The true origin of Florida’s privacy right

By John Stemberger

Editor’s note. This rebuttal appeared in the Tallahassee Democrat. John Stemberger is an Orlando lawyer who served on the 2017-18 Constitution Revision Commission, where he focused on Florida’s Privacy Amendment

“Objection– Hearsay.”

This is the best way to respond to the narrative laid out by Kathryn Varn in her article for the USA Today Network entitled, “Florida has a unique right protecting abortion. Its framers designed it that way.”  Her special report claims to uncover the “never fully been told” “story” about the origin of Article 1, Section 23 of Florida’s Constitution, “The Right to Privacy.”

The article focuses on Pat Dore, an esteemed and beloved law professor from Florida State University who passed away in 1992, and the memories of her 73-year-old attorney lawyer friend who lives in Tallahassee.  Dore served on the staff of the 1977-1978 Florida Constitution Revision Commission.

I was interviewed for this story but sadly the reporter chose not to emphasize the overwhelming evidence I presented her with that clearly points to the fact the privacy amendment was birthed directly out of a nationwide debate over government intrusion into the private lives of citizens because of Watergate, wiretapping, wire transfers, fax machines, and TCP-IP–, not abortion.

Instead, Varn’s article focuses and relies almost entirely on interviews with Dore’s friend recalling “private meetings” and “side chats” with her.  Astonishingly, she claims there “just wasn’t much controversy around the assumption that the right would extend to abortion.” 

Yet, out of thousands of officially archived documents, the record is curiously void of any mention of this “assumption.”

Two different times in my life I spent hundreds of hours researching this issue. First, in 1989, as a law clerk, I was the primary drafter of an Amicus Brief on behalf of a bipartisan group of pro-life legislators to the Florida Supreme Court in Florida’s leading abortion case, In Re T.W. A Minor.  Then again, in 2017, as a member of Florida’s Constitution Revision Commission, I sponsored Proposal 22, which would have clarified the amendment was about informational privacy. 

I spent countless days in the Florida Archives.  I read every transcript of every committee meeting and floor debate.  I read every committee analysis, every law review, every news article on the topic. I analyzed every legislative record, and every document available related to the amendment. 

My exhaustive review of those official documents clearly revealed that “informational privacy” was the exclusive reason the privacy amendment was proposed, and then adopted by Floridians in 1980. 

What does not appear in any of those archived records is the word “abortion.” Not a single time. Also missing are the words “personal autonomy,” “termination of pregnancy,” “substantive due process,” “Roe vs. Wade,” or any hint of a right to abortion. But Varn’s article, ignoring the record, boldly proposes a new theory that abortion rights were the true purpose behind the amendment, according to Dore’s friend.

Varn did uncover and share with me two 1980 Florida news articles not in the archives that contained quotes from gay rights activists mentioning abortion in passing. The gay activists supported the amendment thinking it might decriminalize homosexual relationships. 

In 1980, when Florida’s privacy amendment was adopted, Roe vs. Wade was on the books for eight years.  No one in the pro-life movement showed any concern over the amendment. It was clear to everyone that its purpose was for informational privacy.

Even the second sentence of the amendment creates an exception to a category of “informational privacy”: “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” 

In 1890, Justice Louis Brandeis published a Harvard Law Review article entitled, “The Privacy Right.” It’s considered to be the origin of the phrase “the right to be let alone,” the identical phrase used in Florida’s privacy amendment.  Brandeis’s article discusses various aspects of informational privacy including defamation, and intellectual property, but never mentions abortion. 

In 1978, Dore also wrote a 56-page detailed law review article cataloging the history of the debate and discussion over the eight amendments proposed by the 1978 Constitutional Revision Commission.  She devoted 16 pages of the article to the Privacy Amendment, but Dore never once mentions abortion. Her own official written history documents that the purpose of the amendment was intended for informational privacy.  

Yet Varn’s article proposes an untold new story behind the privacy amendment with abortion as its true purpose. This claim, however, could be nothing further from the truth. 

We should not accept the memory of a 73-year-old friend for events that took place 45 years ago, over and above the overwhelming documentation in the official historical record. 

“Objection– hearsay.”