Understanding the 1890 Warren and Brandeis “The Right to Privacy” Article

Matthew L. Bycer

The Constitution of the United States is a living document. Although written at the birth of our country in a pre-Industrial 18th century, our founding documents were meant to adapt to times of as-yet unknown technology such as phonographs and photographs, telegraphs and telephones, audio-visual recordings and transmission, the digital era and the Internet.

The Declaration of Independence and the Constitution speak of certain inalienable rights, including the right to liberty and the pursuit of happiness. The conclusion must be that if such rights are not directly and explicitly protected by statutes, laws and regulations, these rights must be encompassed by a certain reality of common law. The common law embodies the roots for a right to privacy, a right to be free from harassment and exposure. While some criticize recognition of any right not explicitly declared in our founding documents, disparagingly calling it ‘judicial legislation’ (thereby thwarting the balance of powers by taking the legislature’s role), Warren and Brandeis claim that “the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled [our law] to meet the wants of an ever changing society and to apply immediate relief for every recognized wrong, have been its greatest boast.” (It is important to note that any right to privacy was also subject to the explicit right of Free Speech set forth in the First Amendment of the Bill of Rights.)

Warren and Brandeis were responding to technological developments, notably, the advent of instant photography and audio recordings in the late nineteenth century. This new technology had launched a tabloid industry that profited on the most prurient interests without care to modern morals. The harms of privacy invasion fall into one of four types:

intrusion into one’s private life and affairs;
public disclosure of embarrassing private facts;
unwanted publicity of private individuals; and
misappropriation of a name or likeness for financial advantage.

The article sets forth the basis for reading into the common law as yet identified rights. First identifying the harm, a right of privacy is predicated on mental anguish and feelings, that in and of themselves, were an actionable right to protect.

While slander and libel would stop false representations, they bore no way to stop an invasion of private facts. Copyright law that could protect individual letters had become inadequate/obsolete with the rapidly evolving technology that could disgorge one’s privacy without stealing or copying any tangible items. Rights in property, and even to the exclusive right to control publication of one’s labor, could not express the privacy rights in their entirety, as no property is physically divested. Contract law would not go far enough. A judicial declaration of public morality, private justice, and general convenience would not support a finding for breach of confidence in an implied contract if there were no prior relation between the parties. Criminal law could not be used to enforce privacy rights absent specific legislation that would allow the State to intervene in a “private” civil matter.

Still there must be some sort of privacy right, a right to one’s own personality, or peace of mind, or even the right to be let alone. Therefore, Warren and Brandeis set forth the injuries, potential remedies, and basis for a true right to privacy.

This rule would protect one from publication of one’s private matters with few exceptions:

Privileged communications are the domain of libel/slander;
Speaking gossip and oral communication are outside the purview of privacy rights;
Consent to publication is an outright defense; while
Truth; and
Malice are irrelevant to a breach of privacy action.

As time went on, actions to enforce rights of privacy against individuals were repelled by the rights to free speech and freedom of the Press. As today’s tabloid industry attests, public personas, celebrities and even those thrust into the public debate without their consent or action, must now grapple with a paparazzi bent on exposing their most minute and private facts.

With regard to the right of privacy from the government however, the Supreme Court has recognized Constitutional protections. For instance, in Griswold v. Connecticut, 381 U.S. 479 (1965), the Court envisioned the right to privacy as emanating from the “penumbras” of the Bill of Rights. More recently, the Court, in Lawrence v. Texas, 539 U.S. 558 (2003), discarded the penumbral theory, looking instead to the substantive due process rights guaranteed by the Fourteenth Amendment as a Constitutional basis of the right to privacy.

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