In Malleus v. George, ___ F.3d ___ (3d Cir. 2011), the plaintiff was a school board member for the Warwick School District. Defendants John George and Jill Hackman was also members of the school board, and defendant Jeffrey Conrad was the head of the Warwick Republican Party and later a candidate for the board. In 2006, a student ("Reporting Student") reported to one of her teachers that she saw a teacher ("Teacher") hugging a minor student ("Minor Student"). That same day the Reporting Student told her parents about the incident, and they had her call her great-aunt, the plaintiff. During the next several days the Reporting Student and her parents met with school officials, and the school and school district investigated the allegations.

While the investigation was on-going, plaintiff expressed concerns about the Reporting Student's credibility and urged school administrators to not discipline the Teacher unless they had more evidence. The plaintiff shared her concerns with other school board members and the school's administration and faculty. The investigation ended when both the Teacher and the Minor Student denied the allegations. The Teacher was warned that the allegations were serious and if they had been true he would have been fired. Two years later a police officer discovered the Teacher and Minor Student engaging in sexual activity. Thereafter the school board conducted an investigation into the 2006 hugging incident.

The attorney conducting the investigation told the plaintiff that the investigation's report would remain confidential, and the school board took the same position about confidentiality. During her interview the plaintiff stated that the Reporting Student had an active imagination and had exaggerated her concerns about the conduct of others before. The final report recounted the plaintiff's involvement in the 2006 investigation. The plaintiff thought the report was unfair but she also thought it would remain confidential. However, during the run-up to the 2008 school board election, defendants George and Hackman gave a copy of the report to Conrad, who gave it to the press. Local papers then published articles about the report which the plaintiff claimed caused her reputational harm, family problems, loss of emotional peace of mind, and loss of income. She filed a § 1983 claim against George, Conrad, and Hackman claiming that they had violated her right to privacy because she alleged that she a constitutionally protected expectation of privacy in the report, as she had shared her opinion about the Minor Student -- her grand-niece -- with the understanding that it would remain confidential. The District Court for the Eastern District of Pennsylvania dismissed the plaintiff's complaint, ruling that the Fourteenth Amendment did not protect the plaintiff's opinion of the Minor Student that she shared during the 2008 investigation.

The Third Circuit affirmed. After reviewing the Aschcroft v. Iqbal, 129 S.Ct. 1937 (2009), test that it employs to evaluate the sufficiency of a complaint, the court explained that the plaintiff was claiming a constitutional right to share her opinion about others privately. Thus, the Third Circuit had to determine whether that right was protected by the Constitution. In so doing, the Third Circuit pointed out that constitutional privacy is typically limited to information about oneself, and that to the extent it applies to information about others it is restricted to one's decision to not share such information.

Reviewing Fourteenth Amendment precedent, the Third Circuit explained that the amendment protects two types of privacy rights: 1) the individual interest in avoiding disclosure of personal matters, like intimate facts of a personal nature; and 2) the interest in independence in making certain types of personal decisions, like marriage, procreation, and contraception. The first category is a right to confidentiality while the second category is a right to autonomy. Because it was unclear which category applied to the plaintiff's claims, the Third Circuit considered whether they fit in either category.

With respect to the first category, the Third Circuit observed that it concerned three types of information: sexual information, medical information, and some financial information. The court stressed that "it is clear that this privacy right is limited to facts and an individual's interest in not disclosing those facts about himself or herself. It is the right to refrain from sharing intimate facts about oneself." The Third Circuit ruled that the information that plaintiff sought to protect satisfied none of those criteria; thus, it held that the plaintiff lacked a constitutional right to privacy under the first category.

With respect to the second category, it involved independence in personal decision-making and implicated matters like marriage, procreation, and child-rearing. Although the court conceded that the decision of a school board member to participate in an examination of how a sexual assault investigation had been investigated was important, it "does not implicate the kinds of interests recognized by the foregoing cases. The decision of an individual, in either her role as a school board member or in her role as a great-aunt, to share her opinion cannot be compared to the fundamental and life altering decisions where courts have recognized a privacy right for independent personal decision-making."

Lastly, the Third Circuit rejected the plaintiff's argument that the court should recognize a third category of Fourteenth Amendment privacy. Accordingly, because the plaintiff did not have a right to privacy in the information shared by the defendants, the Third Circuit affirmed the District Court's dismissal of the complaint.