Unidentified photographer with camera, Library of Congress.
We talked about Warren and Brandeis’s case for a right to privacy. Specifically, we noted the following:
We talked at some length about how we draw the distinction between private and public. Here are some of the things that we regard as private.
Warren and Brandeis wanted to add images to the list. It was noteworthy that we did not think to include that, I think.
As Emily and Josh C. pointed out, our sense that our privacy has been invaded or lost depends on who (or what) gains access to the items on the list. Some of them don’t make any sense if they are not shared with another person, for instance.
This was an unusually good discussion. Well done, crew!
I was critical of Warren and Brandeis’s attempts to explain why privacy is valuable. This is their best argument, in my opinion.
“The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.” (196)
I think they could have done a lot more to explain themselves. Fortunately for them, Angela was on hand to fill in the gap. She said that violations of privacy are painful because they involve loss of control over one’s private space. It’s similar to the feelings of anxiety and anger that we experience when we’re robbed. Even if a thief doesn’t take anything terribly valuable, you feel vulnerable knowing that your home has been entered and that you can’t control that area.
That sounds pretty good to me!
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. 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.
Normally, this is where at least someone in the room objects to say that when A sends the letter A has waived the right to control the information in the letter. And normally that it the point where I wheel out the example of 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. The letter case and the revenge porn cases are similar, but, for whatever reason, the case involving pictures is usually more persuasive than the one involving letters.
Anyway, Claire thought that the implied contract explanation makes sense in these sorts of cases: when you’re given a letter or racy picture, there is an understanding that it is on the condition that you not publish them. So if publication is wrong, it may well be that it is wrong because it is a violation of that understanding rather than because it is a violation of an independent right to property.
Emily said that part of the point of sending a confidential letter or picture is to express trust in the person you’re sending it to. I’m not sure if that is incompatible with having a right to privacy: I’m trusting that the other person won’t violate my right without really having a way of blocking it. But her more general point seemed to be that the person who sends the letter or picture gives up control over it and is trusting the recipient. It’s trust rather than privacy that is doing the work, in other words.
Warren and Brandeis were chiefly concerned with the private (or civil) law. This is the part of the law that individuals use to press claims against one another. Next week, we’ll read some Supreme Court cases that touch on privacy in Constitutional law. In those cases, the right to privacy governs the relationship between individuals and the state.
Then we’ll read an author who is skeptical of Warren and Brandeis’s approach, Judith Jarvis Thomson. She will argue that privacy should not have ever been separated from property and other rights in the first place.
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. However, since Warren’s daughter was seven years old at the time, this is not true.James H. Barron, "Warren and Brandeis, the Right to Privacy, 4 Harv. L. Rev. 193 (1890): Demystifying a Landmark Citation," Suffolk University Law Review 13 (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.)
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.