Philosophy of Law Spring 2018

Privacy and the Private Law


We talked about Warren and Brandeis’s case for a right to privacy. Specifically, we noted the following:

  1. They claim the right to privacy is recognized in the common law, that is, by judges without specific legislation (Warren and Brandeis 1890, 195).

  2. They think privacy consists in having control over some combination of the following (there is a summary statement on p. 216):

    1. publication of one’s thoughts and feelings (Warren and Brandeis 1890, 198 and 205),
    2. publication of information about one’s private life (Warren and Brandeis 1890, 201),
    3. publication of images of oneself (Warren and Brandeis 1890, 211), and
    4. facts about oneself that are not immediately obvious, such as a speech impediment or difficulty with spelling (Warren and Brandeis 1890, 215).
  3. They claim that an invasion of privacy in these areas causes psychological distress and assert that we need “some retreat from the world” (Warren and Brandeis 1890, 196).

  4. 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.

Why is there a right to privacy?

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 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.

Some history

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” (Warren and Brandeis 1890, 211).

They weren’t exactly wrong: that was possible.

But it would have been difficult.

Unidentified photographer with camera, circa 1900. Source: Library of Congress
Unidentified photographer with camera, circa 1900. Source: Library of Congress

What is private to us?

Warren and Brandeis are strongest when it comes to arguing that the right to privacy is separate from other legal rights, such as contractual rights or property rights. That was their main purpose.

They provide less guidance about the scope of this right. What sort of information is private and thus at least potentially covered by the right to privacy?

They have a general statement of what they have in mind.

the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity. (Warren and Brandeis 1890, 216)

And they give a number of examples. These mainly revolve around control over the publication of thoughts, sentiments, and emotions (Warren and Brandeis 1890, 198 and 205). In addition, they describe some information that they think of as private,

A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully …. (Warren and Brandeis 1890, 201).

It also seems evident that they’re concerned with the publication of images (See Warren and Brandeis 1890, 211).

Finally, they think some personal facts are private such as the fact that someone has a speech impediment or cannot spell (but the case is different if the person is a candidate for a public office (Warren and Brandeis 1890, 215).

We talked at some length about what we think of as private.

Our discussion suggested the broad range of things covered by privacy.

  1. Spaces, such as the home.
  2. Personal information, e.g. health or financial records, information about one’s past (like a felony convictions), one’s thoughts … anything that you might tell someone else is “none of your business.”
  3. Information relevant to your safety, as in, it might be unsafe if this information were published to the world at large.
  4. Proprietary business information.
  5. Conversations, even when in public. (Think of someone sneaking up behind you to listen in.)
  6. Personal images, especially involving nakedness. (This is surely culturally specific, but that’s OK: we’re talking about our understanding of privacy.)

Main points

These are the things you should know or have an opinion about from today’s class.

  1. Why Warren and Brandeis think the right to privacy is separate from other rights, such as property rights.
  2. The sorts of things that Warren and Brandeis regard as private.
  3. The sorts of things that we regard as private.


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.