How Privacy Got Its Gender

Moreover, as conceived by Warren and Brandeis and initially applied by the courts, the privacy tort bears the unmistakable mark of an era of male hegemony. This aspect of the privacy tort has gone all but unnoticed. Our aim is to suggest that attention to the privacy tort's social origins in an era of sexual inequality illuminates the course of its historic development. Scholarly and judicial analyses that appropriately acknowledge the significance of gender provide an important direction for the privacy tort's second century.

Part II sets the stage with brief, background perspectives on the meaning and value of privacy, the public/private distinction, and the history of opportunities for personal privacy and autonomous decision-making in American life.

Part III examines The Right to Privacy in context, stressing the outmoded normative assumptions about female modesty and seclusion implicit in its bid for more legal protection against unwanted publicity. The monumental legacy of Warren and Brandeis did not include a broad or egalitarian understanding of the need for privacy.

Part IV offers Charlotte Perkins Gilman's Women and Economics as evidence that such an understanding was within the grasp of the late nineteenth-century intellect.10 An egalitarian understanding of women's privacy problems is certainly within our reach today. Regrettably, courts and scholars still defend legal privatization of family life and personal identity without always considering the complex role that concerns about female modesty and seclusion have had, and should have, in the law.

Many privacy problems women face as daughters, wives and mothers cannot be addressed effectively through tort law. Tort law cannot, for example, create more free time for new mothers. However, cases highlighted in Part V illustrate that privacy tort actions and emotional distress actions for "outrageous conduct" can potentially right privacy wrongs. Existing categories of privacy torts potentially have one of their most worthwhile applications as aids to female victims of gender-related privacy invasions. Stereotypes of heightened female modesty undermined the nominal victories of female privacy claimants in the decades immediately following The Right to Privacy. The cases we consider in Part V suggest that, despite origins in nineteenth-century gender bias, the privacy torts most states recognize can help to validate women's economic and dignitarian interests in freedom from physical and emotional abuse in the workplace.

A. CONCEPT AND VALUE

Personal privacy exists wherever a degree of inaccessibility shelters persons or information about them from others.11 Seclusion, solitude, anonymity, secrecy, confidentiality, and reserve are discrete forms of privacy.12 While privacy is a phenomenon in every human society, its availability and perceived value vary with culture, economy, status, age, and gender.13 Gender is a key social variable in the availability of certain forms of individual and group privacy.14 Social scientist Barrington Moore suggests that in many cultures men achieve privacy at the expense of privacy-deficient women, whose domestic labor maintains patriarchic havens.15

10 Charlotte Perkins Gilman, Women and Economics: A Study of the Economic Relations between Men and Women as a Factor in Social Evolution (1898).

11 See generally A. Allen, Uneasy Access: Privacy for Women in a Free Society, 11, 15 (1988) (analyzing competing philosophical definitions of "privacy") ("While no definition of 'privacy' is universally accepted, definitions in which the concept of access play a role have become increasingly commonplace ... To say that a person possesses or enjoys privacy is to say that, in some respect and to some extent, the person (or the person's mental state or information about the person) is beyond the range of others' five senses and any devices that can enhance, reveal, trace or record human conduct, thought, belief or emotion."). Cf. Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort,” 77 California Law Review, 957, 969 (1989) (concept of privacy underlying privacy tort not neutral, descriptive, or value free).

12 A. Allen, supra note 11, at 18 ("Privacy is best viewed as a kind of parent or umbrella concept to those …concepts such as seclusion, solitude, anonymity, confidentiality, secrecy, intimacy and/or reserve that denote a person's conditions of inaccessibility to the senses and surveillance devices of others.").

13 Alan F. Westin, Privacy and Freedom, 13 (1967). But see Godkin, “The Rights of the Citizen: To His Reputation,” 8 Scribner’s Magazine, 58, 65 (1890) ("Privacy is ... one of the luxuries of civilization, which is not only unsought for but unknown in primitive or barbarous societies. The savage cannot have privacy, and does not desire or dream of it."). Warren and Brandeis cited the Godkin article with apparent approval. See Warren and Brandeis, supra note 1, at 195.

14 Cf. Roberts and Gregor, “Privacy: A Cultural View” in Privacy, 182, 210 (J. Roland Pennock and John W. Chapman ed. 1971).

15 Barrington Moore, Privacy: Studies in Social and Cultural History, 51-52 (1984).