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.
I. INTRODUCTION
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] * * *
(FOOTNOTES BELOW)
(SEE FULL ARTICLE BY Ken Gormley, One Hundred Years of
Privacy, 1992 Wisconsin Law Review
1335)
(RETURN TO MODULE I ASSIGNMENTS)
[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).
* * *
(SEE FULL ARTICLE BY Ken Gormley, One Hundred Years
of Privacy, 1992 Wisconsin Law Review
1335)
(RETURN TO MODULE I ASSIGNMENTS)
(RETURN TO COURSE HOMEPAGE AND ASSIGNMENTS)