About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, September 29, 2008

Right To Privacy: The Law Review Article

And Also: The NY Daily News had a cover shot of some girl crying because the Mets lost. Yes, now they are making little girls cry too. And, big boys, surely. Some good quotes in honor Newman; Redford used a form of my sentiment. Ditto Letterman: "Paul was a very fine actor and a really good race driver. But mostly, he personified humanity - always taking care of those who were less fortunate. For me, this will be his legacy."

Privacy is a repeated theme on this blog, particularly since my interest in the area has been long lasting. The reason is probably two-fold: privacy has so many angles to it, touching so many subjects that it is just a fascinating subject. Second, I myself am a pretty private sort of person, so I have some personal stake in the whole thing. Anyway, a 1890 Harvard law article (yeah, they wrote them back then) by Samuel Warren and Louis Brandeis (around twenty five years before he got to the Court) with the straightforward title "The Right to Privacy" is a seminal milestone in the area. A timely one, particularly with Boyd v. U.S. being decided a few years earlier.

It is an interesting read in various respects, particularly given it has certain limitations for various supporters of its general sentiments. Let me quote the first paragraph in total, since it is touches various relevant bases:
That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible.

The article begins with a sentiment well accepted by the "living Constitution" school though here it is used in the area of common law. But, there is a "federal common law" that includes constitutional principles, particularly involving due process of law. Likewise, the LC school can be seen to support a sort of "common law" view of the Constitution, so the article's discussion of the development of "new rights" which are in fact but the branches of the original tree. This is seen in the area of school segregation. This is no longer deemed "equal protection," and integration is clearly in some ways a "new right," but also a new view -- as society changed -- of old standbys. Finally, common law rights are one way to flesh out unenumerated rights, and clearly was in the late nineteenth century, such as right to choose a lawful profession, travel etc.

The article then flows into an example of such development, which also applies to constitutional rights as well. The fact that the Due Process Clause in particular reference rights to life, liberty and property is perhaps the clearest example. But, we can also see it in the understanding of what exactly was covered by the freedom of speech. Was it solely prior restraints, political speech, matters of "public concern," or what? Over time, the understanding expanded far beyond its original moorings, each step seen as logical and almost inevitable, but no less evolutionary. And, references to the man's spiritual nature will be noted by careful readers as the germ of Brandeis' Olmstead dissent written nearly forty years later. A dissent that translated common law matters involving an argument for a tort of invasion of privacy into constitutional law.

What compelled them to write this law review article? One story is that Warren was upset at news coverage of his daughter's wedding, but research has shown this to untrue. As a member of high society, putting aside the growing influence of tabloid journalism, he might still have had some related concerns. No matter, one immediate concern is suggested here:
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."

The article was particularly concerned with new developments in instantaneous photography and recording devices, the ability to put its fruits to various nefarious uses, including the tabloid press, advertising and general exposure of what should be deemed private. Thus, what is brought out in legislative assemblies or courts of law was not at issue here. OTOH, though some harm had to be shown, there need not be "actual malice" (a term that pops up in libel law; see, NYT v. Sullivan), since the invasion of privacy, not malice alone is the harm. Nor is truth an excuse, for similar reasons. You can see problems here for freedom of the press, especially if matter of "public concern" are defined narrowly. But, changing times apply there as well. You could see how Griswold author and First Amendment absolutist Justice Douglas might not like the article all the same.

The article, as noted above, was partially concerned with emotion distress ... rights to life, liberty and property expanding to cover that as well in various respects. "Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence." This suggests that the duo expanded Judge Cooley's "right to be left alone" principle, Cooley more immediately concerned with freedom of physical assault. This, at least, seemed to be the point of Union Pacific Railway Company v. Botsford, cited by Roe v. Wade, and decided at about the same time as the article was released:
No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, "The right to one's person may be said to be a right of complete immunity: to be let alone." Cooley on Torts, 29."

All the same, the ultimate principles involved here, a freedom and property interest over one's private life clearly has broad contours. This article is largely concerned with establishing a tort, one that did develop over the subsequent decades (and was in some ways already in place), that was concerned with a right to seclusion and guard against unconsensual use of private materials for profit or some other purpose. But, the underlining "right to be left alone" goes beyond that. This was clearly seen in Brandeis' Olmstead dissent that translated the Fourth Amendment into a broad security of individual privacy. A privacy that warranted leaving private matters and decisions to the individuals involved. This is a logical conclusion from the themes of the launching pad of this famous law review article.

For if one does not have private choice, what value is there to have a right to seclusion in the first place? If your private acts are basically matters of public concern, so much that they can be directly interfered with or even banned, you have a clear exception set forth in the article: matters of legitimate public concern were by definition not private. A candidate for office could not cry that a bribe or illegal (rightly defined) action done in private was not to be exposed. On the other hand, even they can cry that what is done in the privacy of the home is generally off limits. Freedom of the press might now suggest leaked information of this sort is "fair" game, legally speaking, but even so, placing a hidden microphone to obtain it, not so much.

Common law courts often must look at the core principles behind the law and this too shines through when properly honoring a "right to privacy." There is still some relevance to that hundred and twenty year old law article.