Document Type

Article

Publication Date

9-1992

Abstract

I want to develop some themes I advanced in my article entitled State-Interest Analysis in Fourteenth Amendment "Privacy" Law: An Essay on the Constitutionalization of Social issues. In that article I noted that while courts and commentators have lavished effort on the fundamental-rights side of privacy law, they have scanted the state-interest side, thereby producing crucial weaknesses in that law. I felt that state~interest discussions in privacy cases often seemed to me unsatisfying. This is an attempt to see why. A major difficulty is that states tend to advance and courts tend to accept quite narrow specifications of a statute's purpose. I believe, however, that often particular statutes are part of a larger framework of laws serving some relatively broad purposes. More generally, "the Court often looks at the particular situation a case presents in isolation from its legal and social context and often looks at the challenged statute in isolation from other statutes and from other forms of social regulation." Here, I consider another interest that is part of that context. I do so by examining further the law's work in building and sustaining social institutions. Briefly, I suggest that that work, which I call the "chap.nelling function," may often be advanced as part of a state's interest in statutes challenged on privacy grounds. I do not argue that such an interest will always be present or that it must always prevail. I do argue that it is an often ignored, but often legitimate, aspect of a statute's goal and of a state's interests. Finally, a word about the scope of my remarks. One might ask two basic questions about the channelling function. The first is whether its use is wise social policy. The second is whether it may properly be adduced as a state interest to justify a law challenged on privacy grounds. I address only the second question. Channelling can be used for multiple ends. I will discuss the most typical and perhaps the hardest case, namely, the version of the channelling function that could have been most plausibly advanced in recent privacy cases. I am not arguing that any use of the channelling function constitutes by itself a compelling state interest or even that all its forms and features are desirable. For one thing, it is very hard to know what a compelling state interest is, and the Court has been reasonably closed-mouthed about telling us.

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