Why the “Privacy” Wars Rage On

Written by on June 24, 2022

In 1875, the future Supreme Court Justice Louis Brandeis met his classmate Samuel Warren at Harvard Law School. The two became close friends and soon formed a law firm together. Warren was from one of Boston’s wealthiest families, whose doings were fodder for gossip columns; when Warren married a senator’s daughter, details of wedding décor, guests, and dresses were extensively covered in national newspapers. This irritated Warren, who, even in his undergraduate days, had castigated Boston papers for divulging private facts about Harvard’s secret societies.

Brandeis later pointed to Warren’s “deepseated abhorrence of the invasions of social privacy” in explaining why the two men published their famous law-review essay “The Right to Privacy,” in 1890. It decried invasions of “the sacred precincts of private and domestic life.” It deplored “the details of sexual relations” being “broadcast in the columns of the daily papers” and the publication of “idle gossip, which can only be procured by intrusion upon the domestic circle.” People should have legal recourse, it suggested, against those who publish private facts about them.

For decades afterward, courts debated whether the right to privacy existed. But, by the nineteen-sixties, many courts and legislatures had recognized such a right, in various forms, entitling people “to be let alone” and protected from incursions into their private affairs. The tort-law scholar William Prosser, an architect of modern privacy jurisprudence, noted in a classic 1960 study that the right to privacy had, confusingly, come to encompass rights against not only publishing private facts but also several other kinds of harm: portraying a person in a false light; appropriating a person’s name or likeness; and intruding on a person’s “seclusion.”

As privacy widened in scope, it seemed to grow in power. In the 1965 case Griswold v. Connecticut, the Supreme Court constitutionalized a right to privacy, ruling that prohibiting the use of contraceptives was unlawful because of “a right of privacy older than the Bill of Rights.” As Justice William O. Douglas, writing for the Court, put it, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Douglas, who married four times, explained that marriage is “intimate to the degree of being sacred” and promotes “harmony in living.” And so the constitutional right to privacy—which soon became the basis for the right to abortion and, later, the right to same-sex intimacy—was derived from the common law of marriage, in which an established doctrine of “marital privacy” had traditionally shielded the life of a married couple from interference.

Douglas’s repulsed imaginings drew on at least two distinct senses of privacy. First, privacy as secrecy: the idea that some personal matters, especially those of a sexual nature, should be sequestered from others’ view. And, second, privacy as autonomy: the idea that some personal decisions should be unimpeded by government interference. With marital sex serving as the paradigmatic private act—private in both senses—the rhetorical logic of Griswold suggested that the obvious importance of the first kind of privacy meant that the state must respect the second.

In Roe v. Wade (1973), the valence of constitutional privacy, helped along by the sexual revolution of the late sixties, broadened from sacred marital beds and domestic enclosures to personal autonomy and bodily integrity. People having control over decisions about their own bodies, free from the state, was the core liberty value that privacy represented. In Lawrence v. Texas, three decades later, the Supreme Court struck down a Texas anti-sodomy statute as an unjustified “intrusion into the personal and private life of the individual.” In effect, “Don’t look” had become “Hands off.”

The shifting terrain here invites the question of whether, when we talk about “the right to privacy,” we’ve been treating as interchangeable two terms that are merely homonyms: roughly, privacy as nondisclosure and privacy as noninterference. Justice Samuel Alito, in his leaked draft opinion overturning Roe v. Wade, asserted that the Court, in holding that privacy covered abortion, had previously “conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.” Alito’s purpose, of course, was to deny the constitutional basis for the right to abortion. And yet disaggregating the two concepts of privacy—the right to hide and the right to decide—may do the opposite, revealing both their interdependence and the contribution each makes to personal liberty.

Contemplating the overruling of Roe v. Wade, scholars have often speculated that abortion access might have been less vulnerable if it hadn’t been grounded in a right to privacy at all. (Some have seen a sturdier foundation in the equal-protection clause of the Fourteenth Amendment.) In the decades after Roe, many feminists argued that privacy had long offered a cover for the subordination and abuse of women in the home and in marriage; as one unit in the eyes of the law, husband and wife were alone in their privacy—including in instances when a wife sought protection against her husband. The feminist legal theorist Catharine A. MacKinnon, along these lines, sharply criticized the Supreme Court’s reliance on privacy to protect rights to abortion and same-sex intimacy. “Privacy works to protect systematic inequality,” she argued. The claim is particularly resonant at a time when Roe’s fragility is apparent.

Today, the right to privacy may implicate “everything from sexual intimacies and private scandals to police eavesdropping and computer data,” Amy Gajda writes in “Seek and Hide: The Tangled History of the Right to Privacy” (Viking). Although she notes the disparate interests that demand legal protection under privacy’s tent, her focus is on privacy as secrecy, on the right to prevent information about oneself from becoming public. Commentators these days regularly warn that Big Tech is getting rich by preying on our privacy for commercial purposes; they also point out that eliminating the right to abortion will disproportionately harm the poor and the marginalized. Yet Gajda, a journalist turned law professor, has a different story to tell. She contends that the right to privacy has, from the start, served the interests of rich men and élite society. “When we laud ‘The Right to Privacy,’ ” she writes, “we laud language influenced at least indirectly by a man—men, really—with much to hide.” Consonant with the feminist critique, Gajda’s theme is that privacy sounds “pretty darned great” until it’s used “to protect the most powerful, thereby shrinking public knowledge about the nation and its key players.”

Like Samuel Warren, early American proponents of privacy were powerful men with secrets to keep. Thomas Jefferson was bothered by innuendo circulating about his hidden life, which included his relationship with the enslaved Sally Hemings, who was a teen-ager when she first bore his children. Jefferson attacked the very press whose freedoms he had previously championed, and he encouraged the prosecution of a newspaper editor. But, as Gajda recounts, he also gave money to an editor who reported on Alexander Hamilton’s adulterous affair with the married Maria Reynolds. Hamilton, another champion of a free press, responded by complaining about the loss of his privacy. In letters exchanged in 1789, John Adams and William Cushing, soon to become a Supreme Court Justice, agreed that malicious press revelations of politicians’ “male conduct” should be punishable, even if true.

When President Grover Cleveland, in his forties, started dating the young daughter of a friend of his who had died (they eventually married) and newspapers began making insinuations about the relationship, he complained of the “outrage upon all the privacies and decencies of life” and demanded that reporters respect the “rights of privacy.” Gossip about a child born out of wedlock, domestic abuse, bacchanalian orgies, and his wife’s preference for the company of older men drove Cleveland to deliver an address at Harvard in which he emotionally condemned newspapers that “violate every instinct of American manliness, and in ghoulish glee desecrate every sacred relation in private life.” President Warren G. Harding, who had a secret child with one of his mistresses, persuaded journalists to adopt a national ethical code, which stipulated that “a newspaper should not invade private rights or feelings without sure warrant of public right as distinguished from public curiosity.”

Gajda’s point is that, throughout American history, enthusiasm for privacy has been linked to a truth that the #MeToo movement made familiar: privacy shields men’s conduct concerning women. The “sacred precincts” that Warren and Brandeis so wanted protected are often the unholy environs of privileged misbehavior. A person’s right to privacy can be at odds with the public’s “right to know,” which has been critical to the functioning of our democracy. Cue President Bill Clinton’s statement, with respect to his affair with a White House intern, that “even Presidents have private lives,” and President Donald Trump’s insistence on keeping private his financial dealings, which included hush-money payments to a porn star.

Look more closely at the jurisprudence of privacy in the postwar era and you see that the two kinds of privacy had very different trajectories. The cause of noninterference bounded from Griswold to Roe to Lawrence. The cause of nondisclosure, meanwhile, was largely in retreat, as the Supreme Court increasingly gave priority to press freedom. The vicissitudes of privacy were exemplified by the saga of Frederick Wiseman’s documentary “Titicut Follies,” which portrayed inmates in a state hospital for the criminally insane. A court limited access to the film in 1967, citing the right to privacy; in 1991, a court allowed the film to be shown to the public without restriction. Later in that decade, a woman who objected to a television show that aired closeup footage of her rescue from a car wreck that left her a paraplegic lost parts of her privacy case because, the California Supreme Court pronounced, “the desire for privacy must at many points give way before our right to know.”

Only recently has privacy as secrecy made something of a comeback. Nearly a decade ago, after Gawker published a video of Hulk Hogan having sex with a friend’s wife in that friend’s canopy bed, Hogan sought damages for invasion of privacy, in a suit funded by the tech billionaire Peter Thiel. The result was the biggest modern-day showdown between press freedom and privacy. Gawker’s brazen stance at trial—in a deposition, a former Gawker editor said that the site was entitled to post any celebrity sex tape it wanted, unless the video depicted a child under the age of four—didn’t bode well for its prospects. (Gawker said that he had answered “in a flip way.”) A 2016 verdict awarding Hogan a hundred and forty million dollars and the resulting demise of Gawker Media showed, Gajda says, the right to privacy “rallying back with full-nelson force.”

Gajda worries that “in our zeal for privacy” we will err in a direction that limits the public’s right to know. Still, her emphasis on privacy as a weapon wielded by the powerful means giving less attention to the protections that privacy might afford the vulnerable. In cases involving charges of rape, intrusive questions about an accuser’s sexual history used to be routine; efforts to limit them have been informed by privacy interests. Instances in which press freedom has trumped privacy, on the other hand, have included the right to publish a rape victim’s name, and sometimes video of the crime. Even when it comes to sexual assault, privacy cuts both ways.

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