Tuesday, October 6, 2015

The Right to "Privacy"

Thanks again to the Legal History Blog for the opportunity to share ideas from my book Laws of Image: Privacy and Publicity in America.

We often think of the right to privacy as a "right to be let alone." In my book, I suggest that the right to privacy -- the tort of invasion of privacy -- has also been a right to one's image. The privacy tort, a creation of the late 19th century, was a response to an emerging "image-conscious sensibility" in the culture of the time.

In small towns and villages, a person's reputation was often a product of deep, ongoing contact with one's community. By contrast, in the expanding cities of the late 19th century, social identity was often a function of images -- what observers might infer about someone based on first impressions and chance encounters on the streets and other public venues. There emerged a new image-consciousness, and a preoccupation with mastering and perfecting one's social appearance. New technologies and media -- especially photography -- heightened the sense of being an image in the eyes of others. There was a potential reward for the scrupulous management of personal image -- respect, upward mobility and the possibility of social and material success.

It was in this social environment that the "right to privacy" was born. The 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis, "The Right to Privacy," decried information about personal affairs "spread broadcast in the columns of the daily papers."
Marion Manola (OSU)

The article accused the press of "invading privacy" when it revealed a person's emotions, activities, and idiosyncrasies before a public audience, even though such matters were not "private" in the sense of being secret or concealed. Newspapers could invade privacy when they published a person's photograph, even if it was taken in a public place. The article discussed the recent case of Manola v. Stevens, involving photographs of an actress taken without her permission as she appeared on the stage. Such publications were said to "invade privacy" because, in presenting the subject out of context and before an audience not of her own choosing, they impaired her ability to construct her public image as she wished.

Warren and Brandeis proposed a right to privacy that would allow people to recover damages for emotional distress when the press interfered with one's public image in an egregious, unwarranted manner. Privacy's domain, they wrote, was the lofty realm of dignity, the soul, and the "spirit." The right to privacy also had a more earthly, instrumental aspect. In an increasingly image-oriented culture, unfavorable, embarrassing depictions in the press were damaging in that they undermined a person's ability to cultivate one's image and maximize one's fortunes and social potential. The right to privacy was rooted in growing concerns with public image in American social life.

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