How Texas courts view privacy and what that means for abortion cases and beyond

A new book explores the legal history of privacy in the state and what it means moving forward.

By Laura RiceOctober 29, 2024 4:16 pm, , , ,

In most states across the U.S., privacy protections have been legally recognized since the late 19th or early 20th century. But it took Texas until the 1970s to recognize privacy as an individual right and an actionable legal claim.

In his new book, “The Right to Privacy in Texas,” Sam Houston State University political science professor John Domino explores the history of official and unofficial privacy laws in Texas and why they matter in the context of current political and civil rights issues.

Listen to the interview in the player above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: Texas got a late start on privacy laws compared with most other states. Why was that?

John Domino: Well, I think it was just this kind of reluctance and cautiousness among the judges of Texas.

So, for example, looking at some of these earliest opinions prior to the 1970s and 1980s, Texas judges were recognizing that other states were adopting this variety of common law privacy doctrines. They were aware of what was going on in the nation. And some of these doctrines went back to the early 1900s. But there was this fear that a cascade of litigation could take place.

Could you talk about one of the legal cases that did come up that had a large impact on the development of privacy rights in Texas?

Well, jumping ahead to the 1970s, it was Billings v. Atkinson. And that was the first time that a Texas court, the Texas Supreme Court in this case, recognized that there is a right to privacy.

And they recognized it based on several of these tort doctrines. One, the oldest and has the most rich history, is called invasion or intrusion, just as it sounds. And that could extend to physical invasion, trespass, eavesdropping and what have you.

The case also recognized public disclosure of private information. That was an old common law tort as well. And then a much more obscure one, which is difficult to explain, called appropriation – appropriation of your name or your likeness for commercial gain. And so that was some of the earliest decisions to recognize those doctrines.

And then we get into the 1980s, the court, in a case called the Texas State Employees Union, recognized that there is an unenumerated right to privacy in the Texas Constitution itself.

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What about the modern resistance against the expansion of privacy rights in Texas? Is that around? And what does that look like?

What it all comes down to is whether a litigant can sue successfully.

And as the courts became more conservative in the late 1980s and the 1990s, the question is whether the courts are going to apply that right is a different story. And so, if someone is going to litigate against a corporation or individual for violating their privacy rights, the courts might be hesitant to make a ruling expanding that right to privacy.

How does privacy law influence some of the issues that we’re facing in the state today when we think about issues like reproductive or LGBTQ+ rights?

The state courts have never applied the right to privacy in any form whatsoever to reproduction, to abortion, or matters concerning LGBTQ population. To do so would kind of take the reasoning of the U.S. Supreme Court in Griswold v. Connecticut, Roe v. Wade, before it was overturned, Lawrence v. Texas. And the state courts in Texas have not done that. They refuse to go in that direction.

Now, more states are passing digital privacy protections. Has Texas kept up with that evolving definition of privacy?

That’s interesting because Texas really leads the way in expanding privacy through statutory protection.

So you have the Texas wiretap law, as many states have, invasive visual recording – as people are walking around now with, you know, with video cameras. Laws like that protect people from videotaping you in a dressing room or locker room, something like that. We have old common law peeping tom laws that are being applied to the electronic, the digital age as well.

We have online impersonation laws. We have identity theft laws and very, very strong consumer privacy laws.

So again, most of this is informational privacy and the capture of images of you without your consent.

Another trend you’ve been watching in the United States is this constitutional right to privacy that some states are putting into their state constitutions. What is that meant for, and is there momentum for that in Texas?

Well, there are about 12 states at present that in light of overturning Roe v. Wade and the fear of the Supreme Court rolling back Griswold v. Connecticut, which grants a federal constitutional right to privacy, there is a movement to amend state constitutions with an explicit right to privacy.

I know that public opinion right now, there are a lot of really good public opinion polls conducted in Texas, and according to these polls, there’s overwhelming public support for the right to privacy in Texas in all of its forms.

So I think in lieu of that trend and then also given support on the part of the public, it might be interesting to propose to the people of the state of Texas a constitutional amendment protecting the right to privacy. And, of course, it would need to be put on the ballot by the state Legislature and then voted for by the voters of the state.

Who do you think is the audience for your book? Who do you want to reach?

Well, I think always any time you engage in a scholarly activity, you think about legal scholars and lawyers and law students.

But I really wish that the, you know, average person or lay informed lay reader, media would check out my book because I think that these – all of these rights affect us on a day-by-day basis.

I’ve studied constitutional law for a long time. And you’re going to have only a small segment of the population interested in some of these matters. But most people can relate to privacy in some way, shape or form. Knowing that you have these privacy protections against corporations, against secretive recording, is very, very important.

But I’d like to come back to the point you were asking about, you know, the limits on the right to privacy in Texas.

So when I tell people I’m writing about privacy, they immediately think abortion. And so in the post-Dobbs world, abortion and abortion rights is now solely up to the Legislature. I mean, you’ll have some court challenges regarding the exceptions and so forth that are provided like woman’s health or life or what have you. But now we have to look at Dobbs v. Jackson from the standpoint of what implications will a ban on abortion have on other aspects of privacy, medical privacy, informational privacy, travel.

And there’s almost like a cascade effect, ripple effect that strict anti-abortion laws are going to have on other dimensions of privacy.

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