CITES BY TOPIC:  privilege
Fourteenth Amendment Annotations:  "Privileges and Immunities Clause" Commentary-Findlaw
Confucius

“The more you want, the more the world can hurt you.”


Black's Law Dictionary, Sixth Edition, p. 1197:

Privilege.  A particular benefit or advantage enjoyed by a person, company, or class beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption.  A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.

In tort law, the ability to act contrary to another individual's legal right without that individual having legal redress for the consequences of that act; usually raised by the actor a a defense.

An exemption from some burden of attendance, with which certain persons are indulged, from a supposition of law that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, therefore, without this indulgence, it would be impracticable to execute such offices to that advantage which the public good requires.  That which releases one from the performance of a duty or obligation, or exempts one from a liability which he would otherwise be required to perform, or sustain in common with all other persons.  See also Exemption; Immunity.

    See also Doctor-patient privilege; Executive privilege; Husband-wife privilege; Journalist's privilege; Legislative immunity; Marital communications privilege; Newsmen's privilege; Patient-physician privilege; Priest-penitent privilege; Privileged communications; Right; State secrets privilege.

Attorney-client, doctor-patient, etc. privilege.  See Privileged communications, and also specific privileges.

Civil law.  A right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors.  Civil Code La. art. 3186.  It is merely an accessory of the debt which it secures, and falls with the extinguishment of the debt.  The civil law priviliege became, by adoption of the admiralty courts, the admiralty lien.  The J.E. Rumbell, 148 U.S. 1, 13 S.Ct. 498, 37 L.Ed 345.

Communications.  See Privileged communications.

Deliberative process privilege.  This governmental privilege permits government to withhold documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated, and was developed to promote frank and independent discussion among those responsible for making governmental decisions and to protect against premature disclosure of proposed agency policies or decisions.  F.T.C. v. Warner Communications Inc.,  C.A.Cal., 742 F.2d 1156, 1161.

Discovery.  When interrogatories, depositions or other forms of discovery seek information which is otherwise privileged, the party from whom it is sought may claim his privilege.  Fed.R.Civil P. 26; Fed.R.Crim.P. 16.  See also Protective order; Work product rule.

Evidence.  See Privileged communications; Privileged evidence.

Executive privilege.  The protection afforded to confidential presidential communications.  However, the generalized need for confidentiality of high level communications cannot sustain an absolute unqualified presidential privilege.  U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039.  See also Executive privilege.

Libel and slander.  An exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in the performance of a political, judicial, social, or personal duty.  Privilege is either absolute or conditional.  The former protects the speaker or publisher without reference to his motives or the truth or falsity of the statement.  This may be claimed in respect, for instance, to statements made in legislative debates, in reports of military officers to their superiors in the line of their duty, and statements made by judges, witnesses and jurors in trials in court.  Conditional privilege (called also "qualified privilege") will protect the speaker or publisher unless actual malice and knowledge of the falsity of the statement is shown.  This may be claimed where the communication related to a matter of public interest, or where it was necessary to protect one's private interest and was made to a person having an interest in the same matter.  Saroyan v. Burkett, 57 Cal.2d 706, 21 Cal.Rptr. 557, 558, 371 P.2d 293.

     For defense of "constitutional privilege" in libel actions, see Libel.

Maritime law.  An allowance to the master of a ship of the same general nature with primage, being compensation, or rather a gratuity, customary in certain trades, and which the law assumes to be a fair and equitable allowance, because the contract on both sides is made under the knowledge of such usage by the parties.

Parlamentary law.  The right of a particular question, motion, or statement to take precedence over all other business before the house and to be considered immediately, notwithstanding any consequent interference with or setting aside the rules of procedure adopted by the house.  The matter may be one of "personal privilege," where it concerns one member of the house in his capacity as a legislator, or of the "privilege of the house," where it concerns the rights, immunities, or dignity of the entire body, or of "constitutional privilege," where it relates to some action to be taken or some order of proceeding expressly enjoined by the constitution.

Privilege from arrest.  A privilege extended to certain classes of persons, either by the rules of international law, the policy of the law, or the necessities of justice or of administration of government, whereby they are exempted from arrest on civil process, and, in some cases, on criminal charges, either permanently, as in the case of a foreign minister and his suite, or temporarily, as in the case of members of the legislature, parties, and witnesses engaged in a particular suit, etc.  Art. I, 6, U.S. Const.  See also Immunity.

Privilege tax.  A tax on the privilege of carrying on a business or occupation for which a license or franchise is required.  Bulf & Ship Island R.Co. v. Hewes, 183 U.S. 66, 22 S.Ct. 26, 46 L.Ed. 86.

Torts.  Privilege is the general term applied to certain rules of law by which particular circumstances justify conduct which otherwise would be tortious, and thereby defeat the tort liability (or defense) which, in the absence of such circumstances, ordinarily would follow from that conduct.  In other words, even if all of the facts necessary to a prima facie case of tort liability can be proved, there are additional facts present sufficient to establish some privilege, and therefore defendant has committed no tort.  Privileges thus differ form other defenses, such as contributory negligence, which operate to bar plaintiff's recover but do not negate the tortious nature of defendant's conduct.  Conversely, plaintiff's privilege may defeat a defense which defendant otherwise might have had.  The term and concept of privilege apply primarily to the intentional torts, but also appear in other areas, such as defamation.  See Libel and slander, above.

   A privilege may be based upon:  (a) the consent of the other affected by the actor's conduct, or (b) the fact that its exercise is necessary for the protection of some interest of the actor or of the public which is of such importance as to justify the harm caused or threatened by its exercise, or (c) the fact that the actor is performing a function for the proper performance of which freedom of action is essential.  Restatement, Second, Torts, 10.

   Privilege may be divided into two general categories: (1) consent, and (2) privileges created by law irrespective of consent.  In general, the latter arise where there is some important and overriding social value in sanctioning defendant's conduct, despite the fat that it causes plaintiff harm.

    Privilege is an affirmative defense which must be pleaded by defendant.  Fed.R.Civil P 8(c).

Writ of privilege.  A common law process to enforce or maintain a privilege; particularly to secure the release of a person arrested in a civil suit contrary to his privilege.

[Black's Law Dictionary, Sixth Edition, p. 1197]


PDF Board of Regents v. Roth, 408 U.S. 564 (1972)

For that reason, the Court has fully and finally rejected the wooden distinction between ‘rights' and ‘privileges' that once seemed to govern the applicability of procedural due process rights. FN9 The Court has also made clear that the property interests protected by *572 procedural due process extend well beyond actual ownership of real estate, chattels, or money.FN10 By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process.FN11

FN9. In a leading case decided many years ago, the Court of Appeals for the District of Columbia Circuit held that public employment in general was a ‘privilege,’ not a ‘right,’ and that procedural due process guarantees therefore were inapplicable. Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, aff'd by an equally divided Court, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. The basis of this holding has been thoroughly undermined in the ensuing years. For, as Mr. Justice Blackmun wrote for the Court only last year, ‘this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.“ Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 534. See, e.g., Morrissey v. Brewer, supra, 408 U.S., at 482, 92 S.Ct., at 2600; Bell v. Burson, supra, 402 U.S., at 539, 91 S.Ct., at 1589; Goldberg v. Kelly, supra, 397 U.S., at 262, 90 S.Ct., at 1017; Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600; Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811; Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965.
FN10. See, e.g., Connell v. Higginbotham, 403 U.S. 207, 208, 91 S.Ct. 1772, 1773, 29 L.Ed.2d 418; Bell v. Burson, supra; Goldberg v. Kelly, supra.
FN11. ‘Although the Court has not assumed to define ‘liberty’ (in the Fifth Amendment's Due Process Clause) with any great precision, that term is not confined to mere freedom from bodily restraint.' Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. See, e.g., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.
Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words ‘liberty’ and ‘property’ in the Due Process Clause of the Fourteenth Amendment must be given some meaning.

[Board of Regents v. Roth, 408 U.S. 564 (1972)]


Ashwander v. TVA, 297 U.S. 288 (1936)

"The principle is invoked that one who accepts the benefit of a statute cannot be heard to question its constitutionality. Great Falls Manufacturing Co. v. Attorney General, 124 U.S. 581 , 8 S.Ct. 631; Wall v. Parrot Silver & Copper Co., 244 U.S. 407 , 37 S.Ct. 609; St. Louis, etc., Co., v. George C. Prendergast Const. Co., 260 U.S. 469 , 43 S.Ct. 178."


Stevens v. State, 2 Ark. 291; 35 Am. Dec. 72, Spring Val. Water Works v. Barber, 99 Cal. 36, 33 Pac. 735, 21 L.R.A. 416.Note 57 L.R.A. 416

“A right common in every citizen such as the right to own property or to engage in business of a character not requiring regulation CANNOT, however, be taxed as a special franchise by first prohibiting its exercise and then permitting its enjoyment upon the payment of a certain sum of money.” 

[Stevens v. State, 2 Ark. 291; 35 Am. Dec. 72, Spring Val. Water Works v. Barber, 99 Cal. 36, 33 Pac. 735, 21 L.R.A. 416.Note 57 L.R.A. 416]


Bank of Commerce & T. Co. v. Senter, 149 Tenn. 569, 260 SW 144, American Airways v. Wallace, 57 F.2d 877, 880

The term ‘excise tax’ is synonymous with ‘privilege tax’, and the two have been used interchangeable.Foster & C. Co. v. Graham, 154 Tenn. 412, 285 S.W. 570, 47 ALR 971.  Whether a tax is characterized in a statute imposing it, as a privilege tax or an excise tax is merely a choice of synonymous words, for an excise tax is a privilege tax.”  .

[Bank of Commerce & T. Co. v. Senter, 149 Tenn. 569, 260 SW 144, American Airways v. Wallace, 57 F.2d 877, 880]


People ex. rel. Atty Gen. v. Naglee, 1 Cal. 232, Bank of Commerce & T.Co. v. Senter, 149 Tenn. 441, 381 SW 144

"The obligation to pay an excise tax is based upon the voluntary action of the person taxed in performing the act, enjoying the privilege, or engaging in the occupation which is the subject of the excise, and the element of absolute and unavoidable demand is lacking." 

[People ex. rel. Atty Gen. v. Naglee, 1 Cal. 232, Bank of Commerce & T.Co. v. Senter, 149 Tenn. 441, 381 SW 144]


Black v. State, 113 Wis. 205, 89 NW 522.

"An excise tax is...a duty levied upon licenses to pursue certain trades or deal in certain commodities and upon official privileges." 

[Black v. State, 113 Wis. 205, 89 NW 522.]


[Taxation West Key 533]-Jack Cole Co. v. MacFarland, 337 S.W. 2d 453, Tenn.

“Legislature…cannot name something to be a taxable privilege unless it is first a privilege [Taxation West Key 53]…The Right to receive income or earnings is a right belonging to every person and realization and receipt of income, is therefore, not a privilege that can be taxes.”


United States v. Morris, 125 F.Rept. 325, 331

"That the right to...accept employment as a laborer for hire is a fundamental right is inherent to every free citizen, and is indisputable." 

[United States v. Morris, 125 F.Rept. 325, 331]