Doe v. Marsh

The Appellants, Doe and Roe, brought this claim alleging that the respondent, Marsh, violated their right to privacy under the US Constitution. Doe and Roe were HIV positive individuals active in various HIV/AIDS support and advocacy organizations; both had participated in educational seminars for social workers and educators focused on HIV prevention. The seminars were organized by Marsh in her capacity as an employee of the New York State Department of Education (SED) HIV/AIDS program. The Appellants identified themselves as HIV-positive at the seminars.

The Appellants brought this claim after Marsh wrote and distributed a manual entitled “Setting up HIV Prevention Education Programs Including People Living With HIV/AIDS,” which specified various persons as living with HIV and credited them for their participation in the SED seminars. The list identified the full names of the Appellants. One hundred and fifty copies of the manual were distributed to various educators.

The District Court granted summary judgment in favor of the respondents on the basis of qualified immunity; an appeal followed.

The court held that Marsh, in her capacity as a government official, was immune from the Appellants’ claim that her conduct violated their constitutional right to privacy. The court held that Marsh’s actions were “objectively reasonable.” It applied the two-pronged test from Anderson v Creighton, 483 U.S. 635, 641 (1987), which established that “the qualified immunity defense protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act.”

1. Were Marsh’s actions “lawful at the time”?

The court assumed, without deciding, that at the time the manual was distributed (September 1992) there existed “a clearly established constitutional, confidentiality-based right to privacy which precluded the state from disclosing that the [Appellants] were persons with HIV.” The court focused its analysis on the second prong of the qualified immunity test.

2. Were Marsh’s actions “objectively reasonable”?

Yes. Marsh argued that she had acted “objectively reasonable” in distributing the manual because Appellants’ “waived any such right to privacy by publicly identifying themselves as persons living with HIV.” The court held that “reasonable officials could disagree on whether [Appellants’] actions . . . constituted a knowing and voluntary waiver.” It reasoned that given that the law surrounding waiver was unsettled at the time the manual was published, Appellants’ conduct of “identifying themselves before seminar and conference audiences as persons living with HIV could reasonably [have been] construed by state officials as a waiver of their right . . . to not have their HIV status disclosed.”

“We agree . . . that, at least as of the time the SED manual was first distributed to educators in September 1992, the law regarding waiver of the right to privacy was not clearly stated, and, therefore, the plaintiffs' conduct of identifying themselves before seminar and conference audiences as persons living with HIV could reasonably be construed by state officials as a waiver of their right to privacy — that is, of their right to not have their HIV status disclosed.” 105 F. 3d, pp. 110-11.

“[E]ven drawing all reasonable inferences in favor of the plaintiffs and indulging every reasonable presumption against waiver, reasonable officials could disagree on whether Doe's and Roe's actions — particularly identifying themselves at seminars and conferences as HIV-positive persons, and Roe's disclosure of her HIV-positive status in an educational videotape that she acknowledged would be used in a variety of educational settings — constituted a ‘knowing and voluntary’ waiver of their right not to have their HIV status disclosed to educators involved in HIV prevention.” 105 F. 3d, pp. 111.