Thursday, December 27, 2007

Solove reviews Friedman, Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy

Lawrence Friedman's new book, Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (Stanford University Press, November 2007), is reviewed on Concurring Opinions by Daniel Solove, George Washington University Law School and author of the new book The Future of Reputation. Solove writes:

Professor Lawrence Friedman's Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy is a wonderful and accessible history of the norms and law that shaped reputation over the past two centuries. Friedman's book builds on some of his earlier work on norms and law in the Victorian era which I found immensely useful as I wrote my book, The Future of Reputation. Whereas my book mostly explores the present and future challenges to protecting reputation, Friedman's explores the past. His book is written in a lively and engaging style, and it is fascinating.

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the "Victorian compromise." The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law--and the police--winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67)
Friedman further notes that public discussion of sex during Victorian times was strictly taboo, and "[s]ex was meant for the privacy of the home." (p. 72). There was a large double standard when it came to the sexual behavior of men and women. For women, all sex outside of marriage was adultery. "But a married man was criminally liable only if he had sex with a married woman. In other words, for a man sex with a prostitute--or a single woman--was not criminal adultery at all." (p. 73)

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise -- they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that "the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise." (p. 99). A similar point is made in Angus McLaren's book-length account of blackmail, Sexual Blackmail: A Modern History (2002). McLaren observes that courts would ignore the truth or falsity of the blackmailer's accusations, which, if true, would often mean that the blackmail victim had engaged in serious criminal conduct (sodomy, for example).

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It's ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise "depended on privacy and secrecy." (p. 215)

The need to protect one's reputation in the Victorian age was heightened by a new danger -- the burgeoning American press, which was highly sensationalistic during the nineteenth century. The lurid nature of newspaper stories was one of the factors that prompted Samuel Warren and Louis Brandeis) to write The Right to Privacy, 4 Harv. L. Rev. 193 (1890), which gave birth to the privacy torts. Friedman observes:

Harriet Martineua thought that the American press was the worst in the world. Charles Dickens, writing in 1842, called the American press a monster of depravity. The press "has its evil eye in every house, and its black hand in every appointment in the state, from a president to a postman"; its "only stock in trade" is "ribald slander," and its "evil" influence spreads throughout the country. Anthony Trollope, writing some twenty years later, was just as critical; the things in the newspapers, he said, were "never true." The forte of the press was "abuse of individuals," abuse "which is as violent as it is perpetual. . . . All ideal of truth has been thrown overboard. . . . The only object is to produce a sensation. . . . Falsehood has become so much a matter of course with American newspapers that it has almost ceased to be a falsehood." (p. 44-45)
Another dimension of protecting reputation involved safeguarding it from false rumors. Friedman's book contains two chapters on defamation, and he marshals interesting facts about defamation cases and gender:

Most defamation cases--at least the reported cases--were brought by men, who were suing other men (or, commonly, newspapers). . . . Typically, women's cases were about chastity (or the lack of chastity); they sued over language that said or implied indecency, whoring, and sexual misconduct in general. Out of 130 reported defamation cases published between 1897 and 1906, only 43 were brought by women. All but one of these cases dealt with "imputations of immorality." (p. 49)
The Victorian compromise came to an end, when, beginning in the late nineteenth century, the anti-vice movement pushed through stronger anti-vice laws. These laws criminalized abortion, closed down red light districts, censored obscenity, and clamped down on prostitution -- things that before had never been viewed as legitimate, but that had been tolerated in the shadows. But this new strictness didn't hold. In the middle of the twentieth century, there was a radical shift in the other direction, liberalizing restrictions on sex, contraception, and obscenity.

Friedman's discussion of the Victorian compromise raises very interesting questions about privacy. Was privacy a way for Victorian society to maintain a monumental hypocrisy? Did privacy help grease a society that was rife with class, race, and gender double standards? The picture Friedman paints of the Victorian era isn't pretty, and the norms and laws protecting privacy and reputation are what helped hold society together during this age. Maybe things would have been better without privacy. Or maybe not. Perhaps privacy was a way to cope with a set of social rules that our society has long since moved away from or repudiated.

Overall, Guarding Life's Dark Secrets is a terrific thought-provoking history, but there are times where Friedman becomes a bit too fast and loose with his own opinions, departing from the more detached tone of the historian and shifting to the more opinionated tone of a social critic. This happens as Friedman delves into a discussion of the present in later chapters in the book.

Friedman could also do more exploring the law of privacy. His chapter on the development of privacy law is far too short, and it does not contain the same level of detail and thoroughness as some of the other chapters. The chapter does, however, contain some interesting background into a few of the more well-known privacy tort cases, and I came away learning a few new things after reading it.

But these are quibbles. For anyone interested in blackmail, defamation, and other laws protecting reputation in America, Friedman's richly-detailed book is a must-read. It contains a fascinating look at the norms relating to privacy, sex, and gender during the nineteenth and twentieth centuries. I highly recommend this book.

For those who are interested in the topics in Friedman's book, Solove recommends:

* A History of Private Life (volumes I-V) (Michelle Perrot ed., 1992)

* Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 California Law Review 957 (1989)

* Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 Yale Law Journal 2117 (1996)
* Thomas Nagel, Concealment and Exposure and Other Essays (2002)

* Angus McLaren, Sexual Blackmail: A Modern History (2002)

* David H. Flaherty, Privacy in Colonial New England (1972)

* John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (2d ed. 1997)
I would add to this list the work of Donna Dennis, Rutgers, including her SSRN paper Obscenity Prosecution and its Consequences in Mid-Nineteenth-Century America.
Solove's original post is here.

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