Friday, January 13, 2006

The right to privacy -- Brandeis

I'm going over conlaw papers now, and writing summaries for myself. Here's one. The main part is in the comments. This isn't that fascinating of a paper.


Blogger Sean Strasburg said...


I read this because the title made me think it'd be a Harlan-like
harbinger of later Griswold arguments. It's not: it speaks solely of
the right to keep some things secret from prying private individuals,
like the fact that I "suffer from an impediment in speech or cannot
spell correctly." Somehow it's gotten to be one of the top ten
most-cited law articles of all time. Hmmm: I bet a lot of people make
the same mistake I did. I just don't see how this article could be
cited by abortion or gay rights advocates: every argument in it is
geared to the right to keep your neighbors from laughing at
you. There's just not much here that transfers directly over (without
huge additional argumentation) to the "privacy" right to keep the
government from making laws against abortion.

One other point: Rehnquist at the beginning of his dissent in Roe, or
maybe Planned Parenthood, says that abortion isn't "private":
generally when you leave your house, go to a hospital, get medical
treatment, and so forth, it's not a domestic privacy issue . I thought
this was a pretty silly point: it may not be a "secret", but it's
still personal. This article, oddly, makes me see Rehnquist's point
more clearly: privacy is more about facts than acts.

To be honest, I wouldn't even read this summary, except maybe to note
that Brandeis predicts the public-person/private-person distinction of
New York Times v Sullivan forty years early.

Right to privacy -- Brandeis

Individual protection in person and property gradually and inevitably
expanded from trespass vi et armis (just actual attacks or restraint)
to rights to enjoy life (e.g. against nuisance and defamation) and
intangible physical property. [But alienation of affection was a
fallback, and there have been others, right?]

Now recent inventions (photographs) and business methods (newspaper
prying and indecency) require us to take the next step and recognize
"the right to be left alone." [Brandeis is very anti-gossip in the
article.] We need to be able to retreat from the world. [The prying
world he describes is that of curious *private* actors, not the

But old remedies of defamation are geared to reputation and
prosperity, not hurt feelings. Now we can use the common-law rights to
intellectual and artistic property, which are really just instances of
a right to privacy (controlling when one wants to share one's thoughts
with others). This intangible property is not just protected when it
has value, like literature: it can be peace of mind of not making
something public at all, not the particular nature of the injury
suffered when involuntary publicity occurs. When your privacy is
invaded, you're being "possessed", just like when you're imprisoned,
but the infringement is not of the person, it's of "inviolate

Existing law thus can protect privacy. The test is not deliberateness
or effort, like copyright: sometimes proper private conduct is more
work than lofty writing. And privacy doesn't imply a contract or
breach of trust. Privacy rights are just a judicial declaration of
moral rights against the world. It's property and privilege in its
broadest sense. [He lists the example of "casual and unimportant
secrets in a letter" as being protected: but that would only protected
by copyright, right? You can disclose it freely, you just can't make
money off of it.]

What are limits of the right to privacy? It doesn't prohibit
publication of any matter which is of public or general interest. [He
means "value", not interest: gossip is interesting but he says its
subject matter should be protected by privacy.] [He also prophecies
New York Times v Sullivan in saying that some people, like
politicians, have given up the right to live fully private lives.]
Privacy doesn't prohibit things said or done under public or private
duties. Privacy doesn't necessarily prevent an "oral publication",
because most such injuries would be trifling, and interfering would
conflict with free speech. [I'm glad to see this point finally show
up, so late in the article!] Truth is not a defense, nor is absence of
malice. [Yikes!]

He envisions the remedies as being tortlike or injunctions.

4:06 PM  

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