Warren and Brandeis held that the right of privacy is a right against the publication of private images and information. Thomson disagrees (pp. 311-12).
We spent most of our time talking about this disagreement and how we might produce something that looks more like an argument to resolve it. Akshata and I were the most firmly on Warren and Brandeis’s side while Brendan sided with Thomson.
In making the case for the TACV (the True And Correct View, also known as the one I share), Akshata gave an example of something that happens in a public space but that should still be kept private. For example, a conversation on a park bench. This is a tough case for Thomson because there’s no property right involved, but, at the same time, it sure seems as though an eavesdropper inappropriately treats a private conversation as if it were public.
This led us to Thomson’s discussion of a similar case. Brendan said he thought that her treatment was inconsistent with her theory and expressed doubt that almost any conversation in a public place like a park could be private.
We briefly touched on whether one’s right to privacy is violated when others share too much information about themselves. Prof. Brown proposed an interesting distinction between ‘violations of personal space’ and ‘violations of privacy’ to handle these sorts of cases.
When we talked about the case of the couple who have a fight with the windows open, I maintained that someone who lingers to listen has violated a right to privacy. I said I thought there was a big difference between overhearing and moving on and sticking around to catch the whole thing.
I still think that’s true. But I’m less sure that I would describe that as a violation of the couple’s right to privacy. As Thomson noted, there’s a difference between:
I said that one reason for thinking that the lingering eavesdropper violates rights has to do with the feelings of the fighting couple. If it makes sense to feel violated by someone’s actions, that’s evidence that it’s appropriate to describe those actions as a violation of one’s rights. In this case, I think that kind of feeling would be appropriate.
On the other hand, there’s a point made by Prof. Brown, namely, that the couple would not be able to enforce their “right” by insisting that the eavesdropper move out of earshot. The most they could do is close the windows. Prof. Brown’s point relies on another criterion for distinguishing between violations of rights and merely bad behavior: we’re allowed to use force to, well, enforce our rights in ways that we aren’t allowed to force good behavior. I agree with her that I would not be allowed to make the eavesdropper move off of the public sidewalk. He’s got a right to be there. If we use Prof. Brown’s criterion for deciding what counts as a right, then there probably isn’t a right to privacy in this sort of case.
So we have two criteria that point in different directions. Having mulled it over, I’m inclined to go with Professor Brown. But it’s not easy to say why. This is the sort of thing that motivates abstract moral theories. These sorts of theories try to identify abstract features of rights, obligations, and other moral terms for the purpose of settling disputes like this.
Here’s a clever way of protecting your privacy while out in public: lasers. They prevent digital cameras from recording images.
Maybe Thomson’s x-ray machine is right around the corner!
And what would Samuel Warren have paid to surround his daughter’s wedding with a big bank of press-zapping lasers?