How Privacy Got Its Gender

How Privacy Got Its Gender*

Anita L. Allen and Erin Mack

I. INTRODUCTION

ike the Olympian Athena, the right to privacy was born not of woman, but of man. A century ago this year, Samuel D. Warren and Louis D. Brandeis published “The Right to Privacy."1 This "most influential law review article of all"2 argued for express recognition of a new common law right, a right of privacy, protecting the "inviolate personality"3 of the individual, the "sacred precincts of private and domestic life,"'4 and the "robustness of thought and delicacy of feeling”5 in society.

The privacy tort was the brainchild of nineteenth-century men of privilege, and it shows. Harry Kalven noticed it, writing of the Warren and Brandeis privacy plea that "there is a curious nineteenth-century quaintness about the grievance, an air of wounded gentility."6 "The Right to Privacy's" quaint gentility reflects not only the economically privileged perspective of its Harvard Law School-educated authors,7 but also the sentimentality8 and spirituality9 that were characteristic of the period.

* Northern Illinois University Law Review, 10 (1990), 441-478.

1 Harvard Law Review, 193 (1890).

2 Kalven, “Privacy in Tort Law—Were Warren and Brandeis Wrong?,” Law and Contemporary Problems, 326, 327 (1966). See generally T. McCarthy, The Rights of Publicity and Privacy, § 1.3 (1989).

3 Warren and Brandeis, supra note 1, at 205.

4 Id. at 195. 5 Id. at 196.

6 Kalven, supra note 2, at 329.

7 A native Bostonian, Samuel D. Warren II was the son of a wealthy paper manufacturer and a member of Boston's social elite. Louis D. Brandeis' immigrant family owned a small mercantile shop in Louisville. See D. Pember, Privacy and the Press, 21-24 (1972) (describing social backgrounds of Warren and Brandeis).

8 See generally A. Douglas, The Feminization of American Culture, 6, 12-13, 289 (1976) (historical study of "the minister and the lady" as socially appointed "champions of sensibility"). Focusing on the country's northeast region, Douglas identified in nineteenth-century American writing a sentimental emphasis on spiritual values, often symbolized by images of fair, fragile young women—hence the "feminization" of culture. According to Douglas, "The sentimentalization of theological and secular culture was an inevitable part of the self-evasion of a society both committed to laissez-faire industrial expansion and disturbed by its consequences." Id. at 12.

9 See generally L. Perry, Intellectual Life in American History, 263-67, 277-78 (ideology of culture "upheld the far-reaching importance of spiritual values amid secular change" that included urbanization, industrialization, and "shallow commercialism"). The ideology culture was a major force in Harvard University intellectual life when Warren and Brandeis were students there. Id. at 285. Nation editor E. L. Godkin was a prominent pundit for the ideal of culture. Id. at 310-11. Although Warren and Brandeis would deny it fifteen years later, it has been suggested that an article by Godkin in Scribner’s Magazine in July, 1890 condemning press invasions of privacy inspired “The Right to Privacy.” D. Pember, supra note 7 at 24-25; and see Godkin, infra note 13. See also R. Hixson, Privacy in a Public Society: Human Rights in Conflict, 30 (1987) (There is reason to believe that Godkin's Scribner’s piece, as well as the famous editor's reputation among intellectuals, contributed to their thinking .... Indeed. Warren and Brandeis cited Godkin… in their privacy article.").