How We Know Abstinence-Only Education Doesn't Work

Abstinence-only education does not reduce teen pregnancy. If it did, decades of research would have demonstrated this many times over. Instead, research results have been overwhelmingly inconclusive or the opposite of what its advocates would like to see.

A method of "education" characterized by limiting what is taught had better yield clear practical benefits. At least then there might be a trade-off between knowledge and behavior.

The Rise of Abstinence-Only Education In the United States

Federal funding for abstinence-only programs began in 1982 with the Adolescent Family Life Act, which was part of the previous year's omnibus spending bill (blue "AFLA" line on the chart below). This sent millions of dollars annually to programs aimed at preventing "adolescent sexual activity and adolescent pregnancy." These programs were encouraged to partner with "religious and charitable" organizations, which led to such a degree of religious involvement that a case went up to the Supreme Court by 1988. In Bowen v. Kendrick (487 U.S. 589), the Court decided that the Act was not unconstitutional on its face, but did note that there appeared to be "impermissible" specific applications, which it called for other courts to examine.

In 1998, a major welfare reform dramatically increased funding for abstinence-only programs (red "Title V" line on chart below). This bill defined an abstinence education program as one which:

1. Has as its exclusive purpose, teaching the social, psychological, and health gains to be realized by abstaining from sexual activity
2. Teaches abstinence from sexual activity outside marriage as the expected standard for all school age children
3. Teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems
4. Teaches that a mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity
5. Teaches that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects
6. Teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society
7. Teaches young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sexual advances
8. Teaches the importance of attaining self-sufficiency before engaging in sexual activity

In 2001, additional federal funding began flowing from the Community Based Abstinence Education program (purple "CBAE" line on the chart below). The overall progression has been from low funding in the 80s and early 90s, medium funding in the late 90s, peak funding in the 00s, and back down to medium funding through at least 2014, thanks to $50 million per year allocated as part of the Affordable Care Act. In other words, the red line holds steady for three more years than this chart depicts:

From http://www.siecus.org/index.cfm?fuseaction=page.viewPage&pageID=1340

Two decades and well over a billion tax dollars later, there is no scientific evidence that programs matching the 8-point definition are effective at reducing teen pregnancy.

An Official Investigation

As part of the Balanced Budget Act of 1997, Congress authorized funds for a scientific study of Title V abstinence-only programs. The U.S. Department of Health and Human Services (HHS) contracted this study out to Mathematica Policy Research, Inc. After years of study, Mathematica submitted its final report to HHS in April, 2007:

http://aspe.hhs.gov/hsp/abstinence07/

To maximize the opportunity for positive, reliable results, this study focused on four school programs that were especially intensive and could be especially well documented:

"All programs offered more than 50 contact hours and lasted for one or more school years, making them relatively intense among programs funded by the Title V, Section 510 grant." (Trenholm, 2007, p. 2)

"These four programs are called 'impact sites' because they had program features and staff capable of supporting a rigorous, experimental-design impact evaluation." (ibid., p. 7)

Over twelve-hundred students were involved in these four programs, with over eight-hundred students in control groups. To measure differences over time, follow-up surveys were given from 42 to 78 months after the surveys given at the beginning of each program (ibid., p. 19). It was just the sort of broad-but-detailed study that would have stood up to scrutiny from critics of abstinence-only education. Some conclusions:

"None of the individual programs had statistically significant impacts on the rate of sexual abstinence, whether measured as either always remaining abstinent or being abstinent during the last 12 months." (ibid., p. 30)

"Program and control group youth also did not differ in the number of partners with whom they had sex." (ibid., p. 31)

"Programs did not affect the age at which sexually experienced youth first engaged in sexual intercourse" (ibid., p. 31)

"Forty percent of program group youth reported that they expected to abstain from sex until marriage compared with 37 percent of control group youth, a difference that is not statistically significant" (ibid., p. 32)

"Across the individual programs, estimated impacts on unprotected sex, measured either at first intercourse or in the last 12 months, were likewise small and statistically insignificant" (ibid., p. 34)

"Ten percent of youth in both the program and control groups reported having been pregnant or gotten someone pregnant, and roughly half of them (five percent overall) reported that they had had a baby." (ibid., p. 35)

"[P]rograms raised the proportion of youth who reported that condoms never prevent HIV from an estimated 17 to 21 percent; the proportion who reported that condoms never prevent chlamydia and gonorrhea from an estimated 14 to 20 percent; and the proportion who reported that condoms never prevent herpes and HPV from an estimated 15 to 23 percent." (ibid. p. 46)

Yikes! These golden examples of abstinence-only education programs failed to alter behaviors or even attitudes. They did, however, increase the number of teens who believed condoms were useless for STI protection.

State Studies

A number of states have run evaluations on their own abstinence only programs. Unfortunately, these state studies haven't generally been models of scientific rigor. No control group, or no follow-up, or both! Although abstinence-only education failed to come out looking good in any of the studies, opponents of abstinence-only education should not rely on desired results that come from shoddy methods. Advocates for Youth put together a summary of these state studies here:

Five Years of Abstinence-Only-Until-Marriage Education: Assessing the Impact

Two of these studies did include both a control group and a follow-up. California's 17-months-later follow-up found that program students were no less likely than control students to have become sexually active, pregnant, or infected (Kirby, 1997). The program was cancelled based on these results. Missouri's smaller study had similar findings (Hauser, 2004).

Abstinence Until Ready

In 2010 a rigorous scientific study came out that showed a positive effect for abstinence education:

Efficacy of a Theory-Based Abstinence-Only Intervention Over 24 Months: A Randomized Controlled Trial With Young Adolescents

But there's a catch. This abstinence program deliberately did not match up with federal standards for abstinence-only education:

"It was not designed to meet federal criteria for abstinence-only programs. For instance, the target behavior was abstaining from vaginal, anal, and oral intercourse until a time later in life when the adolescent is more prepared to handle the consequences of sex. The intervention did not contain inaccurate information, portray sex in a negative light, or use a moralistic tone. The training and curriculum manual explicitly instructed the facilitators not to disparage the efficacy of condoms or allow the view that condoms are ineffective to go uncorrected. The results of this trial should not be taken to mean that all abstinence-only interventions are efficacious. This trial tested a theory-based abstinence-only intervention that would not meet federal criteria for abstinence programs and that is not vulnerable to many criticisms that have been leveled against interventions that meet federal criteria." (Jemmott, 2010)

The study's authors suggested a role for this kind of modified abstinence education program: an improvement over federally-defined abstinence education in communities that will not allow comprehensive sex education. It still lacks much of the information of comprehensive programs, but at least it doesn't encourage false and fearful beliefs...which evidently don't help anyway.

Correlations

Good news! Teen pregnancies, teen abortions, and births to teens have been falling:

Can this be attributed to abstinence-only programs? Perhaps the studies above are accurate within their particular contexts, but are missing out on big picture trends. If the states that require or emphasize abstinence-only education are generally the states with lower pregnancy rates, then it might be worth looking further into abstinence-only education. Someone did, in fact, look for this pattern.

Using information on state laws and policies in 2005, researchers assigned each state with relevant laws or policies a level from 3 to 0 (Stanger-Hall, 2011):

• Level Three - abstinence-only education, according to federal guidelines.
• Level Two - abstinence stressed, but discussion of contraception methods not forbidden.
• Level One - abstinence covered as part of comprehensive sex education.
• Level Zero - abstinence not specifically mentioned in sex education.

How did the states do?

So much for abstinence-only showing promise in the big picture. Here are comparison charts for pregnancies, abortions, and births (ibid.):

As far as teen pregnancy goes, abstinence-only education may actually be worse than sex ed that never mentions abstinence as an option!

Conclusion

Other issues aside, abstinence-only education does not improve teen abstinence. Its advocates should at the very least be seeking to reform it to be more like the "Theory-Based Abstinence-Only Intervention" mentioned above that went against federal guidelines and showed promise. Personally, I suspect the focus on postponing all sex until marriage is so unrealistic (and not even a worthy ideal) that teen audiences are lost to the positive message that it's OK to wait until both people are ready to make a considered, responsible choice.

References

Kirby, D., Korpi, M., Barth, R.P., Cagampang, H.H. (May/June 1997). The impact of the postponing sexual involvement curriculum among youths in California. Family Planning Perspectives, 29(3). Retrieved from http://www.guttmacher.org/pubs/journals/2910097.html

Hauser, D. (2004) Five years of abstinence-only-until-marriage education: Assessing the impact. Retrieved from http://www.advocatesforyouth.org/storage/advfy/documents/stateevaluations.pdf

Jemmott, J.B., Jemmott, L.S., Fong, G.T. (2010) Efficacy of a theory-based abstinence-only intervention over 24 months: A randomized controlled trial with young adolescents. Pediatrics & Adolescent Medicine, 164(2), 152-159. Retrieved from http://dx.doi.org/10.1001/archpediatrics.2009.267

Stanger-Hall, K.F., Hall, D.W. (October 2011). Abstinence-only education and teen pregnancy rates: Why we need comprehensive sex education in the U.S. Plos ONE. Retrieved from http://www.plosone.org/article/info:doi/10.1371/journal.pone.0024658

Trenholm, C., Devaney, B., Fortson, K., et al. (April 2007). Impacts of four Title V, Section 510 abstinence education programs final report. Retrieved from http://aspe.hhs.gov/hsp/abstinence07/

On "Filtering and the First Amendment"

Since Deborah Caldwell-Stone's American Libraries article "Filtering and the First Amendment" covers similar ground to my earlier essay "Public Forum Doctrine in U.S. v. American Library Association," I'd like to do some friendly nit-picking.

Quick Background

In the United States, public and school libraries are bribed (rather than coerced) into filtering Internet access for minors. This is done through CIPA, the Children's Internet Protection Act. In 2003, the constitutionality of CIPA was challenged but upheld in U.S. v. American Library Association.

Clarity

Caldwell-Stone's article is helpful because misconceptions about the requirements of CIPA are indeed widespread:

"Often, it is because the institutions and individuals responsible for implementing these policies misunderstand or misinterpret CIPA and the Supreme Court decision upholding the law. Among these misunderstandings is a belief that an institution will lose all federal funding if it does not block all potentially inappropriate sites to the fullest extent practicable, or that the Supreme Court decision authorized mandatory filtering for adults and youths alike. Another mistaken belief is that it does not violate the First Amendment to impose restrictive filtering policies that deny adults full access to constitutionally protected materials online." (Caldwell-Stone, 2013)

I appreciate the way she raises awareness that CIPA policies aren't legal requirements and that no library's filtering has been judged too lax to qualify. If a library doesn't want to filter, they don't have to filter! If a library wants to filter lightly, they can still collect CIPA funds.

Not So Clear

My nit-picking concerns the last sentence of the quote above. Caldwell-Stone is correct that US v. ALA did not authorize mandatory filtering for adults, but the Supreme Court didn't forbid it either. Legally, it's an open question. Caldwell-Stone evidently feels strongly that such filtering violates the First Amendment (a very respectable position to have!), but it's easy for readers to be misled when legal facts and legal hopes are presented in parallel phrases.

This bit is also problematic:

"Does CIPA itself, or the 2003 Supreme Court opinion, actually authorize a library to limit an adult’s access to constitutionally protected speech? A close reading of the district court’s opinion reveals that it fails to address the Supreme Court’s directive: Libraries subject to CIPA should disable filters for adult users to assure their First Amendment rights." (Caldwell-Stone, 2013)

The Supreme Court gave no such "directive." There was no majority opinion (at all), and no such directive can be found in the plurality opinion. In fact, none of the six judges concurring in judgment said so. The Court's language is along these lines:

"Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." (US v. ALA, Opinion of the Court)

Note the qualifier "assuming." The Court isn't taking a position on whether or not "such erroneous blocking presents constitutional difficulties." Suppose it were a problem for libraries to block constitutionally protected speech: easy disabling would be an antidote. Suppose it weren't a problem to block such speech: now it's an unnecessary antidote. Since this specific case didn't hinge on the constitutionality of "such erroneous blocking," the judges didn't—and couldn't—rule on the issue.

Another concurring judge wrote:

"If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user’s election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case." (US v. ALA, Kennedy's concurrence)

It's entirely reasonable to conclude that a library with mandatory filtering for adults might be judged as violating First Amendment rights, just as a state denying same-sex marriage licenses might be judged (very soon, one hopes) to be violating equal protection rights. Then again, either of these situations might be judged to be constitutional.

One last concurring judge:

"Perhaps local library rules or practices could further restrict the ability of patrons to obtain 'overblocked' Internet material. [...] But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself." (US v. ALA, Breyer's concurrence)

Hopefully it's clear at this point that mandatory Internet filtering for adults is not clearly unconstitutional or constitutional. I applaud Caldwell-Stone for her explanations and her advocacy; I just wish she would separate the two a little more explicitly.

References

Caldwell-Stone, D. (April 2, 2013). Filtering and the first amendment. American Libraries. Retrieved from http://americanlibrariesmagazine.org/features/04022013/filtering-and-first-amendment

United States v. American Library Association, 539 U.S. 194 (2003).

Fantastic Fiction's Fading Heritage

"It will be a terrible waste if the stories from the pulp era vanish because of this issue." (Science Fiction and Fantasy Writers of America, Inc. [SFWA], 2005, p. 9)

Because of the way copyright law is set up in the United States, it can be difficult or impossible to locate copyright owners for protected works going all the way back to the 1920s. Without a way to ask permission to reprint these "orphan works," they tend to fade out of culture and sometimes out of physical existence. Science fiction and fantasy literature grew into their modern forms in the 20s through 50s, but many of these genre-developing works are unpublishable orphans. No one is reading them or receiving royalties from their sale.

This paper will look at how copyright law created the so-called "orphan works problem" and how the Science Fiction and Fantasy Writers of America responded to the U.S. Copyright Office's call for comments on the situation.

Peer Pressure

In 1866, most of the major European powers signed an international copyright agreement in Berne, Switzerland. The Berne Convention for the Protection of Literary and Artistic Works (or simply the "Berne Convention") required its members to respect the rights of other member nations' authors as if they were domestic authors:

"Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention." (Berne Convention for the Protection of Literary and Artistic Works [Berne Convention], 1979, art. 5)

The Convention disallowed any sort of requirement that authors register their works or stamp them with an official declaration before being protected by copyright:

"The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work." (Berne Convention, 1979, art. 5)

A little over 120 years later, the U.S. finally signed on when Congress passed the Berne Convention Implementation Act of 1988. Why wait so long? One major issue was the "no formalities" clause quoted above. U.S. copyright term was also far shorter than the Convention's minimum of 50 years after the death of the author (Berne Convention, 1979, art. 7). In 1866, U.S. copyright worked like this (Peters, 1850, p. 436-439):

• 28 years of copyright, from the time the title of the work was properly registered.
• Plus a 14 year extension, if re-registered within six months of the original expiration date.
• So long as the correct notices are given in the book and in a newspaper...
• ...and a copy is put on deposit with the government.

Immediate adoption of the Berne Convention would have been an abrupt change in both duration and scope of copyright protection. In the meanwhile, the U.S. did sign the Buenos Aires Convention of 1910, which provided mutual copyright protection in much of North, Central, and South America and did allow formalities. To accommodate the U.S. (and other nations refusing the Berne Convention), a compromise was created in the form of the 1954 Universal Copyright Convention, which was widely accepted by the United States, Latin America, and Berne Convention members. By the 1980s, U.S. copyright worked like this:

• Protection for the life of the author, plus 50 years after death.
• Registration "is not a condition of copyright protection." (Copyright Act of 1976, Sec. 408, 1976)
• Registration may still be required before suing infringers.

It was no longer a big leap to achieve conformity with Berne Convention standards. In 1989, the United States officially joined the Berne Convention.

The Trouble With "No Formalities"

For most of American history, copyright formalities put a substantial burden on authors, with several opportunities to slip up and lose protection:

"Given the complexity of these formalities, the cost of compliance was not trivial, and the consequences of noncompliance were severe. Failure to comply would result in copyright failing to arise (registration), being unenforceable (notice, deposit), or being subject to early termination, with entry of the work into the public domain (renewal)." (Sprigman, 493)

To a certain extent, the Berne Convention's push to remove formalities made sense as a way to more reliably protect authors' rights. It also fit with a popular European view that copyright is a kind of moral right which comes into existence the moment a work is put into a fixed form. Legal copyright would therefore serve to recognize and enforce a pre-existing moral copyright. Contrast this with the U.S. Constitution's utilitarian (goal oriented), positive (created by law) characterization of copyright: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (art. I, § 8, cl 8). This allowed the U.S. government much more leeway on crafting law to promote these specified public goods. Requiring registration was a way to ensure that some official information was recorded about each copyrighted work; requiring renewal was a way to ensure neglected works would enter the public domain more quickly...or at least that the official information would be updated. The details of compliance were arguably too burdensome, but the removal of formalities has led to other problems.

Despite continued growth in writing and publishing, now-voluntary copyright registration has leveled off (Sprigman, 2004, p. 496):

And now-voluntary renewals are on their way to extinction (Sprigman, 2004, p. 498):

This means a smaller and smaller proportion of the kinds of works that were traditionally registered are being registered. And of these, an even smaller proportion are being renewed. By comparison:

Old Way

• Many works never under copyright because their creators did not consider them worth the trouble of registering.
• Registration records exist for copyrighted works.
• Renewal records exist for works under extended copyright.

New Way

• All works under automatic copyright, including poems in notebook, blog posts, personal song recordings, dance routine descriptions, etc.
• Registration records might not exist for copyrighted works.
• Renewal records probably don't exist for works under extended copyright.

What's the problem with this? The chance of relatively recent works becoming "orphaned" has greatly increased. A work is orphaned when locating its copyright owner becomes prohibitively difficult or outright impossible. Publishers can't reprint it. Creators can't seek permission to use it or adapt it into new works. And, of course, authors and their heirs miss out on potential income. When authors cannot be located, everyone loses.

Amazing Stories and Weird Tales

In a sense, there are two orphan works problems. The removal of formality requirements in the late 1970s — as preparation for joining the Berne Convention — has caused a problem with contacting the owners of unregistered or unrenewed works. But there was already a problem with official information falling out of date. A novel published in 1923 and renewed in 1950 is still under copyright until at least 2018. The name of the person who renewed it 62 years ago might not sufficient to discover who owns the copyright in 2012.

Think of these as the "no official records" and the "outdated official records" orphan works problems. One area of literature strongly affected by these problems is modern fantastic fiction, here defined as the science fiction and fantasy genres. A little history:

Science fiction and fantasy both got their start in the age of universal public domain (i.e. before 1923). Jules Verne, H.G. Wells, and Edgar Rice Burroughs were especially effective pioneers of science fiction from the 1860s through the 1910s. Fantasy fiction goes back to folklore, but it began its transformation into modern fantasy from the 1850s through the 1910s in the works of George MacDonald, Lewis Carroll, and L. Frank Baum.

Interest in these genres greatly expanded in the 1920s with the rise of pulp magazines offering monthly short stories on the cheap. Weird Tales began publishing fantasy and horror stories in March 1923. Amazing Stories began its run of science fiction stories in April 1926. Other pulp magazines hopped on the bandwagon and public interest in these genres continued to grow, spurred on by the publication of now-classic novels like Brave New World (1932), The Hobbit (1937), The Sword in the Stone (1938), Foundation (1942), 1984 (1948), and The Lion, The Witch, and the Wardrobe (1950). These novels and certain pulp stories like those of H.P. Lovecraft have been nearly continuously republished, but copyright owners for many lesser-known works published from the 1920s to the 1990s are difficult or impossible to locate today.

"There are scores of dead writers whose work is gone and forgotten because there is no one able to take responsibility for the rights. I bought a story from the estate of Richard McKenna a few years ago. The woman from whom I acquired the rights was his aged sister-in-law or someone like that. If that woman doesn't pass the rights on to someone else and let anyone know about it, Richard McKenna's work will not be reprinted for what, another 30 years? Do you really think anyone will remember who he is then? They barely remember him now.

Gerald Kersh is another example. I spent two years trying to track down rights to no avail. Someone who is a Kersh aficionado tried for two years before me. I finally was able to publish a couple of short stories by him via quasi legal means that protect my company from litigation. Kersh was a terrific writer and his stories deserve to be read.

That's why there is a problem." (SFWA, 2005, p. 9) [with minor corrections]

Pulp stories in the 20s and 30s. McKenna and Kersh in the 60s. The "outdated official records" problem is smudging out the fine lines of fantastic fiction's development, leaving only the thickest strokes. This would have been a problem even without the lifting of copyright formalities. Today, the "no official records" policy is compounding the issue:

"Since works are given copyright protection the moment they are written, there is no ready way to find authors to seek their permission to republish material, and the penalties for infringement are high, there is a lot of material that cannot be republished because the authors are essentially unlocatable. That is, the cost to locate them, if they can even be located, is often too high to justify the use of the work. Factoring in the 95 years / Life+70 years duration of copyright, a large amount of work is likely to be unrepublishable for over a hundred years and possibly lost altogether." (SFWA, 2005, p. 1)

In 2056 — the same distance into the future as the publication of Gerald Kersh's Nightshade & Damnations in the past — an editor may want to include a short story from 2012 and have even less hope than the publisher quoted above because the story was never officially registered.

Fantastic Fixes

On January 26, 2005, the U.S. Copyright Office put a notice in the Federal Register, asking for "written comments from all interested parties" on the topic of orphan works.

"The issue is whether orphan works are being needlessly removed from public access and their dissemination inhibited. If no one claims the copyright in a work, it appears likely that the public benefit of having access to the work would outweigh whatever copyright interest there might be." (Orphan Works, 2005)

The Copyright Office received over 700 initial responses from individuals and organizations! One of the "interested parties" was the Science Fiction and Fantasy Writers of America. The SFWA (as it's abbreviated) put out its own call for comments. Some of the resulting anecdotes are cited above. After lively internal debate, SFWA's formed-for-the-occasion Orphan Copyright Committee agreed on a set of seven proposals "felt to comprise a feasible solution to the problem and a dramatic improvement over the current situation" (SFWA, 2005, p. 2).

These proposals can be roughly organized into three themes: modernizing and simplifying the registration process (#1, #3, #5, #6), creating a legal path to using orphan works (#2, #3, #4), and issuing guidance on "succession of copyright interests (#7). To simplify even further, the proposals seek to make orphaning less likely to occur, and to open the remaining orphan works for responsible use.

SFFA's main recommendation for improving registration is the establishment of an Author Information Directory. This would be an online database that offers free or nearly free account setup for authors to enter information about their works and keep their contact information up to date. Authors could be encouraged to include at least the first 100 words of their works and would have the option to add notarized forms or digital signatures to verify their identity. From the point of view of authors, the directory would serve the dual function of providing more opportunities for royalties and of eliminating the chance of their works being used under the new rules for orphan works.

What new rules? After conducting a search according to guidelines drawn up by the Copyright Office, followed by a multi-month posting of public notice, publishers could pay into an escrow fund at a common rate for similar works. Such works could then be published for a limited time without fear of lawsuit. Authors who later come forward would simply be able to claim the funds already set aside for this purpose. Publishers who don't follow these guidelines would be fully at risk of current legal remedies for copyright violation.

Congressional (In)action

After taking comments from SFWA and hundreds of other groups, the U.S. Copyright Office issued a Report on Orphan Works to summarize concerns and give its own proposed solutions. The Copyright Office rejected calls for any kind of new database, worried that it would be too "burdensome" at this time, but recommended revisiting the question in ten years. Also rejected were the calls for specific search guidelines (libraries and archives opposed it), an escrow system (too complex), or a public notice requirement (publishers were against it). The Copyright Office did recommend legislative changes to limit legal remedies to "reasonable compensation" when copyright infringers are able to prove they had conducted a thorough search.

"The term 'reasonable compensation' is intended to represent the amount the user would have paid to the owner had they engaged in negotiations before the infringing use commenced." (U.S. Copyright Office, 2006, p. 116)

This compensation would not apply to non-commercial users, who would only be required to cease infringement activities immediately (U.S. Copyright Office, 2006, p. 13). The report ended with recommended legislative language.

From 2006 to 2008, several bills made their way through the House and Senate, based on the Copyright Office's report. The most successful bill was the Shawn Bently Orphan Works Act of 2008  which passed unanimously in the Senate. A similar bill, the Orphan Works Act of 2008, stalled out in the House.

The Senate bill echoed the Copyright Office's recommendations about limiting legal remedies to "reasonable compensation," and waiving even this compensation if the infringement was (1) non-commercial,  (2) "primarily educational, religious, or charitable in nature," and (3) stopped on receipt of a valid claim of infringement. Also following recommendations, the bill required evidence of a "qualifying search" before infringing, plus clear attribution while infringing. The Senate bill added a requirement that a new symbol for orphan works be created and used to label such publications (S. 2913 § 2).

The House bill's most controversial difference was the requirement of a "notice of use archive": a database where users of orphan works must document the work they are using, what steps they took to locate the copyright owner, how the work be used, and contact information for the user (H.R. 5889 § 2). Prominent library groups opposed this requirement on the grounds that it would be too burdensome on large organizations wanting to use many orphan works (Adler, 2008). Some artists opposed the archive because they believed it would be too friendly to large organizations wanting to use many orphan works! There appears to have been a significant amount of misinformation going around in artistic communities at the time (Huttler, 2008).

The whole issue has been effectively shelved by Congress since 2008.

Attack of the Powerpoints

In April 2012, the Berkely School of Law held an orphan works symposium. Among the ideas floated during these talks was Jennifer Urban's suggestion that existing Fair Use law might be applicable to orphan works (2012). One of the four factors of Fair Use analysis concerns the "nature" of the copyrighted work, but what this means, exactly, is not spelled out in federal law. Urban cited cases where availability played some role in Fair Use decisions and argued for expanding this line of thinking to explicitly cover orphan works.

Lydia Loren advocated a change in metaphor: rather than continue using the term "orphan works," labeling them as "hostage works" would emphasize the way these are "works that are held hostage by the complexity of our copyright system. By its duration, by its lack of formalities, and then of course, coupled with the absentee owner" (2012, 2 min). Under this metaphor, users might be seen as hostage-liberators rather than orphan-exploiters. Loren also showed a troubling graph from a talk by Paul Heald (2012, 12 min 45 sec):

The main lesson to draw from this graph is that books in the public domain from before 1923 are still very popular. Same goes for recent books under copyright. It's that dip from the 20s through the end of the century that shows a severe under-representation of what was written in those decades. New works do have novelty going for them; public domain works tend to have low prices going for them, thanks to both the lack of royalties and competition. So while a moderate dip is only to be expected for older, copyrighted works, it's very likely that the orphan works problem has aggravated the situation.

Notice where the bulk of science fiction and fantasy's genre development occurred on the graph above. For fantastic fiction and all the other fading stories created in that gap, orphan works legislation would open exciting new opportunities for rediscovery and appreciation.

My Two Cents

This paper has focused on written works, but copyright law also applies to music, dance, visual arts, architecture etc. Creators in these areas aren't necessarily going to be well-served by orphan works legislation that focuses on texts. Today's technology is completely up to the task of storing and matching text, but still very much in development for finding re-used melodies, dance steps, or even photographic remixes. It might be smart to push for text-specific orphan works legislation first, as a kind of pilot program. When the creative world doesn't come to an end and information technology has improved, other types of content could be added.

The biggest flaw in orphan works legislation hasn't been the legislation itself, but misunderstandings, misrepresentations, and outright scare mongering. What's needed are multiple promotional campaigns by libraries and artists' groups (like SFWA). Specific examples of unrepublishable works would be most effective because it would raise awareness and increase interest in what the public is missing. What if a copyright owner appears because of these campaigns? There would be an opportunity to show the benefits of reconnecting owners with interested publishers! If the owner allows it, the book could even be marketed as a "rescued orphan." Everyone wins.

It's important to keep in mind that no orphan works legislation is going to be perfect; it just needs to meet the realistic goal of being a strong improvement over the current situation. Laws can always be amended later to more perfectly reflect contemporary values and technology. It just takes that first daring step to try something new.

References

Adler, P. S. (May 1, 2008). RE: S. 2913 [letter to Senators Leahy and Hatch on behalf of the Library Copyright Alliance]. Retrieved from http://www.sla.org/pdfs/publicpolicy/LCA050108DarkArchive.pdf

Berne Convention for the Protection of Literary and Artistic Works (1979, revised from 1886). Retrieved from http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

Copyright Act of 1976, Pub. L. No. 94-553. 90 Stat. 2541 (1976). Retrieved from http://en.wikisource.org/wiki/Copyright_Act_of_1976#.C2.A7_408._Copyright_registration_in_general

Heald, P. (March 16, 2012). Do bad things happen when works fall into the public domain: The market for audiobooks. [Seminar video]. http://www.youtube.com/watch?feature=player_detailpage&v=-DpfZcftI00#t=765s

Huttler, A. (April 28, 2008). Orphan Works Act of 2008. [Web log post]. Retrieved from http://www.fracturedatlas.org/site/blog/2008/04/28/orphan-works-act-of-2008/

Loren, L. (April 12, 2012). Abandoning the orphans: An open access approach to hostage works [Audio presentation] Retrieved from http://media.law.berkeley.edu/qtmedia/BCLT/bclt_20120412-symposium/day1/Loren.m4a

Orphan Works, 70 Fed. Reg. 3739 (2005). Retrieved from http://www.copyright.gov/fedreg/2005/70fr3739.html

Orphan Works Act of 2008, H.R. 5889, 110th Cong. (2008). Retrieved from http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.05889:

Peters, R. (1850). The Public Statutes at Large of the United States of America, From the Organization of the Government in 1789, to March 3, 1845 (Vol. 4). Boston: Charles C. Little and James Brown.

Science Fiction and Fantasy Writers of America, Inc. (March 23, 2005). RE: Orphan Works Study (70 FR 3739). Retrieved from http://www.copyright.gov/orphan/comments/OW0607-SFFWA.pdf

Shawn Bently Orphan Works Act of 2008, S. 2913, 110th Cong. (2008). Retrieved from http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.02913:

Sprigman, C.J. (2004). Reform(aliz)ing copyright. Stanford Law Review, 57. p. 485-568. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=578502

Urban, J. (April 12, 2012). Orphan works and mass digitization: Obstacles and opportunities. [PDF presentation]. Retrieved from http://www.law.berkeley.edu/files/Urban.pdf

U.S. Copyright Office. (2006). Report on Orphan Works. Retrieved from http://www.copyright.gov/orphan/orphan-report.pdf

Sex, Violence, and the First Amendment

The U.S. Supreme Court has ruled that states may pass laws restricting the sale of sexual materials to minors, but may not pass similar laws for violent materials. The difference lies in the Court's traditions regarding obscenity as an exception to First Amendment free speech rights.

Short version: obscenity has to do with sex, not violence.

Protected and Unprotected Speech

The First Amendment does not list exceptions for "the freedom of speech." Nevertheless, the Supreme Court has set aside certain kinds of speech as "unprotected" by the First Amendment. When speech is unprotected, state governments are effectively able to restrict it however they see fit. One major category of unprotected speech is obscenity. Here is the key authoritative text, now known as the Miller Test:

"[O]bscene material is unprotected by the First Amendment. 'The First and Fourteenth Amendments have never been treated as absolutes.' We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."

— Miller v. California, 413 U.S. 15 (1973), edited for readability

Notice how obscenity is limited to "works which depict or describe sexual conduct." By definition, violence without sexual conduct can't be classified as legally obscene.

Variable Obscenity

In 1965, the owner of a Long Island lunch and periodicals business sold porn magazines to a 16 year old boy. New York had a law with wording similar to an earlier version of the Miller Test, with the addition of "for minors," "to minors," etc. The vendor was charged for violating this law and the case eventually made its way to the Supreme Court.

Can something be protected, non-obscene speech for adults and yet be obscene, unprotected speech for minors? The Courted decided: yes, it can!

"We do not regard New York's regulation in defining obscenity on the basis of its appeal to minors under 17 as involving an invasion of such minors' constitutionally protected freedoms. Rather [the New York law] simply adjusts the definition of obscenity 'to social realities by permitting the appeal of this type of material to be assessed in term of the sexual interests' of such minors. That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.'"

— Ginsberg v. New York, 390 U.S. 629 (1968), edited for readability

This is a BIG DEAL. The Court is saying that New York can classify material that's not obscene for adults as obscene for minors because, in general, states can vary the definition of an unprotected speech category where minors are concerned.

Gov. Schwarzenegger vs. Kratos

In 2005, California passed a bill prohibiting the sale or rental of violent video games to minors, where:

"'Violent video game' means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim."

— California AB-1179, edited for readability

Section (A) should look familiar. It's similar to the Miller Test adjusted for minors, with two major differences. Part (i) drops the sexual requirement so that it can be applied to violence. Part (iii) completely inverts the serious value check. In the Miller Test, the presence of serious value overrides the other two parts and makes a work non-obscene no matter how offensive it is to a community. In the California law, the presence of offensive elements voids any value in the work. Section (B) puts a ban on additional games, just in case section (A) didn't throw a wide enough net. Altogether, this makes three likely grounds for questioning the law's constitutionality:

• Dropping the sexual requirement.
• Inverting the value check.
• Banning games that fall outside the Miller-esque framework.

Interestingly, the Supreme Court slapped down the law for the first and most basic reason: attempting to regulate violent content rather than sexual content.

The Limits of Control

In Ginsberg, the Court had decided that the obscenity exception for free speech rights could come in an adult version and a minor version. California's video game law raised another question:

Can there be free speech exceptions that only come in a minor version?

There isn't a free speech exception when it comes to violent content for adults, so (1) a brand new exception would be required and (2) it would only apply to minors. First, the Court pointed at precedent against introducing new free speech exceptions for adults:

"Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. [...] We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a 'simple balancing test' that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. [...] We emphatically rejected that 'startling and dangerous' proposition.

— Brown v. Entertainment Merchants Association, 564 U.S. 08-1448 (2011)

Violence may not be a valid free speech exception for adults, but can't it be an exception that only applies to minors?

"[The California Act] does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults —and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. '[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.' Erznoznik v. Jacksonville [...]. No doubt a State possesses legitimate power to protect children from harm [...], but that does not include a free-floating power to restrict the ideas to which children may be exposed. 'Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.' Erznoznik"

— Brown v. EMA, 564 U.S. 08-1448 (2011)

In other words, minors are only subject to the same basic free speech exceptions as adults, though these exceptions may be applied differently to minors. There is no basic free speech exception that has to do with depictions of violence, therefore violent video games are constitutionally protected speech for Americans of all ages.

This applies to books too, if anyone is still reading those things. I do recommend reading the whole majority opinion in Brown v. EMA. It makes excellent points about moral panics, censorship, and violence in children's literature.

Pope v. Illinois — Serious Value According to Whom?

Obscenity is an exception to First Amendment free speech protection. This doesn't mean obscenity is automatically illegal; it means states can choose to restrict it. For example, the following is a misdemeanor in Nebraska:

"It shall be unlawful for a person knowingly to (a) print, copy, manufacture, prepare, produce, or reproduce obscene material for the purpose of sale or distribution, (b) publish, circulate, sell, rent, lend, transport in interstate commerce, distribute, or exhibit any obscene material, (c) have in his or her possession with intent to sell, rent, lend, transport, or distribute any obscene material, or (d) promote any obscene material or performance."
— Nebraska Revised Statute 28-813

Where "obscene" is defined as meaning:

"(a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion,
(b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and
(c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value;"
— Nebraska Revised Statute 28-807 (emphasis added)

This language is taken from the Supreme Court's Miller Test for obscenity. What's interesting about the Miller Test is that all three parts must hold to classify material as "obscene." A photograph could, for example, be judged by "contemporary community standards" to appeal to sexual interest as a whole, it could depict state-defined sexual conduct in a "patently offensive way," yet if it contains "serious literary, artistic, political, or scientific value" it would not be legally obscene.

Pope v. Illinois was a 1987 Supreme Court case which looked at the "serious value" test. Specifically:

"whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question."

Why is this important? Suppose there's a novel with sexual elements that most people would find offensive. In Oregon, it's legal because people in Oregon still see literary value in it. In Alabama, it's obscenity and you can go to jail for selling the book because people in Alabama don't see literary value in it. I'm picturing Burt Reynolds hauling banned books across state lines.

Case Background

Rockford, Illinois in 1983. Police arrest two part-time clerks in an adult book store for selling porn mags. The clerks are convicted for selling obscenity. (This makes me wonder what officials thought adult bookstores normally sold.)

In both trials, the jury was instructed to decide the question of value according to how "ordinary adults in the whole State of Illinois" would view these magazines. Both clerks were convicted. Both lost Appellate Court appeals. The Illinois Supreme Court passed, but the U.S. Supreme Court took up the issue.

In a majority decision, the Supreme Court decided:

"Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." — Opinion of the Court (emphasis added)

The Supreme Court also decided to send the case back to the Appellate Court to determine whether convictions based on constitutionally faulty jury instructions would be upheld. (See the text of the case for a lively debate about "harmless error.") I had trouble finding out the ultimate fate of the clerks.

Communities and Reasonable Persons

When reading Pope, I kept wondering, "How is 'community' defined? The state, the city, or what?" So I went back and skimmed through Miller v. California. In that case, it's made clear that the "forum community" is meant, i.e. for a California state law the forum community would be the whole state of California. Presumably for a city ordinance, it would be that whole city.

If a state-wide community doesn't get to decide whether a work has "serious literary, artistic, political, or scientific value," who does decide? One answer might be: the entire community of the United States of America. This would make decisions more consistent across state lines, but we could have situations where the people of Oregon see value in a work that Americans as a whole might not esteem. And there may be works of great artistic value to a broadly scattered fanbase that aren't esteemed by any one geographic community as a whole.

Happily, the Court rejected "community standards" outright when it comes to determining value (see the bold text I quoted above). Unhappily, the replacement standard of what "a reasonable person" would find valuable isn't very helpful. Ask a jury to decide whether a reasonable person would find value in a "patently offensive" film and — I suspect — they would take themselves to epitomize reasonable people, note that they themselves don't see value in it, and answer accordingly.

What is Beauty?

In a concurring opinion, Justice Scalia questions the entire notion of legally judging artistic value:

"I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled "reasonable man" is of little help in the inquiry, and would have to be replaced with, perhaps, the "man of tolerably good taste" - a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decision making is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide "What is Beauty" is a novelty even by today's standards."

I'm not used to wholeheartedly agreeing with Scalia! Another approach with similarly broad results comes from Justice Stevens' dissent. Referring again to the bold text I quoted above, Stevens writes:

"The problem with this formulation is that it assumes that all reasonable persons would resolve the value inquiry in the same way. In fact, there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value. The Court's formulation does not tell the jury how to decide such cases.

In my judgment, communicative material of this sort is entitled to the protection of the First Amendment if some reasonable persons could consider it as having serious literary artistic, political, or scientific value."

You can guess by now that both Scalia and Stevens are questioning the utility of having obscenity laws at all, at least as far as consenting adults are concerned. Stevens goes even farther and argues that such laws are unconstitutional because the difference (in this case) between legal pornography and illegal obscenity is not something the clerks could have been expected to know before being charged and convicted:

"Under ordinary circumstances, ignorance of the law is no excuse for committing a crime. But that principle presupposes a penal statute that adequately puts citizens on notice of what is illegal. The Constitution cannot tolerate schemes that criminalize categories of speech that the Court has conceded to be so vague and uncertain that they cannot 'be defined legislatively.' [...] If a legislature cannot define the crime, Richard Pope and Michael Morrison should not be expected to. Criminal prosecution under these circumstances 'may be as much of a trap for the innocent as the ancient laws of Caligula.'"

(You can't see it, but I'm applauding here.)

Finally, Stevens points out that mere possession of obscenity is legal and he characterizes laws against selling or distributing obscenity as an "insult" to a citizenry that has the "right to read and possess material which it may not legally obtain."

I agree and consider obscenity laws — "absent some connection to minors, or obtrusive display to unconsenting adults" — to be outdated relics of a less tolerant age.

Text of Pope v. Illinois, 481 U.S. 497 
Text of Miller v. California, 413 U.S. 15

The Constitutional Right to Privacy

"It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out." — Rick Santorum in an April 7, 2003 interview with Associated Press

Santorum's sentiment here is fairly popular, but is it correct? Well, he's not entirely wrong. The 1965 case Griswold v. Connecticut was the first time an explicit "right to privacy" was given as part of the U.S. Supreme Court's authoritative rationale, but it wasn't pulled out of thin air for the occasion. It had been seriously discussed by legal scholars for at least 75 years prior to Griswold, and had made conscious appearances in Supreme Court cases since the 1910s.

Early Milestones for the Right to Privacy

1886    Boyd v. United States (116 U.S. 616)  [FindLaw] [Wikipedia]
1890    Harvard Law Review IV(5) article "The Right to Privacy" [Google Books] [PDF]
1914    Weeks v. United States (232 U.S. 383) [FindLaw]
1923    Meyer v. State of Nebraska (262 U.S. 390) [FindLaw] [Wikipedia]
1925    Pierce v. Society of Sisters (268 U.S. 510) [FindLaw] [Wikipedia]
1928    Olmstead v. United States (277 U.S. 438) [FindLaw] [Wikipedia]
1958    NAACP v. Alabama (357 U.S. 449) [FindLaw] [Wikipedia]
1960    Poe v. Ullman (367 U.S. 497) [FindLaw] [Wikipedia]
1961    Mapp v. Ohio (367 U.S. 643) [FindLaw] [Wikipedia]
1965    Griswold v. Connecticut (381 U.S. 479) [FindLaw] [Wikipedia]

Boyd v. United States

A critical issue in this case was whether normal fourth amendment protections can be circumvented if, instead of a literal "search and seizure," a citizen is compelled to produce documents. The Court decided that the intent of the law was broader than the acts of searching and seizing themselves.

"It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching among his papers, are wanting [...]; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the fourth amendment to the constitution, in all cases in which a search and seizure would be, because it is a material ingredient, and effects the sole object and purpose of search and seizure." — Boyd (116 U.S. 616)

At this point we're still talking about private property, though it's hard to maintain that the physical pages are the sole — or even primary — aspect of personal documents intended to be protected by the fourth amendment. What's important about Boyd is the move from the letter of the law to the more abstract purpose of the law.

"The Right to Privacy"

High profile scholarly discussion of a right to privacy began with this Harvard Law Review paper by Samuel Warren and Louis Brandeis. Its opening paragraph is well worth reading:

"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis ['by force and arms']. Then the 'right to life' served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term 'property' has grown to comprise every form of possession — intangible, as well as tangible." (Warren & Brandeis)

What changes were prompting this "broadening" of personal and property protections in the late nineteenth century? "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life [....]" Paparazzi and tabloids, in today's terms! Warren and Brandeis (W&B) were concerned with the way newspapers — the new gossip "trade" — could publish details of personal lives such as the contents of diaries or letters they manage to get their hands on. Anticipating the objection that copyright law already protected people from having their personal letters published, W&B answered that copyright only protects exact reproduction; all the facts and feelings revealed by a letter could be published by a "gossip-monger."

After distinguishing this right to privacy from copyright, slander, contract law, etc., W&B discuss limitations on privacy. By analogy to slander and libel, they write: "The right to privacy does not prohibit any publication of matter which is of public or general interest." For example, "Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for public office." Yet this doesn't mean public figures give up all privacy rights.

The second limitation on privacy is that normally-impermissible reporting is allowed "when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel." The third limitation is that "oral publication" i.e. talking about private matters is not grounds for a lawsuit "in the absence of special damage." W&B didn't want to make regular person-to-person gossip illegal. (No doubt they would have phrased things differently if mass communication by radio had existed back then.) Fourth, a person can make his or her own private matters public, after which further discussion is allowed.

This paper's closing line is also worth quoting:

"The common law has always recognized a man's house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?" (Warren & Brandeis)

Some things to notice: W&B argued for an expanded understanding of existing protections, not new legislation or judges entirely making up new protections. They wanted the government to discourage private citizens from violating each other's privacy, not just to keep the state out of private affairs. Finally, they were discussing common law, not the Constitution specifically. So why is their paper relevant to a constitutional right to privacy? Because common law theory is a significant part of constitutional interpretation. Subsequent Supreme Court justices will draw on the ideas and language used in this paper, especially in a dissenting opinion for Olmstead v. United States which was written by — surprise, surprise — Brandeis himself after he was appointed to the Supreme Court!

Weeks v. United States

The Court's ruling in Boyd had spoken of "private papers" but not "privacy." Weeks looked back at Boyd and began to use "privacy" language detached from specific possessions:

"[The fourth amendment] took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, make against them." —Weeks (232 U.S. 383), emphasis added.

Nor is this just background information. The Court characterized violations of the fourth amendment as violations of privacy:

"Under such circumstances, without sworn information and particular description, not even an order of court would have justified such procedure; much less was it within the authority of the United States marshal to thus invade the house and privacy of the accused." — Weeks (232 U.S. 383)

Meyer v. State of Nebraska

In 1919, Nebraska passed a law against teaching foreign languages in schools until after the eighth grade, with the intent of closing down German classes. (Immigrant anxiety isn't a new thing.) This was found unconstitutional. How? The Court cited the fourteenth amendment's due process protection of "liberty." If that sounds awfully vague, well, you're right about that. The Court did try to fill in what they took "liberty" to mean:

"While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." — Meyer (262 U.S. 390)

This should sound familiar! Warren and Brandeis' paper also contrasted an early understanding that "liberty meant freedom from actual restraint" with a maturing right to liberty that "secures the exercise of extensive civil privileges." Whereas that paper had spoken of "a recognition of man's spiritual nature, of his feelings and his intellect," the opinion in Meyer mentions conscience, marriage, family, and the acquisition of useful knowledge. Finally, W&B's paper's "right to enjoy life" can be seen in the Court's phrasing "privileges [...] essential to the orderly pursuit of happiness." This isn't quoting, and it might not even be a direct reference, but it's at least clear that both texts are referring to a related set of ideas about the growth of common law liberties.

Though the word "privacy" doesn't appear in the Court's decision, Meyer v. State of Nebraska would have been a much more appropriate case for Santorum to cite as the beginning of the Supreme Court's recognition of an expansive right to privacy. And it wasn't about contraception or abortion; it was about the parental right to guide the education of their children, as the Court concluded:

"Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment" — Meyer (262 U.S. 390)

Pierce v. Society of Sisters

In 1922, Oregon passed its own state law to restrict educational options through the eighth grade. Specifically, children had to attend public rather than private schools. Why didn't Oregon realize this would be struck down on account of Meyer? Because the decision in Meyer didn't actually happen until 1923.

Anyway, schoolteacher nuns sued and eventually won on grounds we've seen before:

"Under the doctrine of Meyer v. Nebraska [...] we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [...] under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." — Pierce (268 U.S. 510)

The right to privacy being developed in these cases is purely a restriction on state regulation, not Warren and Brandeis' hope for the ability of private citizens to sue each other for breaches of privacy. Their paper has turned out to be very influential in terms of defining privacy, but not so influential in terms of implementation. Instead, the Court has treated privacy rights as a strong presumption against state interference in a variety of areas.

Olmstead v. United States

This was the case that concluded warrantless wiretapping is perfectly fine, so long as the feds tap from the street outside (it was later overturned). What's most important about Olmstead today is Justice Brandeis' dissent. Remember, this is the same Louis Brandeis who co-wrote "The Right to Privacy" 38 years earlier! He built on the Court's earlier reasoning in Boyd that limiting the fourth amendment to physical search and seizure would make it less and less relevant as time goes on:

"The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions." — Olmstead (277 U.S. 438), Brandeis' dissent

And reprising his own paper's theme, he wrote:

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his 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. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."— Olmstead (277 U.S. 438), Brandeis' dissent

Thus Brandeis anchors his earlier "right to privacy" ideas in the fourth amendment, as the fundamental reason for the amendment.

NAACP v. Alabama

In the mid 1950's Alabama tried to keep the National Association for the Advancement of Colored People (NAACP) from legally operating in the state. As part of this process, a court ordered the NAACP to produce membership lists. Although the NAACP cooperated in other aspects, it said "no" to revealing its standard (non-officer) members. The Supreme Court ruled in favor of the NAACP.

"It 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 of the Fourteenth Amendment, which embraces freedom of speech. [...]

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations." — NAACP (357 U.S. 449)

The idea here is that what's required for a right (association) may become recognized as a right itself (privacy).

Poe v. Ullman

Finally, a contraception case! Think of Poe as a trial run of Griswold, since both cases were about the same Connecticut law. A married couple had gone through three consecutive pregnancies, resulting in children with "multiple congenital abnormalities from which each died shortly after birth." Their doctor suspected a genetic problem, believing further pregnancies would likely turn out the same. Another woman was seriously injured by a pregnancy and was warned that another pregnancy would threaten her life. Both married women wished to learn how best to prevent conception, but a state law made it illegal for doctors to advise patients on contraceptive use and for citizens to make use of contraceptives. The Court decided not to address questions of constitutionality and dismissed the case because the couple had not actually been charged for violating the law.

However, Justice Douglas dissented saying:

"If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one [....]

What are these people - doctor and patients - to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined." — Poe (367 U.S. 497)

Douglas argued that the first amendment's freedom of speech clause applied to doctors giving advice on contraception. He also argued that forbidding the use of contraceptives "deprives them of 'liberty' without due process of law, as that concept is used in the Fourteenth Amendment." He cited the part of Meyer v. State of Nebraska that affirmed a right "to marry, establish a home and bring up children" (as quoted above). If the state cannot interfere with a married couple's choice to have children, how can it interfere with their choice not to have children?

In his conclusion, Douglas wrote, "This notion of privacy is not drawn from the blue. It emanates from the totality of the constitutional scheme under which we live" (Poe). He contrasts our "constitutional scheme" with the way totalitarian societies claim every aspect of life is within the state's business.

Mapp v. Ohio

Mapp is significant for overruling an earlier case, Wolf v. Colorado (338 U.S. 25), where it had originally been decided that the fourth amendment applied to state governments, but that any materials obtained through illegal search and seizure could still be used as evidence in state courts. So while the Wolf court recognized a "right of privacy," it was understood as a restriction only on the federal government, not a right of all citizens against their state governments as well.

In Mapp, the Court extended the "right to privacy" to states, making it (or recognizing it) as a right of the people in the sense we now find most familiar.

"Today we once again examine Wolf's constitutional documentation of the right to privacy free from unreasonable state intrusion, and, after its dozen years on our books, are led by it to close the only [...] courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." — Mapp (367 U.S. 643)

There are several other explicit affirmations of a constitutional right to privacy in Mapp. Why, then, isn't Mapp cited in place of Griswold as a privacy case of highest importance? Because this rationale behind the judgment was only supported by a plurality — not a majority — of justices.

Griswold v. Connecticut

Finally, a case that simultaneously...

1. Invokes a right to privacy
2. Against all levels of government
3. Uses the phrase "right to privacy"
4. In the majority opinion
5. In a majority rationale

Griswold concerned the same state law as Poe (discussed above). Since the Court had refused to consider the constitutional merits of an unenforced law, Planned Parenthood League of Connecticut made a show of violating the law in order to provoke the state into creating a test case. Two $100 fines and some lower court rulings later, the Supreme Court took up the issue for real this time.

What makes any claim about the right to privacy starting in Griswold truly astonishing is that the Griswold opinion cites all of the above cases except Weeks v. United States. There's also a useful summary of how the right to privacy is a kind of background condition for a number of rights enumerated by the Constitution:

"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. [...] Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" — Griswold (381 U.S. 479), bolding added

It should be overwhelmingly obvious at this point that the right to privacy was not made up for the sake of "the contraceptive case." It's about restricting government intrusion into our personal lives in a wide variety of areas, including the right to send one's children to a private school, to join a club or attend a church without being put on a membership list for government use, and to not be convicted of a crime based on illegally obtained evidence.

And, yes, the right to privacy also means the police can't bust you for using a condom.