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The Right to Privacy in Historical Perspective
In December 1890, shortly after "The Right to Privacy," which he had penned with his former law partner, Samuel Warren, appeared in the Harvard Law Review, Louis Brandeis wrote to his fiancé, Alice Goldmark:
Of course you are right about Privacy and Public Opinion. All law is dead letter without public opinion behind it. But law and public opinion interact―and they are both capable of being made... Our hope is to make people see that invasions of privacy are not necessarily borne―and then make them ashamed of the pleasure they take in subjecting themselves to such invasions... The most perhaps that we can accomplish is to start a backfire, as the woodsmen or the prairiemen do.1
From the standpoint of the twenty-first century, when talk shows, tabloids, interactive web sites, and myriad other modes of communication have engulfed us in a conflagration of personal information, it might seem that the "backfire" that Brandeis envisioned failed. But even though "The Right to Privacy" never shut down the gossip industry, it is now heralded as the most important law review article in American history. Contrary to Brandeis's modest expectations, it galvanized public opinion in favor of privacy legislation and overcame initial resistance in the courts to the idea that common law protections of property could be extended to shield the private sphere.
Less than a year after the article was published, in Schuyler v. Curtis, New York Judge Denis O'Brien quoted at length from Brandeis and Warren, describing their article as "an able summary of the extension of the law of individual rights, which well deserves and will repay the perusal of every lawyer." In 1905, Elbridge Adams hailed it as a "brilliant excursion...in the field of theoretical jurisprudence," and, a few years later, Harvard Law School Dean Roscoe Pound declared that the essay had "done nothing less than add a chapter to our law." 2 Summarizing the flood of legal scholarship that followed, William Prosser observed in 1941 that "no other tort has received such an outpouring of comment in advocacy of its bare existence." It is, therefore, not surprising that Harry Kalven began a sharp critique of Brandeis and Warren in 1966 by acknowledging that the article had become "the most influential of all." 3 And it also makes sense that Senator Hillary Rodham Clinton would set up a speech on privacy in 2006 by recalling her law school days, when "the first thing we learned about the right to privacy was that it sprung from the mind of Louis Brandeis, beginning with a law review article in the 1890's."
The centrality of "The Right to Privacy" in American legal history is firmly established, but exactly why the article struck such a powerful chord in American consciousness needs to be further explored. This edition achieves that goal in part by including full-text versions of the most important legal cases cited by Brandeis and Warren, as well as especially relevant legal opinions issued during the decade after the essay was published. Likewise, taking advantage of the documentary potential of digital technologies, we have gathered historical newspaper stories, law review articles, advertisements, and other ephemera to illustrate how the essay reflected the rise of yellow journalism, the emergence of the telegraph and telephone, the evolution of photography, and, more generally, the cult of domesticity that consumed American society after the Civil War.
This historical approach is designed both to distinguish Brandeis and Warren's arguments from subsequent ideas about privacy and to delineate the article's time-bound aspects. Locating "The Right to Privacy" squarely within the overtly elitist and distinctly patriarchal assumptions that governed mainstream intellectual discourse in the Gilded Age reveals the chasm between the way that the private sphere was broadly conceived in the late nineteenth century, when progressives such as Brandeis felt a civic duty to explain why women should not be allowed to vote, and the way that ideas about privacy evolved in later decades. While this perspective tends to spotlight the archaic aspects of the essay, it allows us to see more clearly that it garnered significant attention upon its publication, not because its authors opened up new veins in American legal theory, but because they articulated widely felt and historically specific anxieties about the cultural consequences of technological change. 4
At the same time, in order to provide readers, especially those encountering "The Right to Privacy" for the first time, insight into major themes in privacy scholarship, we have reprinted three outstanding law review articles, Ken Gormley's "One Hundred Years of Privacy," which surveys the evolution of privacy law during the twentieth century; Randall Bezanson's The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990," which outlines how ideas about the publication of personal information transformed over time; and Anita Allen and Erin Mack's "How Privacy Got Its Gender," which illuminates how Brandeis and Warren's gendered conception of privacy shaped both legal theory and the social inequities that women have confronted in the workplace and the home. These articles trace the career of privacy well into the twentieth century. However, in line with the documentary purpose of this volume, they are included, not to promote a particular interpretation, but to offer readers an opportunity to examine how leading privacy scholars have directly addressed Brandeis and Warren's contribution to American legal, political, and social thought.
Bringing this diversity of resources together in a single volume provides a comprehensive portrait of the historical forces that prompted Brandeis, a civic-minded and increasingly successful attorney, and Warren, a businessman with connections to high society, to write what they did in 1890. More specifically, studying their conclusions within their historical context shows how the social pressures produced by technological innovation, combined with the traditional insularity of the Boston elite, led two ambitious graduates of Harvard Law School to join the chorus of commentators who had long been demanding new safeguards against the exposure of private life. Thus, in contrast to the twentieth-century tendency to stress the novelty of the essay, Brandeis and Warren presented their arguments as familiar fixtures in late nineteenth-century social discourse.
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.
As indicated by this passage, "The Right to Privacy" was a self-consciously conservative effort to rescue the domestic sphere from the novel threats presented by industrial and technological progress. It is, therefore, not surprising that Brandeis and Warren's arguments about the need to restrain the press, the need to suppress public knowledge of sexual misconduct, and the need to prevent the indelicate exposure of women's bodies fell into line with conservative efforts to extend the boundaries between public and private, boundaries that were specifically drawn to separate and, for the most part in American culture, elevate the family home above everything else.
Consequently, if the pages to follow seem to focus on gender at the expense of other conceptual categories, the explanation lies in the fact that discussions of privacy during this era, whether they unfolded in law reviews, literary journals, newspapers, or courts of law, revolved around protecting, as Brandeis and Warren put it, "the "sacred precincts" of domestic and private life." Since the debate centered almost exclusively on enabling men and women to carry out their ostensibly natural domestic duties, it is, as Anita Allen and Erin Mack's seminal essay makes abundantly clear, virtually impossible to divorce any conception of privacy that originated in this period from prevailing assumptions about traditional gender roles. The sections below accordingly document various issues raised in Brandeis and Warren's essay, but rather than treating gender as a separate topic, the concept is addressed throughout.
The "recent inventions" that Brandeis and Warren regarded as particular dangers to domestic privacy were the telegraph, which had become a routine means of communication by 1890, and the telephone, which had gained thousands of subscribers in New England since the development of the first successful prototype in Boston in 1876. These innovations, along with advances in high-speed printing, vastly extended the reach and circulation of newspapers, making it possible to fan local gossip into national news. At the same time, the popular press, which had already begun to feature illustrations derived from engravings more routinely in ads and news items, started to incorporate photographs into regular news reporting during the 1880's. Adding to these apparent threats to domestic tranquility, the introduction of what came to be known as the "deadly Kodak" enabled both professional and amateur photographers to capture seemingly spontaneous moments, indoors and out, without the permission of their subjects.5
In "The Law of Newspaper Libel," published in the North American Review in 1880, John Proffatt anticipated many of Brandeis and Warren's arguments. Having commended the laws of France, much as "The Right to Privacy" would a decade later later, Proffatt called for "similar legislation in favor of the inviolability of private life," a phrase that brings to mind Brandeis and Warren's contention that privacy statutes should be designed to protect every individual's "inviolate personality." Likewise, in a passage that has a great deal in common with the rhetoric of Brandeis and Warren's essay, Proffatt argued that the same protections given to tangible property ought to be extended to embrace "private character." After all,Proffatt observed, if a man may warn trespassers away from his private property and his home, "why can a public writer at his will pass the threshold of that home, drag to public view its intimacies, its privacy, and its confidences, simply because a person in some manner happens to attract public attention?"
E. L Godkin, longtime editor of The Nation, whose essay, "The Rights of the Citizen to His Own Reputation," was twice praised in "The Right to Privacy," also anticipated many of Brandeis and Warren's observations. Like his contemporaries, Godkin condemned the mass circulation of personal information both because it undermined public discussion of broader issues and because it turned the mortification of individuals into profitable entertainment. Directly foreshadowing Brandeis and Warren's complaint that the gossip industry deprived men of any escape from the pressures of modern society, Godkin recalled Coke's dictum that "a man's house is his castle" in order to show that the right to privacy had long been recognized as a fundamental principle of law.
And this recognition by law and custom of a man's house as his tutissimum refugium, his place of repose is but the outward and visible sign of the law's respect for his personality as an individual...for that inner world of thought and feeling in which every man...who is worth much to himself and others passes a great deal of time. The right to decide how much knowledge of ...his own private doings and affairs, and of those of his family living under his roof, the public at large shall have, is as much one of his natural rights as how he shall decide to eat and drink, what he shall wear, and how he shall pass his leisure hours.
Godkin, Warren, and Brandeis all reached back into history to prove the venerable heritage of the right to privacy, and all three stressed that the conditions of modern industrial society made it necessary to invent new protections for this ancient right. On the one hand, they argued, technological development had vastly increased the speed and scope of the circulation of personal information. On the other, the progress of civilization had deepened men's delicacy of feeling, making them more susceptible to the pain of public exposure. Moreover, according to Godkin, the transmission of stories across the country further intensified the pain of publicity because news was spread so quickly over such a wide expanse that men could no longer determine who knew what about their personal affairs. Details that had once been confined to neighborhoods were no longer passed only among local gossips, but had become a "marketable commodity" that could be disseminated among complete strangers either a few city blocks or thousands of miles away. As a result, a modern man was apt to fall prey to an anxiety that had never been known before, namely, the fear that "everybody he meets in the street is perfectly familiar with some folly, or misfortune, or indiscretion, or weakness that he had previously supposed had never got beyond his domestic circle."
Despite profound reservations about fighting invasions of privacy in open court, Godkin agreed with Brandeis and Warren's designation of newspaper gossip as the greatest scourge to the civility of American society. In an earlier essay on libel, he commented that the remarkable expansion of the newspaper industry throughout the nineteenth century required "one to admit that to no other art has the progress of invention and the growth of population made such additions as to the art of holding persons up to public odium or contempt." Given the threat to individual security and common decency posed by these transgressions against domestic tranquility, Godkin provided an almost word-for-word preview of the arguments advanced in "The Right to Privacy." "Nothing," he declared, "is better worthy of legal protection than...the right of every man to keep his affairs to himself, and to decide for himself to what extent they shall be the subject of public observation and discussion."
During the second half of the nineteenth century, as improvements in communications technologies made it much harder to control the dissemination of personal information, ministers, advice-book writers, and other dispensers of moral instruction routinely defended privacy as a sacred right. In 1866, Henry Ward Beecher, one of the most popular preachers of the age, proclaimed from his Brooklyn pulpit, "The private rights of a public man should be guarded as sacredly as the altar of a temple." And while all men should be required to practice "good morals," Beecher sermonized, "There ought to be but one key to a man's privacy; and that is in his own hands. But the devil has given everybody and key to it, and everybody goes in and out, and filches what he pleases."
A commentary on "tale-bearers," usually attributed to Beecher, that was repeatedly reprinted during the late 1860's and early 1870's illustrates how respect for privacy moved to the top of the lists of virtues that moralists liked to recite to their fellow citizens:
Beecher's condemnation of those who invade domestic privacy as "moral outlaws" was typical of the period, but it is ironic that these remarks appeared in 1869, two years before his name became synonymous with scandal in what was breathlessly described as the "Greatest Social Drama of modern times." In 1871, Victoria California Woodhull, who was dubbed "Mrs. Satan" after she went about the country lecturing on the joy of free love, set the scandal in motion by committing precisely the sin that Beecher had so severely censured. In a letter to the New York World and New York Times, she castigated critics of her free love philosophy for their hypocrisy by alluding to "a public teacher of eminence, who lives in concubinage with the wife of another public teacher of almost equal eminence." Readers who had heard the persistent rumors of "irregularities" at Beecher's church might have guessed the identity of Woodhull's target. "Nobody, however," wrote J.E.P. Doyle, who compiled an exhaustive account of the saga in 1874, "placed much reliance on the "slanders," as they were very generally designated, until in the issue of Woodhull and Claflin's Weekly of Nov. 2, 1872, there were explicit and detailed charges made."
Woodhull had long surpassed the bounds of social propriety when she ignited the first national media frenzy by publicly accusing Beecher of having engaged in an adulterous affair with Elizabeth Tilton, a member of his Brooklyn congregation and the wife of his long-time friend, Theodore Tilton. Soon after Woodhull and her sister, Tennessee (also known as Tennie C.) Claflin, arrived in New York City in 1868, they were widely derided in the press when, with the help of Cornelius Vanderbilt, they became the first women to establish and run a stock brokerage company. Two years later, the sisters created another sensation when they used the proceeds of their business to found Woodhull & Claflin's Weekly, a platform for the promulgation of their support for socialism, woman suffrage, spiritualism, free love, and, in 1872, Woodhull's run for the presidency of the United States.
Seemingly incapable of practicing the "silence and secrecy" that Beecher upheld as essential, Woodhull avidly pursued her presidential ambitions even though her background and beliefs, along with her age and her gender, deprived her of any chance of success. Having grown up in poverty, which was not much relieved by her father's peddling of patent medicine, she married Canning Woodhull, an abusive and philandering alcoholic, in 1853, at the age of fourteen. During and after her first marriage, she supported herself by telling fortunes, dispensing magnetic healing, and acting in two-bit theater. She married Col. James Blood, a fellow spiritualist, in St. Louis in 1866, a few years after Canning Woodhull had abandoned her and their two children. The misery of her first marriage did not deter her from taking Canning Woodhull into her home when his addictions overwhelmed him, an arrangement that shocked New York society, but apparently did not bother Blood.
Woodhull's contemporaries, like historians to follow, generally assumed that she divulged what she knew about Beecher's affair with Elizabeth Tilton as a way to lash out at critics of her free love philosophy. But whatever role resentment may have played in her motives, she framed her revelations as a revolutionary step towards the realization of a new and authentic right to privacy.6 "I believe," she declared in a carefully crafted interview that was published in her newspaper, "in the right of privacy, in the sanctity of individual relations. It is nobody's business but their own, in the absolute view, what Mr. Beecher and Mrs. Tilton have done, or may choose to do, as between themselves." She was, nevertheless, morally obliged to expose the affair because she could find no other way to force the minister to shake off his shroud of sexual secrecy and join her in spreading the "gospel of freedom":
It is the paradox...of my position that, believing in the right of privacy and in the perfect right of Mr. Beecher socially, morally, and divinely, to have sought the embraces of Mrs. Tilton or any other woman or women whom he loved, and who loved him ...I still invade the most secret and sacred affairs of his life, and drag them to the light...The leaders of progress are storming the last fortress of bigotry and error. Somebody must be hurled forward into the gap. I have the power, I think, to compel Mr. Beecher to...do the duty of humanity from which he shrinks.
According to Woodhull, personal relations ought to be exempt from public disclosure, not, as Beecher would have it, because such revelations ruin reputations, but because we all should be free to love whomever we are divinely inspired to choose without regard to social strictures or legal contracts. However, so long as emblematic figures such as Beecher allowed themselves to be trammeled by social convention, the "sacred interests of humanity" in the free communication of love would be constantly undermined. From this premise, she justified her violation of Beecher's privacy as a short-term skirmish in the long-term war to establish individual sovereignty as the governing principle of both public and private life.
I hold that the so-called morality of society is a complicated mass of sheer impertinence and a scandal on the civilization of this advanced century; that the system of social espionage under which we live is damnable; and that the very first axiom of a true morality is for people to mind their own business, and learn to respect, religiously, the social freedom and sacred social privacy of others.
Although Woodhull claimed "legitimate generalship" in her call for Beecher to take an honest stand against "social espionage," he declined the challenge. Instead, throughout the "Beecher-Tilton War" that ensued as he was exonerated by a board of inquiry at Plymouth Church, acquitted of "criminal seduction" in a Brooklyn court, and subjected to an unprecedented torrent of national reporting on his formerly private life, he steadfastly denied the charges. Woodhull, who was repeatedly arrested at the behest of Anthony Comstock, the hyper-vigilant head of the New York Society for the Suppression of Vice, portrayed herself and her sister as martyrs to the march of social progress. She did not attract much public sympathy. Indeed, her defiance of social convention assured the ascendancy of Beecher's notion of privacy, with its emphasis on secrecy, over her own conception of privacy as an assertion of individual freedom. 7 Thus, in 1873, long before the Beecher scandal had exhausted the public's attention, a member of his congregation published an expanded version of the minister's earlier remarks on the "sacred right to privacy" that belongs to every family. Tellers of family secrets, Beecher proclaimed, ought to be not merely shunned, but physically attacked:
Beecher's admonitions exemplify the approach typically taken by privacy advocates until well into the twentieth century. Here, as usual in the wake of the Beecher scandal, the focus of discussion was not freedom of conscience or action, but the evil of public revelation. As many other writers would imply in similar tracts on privacy, Beecher assumed without explanation that the disclosure of bad conduct must be, at least in most cases, somehow more malevolent than the original misdeed. From this vantage point, it makes sense that whatever Beecher may have done or lied about doing, he suffered no formal penalty while Woodhull and her sister landed in jail. However much he and otherwise progressive moralists may have exalted individual integrity in other contexts, in regard, for instance, to promoting woman suffrage or resistance to slavery, they argued that every man had a perfect right to preserve his public image even if he had engaged in behavior that he himself had roundly condemned. Shooting the messenger or, somewhat less metaphorically, assaulting the tale-bearer, as Beecher recommended, thus came to be regarded as a rational response to privacy violators, especially when a man's honor had been called into question by reports of sexual indiscretions.
Privacy and the "Mysteries of Passion"
No legislation specifically designed to protect the right to privacy was passed until after the turn of the century. However, the courts recognized a man's right to control public disclosure of his family affairs in various rulings on domestic violence. In 1868, noting that "the subject is at sea," the Supreme Court of North Carolina tried to fix the boundaries between "State government" and "family government" in State v. A.B. Rhodes. The question at issue was the degree of physical chastisement that husbands would be permitted to inflict on their wives, and, without countenancing any severe or lasting injury, Judge Edwin Godwin Reade held that in cases such as that before him, in which the wife had not been permanently harmed, the state should refrain from intervention. Reade stressed that he was not implying that any "husband has the right to whip his wife much or little," but only that the attempt to rely on the courts to settle domestic disagreements would needlessly transform private "trifles" into public traumas. "For, however great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain," he argued, "they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bed chamber."
In one aspect, Reade's argument directly contradicted Brandeis and Warren's conclusions. "The Right to Privacy" stressed that courts should take account of the emotional distress engendered by privacy violations. In contrast, Reade maintained that the state should stay out of the private realm because courts would never be able to determine the relative value of feelings. According to Reade, any court that attempted to measure emotional injury would founder on the complex relationship between social standing and emotional sensitivity. In a remarkable testament to class prejudice, Reade argued that the diverse degrees of refinement among the different ranks of society create such a range of susceptibility to suffering that it would be impossible to apply any uniform standard in various cases. Contrasting the brutal oblivion of the lower orders with the exquisite sensibilities of those above them, Reade expounded a class-based scale of emotional pain:
Suppose a case coming up to us from a hovel... The parties themselves would be amazed, if they were to be held responsible for rudeness or trifling violence. What do they care for insults and indignities?...Take a case from the middle class, where modesty and purity have their abode, but nevertheless have not immunity from the frailties of nature, and are sometimes moved by the mysteries of passion. What could be more harassing to them, or injurious to society, than to draw a crowd around their seclusion? Or take a case from the higher ranks, where education and culture have so refined nature, that a look cuts like a knife ...where an indignity is disgrace and exposure is ruin. Bring all these cases into court side by side...and what conceivable charge of the court to the jury would be alike appropriate to all the cases, except that they all have domestic government, which they have formed for themselves, suited to their own peculiar conditions.
Reade's class-consciousness was more pronounced than that of Brandeis and Warren, but his arguments have much in common with those advanced in "The Right to Privacy." Just as Reade held that the middle and upper ranks were especially susceptible to the pangs of publicity, Brandeis and Warren argued that the progress of civilization had honed men's sensibilities so that they had become more vulnerable to embarrassment and shame. Indeed, according to Brandeis and Warren, the depth of emotional awareness in the modern age was so profound that men were apt to suffer more from insults to their reputation than they would from physical violence. Brandeis and Warren did not explicitly distinguish, as Reade did, among lower, middle, and upper-class responses to publicity, but they shared his conviction that an emotional indignity could be much more devastating than a physical attack.
By acknowledging the silence that the divisions between public and private imposed on women and children at the end of the nineteenth century, we can see how the development of the popular press, commercial and news photography, the telegraph, and, somewhat later, the telephone fueled what might be described as an epistemological shift in American law and society. With the evolution of new modes of communication, men felt compelled to look to the law to control, not only what individuals could or could not do, but whether their conduct would become generally known. As illustrated in the elevation of public disgrace above bodily injury, it is clear that command over public knowledge of a man's domestic affairs became an integral part of prevailing conceptions of middle and upper-class masculinity. As a result, in the regulation of violence and sexual misconduct, legal fictions that were designed to safeguard men's emotional well-being overtook the lived experiences of children and female dependents.
Along these lines, Brandeis and Warren wrote approvingly of the action per quod servitium amisit, which, in cases of sexual molestation, equates harm done to dependent children with those inflicted on servants and allows parents to collect damages based on the loss of their children's "services." This equation was, Brandeis and Warren admitted, "a mean fiction," but it answered the "demands of society" because it permitted "damages for injuries to the parents' feelings" without actually specifying the nature of the crime. Lest anyone imagine that the inclusion of both parents in the main text implies that this loss of honor pertained to mothers as well as fathers, the footnote to this passage makes it clear that Brandeis and Warren had in mind the way the debauching of a daughter specifically injures the person of a patriarch.
The note begins with the observation that the basis of this claim is not the injured child's inability to contribute to the material welfare of her parents: "Loss of service is the gist of the action; but it has been said that 'we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages.'" Brandeis and Warren then recounted how emotional harm to the father became the fulcrum of the claim:
First the fiction of constructive service was invented... Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage...The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, e.g., the suffering of the parent in case of physical injury to the child.
The priority here given to men's feelings over the physical harm done to their children underscores the parallels between "The Right to Privacy" and State v. A.B. Rhodes. Even though Warren and Brandeis disagreed with Reade's notions about the impossibility of determining damages for emotional injury, they upheld the view that the curtain should remain drawn on domestic disturbances. Thus, by maximizing the importance of men's public image and minimizing the significance of bodily injury and actual fact, all three writers helped to forge the 'gentlemen's agreement' that not only kept reports of sexual and domestic violence out of the press, but also served for decades to discourage victims of these crimes from speaking out. The deterrent to the wives and daughters, whose physical well being and emotional security were mainly at issue in this context, was not simply that they had no legal identity apart from their husbands and fathers. Coming forward would jeopardize the honor of the men who were duty-bound to protect them, a frightening prospect in a world in which reputation was regarded, in Godkin's words, "as the most valuable thing on earth."
Privacy and the Doctrine of Separate Spheres
During the late nineteenth century, as the right to privacy was increasingly conflated with the protection of family honor, the doctrine of separate spheres for men and women evolved in direct opposition to the struggle for women's rights. On a national level, the most authoritative expression of this opposition was set forth in 1873, when the Supreme Court upheld a lower court's rejection of Myra Bradwell's application for a license to practice law. Drawing on what had become the standard language of antipathy towards the women's movement, Justice Joseph Bradley, writing for the majority, held that women do not need and should not aspire to any public identity, both because their primary duties as wives and mothers necessarily confine them to the private realm and because nature obliges their fathers, husbands, and brothers to shield them from the tumult of public life.
[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.
When the Court handed down this decision, married women could own property, write their own wills, incur their own debts, pursue a variety of careers, and exercise other basic rights in many states. The "woman question" during the second half of the nineteenth century was, consequently, not whether married women would continue to be considered "civilly dead," but whether any woman would be allowed to develop a truly independent public identity, and the answer, at least as expressed by mainstream jurisprudence until well into the twentieth century, was that society itself would crumble if sufficient numbers of women transgressed the boundaries of private life.
The doctrine of separate spheres excluded women from public affairs, not only by denying or limiting their access to the courts, voting rights, higher education, and the professions, but also by defining the female body as a threat to public order and a constant source of shame. Censoring images and descriptions of women's bodies thus became one of the central preoccupations of "home defenders" such as Woodhull's nemesis, Anthony Comstock, who founded the New York Society for the Suppression of Vice in 1873. Comstock endeavored to stamp out sexual deviance and strengthen family government by monitoring private correspondence, burning offensive publications, policing alcohol consumption, and throwing birth control advocates in jail. While Brandeis and Warren never came close to Comstock's indifference to civil liberties, they seconded his campaign against licentiousness by denouncing the circulation of images of women as improper invasions of men's authority and as affronts to public decency.
A case in point is Brandeis and Warren's favorable mention of Manola v. Meyers & Stevens (1890), in which Marion Manola, a popular actress employed by a New York City opera company, tried to stop the company manager from circulating a picture that had been surreptitiously taken during one of her performances. Manola objected to what the Brooklyn Eagle termed "the deadly Kodak" because it was created without her consent and featured her wearing tights, a costume that she reportedly felt was appropriate to the stage, but too revealing for an advertisement. The Eagle agreed that Manola had every right to keep her manager from exhibiting a "counterfeit of her symmetrical physique in shop windows and other public places," and took the company to task for asking the actress to "make an unwomanly surrender" of her sense of propriety. As Brandeis and Warren recount in a footnote, a preliminary injunction was issued, and a hearing was scheduled, but the defendants never appeared in court. Consequently, it seemed that Manola had secured her right to be displayed as she desired.
Since Manola, who earned her own living, successfully exerted control over the exhibition and distribution of her own image, Manola v. Meyers has been read as a rare moment in which an unusually independent woman realized a level of autonomy that is usually reserved to men.7 However, given Manola's ostensible concern over the picture as a violation of her modesty, it seems more accurate to place this case within the context of late nineteenth-century efforts to cleanse American culture of overt signs of sexuality. After all, her petition to a judge to help her to preserve her respectability by limiting the public's opportunity to ogle her body has more in common with Comstock's contemporaneous campaign to turn the courts into "schools of public morals" than with the struggles of women's rights activists to persuade society to accept women as free and equal participants in public life.
There is, moreover, reason to suspect that Manola's action was not an instance in which a woman endeavored to affirm her right to privacy, but an example of exactly the kind of lascivious attention-getting that Warren and Brandeis found so distasteful. To draw on language that had yet to make its way into American vocabulary, it seems that Manola and her manager may not have been at odds about her over-exposure, but were actually trying to create some buzz. The Eagle accordingly suggested that the public would sympathize with Manola if the theater company thwarted her feminine sense of propriety, unless, that is, it turned out that the injunction was a "ruse to advertise the lady, and boom her perhaps already prepared photographs, tights and all."
A few weeks later, the Eagle again insinuated that the entire affair was a publicity stunt, pointing out that Manola had not previously found this glimpse of stocking especially shocking since she had allowed similar photographs to be taken and sold before. There is no way to pin down Manola's real motive, but it might well have been that the actress had merely pretended to object to the picture in order to accomplish precisely what Brandeis and Warren sought to discourage, which was the subjection of any woman to "the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination."
As minor as the Manola case may seem, it illuminates the gender-based limitations of late-nineteenth century ideas about the boundaries between public and private activities. The right to privacy, in Brandeis and Warren's view, sheltered a man's character, intellect, emotions, thoughts, and sensations, in other words, everything that defined him as an individual. For a woman, in contrast, the right to privacy pertained to "her face, her form, and her actions," in other words, everything that classified her as female. Men, from this perspective, were protected as distinct individuals, whereas women were protected as physical types. And while a man could stake a claim to his "inviolate personality," a woman could assert her right not to be shown in an advertisement, subjected to a physical examination, or displayed in a state of undress. Moreover, she could demand this right, not as a specific person, but only as a wife, a daughter, or a mother, that is, as a subordinate member of a family, apart from which, in the eyes of the law, she had little or no identity. As Anita Allen and Erin Mack succinctly observe, "The notion that female dignity required individuality belonged scarcely to the period at all."
Early Privacy Cases: Litigating Traditional Gender Roles
Predictably, cases involving the privacy rights of women around this time focused almost exclusively on the unauthorized display or unwarranted exposure of their bodies. Thus, in 1891, in Union Pacific Railway Company v. Botsford, the Supreme Court adopted a supremely protective approach to the female body. Clara Botsford was sleeping on a train when the berth above her collapsed, hit her on the head, and caused "permanent and increasing injuries." She sued the railway company for negligence and received a $10,000 award. Since the company had requested Botsford to submit to a physical examination in the presence of her own doctor, and Botsford had refused, Union Pacific appealed. To show that Botsford's refusal was legitimate, Justice Horace Gray, who authored the majority opinion, did not explicitly mention the right to privacy, but he followed Brandeis and Warren's example by citing Thomas Cooley's declaration that "the right to one's person may be said to be a right of complete immunity: to be let alone." Moreover, like Brandeis and Warren, the Court stressed that the "inviolability" of the body was particularly "sacred" in cases involving women.
The inviolability of the person is as much invaded by a compulsory stripping and exposure, as by a blow. To compel anyone, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass.
A few months later, in the first round of Schuyler v. Curtis (1891), which specifically addressed a woman's right to privacy, the New York State Supreme Court explicitly endorsed Brandeis and Warren's arguments. The dispute arose after a women's group planned to commission a statue of the late Mrs. George Schuyler, a philanthropist, at the Columbian Exhibition, which was scheduled to open in Chicago in 1893. Philip Schuyler, Mrs. Schuyler's nephew, sought an injunction against the statue on several grounds, including his late aunt's distaste for any type of notoriety and her disapproval of the views of Susan B. Anthony, who was supposed to be memorialized with a similar statue nearby. In affirming the preliminary injunction, Justice Denis O'Brien did not focus on Philip Schuyler's insistence that his aunt would have been mortified to find herself exhibited next to Anthony, whom the judge described as a "well-known agitator." Instead, O'Brien's comments addressed the defendants' contention that Mrs. Schuyler's status as a public figure extinguished her relatives' rights to intervene.
While acknowledging Mrs. Schuyler's magnanimity, O'Brien emphasized that she was not a public figure because she had always exercised her generosity in an "unobtrusive way." Then, after reciting Philip Schuyler's declaration that his aunt's "great refinement and cultivation" had led her shun publicity, the judge quoted at length from "The Right to Privacy." In a "recent article of the Harvard Law Review," O'Brien wrote, "we find an able summary of the extension and development of the law of individual rights, which well deserves and will repay the perusal of every lawyer." O'Brien reiterated Brandeis and Warren's call for control over the circulation of personal portraits, noted that Godkin had provided similar justifications, and observed that the individual's right to prevent certain types of public disclosure had been confirmed in the Manola case. The examples cited by Brandeis and Warren, especially Prince Albert v. Strange, signaled, O'Brien concluded, "a clear recognition...of the principle that the right to which protection is given is the right to privacy."
In 1895, when the New York Court of Appeals finally decided the case, Philip Schuyler lost. The court did not deny the existence of a right to privacy, nor did it deny that damages may be awarded to recognize the genuine distress endured by victims of privacy violations. Instead, the court held that whatever right to privacy Mrs. Schuyler may have enjoyed during her lifetime, it died when she did, as did any legal consideration of what her feelings might have been about having her likeness displayed in a public place. The court also firmly rejected the plaintiff's contention that his aunt would not have wanted to be displayed alongside Susan B. Anthony. Whatever Mrs. Schuyler's opinions may have been, the court took considerable time to argue, no reasonable person could object to being associated with Anthony, even if that person rejected her ideas about women's participation in public life:
The fact, if it be a fact, that Mrs. Schuyler did not sympathize with what is termed the "Woman's Rights" movements of no importance here... Many of us may, and probably do, totally disagree with these advanced views of Miss Anthony in regard to the proper sphere of women, and yet it is impossible to deny to her the possession of many of the ennobling qualities which tend to the making of great lives.
The court's tension-filled comments on Anthony remind us that the original assertion of the right to privacy unfolded at a time when the term "Women's Rights" was still far enough from popular acceptance to require capitalization and quotation marks. Moreover, as noted in this opinion, the point at issue in the struggle for sexual equality was "the proper sphere of women." While advocates for equality such as Anthony were distinguished by their unusual willingness to live "in the face of the whole world," even relatively prominent women such as Schuyler were still expected to at least try to avoid public attention. The court accordingly stressed that a "shy, sensitive, retiring woman might naturally be extremely reluctant to have her praises sounded, or even appropriate honors accorded her while living," but the principle that death extinguishes all claims to individual rights "applies as well to the most refined and retiring woman as to a public man." The Schuyler case thus affirmed the determinative role of gender in shaping ideas about privacy even while denying relief for alleged violations of a woman's privacy rights.
One of the many ironies of the history of privacy is that public sentiment in favor of confining all women to the private realm enabled a few women to gain great notoriety for attempting to avoid the public eye. The case of Roberson v. Rochester Folding Box Company (1902), which specifically addressed Brandeis and Warren's arguments, shows how much public clamor could be incited by an ostensibly retiring woman's struggle to "walk in the noiseless vales of private life." The controversy arose after Rochester Folding Box Co., working with Franklin Mills Flour Co., obtained a photograph of Abigail Roberson, who was still a minor, placed it on an advertising poster, and circulated thousands of copies throughout New York and other states. Roberson claimed that, after the poster was "conspicuously posted and displayed in stores,warehouses, saloons and other public places," people who recognized her picture subjected her to "scoffs and jeers" that were so humiliating that she "suffered severe nervous shock" and required the care of a doctor. Since Rochester Folding Box had never sought her permission and refused to stop circulating the poster, Roberson sued for $15,000, asserting that damages were due for the mental suffering caused by the company's unauthorized exhibition of her photograph.
Writing for the 4-3 majority, Alton B. Parker sympathized with Roberson's embarrassment and marveled at the defendants' "impertinence," but held that the "so-called 'right of privacy'" was too much of a novelty to sustain legal intervention. He did, however, acknowledge the appeal of the plaintiff's reasoning, which he attributed directly to Brandeis and Warren, noting that "a clever article in the Harvard Law Review" had tried to show that injunctions against publication of personal information had rested in several cases on the conviction that peace of mind deserves as much protection as physical well-being. "In other words," Parker summarized, "the principle, actually involved though not always appreciated, was that of an inviolate personality, not that of private property." In Parker's view, this argument went too far because it extended the basis of legal action beyond reputation, an inherently public phenomena, to the mercurial world of personal feelings. Consequently, Parker regretfully denied Roberson's claim by defining her personal distress as "one of the ills that under the law cannot be redressed."
The minority opinion, written by Justice John Clinton Gray, turned out to be much more in tune with the public's response to Roberson's complaint. Pointing out that the right to privacy had never been explicitly denied in New York State, Gray maintained that the injury done to Roberson by the unauthorized use of her portrait was certainly sufficient for her to seek relief in court. In fact, echoing Brandeis, Warren, Godkin, and Reade, Gray asserted that the scale and scope of modern publishing made the exploitation of personal portraits for commercial purposes "possibly more formidable and more painful in its consequences, than an actual bodily assault might be." In direct response to the call for control over the circulation of photographs sent out in "The Right to Privacy," Gray concluded that the courts would be derelict in their duty if they stood by while companies such as Rochester Folding Box forced innocent young women to withstand "mortifying notoriety" for the purpose of their own "selfish gain."
Unlike Parker, Gray seems to have sincerely believed that Roberson had been gravely injured, or he may have simply understood that the public would be outraged if the court failed to come to Roberson's aid. After all, as the Albany Law Journal observed in a comment on the lower court's ruling in favor of Roberson, "Every considerate person will sympathize with pretty young women in their aversion to having their portraits or photographs paraded before the public to advertise brands of flour, corsets, or mayhap, cheap cigars." Collier's Weekly likewise congratulated Gray for "marching more closely in step with the general notion of the duty of courts to protect the weak from the strong."
The Roberson case was not over yet. In 1903, Parker, who ran against Theodore Roosevelt in the presidential election of 1904, made the mistake of complaining about being hounded by news photographers. After he and his wife were repeatedly bothered by intrusive reporters, Parker issued a press release defending his claim to privacy. "I reserve the right," he declared, "to put my hands in my pockets, and to assume comfortable attitudes without having to be everlastingly afraid that I shall be snapped by some fellow with a camera." Roberson, who was amazingly resourceful, responded forthwith in a letter to Parker that was published on the front page of the New York Times. "I would like to take this opportunity," Roberson proclaimed, "to remind you that you have no such right as that which you assert. I have very high authority for my statement, being nothing less than a decision of the Court of Appeals in this State, wherein you wrote the prevailing opinion." Then, having pointed out that Parker, a candidate for the highest office in the country, was asserting the same right that he had denied to a "poor girl" who "never had courted publicity," Roberson observed that her plea for privacy was vastly more plausible than his. Roberson thus capitalized on her celebrity to reassert her claim to privacy. In struggling to escape the limelight, she became the emblem of a cause. The statute almost immediately passed in the New York legislature to prevent the unauthorized use of images in trade and advertising was accordingly attributed directly to Roberson's appeal for protection against commercial exploitation.
The role of gender in assessing claims to privacy did not diminish when the Georgia Supreme Court explicitly recognized the right to pursue legal remedies for the unauthorized publication of personal photographs in Pavesich v. New England Life Insurance (1905). The case began after Paolo Pavesich discovered his picture in an insurance advertisement in the Atlanta Constitution. The ad, which suggests that buying insurance will somehow keep a person healthy, contrasted Pavesich, a robust man who had sensibly purchased a policy from New England Life, with a sickly and unhappy man who had failed to do the same. Since Pavesich had never done business of any sort with New England Life, he sued the company for $25,000 on the grounds that its agents had violated his privacy by publishing misleading information about him that had exposed him to ridicule.
Although Pavesich, like Roberson, addressed the unauthorized use of personal portraits, the Georgia court described the two cases in distinctly different terms. Specifically, when the Pavesich court ruled the "right of privacy is embraced within the absolute rights of personal security and personal liberty," it depicted women's claims to privacy as prayers for protection while interpreting men's claims to privacy as an expression of every man's natural authority to control his personal affairs. For women, in other words, the right to privacy was premised mainly on the need to be rescued; for men, in contrast, the right to privacy was tied to their ability to defend themselves and their families. The ruling accordingly seconded Gray's contention that Roberson, a vulnerable young woman, had every reason to expect the court to save her from commercial exploitation, but warned that if the legal system failed to give husbands, fathers, and brothers a way to retaliate against invasions of privacy, they would take the law into their own hands:
[T]he individual feels and knows that he has a right to exercise the liberty of privacy, and that he has a right to resent any invasion of this liberty; and if the law will not protect him against invasion, the individual will, to protect himself and those to whom he owes protection, use those weapons with which nature has provided him as well as those which the ingenuity of man has placed within his reach. Thus the peace and good order of society would be disturbed by each individual becoming a law unto himself to determine when and under what circumstances he should avenge the outrage which has been perpetrated upon him or a member of his family.
Likewise, quoting directly from Gray, the court affirmed his assertion that Roberson's face and form belonged to her exclusively and, in contrast, brought up "the common-law maxim that 'every man's house is his castle'" to justify men's right to refuge and repose.The Pavesich court thus tread the path beaten by crowds of nineteenth-century moralists, journalists, and judges, first by equating a woman's body with a man's home, and then by defining the defense of both as a natural masculine duty. Roberson, the quintessential damsel in distress, had every right to call on the courts to shield her from public exposure, while men such as Pavesich had to be restrained from taking up arms to defend themselves and, as the Supreme Court had declared in Bradwell, those over whom nature had granted them guardianship.
There are undoubtedly some aspects of late nineteenth- and early twentieth-century discussions of privacy that have escaped notice here. However, the documentary evidence presented in the preceding pages allows us to draw three broad conclusions about Brandeis and Warren's contribution to the historical configuration of the public/private dichotomy in American law and society:
First, the perspective adopted in "The Right to Privacy" was highly interventionist, however much that fact has been buried in references to "the right to be let alone." Judges and other public officials in Brandeis and Warren's day may have chosen to look the other way in cases of sexual assault and household violence, but the entire purpose of "The Right to Privacy" was to extend the reach of the legal system so that men would not have to fend for themselves in avenging injuries to their feelings and reputations.
Second, as evidenced in Brandeis and Warren's approval of legal fictions to guard against the disclosure of sexual crimes, as well as their perception of newspaper gossip as a blight on common decency, "The Right to Privacy" can be most accurately described, not as a call for the state to step back from the private sphere, but as an approach to public discussion that upheld the threat of litigation as a means to encourage the press and other people to practice self-censorship.
Third, however marginal radicals such as Victoria Woodhull may seem, it is important to register the contrast between her conception of the right to privacy as an assertion of individual liberty and Brandeis and Warren's appeals to convention and social propriety. Unlike Woodhull, who, for all her machinations, stood up against the "system of social espionage" in championing "untrammeled lives," "The Right to Privacy" advocated seeming social conformity, a world in which relatively superficial assumptions about decorum and manners would govern social discourse.
More generally, setting "The Right to Privacy" against the backdrop of the cult of domesticity in the late nineteenth century allows us to understand more clearly the consistency in Brandeis's thinking on the subject over the course of his career. For example, in his famous brief in support of Muller v. Oregon (1908), Brandeis marshaled social statistics to show that the biological destiny of women as wives and mothers supersedes their rights as individuals. Advancing the same protectionist approach that he and Warren had adopted in "The Right to Privacy," Brandeis maintained that women needed to be secured from economic exploitation so that they could properly discharge their natural familial obligations. His brief was accordingly designed, not to promote the well being of workers in general, but to legitimize gender discrimination by forcing employers to take heed of the duties and disadvantages attached to womanhood. Just as the Court in earlier cases had singled out women's bodies as deserving of special protections, Justice Brewer drew on Brandeis's work to argue that the physical drawbacks of being female, as well as the burdens of maternity, legitimized treating "woman as an object of public interest and care." In other words, even though there might at first glance seem to be some tension between Brandeis's exaltation of privacy and his case for government regulation of female labor, both were interventionist efforts to safeguard family relations, and both endeavored to achieve that goal mainly by shielding the female body, in Brewer's words, "from the greed as well as passion of man."
After his elevation to the Supreme Court in 1916, Brandeis's progressive positions on issues ranging from workers' rights to woman suffrage did not shake his tendency to place domestic concerns and family relations above everything else. In 1926, in a letter to Felix Frankfurter, he emphasized that the surest route to restraining criminal activity is to inspire general respect for the law, and to achieve that end, one of the "essentials is that government must, in its methods, & means, & instruments, be ever the gentleman." For Brandeis, in other words, the primacy of private over public virtues was so pronounced that even government itself derives its authority from conforming to the apolitical principles that dictate proper social conduct. It is, consequently, not surprising that two years later, in his celebrated dissent in Olmstead v. United States, Brandeis crowned the right to privacy as the core value in American life. "The makers of our Constitution," Brandeis declared, "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 men."
The paradoxes that have arisen in the historical trajectory set off in "The Right to Privacy" make sense when we consider their starting point. Writing in reaction to rapid social change, Brandeis and Warren's main objective was to discover legal instruments that would enable men to preserve their masculinity by screening themselves and their dependents from the ever more intrusive pressures of late nineteenth-century industrial society. True to the progressive spirit of their age, as well as their unexamined allegiance to sexual inequality, they found in the common law precisely the right tool to allow modern man to carry out this ancient prerogative, "a weapon ...forged in the slow fire of the centuries, and to-day fitly tempered to his hand." In line with these chivalrous sentiments, and in keeping with the valorization of the domestic sphere in subsequent decades, the lasting legacy of "The Right to Privacy" has been not to enlarge individual liberty, but to outline a legally sanctioned and socially acceptable context in which men and women could meet their moral obligations by conforming or, at least, seeming to conform to conventional family roles.
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