THE RIGHT TO BE LET ALONE
Douglas, William O.
The Right to Be Let Alone by WILLIAM 0. DOUGLAS This article by Justice Douglas is adapted from his new book, The Right of the People, which Doubleday ir Company will publish this year. The book...
...The methods may not be as crude as before...
...That is a highly subjective test, turning on the reactions of a majority of the Court to particular practices...
...The main struggle here has not been to prohibit wire-tapping absolutely, as Puerto Rico does, but to bring wire-tapping under the Fourth Amendment...
...The Fifth Amendment outlaws torture...
...It is a far more serious intrusion on privacy than the general writs of assistance used in colonial days...
...But the broad sweep of the privilege itself creates problems for the witness who must decide whether to answer a specific question...
...The entire conversation was audited through a radio receiving set in the possession of another agent who remained outside...
...We have a moral authority in our ideals of justice, liberty, and equality that is indestructible...
...Even the humblest of citizens has the same dignity before the law as the most powerful...
...If so, it requires a showing of probable cause to a magistrate that a crime has been or is being committed before a wire can be tapped...
...The police may not lay a heavy hand on the citizen...
...When police officers use force to put a stomach pump into a prisoner and use the evidence obtained to convict him, "due process" is violated...
...The rule governing our federal courts is different...
...Olmstead v. United States...
...Yet the decision to answer or not to answer must often be made on the spot...
...This method of obtaining evidence was held not to violate "due process," though a more dramatic invasion of privacy is difficult to imagine...
...Proof of it is always difficult...
...As matters now stand, all controls over wire-tapping are a matter of legislative grace...
...Our One True Advantage This plea by Justice Douglas to the people of the United States is the Foreword, to his soon-to-be-published book, The Right of The People.—The Editors...
...No showing was required that there were reasons to believe that the person whose place was searched had violated, or was violating, any law...
...None has been more dramatic than the contests over wire-tapping...
...The purpose of an arrest should not be to interrogate the suspect or to secure evidences against him...
...But they do not seem to be effective...
...Eavesdropping is the aspect of wiretapping that made Justice Holmes call it "dirty business...
...That is the theory of our way of life...
...First the police made a key to his house...
...It outlaws compulsion in any form utilized to make a man a witness against himself or to furnish .the evidence used to convict him of crime...
...The conversation was admitted in evidence over the objection that this invasion of privacy violated the Fourth Amendment...
...If wire-tapping were brought under the Fourth Amendment, an advance would be made in eliminating abuses...
...But it is not a civilized practice...
...and we have been faithful to it to a degree...
...In McNabb v. United States the Court held that disregard by federal officers of that rule concerning detention of a suspect renders inadmissible any statement taken from him during the period of his unlawful detention...
...It was against this practice that James Otis protested...
...Invocation of the privilege is not a confession of guilt...
...Our Fourth Amendment does not go that far...
...The right of privacy which it protects is only secure when its prohibitions are respected by law-enforcement officers and enforced by the courts...
...The real enemies of freedom are not confined to any take place...
...It outlaws all forms of physical, legal, or moral compulsion utilized to make a man convict himself...
...The book is based on the North Lectures Justice Douglas delivered at Franklin and Marshall College in the spring of 1957...
...at any time...
...If we make them our offensive at home and abroad, we will quicken the hearts of men the world around...
...The situations are numerous where even a competent lawyer is not able to decide with certainty whether the answer to a particular question would constitute a waiver of the privilege, as in the Rogers case...
...They may not beat him or torture him incommunicado...
...It has held that the Fourth Amendment covers only a search of material things—"the person, the house, his papers or his effects...
...If the individual's spirit of liberty is to be kept alive, if government is to be civilized in its relation to the citizen, no form of compulsion should be used to exact evidence from him that might convict him...
...The legal controversies over the application of that Amendment have been numerous...
...When the police hold a man incommunicado the opportunities for coercion are great...
...But the protection of the Fifth Amendment transcends the use of torture by the police...
...Real reforms must come from within the police system...
...These rights of the people also include the right to manage the affairs of the nation— civil and military—and to be free of military domination or direction...
...There is convincing evidence that the third degree still flourishes in the police stations of the nation...
...This is far worse than ransacking one's desk and closets...
...The police who torture prisoners can be brought to account...
...That requires an educational program that pounds into the consciousness of our people the sanctity of the dignity of men...
...Yet blood taken from an unconscious man and used in a state trial to convict him of drunken driving was held to be properly admissible...
...If not, it goes unregulated except as Congress or the states legislate concerning it...
...I refer also to the sanctity of the person and the indignity suffered when a lawless hand is laid upon him...
...But the recurring appearance of the problem in the flow of cases suggests that the practice has gone underground, so to speak, taking on new forms...
...The scope of the protection which the privilege affords is extremely broad...
...I refer to the sanctity of the home and the right of the citizen to be unmolested there, either by peeping-toms or by lawless police on a raid...
...He may even be beaten or tortured...
...It held that a state was not justified in discharging an employee merely because, in a federal investigation, he invoked the privilege against self-incrimination when asked about past membership in the Communist Party...
...The policy behind that rule is to prevent the secret interrogation of people accused of crime...
...In colonial days writs of assistance were issued, authorizing officers to search places of business and homes...
...Many states have laws that prohibit wire-tapping...
...Even the miserable creature who has committed a heinous crime is a human being...
...There is the word of the accused against the word of the police...
...The recent decision, Slochower v. Board of Education is in that tradition...
...It includes those guarantees that are "implicit in the concept of ordered liberty...
...The capricious results that sometimes obtain when judges write their own reactions into "due process" is illustrated by Irvine v. California...
...IN DISCUSSING the right to be let alone in a previous chapter, I spoke mostly of opinions, beliefs, and matters of conscience...
...That method of tampering with the body of an unconscious person accused of crime was held not violative of "due process...
...They concern the rights of the people against the state...
...The history of this Amendment is a familiar one...
...Due Process of Law: I have been speaking so far of civil liberties in trials or proceedings before federal courts or federal agencies...
...For that reason, he could not invoke the privilege against self-incrimination as a ground for refusing to produce the union's records...
...It outlaws practices "repugnant to the conscience of mankind...
...In On Lee v. United States an agent, wired for sound, entered the place of business of a suspect and engaged him in conversation...
...It only protects the people against "unreasonable searches and seizures" and provides that no search warrants shall issue except on probable cause and particularly describing the place to be searched and the persons or things to be seized...
...That was the situation in Rogers v. United States where a divided Court decided that a witness who admitted association with the Communist Party could not refuse to answer further questions concerning her activities in connection with the party...
...A warrant, issued on a showing of probable cause, would therefore be necessary if wires were to be tapped...
...Each is entitled to the same protection, the same deference, the same immunity from lawless action...
...Its aim should be to bring him before a judicial officer (who determines whether he should be held) and to insure that he will respond to the criminal charge...
...But in a measure our practices have not conformed to our ideal...
...That is one of the most horrible practices the ingenuity of man has devised...
...Those few words give the right of privacy a protection it heretofore has never received...
...The contest is on for the uncommitted people of the earth...
...Then officers would make a search and seizure in the constitutional sense when they tapped wires and listened in on conversations...
...The judicial mood has not been libertarian...
...But questions as to the whereabouts of those records stand on a different footing...
...What then does "due process" as used in the Fourteenth Amendment include...
...They are found in the ideas of justice, liberty, and equality that are written into the American Constitution...
...The writs gave officials authority to ransack houses or places of business indiscriminately...
...But the use of totalitarian methods will persist unless there is a lively educational program that teaches the dignity of man...
...Disclosure and denunciation of the third degree do not mean, however, that the practice ends...
...It may seem unimportant that a miserable person is forced to confess to a crime...
...The judge—or the jury —that has to decide where the truth lies often has a difficult, if not impossible, task...
...They flourish where injustice, discrimination, ignorance, superstition, intolerance, and arbitrary power exist...
...Congress took steps to control the practice...
...Rochin v. California...
...The prominent and the powerful people among us do not suffer the main invasions of privacy that rPHIS is the time for us to be-•*- come the champions of the virtues that have given the West great civilizations...
...The privilege against self-incrimination helps protect anyone— guilty and innocent alike—from the prosecutor, the police, and even from Congress and the courts...
...A good example is the case of Curcio v. United States...
...The state is the servant of the citizen, not the all-powerful being that can require the citizen to do its bidding or suffer the consequences...
...Curcio was the secretary-treasurer of a local union who invoked the privilege in response to questions by a grand jury concerning the whereabouts of union books and records...
...We often think more in terms of detection and punishment than in the means employed...
...When we turn to state courts or state agencies, we have a somewhat different problem...
...M When we turn to the other police practices violative of the dignity of man, "due process" remains an uncertain, evanescent concept...
...Some guarantees, e.g., those contained in the First Amendment, have been held to be protected by "due process of law" as used in the Fourteenth Amendment...
...To the Court this is "conduct that shocks the conscience...
...With modern electronic devices, conversations within the home and the office can be recorded without tapping any wire...
...These virtues are reflected in our attitudes and ways of thought, not in our standard of living...
...But in the sweep of history, a nation that accepts that practice as normal, a country that engages in wire-tapping, a people that exalts the ends over the means have no claim to a position of moral leadership among the nations...
...But if he elects to answer one question which is part of that chain, he waives his right to invoke the privilege in response to further questions concerning more incriminating details...
...These ideals express the one true advantage we have over Communism in that contest...
...These are the rights that distinguish us from all totalitarian regimes...
...That is the course India, following the British precedent, has adopted in her Code of Criminal Procedure...
...Congress has long provided that people arrested were to be taken before a magistrate for a hearing, for commitment, or for bail...
...One solution is to exclude from the trial any statement made by the accused to the police during his detention...
...They include the right to be let alone in a myriad of ways, including the right to defy government at times and tell it not to intermeddle...
...Hoffman v. United States...
...Torture does not comport with the dignity of man...
...Using the key, they entered the house, installed a microphone, and ran wires through the hole in the roof to a nearby garage, where the police listened in relays...
...They are everywhere...
...Though torture was long used to solve crimes, experience proved that it was not an honorable way for government to deal with its citizens...
...As Mr...
...This was a state prosecution in which evidence against the defendant was obtained in flagrant violation of his rights of privacy...
...For, from the beginning, the dignity of man cried out against compulsion...
...On the other hand, all are agreed that confessions exacted from prisoners by force violate "due process" and therefore cannot be used in state prosecutions...
...But Hitler had no monopoly on it...
...Searches and Seizures: The Constitution of Puerto Rico provides that "wire-tapping is prohibited...
...Though they had no search warrant, they ransacked the house...
...This dilemma facing the witness is not always understood by those who denounce, ridicule, or attach a sinister meaning to the invocation of the Fifth Amendment's privilege against self-incrimination...
...The means are all important in a civilized society...
...It has long been argued that "due process of law," as used in the Fourteenth Amendment, includes the guarantee of civil liberties contained in the Bill of Rights, i.e., the first eight Amendments...
...But the Fourth Amendment is not self-executing...
...Palko v. Connecticut...
...It is the unknown person who is tortured by the police...
...That argument has been consistently rejected by the Court, though usually by a divided vote...
...The public is often unable to comprehend why a witness, either in court or before a Congressional committee, invokes the privilege against self-incrimination in response to seemingly innocuous questions...
...This is the theory of the Fifth Amendment...
...Despite the prohibitions imposed by the Communications Act, wiretapping as a method of detecting crime is now used more and more...
...Now all the intimacies of one's private life can be recorded...
...Then they bored a hole in the roof of the house...
...Detention of Suspects: The prolonged detention of suspects has been a time-honored practice of the police...
...It was out of that oppressive use of the search warrant that the Fourth Amendment was born...
...The Fifth Amendment was designed for the protection of the innocent as well as the guilty...
...The truth is that wiretapping today is a plague on the nation...
...Man is a child of God entitled to dignified treatment...
...The Fourteenth Amendment, which is applicable to the states, forbids the taking of life, liberty, or property without "due process of law...
...When the police had all the evidence they needed, they used the key to enter the home to arrest the suspect...
...He may be compelled to convict himself out of his own mouth...
...Those who would attach a sinister meaning to the invocation of the Fifth Amendment have forgotten that history...
...If wire-tapping were controlled by the Fourth Amendment, we would have made an important step forward toward controlling the practice...
...The aversion to that type of compulsion, which culminated in the privilege against self-incrimination, has deep roots in our history...
...As Justice Black said in Chambers v. Florida ". . . they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless...
...For a while the microphone was placed in the bedroom where the suspect and his wife slept...
...The Wickersham Commission reported in 1931 that the third degree was widespread in this country...
...It did not outlaw wiretapping...
...The intimacies of private life can be made public without a key being turned or a window being raised...
...Every Fourth Amendment contest involves to a degree an issue of privacy...
...The invocation of the privilege therefore is no measure of the fitness of a person for public employment...
...Torture may be a short cut for getting at the truth...
...But by the Communications Act of 1934, it made it unlawful for any person, not authorized by the sender, to intercept any communication and to divulge it...
...The answer is apparent only to those versed in the law...
...That is the reason why the witness' lawyer often advises his client to invoke the Fifth Amendment at the very threshold of the inquiry...
...There is no organized group, no articulate minority that keeps alive the need for protecting the accused...
...and that evidence obtained from a defendant by wire-tapping cannot be used to convict him of a crime in the federal courts...
...Yet the degree of invasion of privacy which wire-tapping makes possible is greater than the ransacking of desks and of files which inflamed James Otis...
...These rights include the right to speak and write as one chooses, the right to follow the dictates of one's conscience, the right to worship as one desires...
...As Beccaria, the Eighteenth Century Italian legal philosopher, wrote, torture is an "infamous test of truth...
...The requirement of the Federal Rules of Criminal Procedure, that the accused be committed "without unreasonable delay," permits the police to hold a man long enough to perform necessary police functions, such as photographing and fingerprinting him...
...Breithaupt v. Abram...
...One who is held incommunicado without benefit of family, friends, or counsel to aid him and to advise him is easy prey for the police...
...The Court, speaking through Mr...
...A devilish way Hitler used to exact confessions was to drill on a live tooth while the victim was strapped in a dentist's chair...
...In the 1930's some American police stations used the same technique...
...He can be questioned for hours or days on end by relays of officers...
...To date the Court has been unwilling to bring wire-tapping within the scope of the Fourth Amendment...
...Detention of suspects for secret interrogations continues both at the federal and at the state level...
...In cases construing the Act it was held that "any person" includes federal officers...
...We are told about crime and the need for law enforcement...
...A previous installment of the book, which we called "Unlimited Horizons for Free Expression," appeared in the December issue of The Progressive.—The Editors...
...We have, indeed, been retreating from our democratic ideals at home...
...That is to say, the controversy in the United States has been whether wire-tapping is a "search" within the meaning of the Amendment...
...But other guarantees of the Bill of Rights, including the one concerning self-incrimination, have been held to be not so protected...
...And those who listen in may be private detectives and blackmailers, as well as law-enforcement officials...
...Justice Burton said for a unanimous Court, ". . . forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind...
...As noted, he is entitled to invoke the privilege in response to any question if his answer would furnish the prosecutor a link in a chain of proof to convict the witness of crime...
...The right to be secure in one's own castle, the right to be free of snoopers, the right to keep the officers- of the law out of one's bedroom and out of one's files are the values at stake in many of these contests...
...and it has been used as a method of exacting confessions from them...
...As Mr...
...We have compromised them for security reasons...
...It is why Dean Griswold of the Harvard Law school suggested that "the privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized...
...The danger is apparent: a witness may wholly waive the right to invoke the privilege by answering a question which would seem not incriminating on its face...
...If they are to be protected, the public opinion of the community, as well as the courts, must be enlightened...
...People whose homes are searched are the lowly, not the high...
...We cannot afford to inveigh against them abroad, unless we are alert to guard against them at home...
...These inquisitional practices that wring confessions from an accused have been outlawed by the Supreme Court as evidence in state prosecutions, whether force was used to exact them or whether subtler methods were employed...
...The officers who do illegally detain an accused are denied the fruits of their acts...
...Yet in recent years as we have denounced the loss of .liberty abroad we have witnessed its decline here...
...It also requires a press that is alert to the infringement of the rights of privacy...
...It is time to put an end to the retreat...
...It is used both by officials and private parties to eavesdrop on conversations...
...The problem is one of education, whether we speak of coerced confessions, wire-tapping, or other invasions of privacy...
...While the McNabb rule is the ideal, it is, I fear, not greatly respected in practice...
...It extends to every question whose answer "would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime...
...A divided Court, speaking through Mr...
...Later it was moved into the bedroom closet...
...Self-incrimination: The Fifth Amendment provides that "No person . . . shall be compelled in any criminal case to be a witness against himself...
...Courts can make their pronouncements and control individual cases...
...That is contrary to the spirit and letter of the Fifth Amendment...
...We reject the rack, the thumbscrew, and the wheel, because they affront the dignity of man...
...Justice Jackson, upheld the conviction...
...Curcio could be required to produce the books, if he had them, since they were not his but belonged to the union...
...If we live by those virtues, we will rejuvenate America...
...Justice Jackson, overruled the objection, and extended the wire-tapping rule one step further...
...But the right to privacy covers another domain...
...Prolonged detention, holding people incommunicado, the use of threats, protracted questioning, and various forms of physical brutality, ranging from beating to torture, were the methods used...
...Justice Frankfurter, writing for the Court in Mallory v. United States, said, any delay in arraignment "must not be of a nature to give opportunity for the extraction of a confession...
...The rule of the McNabb case is designed to insure that the police will not illegally hold a suspect incommunicado in the 4iopes of extracting a confession from him...
...That mandate is now embodied in the Federal Rules of Criminal Procedure which direct federal officers to take a suspect who is arrested before a magistrate "without unnecessary delay...
...nation or any country...
...It is time we made these virtues truly positive influences in our policies...
...As the Court in the Slochower case said, "A witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing...
...This a practice that strikes as deep as an invasion of the confessional...
Vol. 22 • January 1958 • No. 1
