The Right to Privacy Revisited

The Right to Privacy Revisited: Privacy, News, and Social Change, 1890-1990*

In very early times, the law gave a remedy only for physical interference with life and property. . . Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. . . The law of nuisance was developed. So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered. . . Man's family relations became a part of the legal conception of his life. . .From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind. . . The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear. . .that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition. . .

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."

―Louis Brandeis and Samuel Warren 1

"The Right to Privacy" was a product of its time. Yet while using the definitional framework of the late nineteenth century, the article expressed an age-old and still enduring concept of privacy. The continuing impact of the Warren and Brandeis article is testament to the timeless quality of the idea of privacy, an idea reflecting much more than a plea for freedom from tasteless gossip and the salacious prying eye of the press. The ingenious manner in which its authors drew on threads of past jurisprudence, constructing a legal concept of personality out of property doctrine, tort law, copyright law, and damage principles, reinforced the article's timelessness. More importantly, Warren and Brandeis presented the idea of privacy as it should be understood: as deeply entrenched in culture, evolving over time, fundamental to the wholeness of the individual, and reflecting the social environment in which people exist.

The right to privacy articulated by Warren and Brandeis rested, at its core, on the need of the individual for a space free from the demands of the larger social order in which to develop beliefs, attitudes, and behavioral norms. But it was not a space free of others. Privacy was, and is, a space occupied by others, but only by some others. The right to privacy fostered disclosure of personal information in the space of intimate associations every bit as much as it protected against disclosure outside that space.

Warren and Brandeis made their important contribution by giving legal definition to this boundary between personal and public space -- between occasions when personal information should be the business of others and occasions when it should be no one else's affair. That boundary is a reflection of, and indeed is dictated by, social habits and institutions. In 1890, privacy was rooted in rural values, representing an effort to maintain social organizations and values that were threatened by urbanization. Today, however, privacy is rooted in values of individualism. It must function in dramatically changed social circumstances marked by the complex of social

*California Law Review, Vol. 80, No.5 (Oct., 1992).

1 Samuel D. Warren & Louis D. Brandeis, "The Right to Privacy," 4 Harvard Law Review, 193, 193-95 (1890).