S. Warren and L. Brandeis, ‘‘The Right to Privacy,’’ 4 Harvard L. Rev. 193 (1890)

Samuel Warren and Louis Brandeis attempted to define a right to privacy long before the Supreme Court or other judicial bodies in the United States offered the concept any credibility. They defined privacy variously: the right to ‘‘an inviolate personality,’’ the ‘‘immunity of the person,’’ the right to ‘‘one’s personality,’’ ‘‘rights as against the world,’’ or ‘‘the privacy of a private life.’’ All of these were summed up in their simple label, ‘‘the right to be let alone.’’ Warren and Brandeis conceived of a right to privacy that protected individuals from intrusion by other people or organizations. However, when their words began to be echoed in Supreme Court decisions, the right to privacy was treated as a bar to governmental intrusion. In that form, the right to privacy was eventually acknowledged by the Court in 1965 in Griswold v. Connecticut. It was, according to the Court, implied by provisions of various limitations on government listed in the Bill of Rights. This Warren and Brandeis article is generally regarded as originating the concept in American common law, although Judge Thomas Cooley had also discussed a ‘‘right to be left alone’’ in civil law enforcement in his 1888 The Law of Torts.

Although the right to privacy would later become associated with aspects of family, education, marriage, procreation, sexual intimacy, and aspects of personal autonomy, in their article Warren and Brandeis argued for protection from publication of gossip in newspapers and unauthorized circulation of a person’s portrait. Notably, their interest in writing this article derived from a perceived invasion of the privacy of Samuel Warren’s family. Although no ‘‘right to privacy’’ was specifically authorized by Constitution or by statute, Warren and Brandeis argued that ‘‘liberty,’’ as addressed in the Constitution, subsumed the ‘‘right to enjoy life,’’ ‘‘to be let alone,’’ and that the elasticity and adaptability of the common law could and should recognize the right to privacy in light of new technologies that progressively threatened one’s solitude and private life.

Warren and Brandeis considered the viability of using existing legal concepts, such as defamation, libel, and slander or property rights, breach of trust, confidence or contract and trade secrets. All were found lacking the ability to protect, for example, from publication notes written in a personal diary, letters sent to friends, artistic works or photographs taken without one’s knowledge. The law of defamation was found wanting, because it only addressed material value of, for example, loss of one’s reputation. It could not, however, provide redress for a spiritual loss, for the loss of how one feels about oneself; it could not comprehend the anxiety that something might be published or the sense of relief when it was not. Similarly, property laws focused on material, rather than emotional, damages. Publication of one’s private writing or artistic works or photographs could not properly be addressed under the law governing breach of trust, confidence, or contract, because it could not be applied to a stranger who has made no contract or accepted any trust. Nor could trade secret law apply, because that would require the assumption that confidence had been placed in the person who may have trespassed to obtain the exposed work.

Interestingly, Warren and Brandeis drew heavily on English court decisions, where various questions of publication of private materials without the consent of the author or artist had been raised and decided. A principle case on which they relied was that of Prince Albert v. Strange treating an instance when a catalog of etchings made for the personal enjoyment of the Prince and Queen Victoria had been published. The English judges applied the common law principle of property law to protect the etchings from unauthorized publication. The difficulty lay, however, in the assessment of value to unpublished works by people of lesser note than the Queen of England and her husband. Indeed, very few examples were drawn from U.S. courts, primarily because there was no acknowledged right to privacy. Warren and Brandeis even reached beyond common law to note that France had passed a law according a limited right to privacy in 1868.

Warren and Brandeis proposed that American common law should likewise recognize a right to privacy as the ‘‘principle which protects personal writing and any other production of the intellect or the emotions.’’ They asserted this right, but they also recognized limitations and prohibitions on it. The limits they listed were: (1) the publication did not involve a matter of public or general interest, (2) the publication would be privileged under the law of libel or slander, (3) privacy did not extend to oral publication in the absence of special damages, (4) privacy right ceased on publication, (5) the veracity of a statement is not a defense, and (6) the absence of malice is not a defense. They proposed that remedies for violations of the right to privacy would be through normal tort procedures or, when appropriate, the use of an injunction.

One year after publication of ‘‘The Right to Privacy,’’ Justice Horace Gray of the U.S. Supreme Court cited the ‘‘inviolability of the person’’ to conclude that an alleged victim of an accident could not be forced to undergo surgical examination of her brain to determine the extent the head injuries that she had sustained. Later, when Louis Brandeis was himself a Supreme Court Justice, he relied on the ‘‘right to be let alone’’ in his dissenting opinion in Olmstead v. U.S. In that case of government wiretapping in connection with a criminal investigation, Brandeis argued that both Amendment Four’s protection against illegal searches and seizures and Amendment Five’s guarantee against self-incrimination implied a right to privacy, ‘‘the most comprehensive of rights and the right most valued by civilized man.’’

The Warren and Brandeis conception of a right to privacy survived in a broad sense of a sense of a ‘‘right to be left alone,’’ but decisions of the U.S. Supreme Court adopted the term, first, in the context of search and seizure cases and, later, in matters of marriage, family, and procreation. The thrust of the Warren and Brandeis formulation was to protect individuals from intrusions by other private entities, whereas the Supreme Court has turned the concept to protect the individual from governmental invasions.

MARY L. VOLCANSEK

References and Further Reading

• Emerson, Thomas I., Nine Justices in Search of a Doctrine, Michigan Law Review 64 (1965): 219–234.
• O’Brien, David M. Privacy, Law and Public Policy. New York: Praeger, 1979.

Cases and Statutes Cited

• Griswold v. Connecticut, 318 U.S. 479 (1965)
• Olmstead v. U.S., 277 U.S. 438 (1928)
• Prince Albert v. Strange, I McN. & G. 23 (1849)