In this Article, Professor Ken Gormley examines the evolution of privacy law in the United States one hundred years after Samuel Warren and Louis Brandeis authored their seminal piece in the Harvard Law Review in 1890‑91. Professor Gormley argues that scholars have been unable to agree upon a one‑size‑fits‑all definition of legal privacy because it actually consists of five distinct species:
1) The Privacy of Warren and Brandeis (Tort Privacy)
2) Fourth Amendment Privacy
3) First Amendment Privacy
4) Fundamental‑Decision Privacy
5) State Constitutional Privacy
Professor Gormley demonstrates that these five species are heavily interrelated, with historical jolts or "catalysts" producing new brands of privacy when existing law is incapable of dealing with unexpected societal and technological changes. Thus, he argues, seeking a simple definition of privacy is a misguided quest. Rather, privacy will remain extremely sensitive to historical triggers, and new permutations of this "right to be let alone" will inevitably develop as American democracy itself evolves.
As the year 1990 was retired into the discarded calendar‑books of history, the United States celebrated a birthday that came and went in appropriate silence. It was one hundred years ago, in the winter of 1890‑91, that Samuel Warren and Louis Brandeis published their now‑famous article in the Harvard Law Review, entitled simply: The Right to Privacy. [FN1] In that compact twenty‑ seven‑page work, appearing four years *1336 after the Law Review had been established at Harvard through the efforts of Brandeis and others, [FN2] the authors argued that the common law had nurtured a new right, known simply as privacy, which demanded acceptance in American jurisprudence. [FN3] "Political, social, and economic changes entail the recognition of new rights," wrote Warren and Brandeis "and the common law, in its eternal youth, grows to meet the demands of society." [FN4]
In the hundred years after those ambitiously unsupported words were written in December of 1890, and gained widespread attention when volume IV of the Harvard Law Review was published in 1891, there have been literally hundreds of books and articles written about the notion of privacy in the United States. Many of the foremost legal scholars and philosophers of the twentieth century‑‑ Roscoe Pound, [FN5] Paul Freund, [FN6] Erwin Griswold, [FN7] Carl J. Friedrich, [FN8] William Prosser, [FN9] Laurence Tribe [FN10]‑‑have at one time or another attempted to wrestle down this evanescent concept. Much of the literature has devoted itself to defining, with excruciating precision, exactly what this "right to privacy" means once it is hard‑boiled and peeled out of its shell of disjointed case law. Warren and Brandeis themselves defined it as a "right to be let alone." [FN11] More recently, commentators and scholars of the twentieth century have invoked a barrage of philosophy, sociology, theology and anthropology to devise definitions which are endlessly varied, creative and elaborate. [FN12]
*1337 The definitional urge which has accompanied privacy during its century‑long existence has only become intensified as the different manifestations of privacy, and the importance of this talismanic word in American law, have grown to looming proportions in recent years. With the zeal of astronomers seeking to name a previously evasive star in the constellation, legal theoreticians walking in the footsteps of Warren and Brandeis have searched mightily for a single definition, a satisfying string of words, to pin down privacy on the revolving map of jurisprudence, in order to give it certainty of location and a degree of predictability. Looking back with one hundred years' worth of perspective, it is possible to conclude that the definitions have tended to cluster into four major categories.
First, many scholars, dating back to Roscoe Pound in 1915 and Paul Freund in 1975, have viewed privacy as an expression of one's personality or personhood, focusing upon the right of the individual to define his or her essence as a human being. [FN13] Second, closely akin to the "personhood" cluster, are those scholars such as Louis Henkin who have marked privacy within the boundaries of autonomy‑‑the moral freedom of the individual to engage in his or her own thoughts, actions and decisions. [FN14] A third cluster, typified by Alan Westin and Charles *1338 Fried, have seen privacy‑‑at least in large part‑‑in terms of citizens' ability to regulate information about themselves, and thus control their relationships with other human beings, such that individuals have the right to decide "when, how, and to what extent information about them is communicated to others." [FN15] Finally, a fourth cluster of scholars have taken a more noncommittal, mix‑and‑match approach, breaking down privacy into two or three essential components, such as Ruth Gavison's "secrecy, anonymity and solitude," [FN16] and the "repose, sanctuary and intimate decision" of a California Law Review commentator. [FN17]
The method de rigueur in legal scholarship has been for the author to examine the previously‑favored definition of privacy, tear it down to its bones, expose its fallacies, and establish a new contender for the crown. Thus, Professor Gavison in the Yale Law Journal in 1980 sought to refute those before her (including Fried and Westin) who had labelled privacy as a form of control over information, and advanced a putatively neutral definition of privacy bottomed on secrecy, anonymity and solitude. [FN18] Louis Henkin, writing in the Columbia Law Review in 1974, exploded the prevailing notion of privacy as "freedom from official intrusion," and gave us a privacy bottomed on a "zone of prima facie autonomy." [FN19] In a recent Harvard piece, Professor Jed Rubenfeld gunned down "autonomy" and "personhood" as definitions, and set up privacy as a form of "anti‑totalitarianism," concluding that the right of privacy is "the right not to have the course of one's life dictated by [a progressively normalizing] state." [FN20]
*1339 This Article will show that each of these definitions of privacy is sensible and useful, and adds to the understanding of that concept as it has evolved in American law. Yet standing alone, none of these definitions tells the century‑long story in a fashion that Warren and Brandeis would find satisfying, or particularly helpful in predicting the future course of American privacy law.
Commentators have stumbled over privacy, and have failed to agree upon an acceptable definition, because they have generally focused on privacy as a philosophical or moral concept‑‑which allows for multiplicitous definitions, as seen above‑‑while wholly ignoring privacy as a legal concept. The latter encompasses a number of different species in American law all of which were seeded by Warren and Brandeis in 1890, and now entitle an individual to very concrete but different protections and remedies in twentieth century American law. To the extent commentators in search of theoretical definitions of privacy‑‑such as Fried and Gavison and Rubenfeld‑‑have intimated that such definitions are the Holy Grail which will lead us to the ultimate meaning of privacy in a legal sense, their crusade is somewhat misplaced. Although helpful in refining our understanding of various subsets of privacy opinions and case law, single one‑size‑fits‑all definitions of privacy have proven to be of limited value. The harsh reality is: legal privacy consists of four or five different species of legal rights which are quite distinct from each other and thus incapable of a single definition, yet heavily interrelated as a matter of history, such that efforts to completely sever one from another are (and have been) disastrous.
This Article, unlike most others which have preceded it (other than the original Warren and Brandeis piece, and Prosser's classic work in 1960) focuses heavily upon the legal face of privacy. How has privacy actually developed in American law in the past 100 years, and how can we predict the corridors of jurisprudence into which it might develop in the next hundred? The late Professor Freund was correct to advance the query whether privacy is "one concept or many," [FN21] for in the practical evolution of American law, it is certainly many. It is only by pulling privacy apart, and acknowledging the many threads which bind it together, that we can begin to explore the intriguing historical interrelationships between these distinct species of legal privacy and make use of scattered theoretical definitions, which assist us in predicting privacy's future course only when applied to the proper species and genus.
More important than seeking a unitary definition of legal privacy, which does not (and most likely never will) exist, this Article will *1340 segregate the subsets of privacy and explore the patterns, characteristics and interrelationships of the various species of privacy as they have grown up as a legally protected pile of rights in a hundred years of upheaval, expansion and colorful United States history. This Article will examine five dominant species of legal privacy which have developed (with the help of Louis Brandeis) and have become intertwined since the year 1890. These five species are:
1) Tort privacy (Warren and Brandeis's original privacy);
2) Fourth Amendment privacy (relating to warrantless governmental searches and seizures);
3) First Amendment privacy (a "quasi‑constitutional" privacy which exists when one individual's free speech collides with another individual's freedom of thought and solitude);
4) Fundamental‑decision privacy (involving fundamental personal decisions protected by the Due Process Clause of the Fourteenth Amendment, often necessary to clarify and "plug gaps" in the original social contract);
5) State constitutional privacy (a mish‑mash of the four species, above, but premised upon distinct state constitutional guarantees often yielding distinct hybrids).
A number of interesting characteristics are discerned, once one segregates the various species of privacy and examines their common points of intersection in American law. Each species amounts to a new layer built atop some other pre‑ existing body of law, designed to keep pace with basic notions of democracy‑‑ not in a theoretical vacuum, but as democracy has actually unfolded in twentieth century America.
The key to understanding legal privacy as it has developed over 100 years of American life, it will be argued, is to understand that its meaning is heavily driven by the events of history. What constitutes an engine of privacy in the year 1890, is not necessarily the same thing which formulates a societal notion of privacy in the United States in 1939, or 1968 or 1973. Rather, like a strawberry geranium‑‑saxifraga sarmentosa‑‑which creeps and sprouts new shoots at unexpected intervals throughout its lifetime, privacy in the United States has led a similar vine‑like existence, creating a variety of different offshoots depending upon the particular climate of American life.
Since privacy is a creature of American history, it is impossible to predict with any precision new permutations of this right, any more than *1341 one can predict the events of American history itself. This is one of the reasons authors have been forced to focus upon one type of privacy or another in seeking definitions, and discard the rest as unrelated. For example, Professor Rubenfeld begins his genealogy of privacy in the Harvard Law Review by offering this disclaimer: "The right to privacy discussed here must not be confused with the expectations of privacy secured by the Fourth Amendment, or with the right of privacy protected by tort law." [FN22] More recently, the Case Western Reserve Law Review has published a lengthy symposium to celebrate the hundred year anniversary of the Warren and Brandeis piece, and has noted that the 1890 privacy article "pervades the law;" [FN23] yet the symposium goes on to examine with virtual exclusivity the tort aspects of privacy, as if these can be removed in a husk with little or no bearing on the remainder of twentieth century privacy law. This is unfortunate; although legal privacy does not admit to a single definition, each species is best understood in conjunction with the rest. The patterns of privacy, once linked together, are the only certain clue as to the path of privacy in future decades. The cases viewed as a whole reveal an intriguing "right to be let alone" which has thus far travelled down a number of quite identifiable routes, with a number of common characteristics.
Attempting to discern these characteristics, in the practical world of case law in which five species of privacy have taken root, is just as critical as ascertaining privacy's philosophical and moral status. Professor Gavison has generally criticized the approach of starting with the cases and working backwards‑‑an approach similar to that undertaken by William Prosser on a different scale in 1960 in classifying privacy torts [FN24]‑‑as a vain attempt to impose coherence on an incoherent body of case law. [FN25] However, Oliver Wendell Holmes, Jr., would answer with *1342 the same retort he gave in 1881: "[T]he life of the law has not been logic: it has been experience." [FN26] * * *
[FNa1]. Attorney, Cindrich & Titus, Pittsburgh, Pennsylvania; Adjunct Professor, University of Pittsburgh School of Law. B.A.1977, University of Pittsburgh; J.D.1980, Harvard Law School. This Article is dedicated to Professor Archibald Cox, the late Professor Paul A. Freund, Retired Justice William J. Brennan, Jr., President John E. Murray, Jr., Robert J. Cindrich, and Dr. Holbert N. Carroll‑‑all of whom contributed ideas, suggestions and guidance in helping the author complete this project, his "Poor Man's LL.M."
I would also like to thank Sean Sheridan, who provided valuable research assistance in the early stage of this sprawling undertaking.
Finally, my greatest appreciation goes to my beautiful wife, Laura, who encouraged me to rewrite this paper until it was the best thing I was capable of writing; and my children, Carolyn and Luke, who enticed me into jumping on the couch and reading Norman the Doorman in lieu of spending my entire life on the footnotes.
[FN1]. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV.L.REV. 193 (1890). The article itself was published on December 15, 1890, at a price of 35 cents, although volume IV of the Harvard Law Review containing the piece was not published and circulated until 1891.
[FN2]. ARTHUR E. SUTHERLAND, THE LAW AT HARVARD 197‑98 (1967); LEWIS J. PAPER, BRANDEIS 32‑33 (1983).
[FN3]. The phrase "right to be let alone" had been coined by Judge Cooley several years earlier. See THOMAS M. COOLEY, COOLEY ON TORTS 29 (2d ed. 1888).
[FN4]. Warren & Brandeis, supra note 1, at 193.
[FN5]. Roscoe Pound, Interests in Personality, 28 HARV.L.REV. 343 (1915).
[FN6]. Paul A. Freund, Privacy: One Concept or Many?, in PRIVACY 182 (J. Roland Pennock & John W. Chapman eds., 1971).
[FN7]. Erwin N. Griswold, The Right to Be Let Alone, 55 NW.U.L.REV. 216 (1960).
[FN8]. Carl J. Friedrich, Secrecy Versus Privacy: The Democratic Dilemma, in PRIVACY 105 (J. Roland Pennock & John W. Chapman eds., 1971).
[FN9]. William L. Prosser, Privacy, 48 CAL.L.REV. 383 (1960).
[FN10]. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW ch. 15 (2d ed. 1988).
[FN11]. Warren & Brandeis, supra note 1, at 193, 195.
[FN12]. See Milton R. Konvitz, Privacy and the Law: A Philosophical Prelude, 31 LAW & CONTEMP.PROBS. 272, 273 (1966) (suggesting that development of right to privacy is ultimately linked to the development of philosophy and theology); ALAN F. WESTIN, PRIVACY AND FREEDOM 7‑13 (1967) (tracing privacy notion to the ancient Greeks); MARGARET MEAD, COMING OF AGE IN SAMOA 82‑85 (1949) (illustrating anthropological origins of privacy as a universal in human society).
[FN13]. See Pound, supra note 5; Paul A. Freund, Address to the American Law Institute (May 23, 1975), quoted in 52 A.L.I.PROC. 574‑75 (1975); Tom Gerety, Redefining Privacy, 12 HARV.C.R.‑C.L.L.REV. 233, 236 (1977); J. Braxton Craven, Jr., Personhood: The Right to Be Let Alone, 1976 DUKE L.J. 699, 702‑ 03 (1976); Jeffrey Reiman, Privacy, Intimacy, and Personhood, 6 PHIL. & PUB.AFF. 26 (1976); Joseph W. Rebone, Note, Personhood and the Contraceptive Right, 57 IND.L.J. 579 (1982). See also TRIBE, supra note 10 (disclaiming any single, unitary definition of privacy, but identifying various areas in which personhood and the law intersect); Jed Rubenfeld, The Right of Privacy, 102 HARV.L.REV. 737, 784, 807 (1989). Rubenfeld's notion of privacy, despite his monumental effort to distinguish it from personhood, ultimately travels full‑circle and appears to be the flip‑side of personhood or personality. Specifically, he concludes that privacy is the right to be free from intrusion by the government, in those fundamental areas "where the government threatens to take over or occupy our lives‑‑to exert its power in some way over the totality of our lives." Id. at 787. In the end, this vision of privacy leans heavily on notions of personhood, although it approaches it from the back door, focusing upon the government's lack of a right to usurp certain fundamental choices and impose a definition of self on the individual in a democracy. For this reason, Rubenfeld's privacy fits most closely into the personhood cluster, although his definition is certainly distinctive and creative.
[FN14]. See Louis Henkin, Privacy and Autonomy, 74 COLUM.L.REV. 1410, 1425 (1974); Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideas in the Constitution?, 58 NOTRE DAME L.REV. 445 (1983); Daniel R. Ortiz, Privacy, Autonomy, and Consent, 12 HARV.J.L. & PUB. POL'Y 91 (1989); Michael J. Perry, Substantive Due Process Revisited: Reflections On (and Beyond) Recent Cases, 71 NW.U.L.REV. 417, 440 (1976).
[FN15]. WESTIN, supra note 12, at 7. See also Charles Fried, Privacy, 77 YALE L.J. 475, 477‑78 (1968) (Privacy is linked to respect, love, friendship and trust, and is the "oxygen" by which individuals are capable of building "relations of the most fundamental sort."); ANITA L. ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE SOCIETY 11, 15 (1988) (Privacy relates to "inaccessibility of persons."); ARTHUR R. MILLER, ASSAULT ON PRIVACY 25 (1971) (Privacy is the individual's ability to control the circulation of information relating to himself.); Hyman Gross, The Concept of Privacy, 42 N.Y.U.L.REV. 34, 35‑36 (1967) ("Privacy is the condition of human life in which acquaintance with a person or with affairs of his life which are personal to him is limited."); Richard B. Parker, A Definition of Privacy, 27 RUTGERS L.REV. 275, 280‑81 (1974) ("Privacy is control over who can see us, hear us, touch us, smell us, and taste us, in sum, control over who can sense us.").
[FN16]. Ruth Gavison, Privacy, 89 YALE L.J. 421, 433 (1980); see also Gerald G. Watson, The Ninth Amendment: A Source of a Substantive Right of Privacy, 19 J. MARSHALL L.REV. 959, 961 (1986).
[FN17]. Gary L. Bostwick, Comment, A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 64 CAL.L.REV. 1447 (1976).
[FN18]. Gavison, supra note 16, at 426‑27, 433.
[FN19]. Henkin, supra note 14, at 1425.
[FN20]. Rubenfeld, supra note 13, at 807.
[FN21]. Freund, supra note 6.
[FN22]. Rubenfeld, supra note 13, at 740.
[FN23]. See Symposium, The Right to Privacy One Hundred Years Later, 41 CASE W.RES.L.REV. 643 (1991).
[FN24]. Prosser, supra note 9.
[FN25]. Gavison, supra note 16, at 460‑61. Professor Gavison argues that, by attempting to "reason backwards" from the case law to a concept of privacy, one is led to "misleading" conclusions because it assumes that one can actually discern a court's mental processes from its written opinions, and furthermore, that there are many cases in which recovery is not granted and no opinion results, which may be just as important to a true understanding of the court's reasoning. Id. However, this criticism could be leveled at law as an institution generally, particularly to the extent it relies on case law. Were scholars to share Professor Gavison's misgivings, we would be without legal treatises, casebooks and Blackstone's Commentaries, all of which seek to bring coherence to an otherwise incoherent collection of cases.
[FN26]. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881).