarding the tape’s existence, some including still shots from
the tape, predated Gawker’s disclosure. Bollea filed suit against Gawker later that
month in federal court, but after his request for an injunction was denied, he
voluntarily dismissed the federal suit and sued in Florida state court. There, trial
court Judge Pamela Campbell initially granted Bollea’s injunction request, but the
court of appeals reversed the imposition of an injunction. On remand, Judge
Campbell denied a motion to dismiss the case and the case proceeded to trial64
where a jury awarded Bollea a total of $140 million in damages, consisting of $55
million in compensatory damages, $60 million for emotional distress, and $25
million in punitive damages.65 Gawker appealed, and the case ultimately settled
for $31 million.
If the public disclosure tort’s requirement that the information at issue be
completely secret had been applied as it was in the above cases involving “ordinary”

seclusion claims have been dismissed pursuant to stringent understandings of that tort’s
requirements. See, e.g., Horgan v. Simmons, 704 F. Supp. 2d 814, 821–22 (N.D. Ill. 2010)
(finding that employer’s repeated insistence that plaintiff disclose that he was ill, resulting in
disclosure of plaintiff’s HIV positive status, was insufficient prying to constitute an intrusion
upon seclusion).
62
Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that criminalizing same-sex sexual
conduct demeaned the “existence” of homosexuals, implicitly rejecting a distinction between
one’s identity as homosexual and acting on that sexuality).
63
Gawker Media, LLC v. Bollea, 129 So. 3d 1196 (Fla. Dist. Ct. App. 2014) (describing
allegations).
64
Bollea v. Gawker Media, LLC, No. 12012447-CI-011, 2016 WL 1270387, at *1 (Fla. Cir. Ct.
Jan. 28, 2016).
65
Note that the damages awarded may not have been attributable solely to the public disclosure
claim, because other claims including an intrusion upon seclusion claim, were submitted to
the jury.
 Public Disclosure Tort in Practice 195

people, there seems little question that Bollea’s suit should have been dismissed.
Bollea built his career as an ostentatious public persona and he had not infrequently
discussed his sex life with media outlets, including openly discussing another affair
in his 2009 autobiography.66 Bollea and his family also had their own reality
television show from 2005 to 2007. Beyond being generally cavalier about his
personal life, Bollea had specifically discussed an encounter with Clem on The
Howard Stern Show and TMZ.
Moreover, stills from the video were not originally posted by Gawker, but were
evidently published by other media outlets prior to Gawker’s posting in October
2012. Indeed, in reversing the grant of the initial injunction by Judge Campbell, the
Florida Court of Appeals specifically noted that, based on Bollea’s own conduct, it
was “hard-pressed to believe that Mr. Bollea truly desired the affair and Sex Tape
to remain private or to otherwise be ‘swept under the rug.’”67 Nevertheless, on
remand, Judge Campbell permitted the case to go to trial and the jury found in
favor of Bollea.
The size of the award to Bollea also highlights how the public disclosure tort
operates unevenly. Even where non-privileged plaintiffs have prevailed in privacy-
related suits, the awards they receive often pale in comparison to those of privilege.
As point of contrast, while not strictly involving a public disclosure claim (and
instead misappropriation of image and related causes of action), in Coton
v. Televised Visual,68 plaintiff was awarded roughly $129,000 where plaintiff
alleged that the defendant was using a self-portrait photograph taken of the plaintiff
when she was 14 years old to market pornographic videos without plaintiff’s permis-
sion. The defendants in Coton did not even defend the claim and a default
judgment was entered. Notably, this case, like Bollea’s, was brought in
Florida under Florida law, and yet the plaintiff’s damages were much more limited
than Bollea’s.
Perhaps even more glaring, in Cotto v. City of Middletown,69 plaintiff, who was of
Puerto Rican descent and had a mild intellectual disability, was awarded only $1,000
in nominal damages and $32,500 in punitive damages when he was subjected to a
strip search of his genitals and buttocks in full view of vehicular traffic that slowed
down to watch the search. This award covered plaintiff’s invasion of privacy claim
and other, related claims. And in a revenge porn case involving egregious facts
where the defendant uploaded secretly recorded sexual videos of a Muslim female

66
Gawker Media, 129 So. 3d at 1200–01.
67
Id. at 1201 n.5.
68
740 F. Supp. 2d 1299, 1303 (M.D. Fla. 2010). Because this case did not strictly involve a public
disclosure tort claim, it is not included in the systematic review or the case chart.
69
158 F. Supp. 3d 67, 75, 90 (D. Conn. 2016). In Walgreen Co. v. Hinchy, 21 N.E.3d 99, 113–14
(Ind. Ct. App. 2014), involving a pharmacy disclosure of plaintiff’s pharmacy records to the
plaintiff’s ex-boyfriend, the plaintiff was awarded $1.44 million in damages for invasion of
privacy and related claims.
196 Equal Protection Privacy

teenager to the Internet, the plaintiff was awarded $200,000 in damages for public
disclosure and $145,000 for intrusion upon seclusion.70
Bollea’s case is not the only example of privileged, and famous, people faring
relatively well in privacy-related suits. For example, the mother of murdered
model and professional wrestler Nancy Benoit brought a right of publicity suit
against the publishers of Hustler for publishing nude images of Nancy taken
twenty years before she was murdered by her husband, another professional
wrestler named Chris Benoit. While the case involved the intellectual property
right to publicity claim, as opposed to a public disclosure privacy claim, the court
ruled that the photos were not newsworthy because they bore no relation to the
newsworthy event – Nancy’s tragic death.71 As the court reasoned, “someone’s
notorious death [does not] constitute[] a carte blanche for the publication of any
and all images of that person during his or her life.”72 To be clear, I am not
suggesting that the outcome in this case is wrong. Just the opposite – it would be
desirable if the court’s pragmatic analysis that takes into account the everyday
expectations of privacy was emulated in cases not involving privileged members
of society.
In another case involving a high-profile celebrity, professional football player and
New York Giant Jason Pierre-Paul brought a public disclosure lawsuit against ESPN
and one of its reporters after the reporter tweeted images of Pierre-Paul’s medical
records indicating that Pierre-Paul had to have a finger amputated.73 The tweet
occurred on July 8, 2015 in the midst of preexisting reporting and widespread public
discussion regarding Pierre-Paul’s involvement in a Fourth of July fireworks accident
that injured his hand, requiring hospitalization. While Pierre-Paul acknowledged
that the amputation of his finger was a matter of legitimate public concern, he
argued that the image of the chart itself was not. The District Court agreed and
denied ESPN’s motion to dismiss, concluding that disclosure of the image of the
chart (as opposed to the fact of amputation itself ), may have exceeded appropriate
limits and not been a matter of public concern. In other words, here again, when the
disclosure concerns information about a high-profile, privileged person and con-
cerns information (a medical injury) that bears directly on why that person is in the
public eye (their ability to play football), the court nevertheless seems to interpret
the tort in favor of the privileged plaintiff.74 As Amy Gajda has observed, “there
are cases suggesting a stiffening resolve to draw a line on reporting on public

70
Patel v. Hussain, 485 S.W.3d 153, 171–72 (Tex. App. 2016).
71
Toffoloni v. LFB Publ’g Grp., LLC, 572 F.3d 1201, 1211 (11th Cir. 2009).
72
Id. at 1210. For a contrasting decision involving a non-famous plaintiff in a public disclosure tort
case, see Anderson v. Suiters, 499 F.3d 1228, 1236–37 (10th Cir. 2008), discussed in Chapter 1.
73
Pierre-Paul v. ESPN, Inc., No. 1:16-cv-21156, 2016 U.S. Dist. LEXIS 119597 (S.D. Fla. Aug. 29,
2016). Because this case was decided just outside the decade-long period used for the systematic
review, it is not included in the case chart.
74
The case settled for an undisclosed amount in February 2017.
 Public Disclosure Tort in Practice 197

officials . . . and public figures,” protecting their privacy notwithstanding their

public status.75
Similarly, in an older case, actress Pamela Anderson Lee and Poison musician
Bret Michaels successfully enjoined an adult entertainment distributor from pub-
lishing a sex tape of Anderson Lee and Michaels.76 The court interpreted the public
disclosure tort in favor of the celebrities. For example, the court rejected defendant’s
arguments that because Anderson Lee had professionally “appeared nude in maga-
zines, movies and publicly distributed videotapes” and because a separate sex tape
between her and her husband Tommy Lee had already been widely distributed, the
sex tape between her and Michaels was no longer private. The court correctly
concluded that just because your body is exposed in one context, different images
of your body did not become forever available to the public. Likewise, the court
rejected the defendant’s argument that because a 148-second portion of the tape had
been published online, the right to privacy had been extinguished.77 So, once more,
the public disclosure’s strictures are relaxed and interpreted in favor of a privileged
set of plaintiffs.78

75
Gajda, supra note 30, at 177. Sportscaster Erin Andrews also rightly prevailed in her privacy
lawsuit against a stalker who videotaped her undressing in her hotel room and the owner of the
hotel that permitted him to obtain the room next to hers. However, the Andrews verdict does
not necessarily suggest that the public disclosure tort’s standards are being applied in a more
favorable manner toward celebrities because there was no real dispute that the information
about Andrews was obtained surreptitiously (in other words, the information was completely
secret beforehand and not exposed to anyone) and the stalker posted the information online,
widely disseminating it. See Verdict Form, Andrews v. West End Hotel Partners, LLC,
No. 11C4831, 2016 WL 915534 (Tenn. Cir. Ct. Mar. 8, 2016).
76
Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998).
77
See also Benz v. Wash. Newspaper Publ’g Co., No. 05-1760, 2006 U.S. Dist. LEXIS 71827, at
*26 (D.C. Cir. Sept. 29, 2006) (in public disclosure suit by CNN producer, the fact that
plaintiff producer’s contact information was publicly available elsewhere did not defeat her
disclosure suit for further publication by defendant); Times Picayune Publ’g Corp. v. United
States, 37 F. Supp. 2d 472, 477 (E.D. La. 1999) (denying FOIA request for mugshot of the
owner of the San Francisco Forty-Niners because, although his conviction was already public
knowledge, that mere fact did not defeat his privacy interest in the mugshot).
78
In subsequent proceedings in the Michaels case, the court granted summary judgment in favor
of a separate defendant, Paramount, that had published small portions of the tape when
reporting on the adult entertainment company’s impending release of the tape. Michaels
v. Internet Entm’t Grp., Inc., No. 98-cv-0583 DDP, 1998 U.S. Dist. LEXIS 20786 (C.D. Cal.
Sept. 10, 1998). The court again rejected the notion that because Lee’s sex life and body had
been publicized previously, she was not entitled to privacy. However, in evaluating the
newsworthiness prong of the public disclosure tort, the court concluded that the news report
at issue was not sufficiently intrusive to outweigh Paramount’s First Amendment interest in
discussing the tape because the clips it showed “were brief and revealed little in the way of
nudity or explicit sexual acts.” Id. at *28–29. Conversely, in the lawsuit by Pamela Anderson
Lee and her husband Tommy Lee against Penthouse for publication of intimate still photo-
graphs of the couple, Penthouse was granted summary judgment because the photos at issue
had been previously published in three other publications. Lee v. Penthouse Int’l, No. 96-cv-
7069 SVW, 1997 U.S. Dist. LEXIS 23893, at *18 (C.D. Cal. Mar. 18, 1997).
198 Equal Protection Privacy

Given its origins in elite New England society, perhaps it is no great surprise that
the public disclosure tort is being used to greater effect by people of privilege and
celebrity. Privilege permeates our law and, as Anita Allen and Erin Mack have
noted, privacy torts were “the brainchild of nineteenth-century men of privilege” –
Warren and Brandeis.79 According to Allen and Mack, “the privacy tort bears the
unmistakable mark of an era of male hegemony.” Principally, as originally con-
ceived, the tort was built on gendered notions of female modesty that suggested
women were vulnerable and in need of protection. As Allen and Mack argued
several decades ago, issues of gender – and I would add privilege more generally –
have often been overlooked in discussions of privacy torts.80 Despite their misgivings
about the sexist norms underlying the development of privacy tort law, Allen and
Mack believe that privacy law – including privacy torts – have an important role to
play in advancing women’s rights and provide examples of how privacy torts can be
pursued to fight, for example, sexual harassment without relying on gendered claims
of female virtue and modesty.
But is it possible to limit the degree to which privilege colors the substantive
application of privacy tort law, and tort law more broadly? The next section explores
whether evidence of disparate treatment and/or disparate impact in the application
of tort law provides an impetus for the injection of constitutional equality principles
into the substance of common law.

injecting equality into the common law

One of the major payoffs or implications for detailing the disparate application and
impact of the current black-letter law on marginalized communities is that it
provides evidence for importing constitutional equality principles into the
common-law doctrine. If the Constitution, namely the First Amendment, applies
to the common law and limits how courts interpret and shape the substance of
private tort law because the common law is a form of state action, then other
provisions of the Constitution ought to also apply to that state action. Here,
I highlight how common law could be susceptible to influence from equal protec-
tion disparate treatment and impact doctrine, justifying (and arguably necessitating)
modification of the substance and application of tort law. Equality principles can
make the common law more sensitive to social context and the reality that many
people may still be impacted by limited disclosures and find it nearly impossible to
keep information totally secret ex ante. This section first analyzes existing doctrine
and scholarship finding state action in the creation and enforcement of the common
79
Allen & Mack, supra note 43, at 441–42.
80
Id. at 469. More recently, Danielle Keats Citron and Mary Anne Franks have been filling that
gap, advocating that tort law can be used to combat revenge pornography. Danielle Keats
Citron & Mary Anne Franks, Criminalizing Revenge Porn, 39 Wake Forest L. Rev. 345,
357–59 (2014).
 Injecting Equality into the Common Law 199

law and shows how that doctrine suggests that tort law should also be guided by
equal protection principles. It then demonstrates how those equality principles
could alter tort privacy doctrine to benefit marginalized people.

1 The Constitution and the Common Law

Both scholarship and US Supreme Court doctrine analyzing when state action (and
therefore the Constitution) is implicated by the substantive application of common
law have focused largely on the First Amendment. This narrow focus is unwarranted
and unmoored from any textual foundation. As Frank Michelman underscored, the
Supreme Court’s application of the First Amendment to speech torts “does throw
the doors open, and there is no way logically – conceptually – to push them shut.”81
Based on existing jurisprudence governing the state action doctrine, the contours of
tort law ought to also be guided by other constitutional provisions, such as the
equality and liberty principles of the Fourteenth Amendment.
The delineations of the so-called state action doctrine have long been murky, and
both the Supreme Court and scholars have struggled to create bright lines separating
state action from purely private action. Generally speaking, the Court has found
state action notwithstanding the presence of private action when there is so-called
entanglement – that is, where “the government affirmatively authorizes, encourages,
or facilitates private conduct that violates the Constitution.”82
In one of the earliest decisions addressing the scope of state action, Shelley
v. Kraemer,83 the Supreme Court held that judicial enforcement of a racially
restrictive housing covenant (a form of contract), whereby residents of a neighbor-
hood agreed to only sell their property to white people, implicated state action.
Therefore, the Constitution applied and the Fourteenth Amendment’s prohibitions
on racial discrimination prevented the court from enforcing the discriminatory
contract.
But, as may seem obvious, if judicial enforcement of a contract were always
sufficient to constitute state action, the Constitution would apply to all attempts at
private ordering, including all contract law. As Erwin Chemerinsky has explained,
“[t]he Court, of course, never has taken Shelley this far, but nor has it articulated any
clear limiting principles.”84

81
Frank I. Michelman, The Bill of Rights, the Common Law, and the Freedom-Friendly State, 58
U. Miami L. Rev. 401, 404 (2003).
82
Erwin Chemerinsky, Constitutional Law: Principles and Policies 527 (5th ed. 2015).
State action may be found in other circumstances as well, such if a private entity is fulfilling a
traditional public function. Marsh v. Alabama, 326 U.S. 501, 507–08 (1946); cf. Manhattan
Community Access Corp. v. Halleck, No. 17-702 (U.S. June 17, 2019).
83
334 U.S. 1 (1948).
84
Chemerinsky, supra note 82, at 553; see also Robert E. Riggs, Constitutionalizing Punitive
Damages: The Limits of Due Process, 52 Ohio St. L.J. 859, 898, 917 (1991).
200 Equal Protection Privacy

A The First Amendment’s Application to the Substance of Torts

Instead, at least in the tort context (as opposed to contract or property law),85 the
Court has suggested post-Shelley that the Constitution applies to tort law, not just
because courts are called upon to enforce tort law, but also because judges create the
common law – they create the rule of decision.86 For example, in New York Times Co.
v. Sullivan,87 the Supreme Court held that a civil libel action brought under Alabama
law was subject to constitutional restraints imposed by the First Amendment. The
Court concluded that “[a]lthough this is a civil lawsuit between private parties, the
Alabama courts have applied a state rule of law which petitioners claim to impose
invalid restrictions on their constitutional freedoms of speech and press.” The Court
elaborated, “[i]t matters not that that law has been applied in a civil action and that it
is common law only, though supplemented by statute. The test is not the form in
which state power has been applied but, whatever the form, whether such power has
in fact been exercised.” Thus, the Court reasoned that judge-made law that was
judicially enforced was subject to constitutional limits, and that in order for a public
official to bring a defamation claim consistent with the First Amendment, the official
must show that the defendant acted with actual malice.
The Supreme Court has reaffirmed the First Amendment’s ability to “reshape the
common-law landscape” of defamation law on multiple occasions. For example, in
Philadelphia Newspapers, Inc. v. Heppes,88 the Court recognized that while private tort
suits were quite different than laws or rules passed by the legislature, the First
Amendment still applied to a defamation suit. The Court noted that “[i]t is not
immediately apparent from the text of the First Amendment, which by its terms applies
only to governmental action, that [such limitations] should obtain here: a suit by a
private party is obviously quite different from the government’s direct enforcement of its
own laws.” Nevertheless, the Court reasoned that defamation suits could unconstitu-
tionally chill expression if the plaintiff – even if a private figure themselves – did not bear
the burden of proving that a statement regarding a matter of public concern was false.
And in NAACP v. Claiborne Hardware Co.,89 the Court held that the First
Amendment’s protections for free speech and association extended to invalidate an

85
E.g., Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (holding that property owner’s exercise of
right of exclusion in private shopping center did not implicate First Amendment).
86
Given that judicially created canons of construction dictate how private contracts are to be
interpreted and the property law is often also judge-made, query whether the distinction
between tort law, on the one hand, and contract and property law, on the other, is consistent.
Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil Liability, 109 Colum.
L. Rev. 1650, 1655–56 (2009). Interestingly, while in Cohen v. Cowles Media Co., 501 U.S. 663
(1991), the Court found state action in a promissory estoppel case, it has not been relied upon
by the Court to inform state action analysis since.
87
376 U.S. 254 (1964).
88
475 U.S. 767 (1986).
89
458 U.S. 886 (1982).
 Injecting Equality into the Common Law 201

attempt to impose tort liability for malicious interference with a business against civil
rights activists who peacefully boycotted segregated businesses in Mississippi.
Relying on New York Times Co., the Court held that “[a]lthough this is a civil
lawsuit between private parties, the application of state rules of law by the Mississippi
state courts in a manner alleged to restrict First Amendment freedoms constitutes
‘state action.’”90
The Court’s application of First Amendment law to tort law has also been
extended to shape the substance of privacy torts. Most prominently, in Cox
Broadcasting Corporation v. Cohn, the Court held that it would be inconsistent
with the First Amendment for the states to enforce the public disclosure tort when it
would sanction “the publication of truthful information contained in official court
records open to public inspection.”91 Put differently, the complete secrecy require-
ment (part of the secrecy double standard) is, itself, a product of the First
Amendment’s application to the substance of privacy torts. At this point, it
seems taken for granted by the Court and scholars that the First Amendment
applies to shape the substance of common-law speech torts, such as defamation
and privacy torts.92

B Other Constitutional Provisions’ Application to Civil Action Procedures

At the same time, the Court has also suggested that the First Amendment is not the
only constitutional provision that applies to private action entangled with govern-
ment action. Nor would such a limitation be principled or textually grounded. But
outside of the First Amendment context, the application of constitutional principles
to tort actions has centered more on the procedures or remedial aspects of litigating
a particular civil action, rather than on the elements of the cause of action itself.
For example, in Edmonson v. Leesville Concrete Co., Inc.,93 the Supreme Court
considered whether the equal protection guarantees of the Fifth Amendment’s Due
Process Clause prevented a defendant in a civil negligence suit from using its
preemptory challenges to exclude jurors on account of their race. The Court first
observed that the “Constitution’s protections of individual liberty and equal

90
Id. at 916 n.51. The Court has also applied the First Amendment to the substance of intentional
infliction of emotional distress. E.g., Snyder v. Phelps, 562 U.S. 443 (2011) (First Amendment
prevented imposition of liability for IIED and intrusion upon seclusion against Westboro
Baptist Church members who protested funeral of fallen soldier); Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46 (1988) (finding Hustler to be protected from IIED suit by First
Amendment).
91
420 U.S. 469, 495 (1975); see also Florida Star v. B.J.F., 491 U.S. 524 (1989); cf. Bartnicki
v. Vopper, 532 U.S. 514 (2001).
92
Solove & Richards, supra note 86, at 1651–52. But see Erwin Chemerinsky, In Defense of Truth,
41 Case. W. Res. L. Rev. 745, 753 (1991) (“It is not inherently inconsistent with the first
amendment to create liability for disseminating truth”).
93
500 U.S. 614 (1991).
202 Equal Protection Privacy

protection apply in general only to action by the government,” but concluded that
constitutional prohibitions on racial discrimination did extend to a private party’s
exercise of a peremptory challenge. According to the Court, because such chal-
lenges were created by statute and because without overt participation of the courts
in the peremptory challenge system, that system would not exist at all, state action
was present and the Constitution adhered.94
Similarly, in Lugar v. Edmondson Oil Co.,95 the Court held that where state law
created a legal right to prejudgment attachment of a defendant’s property in a civil
lawsuit, and where a state officer – a sheriff – affects that attachment, state action
existed such that the statute authorizing the attachment could be challenged as
violating the Fourteenth Amendment’s due process guarantees.96
The Supreme Court has also relied on constitutional due process principles to limit
the imposition of punitive damages in civil suits. For instance, in BMW of North
America, Inc. v. Gore,97 the Court relied on the Due Process Clause of the
Fourteenth Amendment to strike down an award of punitive damages that was 500 times
the actual damage suffered by the plaintiff, who sued an automobile manufacturer for
failing to disclose that the car he bought required minor repairs before being purchased
as “new.” Likewise, in State Farm Mutual Automobile Insurance Co. v. Campbell,98 the
Court again relied on the Due Process Clause to limit the punitive damages imposed
on State Farm for fraud and intentional infliction of emotional distress arising out of its
scheme to cap payouts on claims. Interestingly, when discussing the application of the
Due Process Clause to punitive damages imposed in civil lawsuits, the Court seems not
even to analyze or discuss whether state action is implicated.99
As such, ample authorities suggest that the creation and enforcement of tort law
implicates state action, and therefore the Constitution applies. As the above discus-
sion highlights, the First Amendment has so far been the principal constitutional
provision used to shape the substantive contours of tort law generally,100 and as to

94
Relatedly, Judge Jack Weinstein of the Eastern District of New York has been at the vanguard
of subjecting damages calculations that rely on race-based actuarial calculations to equal
protection scrutiny. G.M.M. ex rel. Hernandez-Adams v. Kimpson, 116 F. Supp. 3d 126, 159
(E.D.N.Y. 2015); McMillan v. City of New York, 253 F.R.D. 247, 248 (E.D.N.Y. 2008); see also
Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Data in Tort
Litigation: A Constitutional Argument, 63 Fordham L. Rev. 73, 105–07 (1994); Kimberly A.
Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the Use of
Race-Based Tables in Calculating Tort Damages, 106 Calif. L. Rev. 325 (2018).
95
457 U.S. 922 (1982).
96
But see Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53 (1999) (holding that mere state
creation of a remedy is insufficient to attribute action of private actor to the state).
97
517 U.S. 559 (1996).
98
538 U.S. 408 (2003).
99
See also Phillips Morris USA v. Williams, 549 U.S. 346 (2007) (applying due process limitations
on punitive damages awarded in negligence suit without analysis of whether state action exists).
100
That said, there is the potential for due process to also shape the substantive rules of tort liability
by, for example, requiring that the rule of liability not be vague. Mark Geistfeld, Constitutional
Tort Reform, 38 Loy. L.A. L. Rev. 1093, 1119 (2005).
 Injecting Equality into the Common Law 203

privacy tort law it has been more or less the exclusive constitutional provision
invoked. But as the above cases also make clear, nothing forecloses application of
other constitutional provisions – such as the guarantees of equal protection – to tort
law. Indeed, both Leesville Concrete Co. and Edmondson Oil Co., centered on the
application of equal protection and due process protections to the procedures (use of
peremptory challenges and attachment, respectively) used to enforce civil lawsuits,
including, in the case of Leesville, a common-law tort lawsuit. Integrating these two
strands of authority (First Amendment application to substance of tort with equal
protection/due process application to procedures surrounding tort suits) indicates
what has been largely overlooked – equal protection principles could also influence
the substance of tort law.

C Lessons from State Constitutions

Significantly, great potential also exists for the equality guarantees of state consti-
tutions to influence the substance of privacy torts. Supplementing the protections of
the federal Constitution, which serve as a floor with regard to individual rights states
must respect, many state constitutions contain their own equality provisions. Not
infrequently, these provisions are interpreted to provide more expansive and robust
protections than their federal counterpart.
State equal protection clauses are more expansive in at least two senses relevant
here. First, they are sometimes interpreted to provide protections for classes not
afforded protection under the federal Constitution. For instance, early advances
toward the recognition of same-sex relationships were first recognized under state
equality guarantees.101 Second, they often explicitly apply not just to state action, but
also apply to limit discrimination by private actors.102 As one example, New York’s
equal protection clause provides that “[n]o person shall be denied the equal protec-
tion of the laws of this state or any subdivision thereof,” which tracks the federal
corollary, but then it goes on to stipulate that “[n]o person shall, because of race,
color, creed or religion, be subjected to any discrimination in his or her civil rights
by any person or by any firm, corporation, or institution, or by the state or any agency
or subdivision of the state.”103
But in addition to instances where state constitutions directly permit constitu-
tional causes of action against private actors, there is also evidence that state consti-
tutional provisions indirectly influence the substance of common-law causes of

101
E.g., Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 481 (Conn. 2008) Varnum v. Brien,
763 N.W.2d 862, 904 (Iowa 2009); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948–49
(Mass. 2003).
102
Helen Hershkoff, State Common Law and the Dual Enforcement of Constitutional Norms, in
New Frontiers of State Constitutional Law: Dual Enforcement of Norms 151, 151
(James A. Gardner & Jim Rossi eds., 2010).
103
N.Y. Const. art. I, § 11.
204 Equal Protection Privacy

actions. Common-law torts are, after all, a creature of state law. And, as Helen
Hershkoff has explained, even though state constitutions do not “explicitly subject
common law decision making to state constitutional . . . regulation,”104 there is
nontrivial practice of state courts permitting state constitutional norms to influence
the common law, thereby indirectly applying constitutional rules to private
parties.105 Hershkoff isolates several examples of how constitutional values are
infused into the common law through “private law portals.”106 Of particular pertin-
ence here, Hershkoff points to examples where state courts have relied on consti-
tutional equality provisions to hold private employers accountable for employment
discrimination, even where those employers were exempt from state statutory anti-
discrimination provisions.107
Interestingly, while the federal jurisprudence discussed above illustrates that the
First Amendment has often been used to limit plaintiffs’ ability to recover damages
for defamation or privacy torts after state action is determined to attach to the
enforcement of the tort, at other times state courts have used free speech values to
justify modifying the substance of the common law without a finding of state action.
In other words, rather than reaching an ultimate constitutional issue after determin-
ing that state action exists in tort law, First Amendment values are used to modify the
substance of common law even without a finding of state action. For example, in
construing the scope of a shopping mall owner’s property right to eject guests who
are gathering petition signatures, the Oregon Supreme Court decided on a “sub-
constitutional level” that the public interest in protecting political speech, one of
“society’s most precious rights,” limited the shopping mall owner’s entitlement to
equitable relief.108 This decision was reached notwithstanding US Supreme Court
law concluding that shopping malls are private property and therefore the First
Amendment does not directly apply to them and their efforts to eject invitees.109
As such, there is reason to believe that both state and federal constitutional
equality provisions could influence the substantive direction of privacy tort law,
with this chapter’s critical analysis of prevailing federal state action doctrine exposing

104
Helen Hershkoff, “Just Words”: Common Law and the Enforcement of State Constitutional
Social and Economic Rights, 62 Stan. L. Rev. 1521, 1525, 1528 (2010).
105
Hershkoff, supra note 102, at 152–53.
106
Id. at 152.
107
Id. at 157–58 (discussing Roberts v. Dudley, 140 Wash. 2d 58, 77–78, 993 P.2d 901, 911 (2000),
where the Washington State Supreme Court held that the public policy against pregnancy
discrimination was enforceable through common-law wrongful discharge tort, with the con-
currence relying on the constitutional guarantee of sex equality rights); see also Phillips v. St.
Mary Reg’l Med. Ctr, 116 Cal. Rptr. 2d. 770, 778–81 (Cal. Ct. App. 2002) (relying on the
constitutional prohibition on sex and race discrimination as evidence of public policy support-
ing a wrongful termination claim wherein a religious employer exempt from statutory provi-
sions allegedly retaliated against a plaintiff based on his complaint of race and sex
discrimination).
108
Lloyd Corp. v. Whiffen, 773 P.2d 1294, 1297, 1299 (Or. 1989).
109
Hudgens v. NLRB, 424 U.S. 507, 520–21 (1980).
 Injecting Equality into the Common Law 205

how the federal Constitution, much like some state constitutions, could apply to the
common law. Having doctrinally justified the link between constitutional equality
principles and tort law, in the following subsection, I analyze how federal equal
protection principles could be used to shape the substance of privacy tort law and
remedy the problems of the secrecy double standard’s disparate impact and
application.

2 Injecting Equality into Privacy Law

To determine how constitutional equality principles could influence the substance
of privacy torts, it is necessary to understand what the Constitution does and does not
require in terms of equality. The Equal Protection Clause of the Fourteenth
Amendment provides that “[n]o State shall . . . deny to any person within its jurisdic-
tion the equal protection of the laws.” The Fifth Amendment’s due process guaran-
tee, while not explicitly containing an equal protection promise, has been
interpreted to apply equal protection principles to the federal government. These
precepts regulate and limit government discrimination based on certain classifica-
tions. Pursuant to longstanding Supreme Court jurisprudence, the Equal Protection
Clause requires race-based classifications to satisfy strict scrutiny (requiring that the
classification be necessary to achieve a compelling government interest) and sex-
based classifications to satisfy intermediate scrutiny (requiring the classification to be
substantially related to an important government purpose). While the Court has not
explicitly held that classifications based on sexual orientation are subject to either
strict or intermediate scrutiny, in recent years the Court has rigorously analyzed and
overturned both federal and state laws that limited the ability of people to marry
those of the same sex. Other classifications, including intellectual disability and
economic class, are subject to rational basis review.
Generally speaking, the existence of a suspect classification exists where (1) the
law facially draws a distinction based on a protected characteristic or is applied
differently to similarly situated groups, or (2) the law is facially neutral but has a
discriminatory impact on members of a protected class and the law was motivated by
a discriminatory purpose.110
In addition to protecting against discrimination based on a particular demo-
graphic characteristic, the Equal Protection Clause also guards against so-called
class-of-one discrimination even where “the plaintiff did not allege membership in a
class or group.”111 According to the Supreme Court, when a person is subject to
arbitrary government treatment and treated differently from others similarly situated,
110
That said, the line between disparate treatment and disparate impact theories of discrimination
is not always bright, and, as will be evident in the discussion that follows, the kinds of
comparative evidence that can be relied on to prove discrimination under each theory
sometimes overlap.
111
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
206 Equal Protection Privacy

that person may bring a class-of-one equal protection claim, reviewed under the
rational basis standard.
As highlighted at the outset of this chapter, black-letter public disclosure tort law
does not, on its face, draw any distinctions based on gender, race, sexual orientation,
or any other protected class. However, as suggested by this chapter’s survey of public
disclosure cases, the law is being applied in disparate and arbitrary ways and with
disparate impacts. If courts interpreting privacy tort law are doing so in a way that
treats similarly situated plaintiffs differently, is equal protection implicated? Separate
and apart from any disparate treatment of similarly situated individuals, does the
disparate impact theory of discrimination offer a way to revise the public disclosure
tort? Even if a formal equal protection claim could not be successfully brought,
would the evidence of inequality provide courts a doctrinally based reason or
impetus to reshape the substantive requirements of the public disclosure tort? This
subsection addresses these questions.
First, I will address facial classifications or disparate treatment of similarly situated
individuals. As noted, at first glance public disclosure tort law purports to treat all
plaintiffs the same (that is, it is not facially discriminatory). But in practice there is
evidence that similarly situated plaintiffs are treated differently under the law. Under
prevailing jurisprudence, if the law or state officials disparately treat individuals who
are similarly situated in relevant respects other than in a protected characteristic
(race, gender, etc.), an inference of discrimination is raised implicating constitu-
tional equal protection guarantees.112 As explained by Giovanna Shay in her thor-
ough analysis of the “similarly situated” test, in equal protection “cases that do not
involve express categorizations,” plaintiffs “must first demonstrate that other ‘simi-
larly situated’ individuals were treated differently.”113
Importantly, in cases such as Yick Wo v. Hopkins,114 the Court has emphasized
that when a facially neutral law is applied or enforced in different ways to similarly
situated groups of people, the law may violate equal protection guarantees. In Yick
Wo, the Court addressed whether equal protection had been violated when a
licensing regime for laundries, while facially neutral, had been applied so as to
deny permission to over 200 people of Chinese ancestry, but was granted to eighty
non-Chinese people. The Court held that equal protection was violated because
[W]hatever may have been the intent of the ordinances as adopted, they are applied
by the public authorities charged with their administration, and thus representing
the State itself, with a mind so unequal and oppressive as to amount to a practical
denial by the State of that equal protection of the laws.115

112
Miller-El v. Dretke, 545 U.S. 231, 240–41 (2005) (holding that defendant may rely on “all
relevant circumstances” to raise inference of discrimination in jury selection, including “side-
by-side” comparisons of how venire members were treated).
113
Giovanna Shay, Similarly Situated, 18 Geo. Mason L. Rev. 581, 587–88 (2011).
114
118 U.S. 356 (1886).
115
Id. at 373.
 Injecting Equality into the Common Law 207

Separate and apart from any disparate treatment or application that might exist, if
a law both has a disparate impact on a particular racial group or gender and is
motivated by a discriminatory purpose, the law may be impermissible under federal
constitutional law. That said, the Supreme Court has rarely found a disparate impact
violation and has held that disparate impact without discriminatory purpose is not
enough to subject the law to heightened scrutiny. Indeed, in the much-maligned
case of McCleskey v. Kemp,116 the Court was confronted with strong empirical
evidence that Georgia’s death penalty was being applied with a disproportionate
impact on black individuals, but concluded that evidence was insufficient to
overturn the death sentence of the individual petitioner because the evidence did
not, in the Court’s view, necessarily suggest that any of the particular decisions in the
case at hand were motivated by race.
Yet, the Court has never foreclosed disparate impact as a means of demonstrating
an equal protection violation and has repeatedly acknowledged its theoretical
viability.117 According to the Court, when the disparate impact is so severe that
discriminatory purpose can be inferred, the dual impact and purpose requirements
are, in effect, blurred.118 Put differently by the Supreme Court in Washington
v. Davis, “[d]isproportionate impact is not irrelevant, but it is not the sole touchstone
of an invidious racial discrimination.”119
For example, in a leading equal protection disparate impact case, Arlington
Heights v. Metropolitan Housing Development Corporation, the Court reaffirmed
that “official action will not be held unconstitutional solely because it results in a
racially disproportionate impact.”120 However, at the same time that it required
evidence of discriminatory purpose, the Court also clarified that nothing required
a plaintiff “to prove that the challenged action rested solely on racially discriminatory
purposes.” As the Court reasoned, rarely could it be demonstrated that a governing
body acted with a single concern or that a particular purpose was even the
primary one.
Moreover, the Court emphasized that purpose could be gleaned from “circum-
stantial and direct evidence” and required a “sensitive inquiry.” It described evi-
dence of a disparate impact as “an important starting point” for determining the
existence of an improper purpose. Indeed, the Court noted that where “a clear
pattern, unexplainable on grounds other than race, emerges from the effect of the
state action,” the “evidentiary inquiry is . . . relatively easy.” The Court also explicitly
stated that when the relevant pattern is “stark” then disparate impact may be

116
481 U.S. 279 (1987).
117
In recent terms, the Court has continued to uphold the viability of disparate impact claims
under certain statutory antidiscrimination protections. E.g., Texas Dep’t of Hous. & Cmty.
Affairs v. The Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015).
118
Gomillion v. Lightfoot, 364 U.S. 339, 345 (1960).
119
426 U.S. 229, 242 (1976).
120
429 U.S. 252 (1977).
208 Equal Protection Privacy

“determinative” of discriminatory purpose. As the Court sensibly recognized in Reno

v. Bossier Parish School Board, “[t]he impact of an official action is often probative of
why the action was taken in the first place since people usually intend the natural
consequences of their actions.”121 Moreover, certain states have interpreted their
constitutional equality provisions as permitting disparate impact claims even without
evidence of discriminatory purpose.122
The Supreme Court has explained that leaving room for disparate impact as a
means of proving discriminatory purpose is crucial because otherwise discriminatory
laws could be “cloaked” in neutrality with the equality guarantees of the
Constitution twisted out of existence.123 The importance of looking beyond apples-
to-apples comparisons has also been emphasized by critical and feminist critiques of
formal equality legal theories. They argue in favor of a “deeper substantive equality
inquiry” because, even if you are able to find the occasional “like” case impacting a
non-marginalized group member, the similarly situated analysis may mask whether
an injury more likely to be suffered by a marginalized group has been neglected by
the law.124
In addition to the guideposts offered by formal disparate treatment and impact
claims, cases where the Supreme Court has subjected punitive damage awards to
due process limitations evince the constitutional importance of treating like cases
alike. For example, in BMW of North America, Inc., discussed above, in determin-
ing whether an award of punitive damages implicated due process concerns, the
Court emphasized the importance that like misconduct be treated alike125 – this
principle has clear implications for the substance of privacy tort law. Just as like
defendants should be treated similarly in terms of the punitive damages imposed, so
too should plaintiffs and defendants involved in public disclosure tort cases have a
uniform set of legal standards imposed. Indeed, while the BMW line of cases has
been criticized because they employ concepts of equality in order to benefit the
privileged (large corporate defendants subject to large punitive damage awards),126
the approach advocated here reappropriates those cases for truly, substantively

121
520 U.S. 471, 487 (1997) (applying the Arlington Heights framework in a section 5 Voting Rights
Act case).
122
Linda J. Wharton, State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in
Advancing Protection against Sex Discrimination, 36 Rutgers L.J. 1201, 1257–58 (2005).
123
Gomillion, 364 U.S. at 345 (an equal protection violation claim was stated where redrawn city
boundaries removed all but four or five of a city’s 400 black voters and did not remove a single
white voter).
124
Chamallas & Wriggins, supra note 2, at 46.
125
517 U.S. at 584 (comparing size of punitive damage award to statutory sanctions for similar
conduct); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 428 (2003);
Phillip Morris USA v. Williams, 549 U.S. 346, 353 (2007).
126
Martha T. McCluskey, Constitutionalizing Class Inequality: Due Process in State Farm, 56
Buff. L. Rev. 1035, 1043–44 (2008); Adam M. Gershowitz, Note, The Supreme Court’s
Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal
Punishments and Excessive Punitive Damages Awards, 86 Va. L. Rev. 1249 (2000).
 Injecting Equality into the Common Law 209

equitable purposes – helping ensure fair results for marginalized groups in civil
privacy lawsuits (and potentially other contexts).127
Finally, it is also worth noting that the First Amendment itself, which as discussed
is already applied to the substance of privacy torts, is closely linked with equality
principles. For example, as Carlos Ball details, First Amendment speech protections
often advance equality aims. The First Amendment served an important incubating
function for the articulation of equality and privacy arguments in favor of LGBTQ
individuals at the same time that it also created space for greater visibility of queer
people in American society.128 The same holds true for the civil rights movement.
Therefore, under either a disparate treatment or disparate impact theory, or based
on due process principles of comparability or the First Amendment’s own embed-
ded equality concerns, there is reason to believe that public disclosure tort doctrine
currently operates in such a way that it implicates constitutional equality prin-
ciples.129 As we saw, this chapter’s survey of public disclosure tort law over a recent
decade indicates that the complete secrecy and widespread disclosure requirements
are not applied consistently by courts or, at the very least, limit the efficacy of the tort
for marginalized communities who live in conditions where their information is
more difficult to keep private and/or where they share information as a form of
bonding, identity exploration, or resistance.
As such, to better comply with constitutional equality principles, the substance of
privacy tort law must be relaxed so as to ensure that individuals in marginalized
communities are able to bring claims on the same terms as privileged individuals.130
One clear way to do so would be through the relaxation of the “secrecy double
standard,” which appears not to be rigorously enforced in cases involving privileged
plaintiffs (e.g., Bollea, Pierre-Paul, Anderson Lee). Consistent with those cases, all
plaintiffs should be able to bring public disclosure claims even if they have shared
the information at issue (for example, their HIV status, sexual orientation, or
intimate photographs) within certain confines.131

127
See also Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation 7, 67
(2019) (advocating that due process concepts of fair play can help advance equality goals).
128
Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History
(2017); see also Timothy C. Shiell, African Americans and the First Amendment (2019)
(documenting role of First Amendment in advancing equality for African Americans).
129
Cf. Richard M. Re, “Equal Right to the Poor,” 84 U. Chi. L. Rev. 1149 (2017) (arguing that the
federal judicial oath requiring judges to “do equal right to the poor and to the rich” might
empower judges to consider whether their decisions are sensitive to economic equality).
130
Chamallas & Wriggins, supra note 2, at 46 (arguing that “courts in tort cases should be
sensitive to context and should place a high priority on protecting plaintiffs’ sexual, reproduct-
ive, and intimate familial relationships against negligent injury, analogous to their protection as
fundamental interests under the U.S. Constitution”).
131
For models of such a contextual approach, see Peterson v. Moldofsky, No. 07-2603-EFM,
2009 WL 3126229, at *5 (D. Kan. Sept. 29, 2009) (holding that defendant’s disclosure of
intimate sexual photographs of plaintiff to only five people did not defeat plaintiff’s publication
of privacy facts claim); M.G. v. Time Warner, Inc., 107 Cal. Rptr. 2d 504, 511 (Cal. Ct.
210 Equal Protection Privacy

Similarly, marginalized plaintiffs should be able to state a claim even if the

defendant does not publicize to the world the information at issue. Recall the case
involving the purportedly gay parishioner whose pastor allegedly informed the
church that the plaintiff was gay, but the case was dismissed for insufficient publi-
city.132 The harm to the plaintiff in that case was no less real (and probably more so)
than the harm to Bollea. But, of course, if a person is not a public persona their
private information is less likely to be of interest to those outside their community,
and therefore is less likely to be broadcast “widely” in the first instance. As such, for it
to operate in such a way that the tort is still available to non-privileged members of
society (who at least in theory are entitled to more privacy than privileged celeb-
rities), it only makes sense for the widespread publicity requirement to be context-
ually applied so as to not require universal, worldwide publication in order to bring a
claim.133 Moreover, it would seem that the extent of disclosure could be considered
at the damages phase, rather than as a substantive requirement.
This chapter’s theory of equal protection privacy torts builds off the critical torts
scholarship of Martha Chamallas and Jennifer Wriggins who highlight the unequal
impacts of certain precepts of tort law. As they explain, while “formal doctrine is
neutral on its face and rights and liabilities are stated in universal terms, consider-
ations of race and gender [and, I would add, privilege more broadly] most often work
their way into tort law in complex, subtle ways.”134 In particular, Chamallas and
Wriggins highlight how limitations on emotional damages, while seemingly facially
neutral, were used to devalue harms suffered by women, such as harms flowing from
reproduction. That is, the law disfavors certain types of claims or injuries that the law
stereotypically associates with women.
My analysis unearths another context where tort law has operated unequally –
privacy law. But in addition to embellishing Chamallas and Wriggins’s descriptive
critique, by shining a light on how the Constitution has been unevenly applied to
the substance of tort law with the First Amendment receiving near exclusive
attention thus far, I chart a principled and doctrinally based course for incorporating
equality principles into common-law doctrine through the Equal Protection Clause.
That is, this chapter connects the dots between Chamallas and Wriggins’s normative
prescription “for a more thorough integration of civil rights and equality norms into
the mainstream of torts” by foregrounding a constitutional basis for doing just that.135

App. 2001) (distinguishing secrecy from privacy and holding that “[i]nformation disclosed to a
few people may remain private”); Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 494
(Ga. Ct. App. 1994) (holding that plaintiff could still bring a disclosure claim notwithstanding
that he had shared that he had AIDS with family and friends).
132
Bilbrey v. Myers, 91 So. 3d 887 (Fla. Dist. Ct. App. 2012).
133
Nissenbaum, supra note 17, at 148–50 (emphasizing the importance of social context in
determining whether a privacy norm has been implicated).
134
Chamallas & Wriggins, supra note 2, at 1–3; 36; 92.
135
Id. at 34.
 Drawbacks to the Constitutionalization of Torts? 211

Additionally, this approach extends the critique offered by Danielle Keats Citron
who has powerfully argued that both criminal and tort law regulating internet
behavior should be viewed through a civil rights lens and laws should be used to
“protect the equality of opportunity in the information age.”136 As Citron explains,
traditional civil remedies, such as tort law, must be supplemented by civil rights
remedies because tort law (as traditionally conceived), does “not respond to the
stigmatization and humiliation endured when victims are targeted . . . due to their
gender, race, national origin, or sexual orientation.”137
By demonstrating that constitutional equality principles should (and do) impli-
cate tort law, this chapter offers a doctrinal foundation for incorporating civil rights
principles directly into tort law, separate and apart from any statutory equality
protections that may or may not be passed by legislative bodies. Again, as discussed
more below, this is not necessarily to say that a privacy tort plaintiff will be able to
successfully bring an equal protection challenge to the way the public disclosure tort
is operating, given that the Equal Protection Clause only protects certain classes
and because of the strictures of disparate impact theory – but the evidence of
inequality coupled with the existence of state action nevertheless provides litigants
and courts a constitutionally grounded basis for reforming the contours of current
black-letter tort law.

drawbacks to the constitutionalization of torts?

While there is great potential for the constitutionalization of torts as a pathway for
injecting equality and justice concerns into the substance of privacy tort law, and
tort law more broadly, there are potential barriers to this approach in terms of
doctrine and drawbacks should the approach be adopted. Here, I address some of
those concerns.

1 Barriers of Proof
Even assuming there is a firm, doctrinally sound basis for injecting constitutional
equal protection principles into the substance of privacy torts because such torts
implicate state action, meaningful hurdles must still be overcome in terms of
demonstrating that a particular privacy tort is being applied unequally or operating
with unequal results. To state a formal equal protection disparate treatment claim, a
plaintiff would need to amass significant evidence that a particular state’s tort law
was being applied differently to different protected classes of people. And gathering
evidence to support a disparate impact claim and threading the narrow doctrinal

136
Citron, supra note 9, at 25.
137
Id. at 126.
212 Equal Protection Privacy

needle of the Supreme Court’s disparate impact jurisprudence would be even more
daunting.
Indeed, as this chapter’s modest descriptive results attest, locating evidence of
disparate treatment/outcomes is a meaningful, resource-intensive undertaking. Even
with nontrivial resources, the data available remains limited. As barriers in access to
justice prevent many people from bringing suits in the first instance, suits that are
brought often settle, and even those that go to jury verdicts may not be reported in
standard research databases such as Lexis or Westlaw. As a result, the available data
from trial court decisions on motions to dismiss, motions for summary judgment,
and appeals is a small portion of the claims implicating a given tort. Moreover,
demographic data regarding identity characteristics of plaintiffs and defendants may
not even be mentioned in a given decision. Finally, the disparities that are
uncovered may not run neatly along recognized suspect classifications, as high-
lighted by the comparison of famous, socially and economically privileged individ-
uals to various kinds of marginalized individuals.
The reality of these barriers provides an opportunity to reiterate exactly what
I mean when I suggest that equal protection principles can, with doctrinal justifica-
tion, be called upon by judges to alter the contours of tort law. I am not necessarily
suggesting or envisioning formal equal protection challenges to the current oper-
ation of the public disclosure tort, but rather am suggesting that courts have a
doctrinally justified basis for paying mind to equality concerns when shaping and
applying the tort law, much like certain state courts have done with state
constitutional law.

2 Federalism Concerns
One may also be concerned that incorporating federal constitutional law as a
substantive guidepost for state tort law would infringe on states’ ability to create
their own law. This concern is real but overstated.
First, as important as states may be in their role as laboratories, it is an equally
unassailable precept that federal constitutional law governs supreme. If courts are
going to apply the First Amendment as a limit on state common law, courts must be
consistent and consider other constitutional provisions. Moreover, to the extent that
the Fourteenth Amendment’s equal protection guarantees are directly applicable to
the states – in contrast to the First Amendment and other provisions of the Bill of
Rights that had to be selectively incorporated or applied to the states through the
Due Process Clause of the Fourteenth Amendment – there is, in some sense, a
stronger textual basis for applying equal protection law to tort law than to the First
Amendment.
Second, as highlighted in the above discussion on the barriers of proof, inviting
the incorporation of equality principles into the common law will not lead to a flood
of challenges or dramatic reshaping of privacy torts. Instead, it has the potential to
 Drawbacks to the Constitutionalization of Torts? 213

influence the edges of the law, making it more equitable in its application, but poses
no real risk of leading to the introduction of a federal general common law or the
erosion of Erie Railroad v. Tompkins.138
Third, in an integrated American economy, there remains equal opportunity for
state tort law to disrupt federalism principles if such law is left unchecked by federal
constitutional law. The litigation surrounding due process limits on punitive dam-
ages elucidates this point. If a particular state’s imposition of punitive damages is left
unregulated by due process limitations, that state has potential to alter corporate
behavior by imposing large damages on particular tortfeasors and, in effect, create a
uniform, nationwide regulatory regime. This is particularly true with the expansion
of specific personal jurisdiction.139 But using the Constitution as a shield to limit
the scope of punitive damages permits states more practical latitude in creating
different common-law regulatory structures. In other words, depending on the
context, constitutionalization can actually preserve different states’ interests.
Opening tort law more broadly to constitutional influences does not mean that state
interests will evaporate.

3 Private Ordering
Related to the federalism concern is a concern that subjecting the common law to
constitutional influence might infringe on private ordering by, for example, subject-
ing contract law to constitutional scrutiny. While that concern would ring true if, for
example, contract law was subjected to intensive constitutional scrutiny, tort law is
(in theory) already a product of the community as expressed through judicial
lawmaking. Moreover, tort law is generally designed to regulate and step into
disorder – when accidents occur and the unanticipated comes to fruition.
Therefore, using constitutional law to make the default common-law rules more
equitable would not prevent parties from separately arranging their affairs. Of
course, even if it did, addressing inequality and uneven bargaining power within
contracting dynamics may not be the worst of outcomes.

4 A Shortsighted Solution?
Finally, one could argue that subjecting the common law to constitutional policing
is, in some respects, shortsighted and loses track of the fact that the Constitution
generally, and the Bill of Rights itself, are fluid and political. Does
138
304 U.S. 64, 78 (1938) (holding that there is no “federal general common law”). And, to some
extent, the US Supreme Court has already found other, indirect ways of influencing common-
law torts through, among other mechanisms, statutory preemption in certain fields. John C. P.
Goldberg & Benjamin C. Zipursky, The Supreme Court’s Stealth Return to the Common Law
of Torts, 65 DePaul L. Rev. 433, 435 (2016).
139
See Daimler AG v. Bauman, 571 U.S. 117 (2014).
214 Equal Protection Privacy

constitutionalizing tort law now, when equality protections are arguably near their
historical zenith, risk subsequent contraction of common-law’s egalitarian purpose
should the prevailing interpretation of the Constitution also contract?140
Maybe; but this view, itself, is somewhat ahistorical. As the evolution of equal
protection doctrine suggests, while equality norms pervade constitutional discourse,
to successfully bring an equal protection challenge is difficult – that is, in some ways
current equal protection doctrine is quite narrow, quite conservative. Consequently,
the risk that constitutionalization of tort law might lead to restrictions in tort law’s
ability to promote equality and liberty seems small.

***
This chapter’s systematic review of public disclosure tort cases suggests that while
privacy torts are not dead yet, they are on life support. However, that same review
suggests a method by which the public disclosure tort could be revitalized, disabling
the secrecy double standard and enabling a more nuanced, contextual approach to
determine whether the plaintiff has kept the information sufficiently out of public
view and whether information has been sufficiently publicized to warrant damages.
By demonstrating that the secrecy double standard is being applied to different kinds
of plaintiffs in divergent ways and with disparate results, my analysis lends weight to
the principled, doctrinally based injection of constitutional equality and anti-
subordination tenets into privacy tort law, justifying a softening of the secrecy double
standard that limits so many privacy suits, particularly by those at the margins of
society. More broadly, my analysis of the relationship between tort law and consti-
tutional law helps chart a path forward toward common-law equality.

140
Michelman, supra note 81, at 422–30 (raising the specter that constitutionalization of tort law
could result in conservative judicial forces prevailing over more progressive legislative values).
 Conclusion

Our society – both American and global – faces profound challenges, inequality and
oppression foremost among them. Tragically, such inequality and subordination are
longstanding, but are in some ways being exacerbated by technological advances –
which themselves are unequally distributed. Robust privacy rights won’t solve all
these problems. Obviously. But they can help.
When privacy is invaded as a means of perpetuating the oppression of marginal-
ized groups, its constitutional and societal importance is unassailable because the
privacy loss often imposes direct, material harms, including discrimination and
violence. When privacy is used by vulnerable populations – as it often is – as a
functional tool to resist such surveillance, its expressive dimensions provide add-
itional constitutional cover for these efforts to maintain privacy. And understanding
privacy’s role as an expressive tool of resistance can help push back against reductive
understandings of privacy as all or nothing or merely inward looking – that is, even
in spaces we often think of as “public” people are taking efforts to literally and
figuratively mask aspects of their identity or activities and push back against surveil-
lance regimes, furthering individual and community development. Put differently,
these maxims – that privacy is an outward expression of resistance and advances anti-
subordination ends – hold true even if the information at issue has not been kept
completely secret in advance.
Centering privacy’s role in challenging and resisting subordination can help
courts and society better appreciate privacy’s constitutional value, even relative to
security or administrative concerns or competing corporate First Amendment claims
to collect the information at issue. And foregrounding privacy’s expressive and anti-
subordination dimensions builds on and bolsters important prevailing conceptions
of privacy as advancing individual autonomy and dignity. All told, privacy protec-
tions can serve as a form of harm reduction, mitigating concrete harms that flow
directly from the manifold privacy invasions faced by marginalized communities
and perpetuated by both government and private actors.

215
216 Conclusion

Again, make no mistake. Privacy is no substitute for identity-based claims chal-

lenging systematic oppression of people of color, queer folks, immigrants, Muslims,
women, people living with disabilities, Native communities, and other vulnerable
populations – intersectional, identity-based oppression must be named, shamed,
confronted, and ended. Rather, once the anti-subordination and expressive func-
tions of privacy rights are understood, privacy can serve as a unifying, coalition-
building complement to equality claims that has purchase both in courts of law and,
perhaps more importantly, among society. Or so I hope.
Index

access to justice, 211 body cameras, 12, 110, 118

agency, individual, 57–8, 63 boyd, danah, 74
ag-gag laws, 125 Brandeis, Louis, 48, 143, 184, 188, 198
algorithms, 91 Bridges, Khiara, 23–4, 182
Allen, Anita, 198 broken window policing, 25–7
Amazon Rekognition, 105 Browne, Simone, 24, 31
Amazon Ring, 105 Brunton, Finn, 73
Anderson Lee, Pamela, 197, 209 Burger, Warren, 160
anonymous speech, 50–1, 92, 101 Burson v. Freeman (1992), 131
anti-mask laws, 68–72, 103 Butler, Judith, 32, 58–9, 78, 121
anti-racism, 3, 109
anti-subordination, 1, 3, 5–6, 56, 86, 92, 98, 102, Calo, Ryan, 65
127, 139–79, 182, 210 Carbado, Devon, 60, 67, 71
Apple, 23 Carpenter v. United States (2018), 13, 52, 54,
Arendt, Hannah, 122 161, 165
Arlington Heights v. Metropolitan Housing categorical approach to privacy, 156–7, 174–9
Development Corp. (1977), 207 categorization/classification, 24, 30–9
association, freedom of, 3, 45, 51–4, 111, 137, 165, Chamallas, Martha, 210
200 Chemerinsky, Erwin, 130, 199
autonomy, 3, 55, 120, 139, 142–8, 150–1, 156, 158, 173 Citron, Danielle, 132, 188, 211
coalition building, 86, 101
balancing tests, 5, 93, 141, 154, 172, 175 Coates, Ta-Nehisi, 24, 67
Baldwin, James, 25 Cohen, Julie, 62, 98
Ball, Carlos, 209 constitutionalization of torts, 180, 198–214
Ball, Kirstie, 61, 66 contextual integrity, 5, 176, 184, 214
Bartow, Ann, 167 counterpublics, 53
bathroom bills, 30, 35–9, 77, 94–5, 103 COVID, 72, 73
Baudrillard, Jean, 61 Cox Broadcasting Corp. v. Cohn (1975), 186, 201
Benjamin, Stuart, 88 Crenshaw, Kimberlé, 5
Benoit, Nancy, 196 criminalization of privacy, 19
big data, 23, 66 Currah, Paisley, 31
Black Lives Matter, 27, 172
Blasi, Vincent, 115 decisional privacy, 139, 145, 147, 149, 158, 173
Bloustein, Edward, 144 dignity, 3, 55, 139–40, 142–8, 150, 152, 156, 158, 169,
BMW of North America, Inc. v. Gore (1996), 202, 173
208 disciplinary power, 30, 32

217
218 Index

discrimination Griswold v. Connecticut (1965), 147, 150

Islamic, 2, 28–9, 78–83, 86, 103, 195 Gulati, Mitu, 60, 67, 71
LGBTQ, 4, 15, 29–39, 86, 90, 96, 103, 141, 153,
169, 171, 191, 209 Habermas, Jurgen, 103, 106
race, 2, 24–8, 66–9, 103, 191, 199, 205, 214 Harcourt, Bernard, 61, 105
sex, 39–43, 86, 103, 198, 205 harm reduction, 3, 128, 178
disparate impact, 8, 21, 27, 101, 181–3, 198, 206, 208, Harvey, Adam, 71
211 head veils, 28–9, 45, 68, 78–83, 89, 103
disparate treatment, 2, 27, 181, 183, 189, 198, 206, 211 heckling, 4, 108–38
doxing, 42, 104 Heffernan v. City of Paterson (2016), 94
drones, 72 Hershkoff, Helen, 204
Due Process (Substantive), 4, 139–79 HIV, 2, 14, 18, 139, 168, 170, 174, 178–9
homelessness, 17–21
Edmonson v. Leesville Concrete Co., Inc. (1992), hoodies, 3, 56, 66–9, 72, 85, 89, 92, 98–9
201 hooks, bell, 5
embodied political action, 105 Hoy, David, 59
encryption, 3, 45, 75, 99 Hulk Hogan, 181, 194–6, 209
Equal Protection, 180–214 Hurley v. Irish-American Gay, Lesbian and
equality, 6, 101, 140, 180–214 Bisexual Group of Boston, Inc. (1995), 88, 96
Erie Railroad v. Tompkins (1938), 213
Eubanks, Virginia, 20 identity construction, 2, 57–64, 194
expression, freedom of, 3, 46, 50–1, 85–97, 113, identity documents, 4, 30–9, 76, 169
116–17, 119–20, 165 identity politics, 56, 83, 86, 101, 216
expressive conduct, 86–91, 120 information gathering, right to, 109, 115–16
informational privacy, 2–4, 6, 13–14, 139–82
Facebook, 75, 111, 117 intellectual privacy, 47–50, 111
facial recognition, 22, 49, 66, 71, 104–5 internet privacy, 3, 111
Fanon, Frantz, 24 intersectionality, 2, 5
federalism, 212 intimate information, 17, 33, 36, 38–9, 46, 52, 93,
feminism, 3, 29, 99, 208 136–7, 140, 146, 149, 153, 155, 159–64, 168, 174,
Ferguson, Andrew, 65 176, 194
financial information, 166 intrusions, 41, 142–3, 145–6, 150, 152, 157, 173,
First Amendment, 4, 27, 41, 45–57, 65, 82, 85–97, 188
99, 108–38, 140, 142, 164, 166, 177, 183, 186,
198–201, 209, 212 Jacobs, Holly, 40
First Amendment Lochnerism, 95, 113 Joh, Elizabeth, 65
Foucault, Michel, 58
Fourth Amendment, 5, 10–13, 52, 86, 93–4, 100, Kagan, Elena, 94
139, 145–6, 149, 152, 155 Kahan, Dan, 118
Franks, Mary Anne, 16 Kaminski, Margot, 68
Fraser, Nancy, 53 Katyal, Neal, 17
Fromm, Erich, 64 Katz v. United States (1967), 150, 155
fundamental rights, 139–79 Koskela, Hille, 63
Kreimer, Seth, 135
Gajda, Amy, 196
Gawker Media, 194–6 Laird v. Tatum (1972), 54
Gear Rich, Camille, 60 Lawrence v. Texas (2003), 162
gender identity, 2, 20, 30–9, 45, 58, 76–8, 110, 160, Lee, Tommy, 197
171 legal realism, 159
Gilman, Michele, 17 listeners’ rights, 49
Goffman, Erving, 57 lived equality, 1, 6, 143, 170, 208
Google, 23, 75, 125 lived privacy, 8–9, 15, 18, 22, 24, 194
Gorsuch, Neil, 41 Lorde, Audre, 7, 32, 47, 62
Grimm, Gavin, 36 Lugar v. Edmondson Oil Co. (1982), 202
 Index 219

McCleskey v. Kemp (1987), 207 Prosser, William, 185, 187

McGrath, John, 66, 72 protest, 27, 69–70, 74, 104, 109, 137
marginalization, 1, 4–5, 15–16, 86, 98, 101, 121, public assembly, 59–60, 104, 121
139–40, 149, 168, 172, 178, 181, 191–4, 209 public disclosure tort, 180–214
marketplace of ideas, 117 public health, 3, 17–18, 178
Martin, Trayvon, 67 public privacy, 2, 4, 6, 8–138, 185
Marwick, Alice, 74 public square, 2, 21, 29, 36–7, 42, 86, 100, 102–6,
masks, 45, 49, 68–72, 85, 93 109, 120–2
medical privacy, 4, 23, 139, 150, 153, 157, 159, 170
Meiklejohn, Alexander, 115 qualified immunity, 174
Michaels, Bret, 197
Michelman, Frank, 199 racial profiling, 2, 25, 27
Mottet, Lisa, 170 racialized surveillance, 24–8, 60, 66–9, 93
Mouffe, Chantal, 106 reasonable expectation of privacy, 10–12, 54, 86, 93,
100, 155, 175
NAACP v. Alabama ex rel. Patterson (1958), 52, 165 Rehnquist, William, 140, 161, 163
NAACP v. Claiborne Hardware Co. (1982), 200 reproductive rights, 42–3, 49, 53, 137, 140, 147
NASA v. Nelson (2011), 146, 152–4, 156, 163, 168 resistance (privacy as), 4, 45, 53, 56, 62–84, 86, 90,
Nelson, Maggie, 32 111
New York Times Co. v. Sullivan (1964), 200 resistance (recording as), 109, 119–20
newsworthiness, 181, 186 Richards, Neil, 47, 147, 187
Nissenbaum, Helen, 73, 176 right to record, 108–38
Nixon v. Administrator of General Services (1977), Riley v. California (2014), 161, 165
151–2, 160, 168 Robson, Ruthann, 69, 78, 82
Nixon, Richard, 151, 161 Roe v. Wade (1973), 147, 149
nonconsensual pornography, 39–40, 162, 181, 195–6 Rumsfeld v. Forum for Academic and Institutional
Rights (2006), 90
Obergefell v. Hodges (2015), 83, 145, 161
obfuscation, 56, 73, 93 Scalia, Antonin, 142, 154
Occupy, 70, 105 Scott v. Harris (2007), 118
Ohm, Paul, 162 Scott, James, 63
outing, 15, 30, 33, 76, 93, 110, 139–79, 181, 191 secrecy double standard, 182, 184–98, 201, 209, 214
secrecy paradigm, 8–16, 24, 39, 55, 85, 94, 100, 106,
participatory democracy, 50, 60, 103–4, 109, 122 108, 186, 201
performative privacy, 45–106 security, 1, 55
Periscope, 111, 117 Sedgwick, Eve, 32
perspective (diversity of ), 117–19, 132 sexual harassment, 39, 42, 198
Pierre-Paul, Jason, 196, 209 sexual privacy, 4, 17, 23, 30, 39–43, 78, 125, 144, 162,
pluralism anxiety, 56, 83, 86, 102 193–4
police brutality, 109 Shelley v. Kraemer (1948), 199
political privacy, 48, 52, 111, 137, 140, 143, 149, Signal, 105
164–8, 177 Simonson, Jocelyn, 120
popular sovereignty, 106, 120, 122 Smolla, Rodney, 188
poverty, 17–23 Snowden, Edward, 64, 75
privacy as commodity, 10, 19, 75 social construction/production, 10, 30, 32, 57–64,
privacy by design, 20 86, 95, 122
privacy harms social context, 75, 95
disproportionate, 2, 23, 101, 167–71, 192 social control, 10, 29, 64, 104, 119, 121
material, 2–3, 17, 23, 36, 40, 55–6, 99, 110, 140–2, social gaze, 19, 42, 99
148, 155, 157–8, 167–71, 177 social theory, 1, 3, 46, 57–64, 210
privacy torts, 5, 14–15, 86, 100, 123–4, 128, 137, 162, Solove, Daniel, 8, 187
180–214 sousveillance, 119
private ordering, 213 Spade, Dean, 30, 34
privilege, 5, 17, 143, 181, 189, 194–8, 208 Spence v. Washington (1974), 88–9
220 Index

standing, 178 United States v. Jones (2012), 54

Stanley v. Georgia (1969), 48 United States v. O’Brien (1968), 87
state action, 124, 182, 198–205 United States v. Windsor (2013), 83, 161
state constitutional law, 203–5
State Farm Mutual Automobile Insurance Co. Wacquant, Loic, 21
v. Campbell (2003), 202 Waldron, Jeremy, 19
stop and frisk, 25, 27 Warner, Michael, 31, 53, 78, 105, 136
Stoughton, Seth, 118 Warren, Samuel, 143, 184, 188
Strahilevitz, Lior, 188 Washington v. Davis (1976), 207
Strangio, Chase, 37 Watchtower Bible & Tract Society of New York, Inc.
strict scrutiny, 5, 87, 93, 123, 126, 129, 141, 147, 151, v. Village of Stratton (2002), 51, 92, 94
158, 163, 172–6, 205 Westin, Alan, 147
surveillance Whalen v. Roe (1977), 149–51
administrative, 2, 16, 21–3, 30, 61, 76, 139, 142 Whitman, James Q., 145
corporate/private, 2, 8, 16, 22, 100, 104, 108–38 Witness, 135
law enforcement, 2, 8, 28, 30, 81 Wolff, Tobias, 96
surveillance violence, 3, 39 women’s rights, 23, 39–43, 79, 182, 198,
210
Talley v. California (1960), 50, 102 World Professional Association for Transgender
technology (privacy-invading), 1, 9, 73–6, 111, Health, 37
136, 189 Wriggins, Jennifer, 210
third-party doctrine, 12–13, 92, 95, 175
Tor, 74, 84 Yick Wo v. Hopkins (1886),
transgender rights, 4, 20, 30–9, 76–8, 94, 99, 168, 206
170, 177 Yoshino, Kenji, 83
Tufekci, Zeynep, 59 YouTube, 135
Turkington, Richard, 145, 174
Turner Broadcasting Systems v. FCC (1994), 132 Zimmerman, George, 67