Here are some basic points about Warren and Brandeis’s case for a
right to privacy.
They claim the right to privacy is recognized in the common law,
that is, by judges without specific legislation (Warren and Brandeis 1890,
They think privacy consists in having control over some
combination of the following (there is a summary statement on
publication of one’s thoughts and feelings (Warren and Brandeis 1890, 198 and
publication of information about one’s private life (Warren and Brandeis 1890,
publication of images of oneself (Warren and Brandeis 1890, 211),
facts about oneself that are not immediately obvious, such as a
speech impediment or difficulty with spelling (Warren and Brandeis 1890, 215).
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).
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. They consider several alternatives, such
as that B violated a contractual agreement with A or that B stole A’s
property, and find them all wanting.
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? They do not really give us much guidance.
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).
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,
These are the things you should know or have an opinion about from
Why Warren and Brandeis think the right to privacy is separate from
other rights, such as property rights.
The sorts of things that Warren and Brandeis regard as private.
Warren, Samuel D., and Louis D. Brandeis. 1890. “The Right to
Privacy.”Harvard Law Review 4 (5): 193–220.