Summary of 'The Right to Privacy'

By Phillip Taylor
Special to freedomforum.org

Considerable debate surrounds the impetus of Samuel Warren and Louis Brandeis' "The Right to Privacy" article in the Harvard Law Review.

Was it the Saturday Evening Gazette's unrelenting coverage of "blue blood" parties? Coverage of the wedding of one of Warren's daughters? A rich man's plea to the press to refrain from publishing gossip?

Whatever their motivation, the two law partners were clearly inflamed by the media attention focused on the lavish social parties the Warren clan threw throughout the 1880s.

"Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery," they wrote, in an oft-quoted passage. "To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle."

Although most of their treatise derived from British common law and court cases, the lawyers wrote that over the course of the first 100 years of the United States, the "right to life" mentioned in the Declaration of Independence had expanded.

"Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, — the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term 'property' has grown to comprise every form of possession — intangible, as well as tangible."

But Warren and Brandeis did not demand the recognition of an absolute right to privacy. In fact, they recognized that such a right "does not prohibit any publication of matter which is of public or general interest."

The lawyers, however, argued that neither truth nor absence of malice should serve as defenses against an invasion-of-privacy claim.

"The invasion of the privacy that is to be protected is equally complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication."

But the brainchild of Warren and Brandeis met with considerable resistance in the nation's courts.

As a Supreme Court justice, Brandeis managed to raise the concept of privacy in 1928 in Olmstead v. U.S., a case involving the wiretapping of a liquor dealer.

He wrote that the framers of the Constitution "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man."

Although this is a heavily cited passage, Brandeis' argument was, in fact, part of a dissenting opinion; the court upheld the dealer's conviction.

As for privacy and the mass media, the Supreme Court wouldn't tackle such a lawsuit until 1967, when it heard the landmark Time Inc. v. Hill case. Seventy-seven years after "The Right to Privacy," the court ruled that the First Amendment in many instances prohibited state courts from imposing liability on publications charged with invading privacy.

— Phillip Taylor is a free-lance correspondent for freedomforum.org.