We talked about Warren and Brandeis’s case for a right to privacy. Specifically, we noted the following:
They claim the right to privacy is recognized in the common law, that is, by judges without specific legislation (Warren and Brandeis 1890, 195).
They think privacy consists in having control over some combination of the following (there is a summary statement on p. 216):
They claim that an invasion of privacy in these areas causes psychological distress and assert that we need “some retreat from the world” (p. 196).
While they maintain that judges decide cases in ways that protect privacy, they also argue that the judges have erred in relying on property rights or contracts in their decisions. The bulk of the article is devoted to showing that defamation, property, and contract law do not provide adequate protection for privacy.
We talked at some length about what is private, what kind of privacy is valuable, and what rights to privacy we think we have.
Our discussion suggested the broad range of things covered by privacy: just sketching out the examples forced me to use the second black board! Here are some of the things that we thought are generally regarded as private (whether rightly or wrongly).
Warren and Brandeis analyze the decisions of courts. They find that the courts have protected privacy by using other parts of the law, such as the law of defamation, property, or contract.
In each case, they argue, the decision would make more sense if it directly invoked a right to privacy.
Whether you find their analysis persuasive hinges on what you think of the letter case, in my opinion. Suppose A sends a letter to B containing private information about A and that B publishes the information in the letter. Warren and Brandeis think that B would have violated A’s right to privacy. The violation cannot consist in a violation of A’s property rights because the letter is no longer A’s property: A sent it to B. It can’t be that B did anything wrong in acquiring the information either: again, A sent the letter to B. Nor can the violation consist in the violation of a contract between A and B: B does not consent to anything by opening a letter (they say). As Warren and Brandeis see it, A’s right is the right to control publication of the information. That is what they call a right to privacy.
A structurally similar example involves what we call revenge porn. C gives D a racy photograph of C that D posts on the internet when C and D break up. That strikes many people as a violation of C’s privacy. But it’s not because D didn’t own the picture; it’s because of the information in the picture, namely, what C looks like naked. If you think the right to control the information about what C looks like naked remains in C’s hands, then you are in substantial agreement with Warren and Brandeis.
Leo raised a question about their use of intellectual property law: they claimed the right to intellectual or artistic property stems from the right to privacy, rather than going the other way around. As Leo pointed out, you usually want to sue under property law because your award will be greater. I think that is compatible with what Warren and Brandeis were saying: intellectual property is a distinct set of rights that are derived from the right to privacy. But I’m not sure.
Claire said something so awesome that I want to record it. She described the right of privacy as “a right to curate our identity.” That’s just cool.
This article is one of the most cited law review articles ever. Why did they write it? Because Warren was peeved about the way his daughter’s wedding was covered in the newspapers.
IN THE YEAR 1890 Mrs. Samuel D. Warren, a young matron of Boston, which is a large city in Massachusetts, held at her home a series of social entertainments on an elaborate scale. She was the daughter of Senator Bayard of Delaware, and her husband was a wealthy young paper manufacturer, who only the year before had given up the practice of law to devote himself to an inherited business. Socially Mrs. Warren was among the elite; and the newspapers of Boston, and in particular the Saturday Evening Gazette, which specialized in “blue blood” items, covered her parties in highly personal and embarrassing detail. It was the era of “yellow journalism,” when the press had begun to resort to excesses in the way of prying that have become more or less commonplace today; and Boston was perhaps, of all of the cities in the country, the one in which a lady and a gentleman kept their names and their personal affairs out of the papers. The matter came to a head when the newspapers had a field day on the occasion of the wedding of a daughter, and Mr. Warren became annoyed. It was an annoyance for which the press, the advertisers and the entertainment industry of America were to pay dearly over the next seventy years. (Prosser 1960, 48)
Warren and Brandeis were also concerned that “the latest advances in photographic art have rendered it possible to take pictures surreptitiously” (211).
They weren’t exactly wrong: that was possible.
But it would have been difficult. (Unidentified photographer with camera, Library of Congress.)
Prosser, William L. 1960. “Privacy.” California Law Review 48 (3): 383–423.
Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220.