Evening star. [volume] (Washington, D.C.) 1854-1972, 1952-04-06
The Right of Privacy

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When Howard McGrath bowed out as Attor-
ney General he said he was paying the penalty
for standing up for what he believed to be great
principles of personal liberty and the fundamen-
tai rights of Federal employees.
There is much truth in the statement. Mr.
McGrath did not spell out the great principles
he had in mind, but it can hardly be doubted
that principles were at stake and that his forced
resignation was in the nature of a penalty.
The principle, so far as it can be reduced to
popular terms, concerns the right of privacy, and
the attempt, through the indiscriminate use of
missionaries, to invade that right.
This is not simple matter. 1t is easy to say
that QUESTIONABLE, sent to persons not sus-
pected of any wrongdong and containing ques-
tons not directly related to their employment,
is an invasion of privacy. But it is not so easy
to find a clear-cut constitutional basis for this
contention.
Broadly speaking, the doctrine that there is
legal right of privacy emerged in this country
about 60 years ago. Some States still refuse to
accept this view. In others, however, and in the
District the doctrine has been firmly established
by statute, by judicial decision, or by both.
The difficulty is that the overwhelming majority
of the cases have no apparent relation to the
situation which arises when the Government, as
an employer, tells an employe he must answer
a financial QUESTIONABLE or accept the penalty
Of being fired.
II a Federal employe refuses to answer ques-
tons and also wishes to retain his job, what
protection can he find in the law? The Consti-
tuition is silent the point, despite attempts to
distill support for such refusal from the Fourth
Amendments guarantee against unreasonable
searches and seizures. The analogy, to say the
CT &c for ohaN auth how
relied on the due-process clause-on the assur-
ance that person shall be deprived of liberty"
except after procedure that meets the test of
fairness. But this, too leaves much to be desired.
The chances are that the QUESTIONABLE
technique devised by Newbold Morris will be
abandoned in the current investigation. That,
at least, is a reasonable inference from the
remarks of Mr.. McGrath's successor, James P.
McGranery. But employees of the Bureau of
Internal Revenue were required to fill out
similar QUESTIONABLE, and so were the members
of the District Police Department. There is one
court decision which touches closely the latter
question. In 1929 New Jersey prosecutor wanted
to examine the bank accounts of all members of
the police department, as well as the accounts
of some of their wives in connection with an
investigation he was conducting. New Jersey
court, however, granted an injunction, holding
would destroy the right of personal privacy
enjoyed by the individuals. Yet, when former
Police Chief Barrett filed similar suit here, but
without raising the right-of-pr issue, Judge
Kirkland refused to grant injunction, ruling
that the court lacked jurisdiction because no
injury had been shown.
To say the least, this offers no great COM
fort to the Federal employe who might wish,
as a matter of principle, to assert right to
refuse to answer QUESTIONABLE. He is faced
Immediately with the prospect that he will be
fired, and since the courts have held that he
has no property right in his job, and that no
one has fright" to work for the Government,
he has little If any assurance that the courts
would come to his rescue There is always the
possibility, of course, that the courts will find
some basis for effectively asserting a constitu-
tional right of privacy which would protect an
innocent employe. But the risk is great, and
not many people are in position to assume it.
This being so, the question is really one of
sound policy as distinguished from constitu-
tional law And as is so often the case this
question of policy involves conflict OF rights.
OF course the Government has right to re-
quire pertinent financial information from en-
ployes suspected of dishonesty. But that is
quite different thing from the dragnet ques-
tionnaire technique which probes into every
nook and corner of the affairs of those who
are innocent as we'll as those who are suspect
all in the hope that something will be turned
up This may be the "easy" way of conducting
an investigation. It is also easy to conduct
Investigations by Unfortunately searching
homes, or by extorting confessions with third
degree methods. But the law will not tolerate
these latter practices, and sound policy should
not tolerate the former.
New York court, ruling in case in which
no legal protection of the right of privacy could
be invoked said: From such harms one is
protected only by the code of common decency"
In dealing with corruption in Government,
it is necessary to reconcile the public interest
in clean government with the individuals de-
sire for-or right of-privacy There may well be
situations in which the public interest must
take precedence. But short of that point there
is broad area in which the individuals right
of privacy can be-and should be-respected.
If this is not right that can be enforced in
the courts, it is right that nevertheless will
be respected by any government which func-
lions with a proper regard for the code Of
common decency." Mr.. McGrath may have
made a real contribution to this end. II So that
is something which will outweigh the errors and
shortcomings of his administration.