The Right to Privacy 1890
Louis Brandeis (1856–1941), Samuel Warren (1852–1910)
Louis Brandeis (1856–1941) – an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939
Samuel Warren (1852–1910) – a Boston attorney.
“The Right to Privacy,” authored by future Supreme Court judge Louis Brandeis and his then-colleague Samuel Warren, was published in the Harvard Law Review in 1890.
The United States Constitution is a living document. Despite the fact that our founding documents were written in the pre-Industrial 18th century, they were intended to adapt to times when technology such as phonographs and photographs, telegraphs and telephones, audio-visual recordings and transmission, the digital era, and the Internet were still unknown.
Certain inalienable rights, such as the right to liberty and the pursuit of happiness, are mentioned in the Declaration of Independence and the Constitution. If such rights are not directly and expressly protected by legislation, laws, and regulations, the conclusion must be that they are covered by a common law reality. The roots of a right to privacy, as well as a right to be free of harassment and exposure, may be found in the common law.
While some criticize recognition of any right not explicitly stated in our founding documents, referring to it as “judicial legislation” (thus undermining the balance of powers by assuming the role of the legislature), Warren and Brandeis argue that “the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled [our law] to meet the wants of an ever changing society and to apply immediate relief for every recognized wrong, has enabled [our law] to meet the wants of an ever changing society and (It’s worth noting that any right to privacy was also subject to the express right of Free Speech included in the Bill of Rights’ First Amendment.)
Warren and Brandeis were reacting to technical advancements in the late 1800s, particularly the introduction of instant photography and audio recordings. This new technology had ushered in a tabloid business that cashed in on the most heinous interests while ignoring current morality. Invasion of privacy causes four forms of harm:
- intrusion into one’s private life and affairs;
- public exposure of unpleasant private information;
- unwelcome publicity of private persons; and
- financial gain via misuse of a name or likeness.
The article lays the groundwork for incorporating as-yet-unidentified rights into common law. Identifying the injury first, a right to privacy is based on mental agony and sentiments, which are actionable rights to protect in and of themselves.
Slander and libel would prevent false representations, but they had no manner of preventing an invasion of private information. With quickly growing technology that might betray one’s privacy without stealing or duplicating any actual goods, copyright legislation that could protect individual letters had become inadequate/obsolete.
Because no property is physically divested, property rights, including the exclusive right to regulate publishing of one’s work, could not reflect privacy rights in their fullness. Contract law would be insufficient. If there was no prior relationship between the parties, a court pronouncement of public morality, private justice, and general convenience would not establish a judgment of breach of confidence in an implied contract. Without particular legislation allowing the State to engage in a “private” civil dispute, criminal law could not be utilized to defend privacy rights.
Even yet, there must be a right to privacy, a right to one’s own identity, peace of mind, or even the right to be left alone. As a result, Warren and Brandeis outlined the harms, remedies, and foundation for a legitimate right to privacy.
With a few exceptions, this rule would prevent the disclosure of one’s private matters:
- Libel/slander is the province of privileged communications;
- Speaking gossip and oral communication are not covered by private rights;
- Consent to publishing is an absolute defense; and
- Truth and
- Malice are immaterial to a breach of privacy case.
As time passed, initiatives to enforce privacy rights against individuals were thwarted by the freedoms of expression and the press. As today’s tabloid business attests, public figures, celebrities, and even individuals forced into public discourse without their agreement or action must now contend with a paparazzi hell-bent on revealing their most personal and intimate details.
However, the Supreme Court has acknowledged constitutional protections for the right to privacy from the government. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court envisioned the right to privacy as arising from the Bill of Rights’ “penumbras.” In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court rejected the penumbral argument in favor of the substantive due process rights established by the Fourteenth Amendment as a constitutional basis for the right to privacy.
The Body and the Right of Privacy (1965);
Roe v. Wade (1973).
The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (Sterling Milestones) Hardcover – Illustrated, 22 Oct. 2015, English edition by Michael H. Roffer (Autor)