But often the discussion turns to something that sounds like a constitutional issue, but in fact is not a constitutional issue. In those situations, appeals to the Constitution, while potentially persuasive, have no authoritative value. The mistaken attempt to appeal to the Constitution as a source of authority in matters where the Constitution does not apply is what I will call "constitutional conflation."
This post from the National Constitution Center's blog, the Constitution Daily, contains numerous instances of constitutional conflation. The post centers on whether people have a constitutional right for their photographs to be private. The blog accurately outlines the scope of the constitutional freedom from unreasonable search and seizure, but quickly turns in an unrelated direction:
So let’s dig into the legal basics. For starters, the Fourth Amendment to the Constitution says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
This basic right keeps the police from accessing your smartphone for photos and other information, unless they can get a warrant from a judge. The Supreme Court confirmed this basic right in June, when Chief Justice John Roberts said police “had to get a warrant” to look at cellphones belonging to people who have been arrested.
If the police can’t easily access your photos, then hackers really don’t have a legal right to get into your private accounts. The charges related to hacking online accounts vary, and can include federal wiretapping charges.The first two of these paragraphs are mostly agreeable. But the first sentence of the third paragraph strongly implies that the Fourth Amendment protection against unreasonable searches applies not only against police officers, but also against private hackers.
This is not the case, since the Fourth Amendment only applies to government actors. For instance, if I were to walk unannounced into your home and take your television away, you would probably have claims against me for trespass and conversion, but these claims arise under tort law, not under the Fourth Amendment. The statement that "If the police can't easily access your photos, then hackers really don't have a legal right to get into your private accounts" is an example of constitutional conflation.
As the second sentence in the third paragraph suggests, there are indeed laws that prohibit hacking, wiretapping, and other forms of invasion of privacy by private actors. But these are statutory, not constitutional, restrictions on private action. While the post discusses cases of prosecution under these statutes, it is never made explicit that these laws are distinct from the Fourth Amendment.
The post then takes a First Amendment turn:
Non-celebrities enjoy basic privacy rights that were articulated a long time ago by Louis Brandeis, before he became a Supreme Court justice, in the basic principle of “the right to be left alone.”
These rights generally include protection from unreasonable intrusion upon the seclusion of another; using another’s name or likeness; unreasonable publicity given to another’s private life; and publicity that unreasonably puts another in a false light in public.
Celebrities are considered public figures and have limited privacy rights, but they enjoy the right of publicity under the First Amendment. This right allows celebrities (and you) to be compensated for the use of their images under state laws.Again, there are some accurate statements in this passage, but once the Constitution is invoked, the argument becomes misleading. The right of publicity does exist, but it does not originate in the First Amendment. Rather, it is based in constitutional and statutory law. Indeed, the First Amendment's protection of free speech is often at odds with the right of publicity's protection, since right of publicity lawsuits aim to restrict speech by others.
All too often, journalists, commentators, and even lawyers assume that if something sounds like a constitutional issue it is a constitutional issue. But even if something sounds like it might have a constitutional dimension, this may not be the case. And when constitutional protections may indeed apply, they may cut against the argument being advanced (as is the case with the First Amendment example discussed in this post).
The Constitution Daily blog post is not the worst instance of constitutional conflation that I have seen, but it is notable for its repeated instances of conflation and because it purports to advance commentary on constitutional issues. I hope that its readers look closely enough so that they may apart the constitutional and statutory issues, but I worry that not all readers will have the time or knowledge base to do so.