State Constitutional Rights to Privacy

Abstract

This article examines state constitutional rights to privacy, presenting a comprehensive survey of all states that have explicit rights to privacy enumerated in their constitutions. Understanding state constitutional rights to privacy is particularly critical now, in the wake of the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which significantly restricted the scope of federal constitutional privacy rights. As states have the authority to independently interpret their constitutions, state constitutional law may provide a path forward for privacy.

In lieu of relying on federal rights protection, individuals may now need to turn to state constitutional rights to privacy. While only eleven states have explicit rights to privacy enshrined in their constitutions, these rights can be powerful. This article examines the right to privacy in these eleven states (Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, New Hampshire, South Carolina, and Washington). Understanding the role of explicit rights to privacy in state constitutions is important, because the lack of federal constitutional analogue may allow state courts to interpret their privacy clauses as encompassing a more expansive set of privacy rights than what the U.S. Constitution provides. Federal constitutional protection of privacy may be diminishing, but many states have long-established precedent protecting the right to privacy in forms that are not reliant on lockstep federal interpretation of privacy rights.

This article contributes to both privacy law scholarship and state constitutional law scholarship. There has not been a scholarly survey of state constitutional privacy rights since 1992, and this article is the first to include New Hampshire, which added an explicit privacy right into its constitution in 2018. In addition to analyzing the development of each state’s explicit privacy right, the article compares state constitutional privacy rights to reveal differences and commonalities that may shed light on how privacy rights develop in state jurisprudence—and how other states may model similar rights to adopt in their own constitutions. In doing so, this article aims to provide a useful resource for scholars, practitioners, judges, and advocates seeking creative avenues to protect privacy rights.