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Chapter 15 Invasion of Privacy

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Page 1Page 2Page 3Page 4Page 5Page 6Page 7Page 8Page 9Page 10Page 11Page 12Page 13Page 14Page 15Page 16Page 17Page 18Page 19Page 20Page 21Page 22Page 23Page 24Page 25Page 26Chapter 15Invasion of PrivacyIntroductionThe "right to privacy" is a subject of muchcurrent debate. In its constitutional form, it servesas a means of declaring invalid laws that interferewith abortion, homosexuality, and othercontroversial activities. However, privacy as a tortdoctrine is older than the claims for theconstitutional status of a "right to privacy." As thefollowing article illustrates, it was a concern nearlya century ago.In analyzing the right to privacy, you mustdistinguish the forms that are recognized as acommon law (or even statutory) right (like theinterest in one's reputation) from the constitutionalclaim that requires protection of some individual' sprivacy. Even if there is no constitutional rightprotecting, e.g., abortion on demand, the state(through the court system or through thelegislature) may choose to recognize the right to belet alone.The right to privacy is broken down intodistinct interests, some of which protect the right tobe let alone, and others which protect the propertyinterest in one's likeness or name. But in general,the interest in privacy protects against certain kindsof exploitation of private individuals by society.Warren & Brandeis, The Right to Privacy4 HARV. L. REV. 193, 193-197 (1890)That the individual shall have full protection inperson and in property is a principle as old as thecommon law; but it has been found necessary fromtime to time to define anew the exact nature andextent of such protection. Political, social, andeconomic changes entail the recognition of newrights, and the common law, in its eternal youth,grows to meet the demands of society. Thus, invery early times, the law gave a remedy only forphysical interference with life and property, fortrespasses vi et armis. Then the "right to life"served only to protect the subject from battery inits various forms; liberty meant freedom fromactual restraint; and the right to property secured tothe individual his lands and his cattle. Later, therecame a recognition of man' s spiritual nature, of hisfeelings and his intellect. Gradually the scope ofthese legal rights broadened; and now the right tolife has come to mean the right to enjoy life, — theright to be let alone; the right to liberty secures theexercise of extensive civil privileges; and the term"property" has grown to comprise every form ofpossession — intangible, as well as tangible.Thus, with the recognition of the legal value ofsensations, the protection against bodily injury wasextended to prohibit mere attempts to do suchinjury; that is, the putting another in fear of injury.From the action of battery grew that of assault.Much later there came a qualified protection of theindividual against offensive noises and odors,against dust and smoke, and excessive vibration.The law of nuisance was developed. So regard forhuman emotions soon extended the scope ofpersonal immunity beyond the body of theindividual. His reputation, the standing among hisfellow-men, was considered, and the law of slanderand libel arose. Man' s family relations became apart of the legal conception of his life, and thealienation of a wife' s affections was heldremediable. Occasionally the law halted, — as in itsrefusal to recognize the intrusion by seductionupon the honor of the family. But even here thedemands of society were met. A mean fiction, theINVASION OF PRIVACY15-2Warren & Brandeis, The Right to Privacyaction per quod servitium amisit, was resorted to,and by allowing damages for injury to the parents'feelings, an adequate remedy was ordinarilyafforded.1 Similar to the expansion of the right tolife was the growth of the legal conception ofproperty. From corporeal property arose theincorporeal rights issuing out of it; and then thereopened the wide realm of intangible property, inthe products and processes of the mind, as worksof literature and art,2 goodwill, trade secrets, andtrademarks.This development of the law was inevitable.The intense intellectual and emotional life, and theheightening of sensations which came with theadvance of civilization, made it clear to men thatonly a part of the pain, pleasure, and profit of lifelay in physical things. Thoughts, emotions, andsensations demanded legal recognition, and thebeautiful capacity for growth which characterizesthe common law enabled the judges to afford therequisite protection, without the interposition of thelegislature.Recent inventions and business methods callattention to the next step which must be taken forthe protection of the person, and for securing to theindividual what Judge Cooley calls the "right to belet alone."3 Instantaneous photographs andnewspaper enterprise have invaded the sacredprecincts of private and domestic life; andnumerous mechanical devices threaten to makegood the prediction that "what is whispered in thecloset shall be proclaimed from the housetops."For years there has been a feeling that the law mustafford some remedy for the unauthorizedcirculation of portraits of private persons; and theevil of the invasion of privacy by the newspapers,long keenly felt, has been but recently discussed byan able writer.4 The alleged facts of a somewhatnotorious case brought before an inferior tribunalin New York a few months ago,5 directly involvedthe consideration of the right of circulatingportraits; and the question whether our law willrecognize and protect the right of privacy in thisand in other respects must soon come before ourcourts for consideration.Of the desirability — indeed of the necessity —of some such protection, there can, it is believed,be no doubt. The press is overstepping in everydirection the obvious bounds of propriety and ofdecency. Gossip is no longer the resource of theidle and of the vicious, but has become a trade,which is pursued with industry as well aseffrontery. To satisfy a prurient taste the details ofsexual relations are spread broadcast in thecolumns of the daily papers. To occupy theindolent, column upon column is filled with idlegossip, which can only be procured by intrusionupon the domestic circle. The intensity andcomplexity of life, attendant upon advancingcivilization, have rendered necessary some retreatfrom the world, and man, under the refininginfluence of culture, has become more sensitive topublicity, so that solitude and privacy


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