Over on Concurring Opinions, Dan Solove reports on a recent Wisconsin Court of Appeals case involving Wisconsin’s video voyeurism law, Wis. Stat. § 942.09(2)(am). The case is State v. Jahnke, 2007AP2130-CR (Dec. 30, 2008). Wisconsin is one of a number of states that have adopted such statutes, which generally bar videotaping someone without their consent who is in a situation in which they have a “reasonable expectation of privacy.” Wisconsin’s version makes a violation a Class I felony.
Dan comments on the heartening aspect of the opinion, which is that it avoids the “trap” of assuming that privacy is all or nothing. In Jahnke, the defendant recorded his then-girlfriend as they were having sex without her permission. She obviously consented to being viewed naked by the defendant, but did not consent to it being recorded. The issue before the court was whether the girlfriend had a “reasonable expectation of privacy” under the statute.
The majority said yes, and Dan cogently explains why that’s a good outcome as a policy matter. But of course, judges don’t usually get to make policy decisions, they make interpretation decisions, and their power to interpret is cabined by all sorts of rules. That’s where the dissent, authored by Judge Charles P. Dykman, veers off from the majority opinion.
The main argument of the dissent is procedural: the Court of Appeals already decided this issue, Judge Dykman argues, in State v. Nelson, 294 Wis. 2d 578 (Ct. App. 2006), and it decided it in a way inconsistent with the majority’s interpretation in Jahnke. Court of Appeals panels cannot overrule the decisions of prior panels. (Say! That’s an excellent rule. Maybe the Federal Circuit should consider adopting it.) Here’s the key language from Nelson, interpreting the phrase “reasonable expectation of privacy”:
If we apply the common meanings of “expectation” and “privacy” . . . , [the statute] requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others . . . .
“Reasonable expectation of privacy,” of course, is a magic phrase in Fourth Amendment law. One thing the Nelson court did was reject the argument that “reasonable expectation of privacy” in the video voyeurism statute should get the same interpretation it does in the Fourth Amendment context. That’s good, because “reasonable expectation of privacy” under the Fourth Amendment actually means nothing like a reasonable expectation of privacy. It would be better termed a “Supreme Court expectation of privacy.” For example, despite what you might think, individuals do not have a Supreme-Court-expectation-of-privacy that strangers will not stare into their windows. That’s what Nelson was arguing, and what the Nelson court rejected.
The trouble for the Jahnke majority is that, in the course of rejecting the “plain view” exception, the Nelson court wrote the passage quoted above, including the italicized phrase. Thus, under Nelson, in order for a recording to violate the statute, the subject of the recording must assume he or she is “secluded from the presence or view of others.” That was true in Nelson, where the subjects were recorded through their bathroom window by a neighbor. But Jahnke’s girlfriend could hardly assume she was “secluded from the presence or view of others,” Judge Dykman argues: Jahnke himself was right there. Dykman concludes that under Nelson, which the court is bound by, Jahnke’s recording did not violate the statute.
The majority opinion, by Judge Paul Lundsten, agrees with Jahnke and the dissent that under the Nelson definition, “anyone who knowingly exposes his or her nude body to another necessarily relinquishes his or her protection under Wis. Stat. § 942.09(2)(am)1., regardless whether there was a reasonable expectation that the person would not be recorded in the nude.” The majority tries to get around this without overruling Nelson by arguing that the Nelson definition was not “incorrect” per se, but was rather “incomplete”: “in Nelson, we did not purport to provide a definition covering all circumstances.”
This is yet another example of what H.L.A. Hart called the “open texture of law”—legislatures and courts, in writing rules (or interpretations of them), confront the ordinary human limitations of imprecise language and non-omniscience. Did the Nelson court really mean to define “reasonable expectations of privacy” in such a way as to exclude all situations in which at least one other person is present at the time of recording? The Jahnke majority doubts it, and so do I. The Nelson facts did not present that issue, and it seems likely that the panel (which included Presiding Judge Paul B. Higginbotham, present but silent in the majorities of both cases) did not consider them. The main point of that part of the opinion was to reject the idea that “reasonable expectation of privacy” meant what it means in Fourth Amendment law, complete with the “plain view” exception. The Nelson court held instead that it has an ordinary language meaning—and to determine the ordinary-language meaning, the court looked up “expectation” and “privacy” in the dictionary. The phrase italicized above comes straight out of the American Heritage College Dictionary (3d ed. 1993) definition of “privacy”: “1.a. the quality or condition of being secluded from the presence or view of others.” It seems likely that, in simply grabbing a definition from the dictionary to defeat the “plain view” exception argument, the Nelson court really did not intend to eliminate Jahnke-type situations from coverage under the statute.
That still doesn’t answer the question of how later courts like the Jahnke court should handle such a situation. Judge Dykman is correct to be concerned that the technique of modifying an earlier opinion by dubbing it “incomplete” creates opportunities for abuse. But the opposite extreme—sticking to the text of a statute or holding even in the face of good evidence that the current outcome was not intended—would put too much pressure on legislatures or courts to make their writings dense with clarity-killing caveats, provisos, and weasel words. (Or, alternatively, it would unjustly subject parties to the Kafkaesque interpretative method of reading poetry literally.) At some point, an author has to simply have faith that his or her readers will give the text a reasonable interpretation under the circumstances.
It seems to me that in this case, there’s a way out of this conundrum that both the majority and dissent missed, one that does not require drawing the difficult (perhaps impossible) line between permissible interpretation of an authoritative text and impermissible modification of it. The language in question was drawn from the dictionary. So the question naturally arises, does the dictionary definition of “privacy” exclude all situations in which two or more people are together? The answer to that seems clearly to be “no.” Dictionary definitions are drawn from common usage, and we speak all the time of two or more people enjoying “privacy”—e.g., a family.
In my opinion, the majority was therefore wrong to concede that under a strict reading of the Nelson definition, “anyone who knowingly exposes his or her nude body to another necessarily relinquishes his or her protection under Wis. Stat. § 942.09(2)(am)1.” When the dictionary says that privacy means being “secluded from the presence or view of others,” it doesn’t mean all others. No one uses the term that way. (If they do, they often qualify the word “private,” by saying such things as “totally private” or “completely private,” and maybe even going on to explicitly state that no one else was present.) Rather, privacy exists if one is secluded from the view of at least some others. That is what the majority is getting at in posing various hypotheticals where naked people are in the presence of others and yet seem to retain their privacy. But instead of saying the Nelson definition needed to be expanded, the majority should have challenged Jahnke’s and the dissent’s reading of the literal text: there’s nothing in it that requires “privacy” to be equivalent to “solitude.”
So what “others” does one need to be secluded from to have an expectation of privacy? Well, that depends on social context, and so the lines can get murky. But as with any line-drawing exercise (e.g., when is a rock “heavy”?) there is clarity at the extremes (a 1,000-pound boulder is “heavy”). A couple having sex in their bedroom, ostensibly shielded from the view of third parties, is at the extreme, not near any of the murky boundaries.