Vail Daily column: Did Laremy Tunsil have a reasonable expectation of privacy? | VailDaily.com

Vail Daily column: Did Laremy Tunsil have a reasonable expectation of privacy?

You heard about it. Maybe you saw it. It wasn’t flattering.

Just ahead of the recent NFL draft, Laremy Tunsil, the-big-as-all-of-Oxford, Mississippi, offensive tackle, encountered a bit of unwelcome notoriety. Projected by many as a top-three draft pick, what appears to have been an anonymous hacker chose the night of the NFL draft as the occasion to post what was — to say the least — an unhelpful video of Tunsil. The video of Tunsil smoking from a bong fashioned from a gas mask was posted to Tunsil’s Twitter account and, in a blink, went viral. Oops.

The video — along, perhaps, with Tunsil’s prior alleged NCAA violations — dropped his draft stock from top three to number 13, at which spot he was picked up by the Miami Dolphins. While a drop from number 1 or 2 or 3 to 13 may not seem that far a fall, it likely cost him millions.

Tunsil admitted his mistake and did not deny that the besotted man in the video was him. Without commenting upon whether it was wise or not for Tunsil to be toking, and without knowing if the video was shot in Mississippi, where the use of marijuana—except in the most limited circumstances—is illegal, what does appear to be the case is that Tunsil knew that he was being videoed and did not object.

The question raised is this: Was Tunsil’s privacy invaded? Or, more broadly, did he have a right to privacy in the video at all?

The Constitution’s take

First, it should be said that, contrary to many people’s beliefs, the U.S. Constitution contains no express right to privacy. Instead, the right to privacy is inferred.

The Bill of Rights reflects the concerns of the Framers in protecting specific aspects of privacy, such as the privacy of beliefs (First Amendment), the privacy of the home against demands that it be used to house soldiers (Third Amendment), the privacy of persons and possessions as against unreasonable searches and seizures (Fourth Amendment), and the Fifth Amendment’s privilege against self-incrimination (which provides for the protection — or privacy — of personal information). In addition, the Ninth Amendment states that the “enumeration of certain rights” in the Bill of Rights “shall not be construed to deny or disparage other rights retained by the people.” While the precise intent of the 9th Amendment is elusive, some have interpreted it as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

The law of privacy, evolved from Constitutional interpretation, has also leaned on the 14th Amendment which provides in key part in Section 1 that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The courts’ interpretations

While not explicitly on point, the 14th has been interpreted by the courts to extend a right of privacy — or non-interference — to a variety of things, including the right of a married couple to possess contraception (Griswold, 1965), and the right to an individual to possess and view pornography in his own home (Stanley, 1969). Justice Marshall wrote, “Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

The Burger Court extended the right of privacy to include a woman’s right to have an abortion in Roe v. Wade (1972).

In a precursor of things to come — and perhaps more directly on point — the Alaska Supreme Court found in 1975 (Ravin v. State) a constitutional protection for the right of a citizen to possess and use small quantities of marijuana in his own home. More recently, the court has protected a privacy right in determining whether to terminate life-prolonging medical interventions (Cruzan, 1990), has held anti-gay laws a violation of privacy in sexual preference (Lawrence, 2003), and protected many other and varied interests from state interference. And that last bit — protection from the state — is key.

Protection from the state

A right to privacy — if and to what extent one may exist — is a right to privacy from state interference.

What then of Tunsil?

First, it worth considering that the state had nothing whatsoever to do with the scandalous posting. As such, there is no Constitutional protection — direct, inferred or otherwise.

Second, there is the question of, if one puts oneself out there on a video, can one reasonably expect to preserve one’s privacy?

A key piece to understand is that, to be defensible, the expectation of privacy must be “reasonable.” With my blinds closed in my home, if a drone were to worm its way, like Santa down my chimney and snap a pic, my privacy would undeniably have been violated. But if I mug before a camera and circulate the video among my friends or others, well… not so much.

So with Tunsil, was his right to privacy violated? Likely not. But whether he has grounds for civil or criminal action against the scoundrel hacker who posted his image may be a different story. And, owing to tyranny of limited space, that must be a tale for another day.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, robbins@slblaw.com and robbins@colorado.net.