Philosophy of Law Fall 2019

Warren and Brandeis on Privacy

Overview

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. (And if you think there is a contract here, imagine that B drops the letter by accident and a third party, C, picks it up. Warren and Brandeis think that C would violate A’s privacy by publishing the contents.)

A similar example involves what we call revenge porn. D gives E a racy photograph of D that E posts on the internet when D and E break up. That strikes many people as a violation of D’s privacy. But it’s not because E didn’t own the picture; it’s because of the information in the picture, namely, what D looks like naked. If you think the right to control the information about what D looks like naked remains in E’s hands, then you are in substantial agreement with Warren and Brandeis.

What is private?

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? The discussion we had at the beginning of class showed that we consider a wide range of things private. They didn’t really give us much guidance about how to organize our examples.

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). They were 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

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

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.

Some history

This article is one of the most cited law review articles ever. Why did they write it? One popular story is that Warren was peeved about the way his daughter’s wedding was covered in the newspapers (Prosser 1960, 48). However, since Warren’s daughter was seven years old at the time, this is not true (Barron 1979, 893). (I had previously quoted the story about the wedding here; I deleted it when I learned it was false. - mjg December 19, 2019.)

References

Barron, James H. 1979. “Warren and Brandeis, the Right to Privacy, 4 Harv. L. Rev. 193 (1890): Demystifying a Landmark Citation.” Suffolk University Law Review 13 (4): 875–922.

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.