Privacy and Section 1983 of the Federal Civil Rights Law

Article excerpt

Rather than sue under state privacy invasion torts, a fraction of persons with privacy grievances attempt federal suits under a famous 1871 civil fights law. These claims don't have much success because courts have been careful not to allow any state tort claim to masquerade as a federal civil rights claim. Also, courts restrict these civil rights claims to situations where the privacy invasion involved rises to constitutional dimensions, (1) and they are reluctant to expand substantive due process. (2) Nevertheless, in a small number of cases, plaintiffs do find some success--as where a police officer publicly disclosed that the plaintiff's husband had HIV, causing parents to remove their children from a school attended by the plaintiff's children (3) (summary judgment granted to the plaintiff), and where a male parole officer entered a bathroom stall in which a partially undressed female parolee was giving a urine sample for drug testing (4) (denial of the defendant's summary judgment motion affirmed).

Occasionally, news organizations are included as defendants. Usually they fare well, courts being as sensitive to First Amendment interests of such defendants as they are to the Fourteenth Amendment interests addressed in the 1871 statute and in the constitutional privacy concept usually asserted as the justification for privacy claims under the statute. (5)

These civil rights actions therefore represent a by-way of privacy invasion law: They are important, but not usually threatening to media organizations or journalists. They cannot be substituted for tort actions, but are a significant avenue for the vindication of constitutional privacy rights.

The sections of the 1871 law involved here are now sections 1983 and 1985 of the U.S. Code. (6) Section 1983 provides civil actions for deprivation of rights afforded by the Constitution or federal statute. Its wording is:

   Every person who, under color of any statute, ordinance, regulation, 
   custom, or usage, of any State or Territory or the District of Columbia, 
   subjects or causes to be subjected, any citizen of the United States or 
   other person within the jurisdiction thereof to the deprivation of any 
   rights, privileges, or immunities secured by the Constitution and laws, 
   shall be liable to the party injured in an action at law, suit in equity, 
   or other proper proceeding for redress.... 

Courts have recognized that this is equivalent to the state action requirement under the Fourteenth Amendment. (7) Section 1985 provides actions for conspiracies to violate such rights. The flavor of the 1871 statute into which these provisions were inserted can be gathered from another section of the law, section 1981 of the U.S. Code, (8) which confers on all citizens all protections that are available to white citizens. The 1871 statute, then, was clearly a post-Civil War remedy for racial problems of the time. Its sections 1983 and 1985 have become landmarks in Congress' attempt to effectuate the Fourteenth Amendment's due process promise. The "color of law" provision means that private entities that are intimately engaged with state entities can be sued under this law. Court tests for determining whether a private entity is so entwined with state action as to become vulnerable to one of these suits are particularly important to journalists because this is the way that journalists are pulled into these suits. Journalists named as defendants can expect to be dropped from the suits, as rulings presented below suggest.

While section 1983 suits can be brought for violations of any federal right--including those enumerated in the First Amendment (9)--those based on privacy invasion claims must proceed from the constitutional privacy right. This right was recognized in Griswold v. Connecticut, (10) in which ruling the U.S. Supreme Court found the right implied in the First, Third, Fourth, Fifth, and Ninth Amendments. …