Brandeis & Warren's 'The Right to Privacy and the Birth of the Right to Privacy'

Abstract

Privacy law and conceptions of a right to privacy have, of course, evolved considerably since 1890 when future Supreme Court Justice Louis Brandeis and Boston attorney Samuel Warren penned their now ageless article, The Right to Privacy, 4 Harv. L. Rev. 193, in which they argued the law should recognize such a right and impose liability in tort for intrusions on it. But quite apart from any argument about how attenuated the link might be between Brandeis and Warren's specific proposals and the current state of privacy law, is it fair to say, as so many scholars and judges repeatedly do, that Brandeis and Warren's article give birth to its namesake in the lexicon and substance of American law?

A review of the law and the secondary legal and historical literature from the late nineteenth century and early twentieth century strongly supports the argument that The Right to Privacy did indeed "give birth" to a right to privacy. The judicial opinions from1891 until 1911 that addressed claims of invasion of an alleged right to privacy almost invariably cited and discussed Brandeis and Warren's article, and the several opinions recognizing a right to privacy placed substantial reliance on the article as a form of authority. To be sure, Brandeis and Warren had a potent ally, as professional and popular opinion of the era were overwhelmingly and passionately in support of protecting people's privacy in the face of cramped urban conditions and the proliferation of amateur photography and gossip-mongering "yellow" journalism. But to effect change in the legal establishment, that ally needed a cogent and respected voice. The Right to Privacy achieved its early and generalized influence because its authors harnessed the public's outrage at the intrusive elements of the newly urban society, and channeled it into a forceful and well-reasoned appeal for change to the judicial and legislative establishment.

Keywords: privacy, right to privacy, right of privacy, Louis D. Brandeis, Samuel Warren, Harvard Law Review, legal history