Warren and Brandeis on privacy Notes for October 17

Main points

Warren and Brandeis argue that there is a common law right to privacy. They believe that this right primarily protects people from the publication of private information and images.

Most of our discussion involved attempts to come up with longer lists of the sorts of things that a right to privacy might protect and the kind of psychological harm that the violation of this right might involve.

Distinctions

In the light of our discussion, I think these distinctions might be helpful.

  1. Things that are private or done in private.
  2. What should be private. There are two ways that what should be private might not, in fact, be private.
    1. TMI: people share what should be private about themselves.
    2. Prying: people gather or share what should be private about others.
  3. What rights protect privacy.

The aim of a right of privacy, of course, is to bring what is in fact private in line with what should be private. It’s an interesting question exactly how rights would accomplish this. Warren and Brandeis proposed two mechanisms: torts (the ability of someone whose right to privacy has been violated to sue the violator) and injunctions (courts could prevent the publication of material that would violate a privacy right).

It’s harder to see how a right to privacy could prevent cases under 2a. Maybe I haven’t thought about it enough, though. There could be rights to make people shut up or cover up.

We should probably have a sub-distinction between legal and moral rights. As Warren and Brandeis point out, there will not be a legal right if the damages are too small to be worth society’s efforts at enforcement; that’s why they don’t think there is a privacy right against the oral publication of private information (p. 217). But there could still be a moral right against, say, gossip.

What is private?

I asked what sorts of things we thought are private. Our answers typically reflected our opinions about what should be private, for understandable reasons.

I think our answers fell into the following categories.

  1. Thoughts. These have to be expressed for someone else to publicize them, of course; otherwise, they’re safe in your head. Examples: conversations (personal or with a professional like a doctor or lawyer), journal entries, phone calls, texts, information on a computer (this will fall into some other categories as well), email (especially gmail).
  2. Personal information, facts about oneself that, for various reasons, are thought to be private. Examples: quirky preferences or behavior, medical information, blackmail. Some of the material on your computer may fall into this category.
  3. Body. Examples: being seen (naked, e.g.) or touched (in a security search, e.g.).
  4. Spaces. Some spaces are designated as private. Examples: home, apartment, dorm rooms. It’s not just the space: your dorm room is private space when the door is closed but not when it’s open.
  5. Offensive behavior. Example: public nudity. What’s offensive varies by society, of course, as the case of Nathan’s Flying Dutchmen shows.

Here’s a more abstract point. Warren and Brandeis struck me as having been most interested in personal information and personal images. I think those should probably be kept separate. Imagine a written description of what I look like naked. That would give you a lot of information. But it seems to me to be a different thing to have a picture of me in the buff.** Yeah, the information could be presented in a way that’s as humiliating as a picture, but I’m not sure if that’s a feature of the information as opposed to the way it’s presented. I’m not sure why I find these two things different, but I do.

Feelings

Another way of identifying the scope of the right to privacy is to start with the feelings that we associate with its violation and then work our way back to what causes us to have those feelings.

We listed the following.

Fun fact

Apparently it is “well known that the impetus for the article came from Warren’s irritation over the way the press covered the wedding of his daughter in 1890.”†† Harry Kalven, Jr., “Privacy in Tort Law: Were Warren and Brandeis Wrong?” Law and Contemporary Problems 31 (1966), p. 329, n. 22.

There is more detail about Warren’s animus towards the press on the first page of William Prosser’s article, “Privacy.” This is also the place to go to learn about how the right to privacy was recognized in the law after Warren and Brandeis’s article.‡‡ William L. Prosser, “Privacy,” California Law Review 48 (1960).

This page was written by Michael Green for Freedom, Markets, & Well-being, PPE 160, Fall 2012. It was posted October 18, 2012.
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