Hastings Constitutional Law Quarterly


Clay Calvert


In May 2012, the United States Court of Appeals for the Ninth Circuit broke new constitutional ground in Marsh v. County of San Diego when it held that the constitutional right to privacy encompasses "the power to control images of a dead family member." This article provides an overview of Marsh. It then discusses the historical common law right to familial privacy over death images. In addition, it explores both judicial and legislative recognition of the Internet's power as a force in the battle to preserve privacy. Next, it illustrates how these twin forces-the preexisting common law right to familial privacy over death images and the Internet-led to the finding in Marsh of a constitutional privacy right that protects a seemingly far different right from those previously recognized such as contraception, abortion, and consensual sex acts.

The article analyzes the potential implications stemming from the new familial privacy right over death images recognized in Marsh. It goes on to explore tension between the constitutional right to privacy over images of death and the First Amendment. Finally, the article calls on the U.S. Supreme Court to affirm this new privacy right, but to qualify it with certain exemptions for First Amendment purposes.