Fifth Circuit Weighs in on Privacy in Texas
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Fifth Circuit Weighs in on Privacy in Texas. This week, let’s examine an intriguing per curiam opinion recently issued by the United States Court of Appeals for the Fifth Circuit in Amin v. UPS, and see what it says about privacy law in Texas – and perhaps beyond.
A link to the Fifth Circuit’s Amin v. UPS opinion follows:
https://www.ca5.uscourts.gov/opinions/pub/22/22-10295-CV0.pdf
Background: In brief, Amin sued his employer, UPS, alleging that his supervisor denied him a bathroom break while he was working at a UPS warehouse in Texas, and as a result, Amin was forced to defecate on himself while continuing to work on a distribution-center floor. Among other causes of action, Amin alleged a claim for invasion of privacy.
The Fifth Circuit’s Analysis: Pointedly reversing the district court’s decision, the Fifth Circuit found that yes, indeed, Amin’s supervisor had violated Amin’s privacy “by taking what should have been a private matter and exposing it to public scrutiny.” (“Intrusion upon private affairs” is one of Professor Prosser’s famous “four torts” of privacy, along with “misappropriation of likeness for commercial gain,” “public disclosure of embarrassing private facts,” and “false light,” though the latter is not now recognized in most states.)
To reach its conclusion, the Court made an “Erie guess,” predicting (in the absence of controlling state authority) how Texas’s highest court would rule on this particular issue of Texas law as applied to these (disgusting) facts.
The Court first noted that Texas does recognize “intrusion upon private affairs” as an invasion of privacy, explaining that there “are two elements to this cause of action: (1) an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person.” The Court noted Section 652B cmt. b of the Restatement (Second) of Torts (1977), which the Texas Supreme Court had quoted approvingly in Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). The Texas Supreme Court had previously recognized this provision of the Restatement (Second) twenty years before, in Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973).
The Fifth Circuit further stated boldly that “[t]he importance of personal privacy to Texas’s legal framework is also worth noting,” and cited Tex. State Emps. Union v. Tex. Dep’t of Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987) for the specific proposition that:
“The Texas Supreme Court has found that Texas’s Constitution guarantees a right to privacy.”
(Emphasis added).
It is striking that the 1987 Employees Union v. Tex. MHMR case cites both Roe v. Wade and Griswold v. Connecticut, two cases that have been called into question by last year’s decision in Dobbs v. Jackson Women's Health Organization.
Let’s look deeper. In Employees Union v. Tex. MHMR, the Texas Supreme Court discussed the implicit right of privacy contained in the Texas Constitution, explaining that it derives from several provisions that create protected "zones of privacy." It cited Roe and Griswold to support this interpretation, concluding that the Texas Constitution protects personal privacy from unreasonable intrusion, and holding that this right should yield only when the government can demonstrate a compelling objective being achieved through the least intrusive means.
Read for yourself:
“While the Texas Constitution contains no express guarantee of a right of privacy, it contains several provisions similar to those in the United States Constitution that have been recognized as implicitly creating protected "zones of privacy." Cf. Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147 (1972). Section 19 of the Texas Bill of Rights protects against arbitrary deprivation of life and liberty. TEX.CONST., art. 1, § 19. Section 8 provides the freedom to "speak, write or publish", and section 10 protects the right of an accused not to be compelled to give evidence against himself. TEX.CONST., art. 1, §§ 8, 10. Sections 9 and 25 guarantee the sanctity of the individual's home and person against unreasonable intrusion. TEX.CONST., art. 1, §§ 9, 25. Finally, the Texas Constitution protects the rights of conscience in matters of religion. TEX.CONST., art. 1, § 6. Each of these provisions gives rise to a concomitant zone of privacy. Cf. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965). We do not doubt, therefore, that a right of individual privacy is implicit among those "general, great, and essential principles of liberty and free government" established by the Texas Bill of Rights. TEX.CONST., art. I, Introduction to the Bill of Rights. We hold that the Texas Constitution protects personal privacy from unreasonable intrusion. This right to privacy should yield only when the government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means.”
(Emphasis added).
Our Thoughts:
We think, first, that privacy advocates can rejoice at a decision from one of the country’s most conservative federal appellate courts which explicitly affirms that personal privacy is “important[t] to Texas’s legal framework.”
We’re heartened, second, that this affirmation comes from a case between private parties (Mr. Amin and UPS). It seems to us that where a government – federal or state – acts to enforce the will of a majority (of a state, or a majority of the composition of a court) to intrude on someone’s private affairs, the Amin v. UPS analysis should apply with even more force to stop it. Of course, the Fifth Circuit’s indirect reliance on Roe and Griswold may have been inadvertent. But since the U.S. Supreme Court’s decision in Dobbs to overrule Roe and Casey, we, with many, have wondered how far the Supreme Court and others will go to upend stare decisis, and even whether Dobbs would be used to gut the Court’s rulings about privacy altogether. (We’ve previously written about this, in “What the Supreme Court Has Said About Privacy (Including in Dobbs).” A link can be found at: https://www.hoschmorris.com/privacy-plus-news/what-the-supreme-court-has-said-about-privacy-including-in-dobbs ). But Amin v. UPS is not a further battle in the culture wars; it’s simply a full-throated roar of the importance of privacy at a basic, deeply personal level. This is encouraging. Partisans may marginalize it in the culture wars. But they shouldn’t.
And especially, we’re thrilled by what Amin v. UPS says about the basic duties that human beings owe each other. You can practically hear the per curiam court’s teeth grinding as its members pound on a keyboard:
“…the tort … encompasses Amin’s humiliation as [the supervisor] forced him to defecate, a function all civilized humans believe to be manifestly private, in public…
…In recent years, there have been troubling reports of industry practices that deny employees adequate bathroom breaks. (footnote about news articles omitted). It is important to clarify that such actions, or similar examples of public humiliation by exhibition of intimate personal details or actions, are not immune from liability.”
(Emphasis added).
To us, the Court’s “clarification” that such practices are actionable – as well as indecent – is striking; you don’t often see the Fifth Circuit (or any court) add something that isn’t strictly necessary to the decision, much less practically invite litigation, but the state of basic human consideration has sunk to such a deplorable depth that it’s high time to address it. After all, part of privacy is respect for others.
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.