Why the “Privacy” Wars Rage On

In 1875, the future Supreme Court Justice Louis Brandeis met his classmate Samuel Warren at Harvard Law School. The two became close friends and soon formed a law firm together. Warren was from one of Boston’s wealthiest families, whose doings were fodder for gossip columns; when Warren married a senator’s daughter, details of wedding décor, guests, and dresses were extensively covered in national newspapers. This irritated Warren, who, even in his undergraduate days, had castigated Boston papers for divulging private facts about Harvard’s secret societies.

Brandeis later pointed to Warren’s “deepseated abhorrence of the invasions of social privacy” in explaining why the two men published their famous law-review essay “The Right to Privacy,” in 1890. It decried invasions of “the sacred precincts of private and domestic life.” It deplored “the details of sexual relations” being “broadcast in the columns of the daily papers” and the publication of “idle gossip, which can only be procured by intrusion upon the domestic circle.” People should have legal recourse, it suggested, against those who publish private facts about them.

For decades afterward, courts debated whether the right to privacy existed. But, by the nineteen-sixties, many courts and legislatures had recognized such a right, in various forms, entitling people “to be let alone” and protected from incursions into their private affairs. The tort-law scholar William Prosser, an architect of modern privacy jurisprudence, noted in a classic 1960 study that the right to privacy had, confusingly, come to encompass rights against not only publishing private facts but also several other kinds of harm: portraying a person in a false light; appropriating a person’s name or likeness; and intruding on a person’s “seclusion.”

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