On 'The Right to Privacy'

Posted: 1 Sep 2015 Last revised: 2 Feb 2016

Charles E. Colman

William S. Richardson School of Law, University of Hawai'i at Manoa

Date Written: August 30, 2015

Abstract

In 1890, the Harvard Law Review published an article, co-authored by Boston law firm partners Samuel Warren and (future Supreme Court Justice) Louis Brandeis, titled "The Right to Privacy." The authors argued that existing authority provided a basis for the courts to recognize a new common-law cause of action for the invasion of individual privacy. Today, "The Right to Privacy" is often described as one of the most influential law review articles ever written, having played a key role in the Supreme Court's conceptualization of a constitutionally grounded right to personal autonomy.

Because "The Right to Privacy" remains such an important article, more than a century after its publication, various scholars have set out to reveal the "backstory" of the piece. However, scholars doing so have uniformly overlooked the potentially important role of Samuel Warren's idiosyncratic, paternalistic relationship with his younger siblings. As I researched 1880s New England society for a recent project, "Design and Deviance: Patent as Symbol, Rhetoric as Metric," I learned that Samuel Warren had a younger brother, Ned, whose homosexuality was just under the public radar in Boston at the time -- a volatile period when scientists first proclaimed their "discovery" of homosexuality as a fixed identity trait (and purported sign of "degeneracy," illness, and even insanity.) This announcement led to what many Anglo-American historians have called a "homosexual panic" throughout England and the East Coast of the United States, resulting in (among other things) the passage of the 1885 English law under which famed playwright Oscar Wilde was soon prosecuted, convicted, and sentenced to hard labor for "indecency." Wilde and his family were internationally shamed; when the playwright was released from prison, he lived in exile until the toll of his prison years caused his premature death.

Ned Warren was by no means as famous as Oscar Wilde, but he displayed similar idiosyncrasies in his behavior, dress, and interests. Ned was a member of various, increasingly "suspect" social circles in which Wilde traveled, and further, espoused many Wildean views on "Aestheticism" -- an ideological movement advocating the appreciation of beauty in everyday objects (whose popular downfall accompanied Wilde's public shaming.) As a member of a prominent Boston family, Ned was vulnerable to dangerous rumors -- rumors that, if probed, could inflict great harm both on him and the rest of the Warren family. Given Sam's assumed mission to protect his siblings, he was undoubtedly conscientious of the potentially disastrous consequences of tabloid gossip about Ned's sexuality.

In this piece, I will explore the possibility that protecting Ned from potentially devastating journalistic attention -- and preventing the fallout that such attention would have for the rest of the Warren family -- was a significant concern motivating Sam's taking the lead in writing of "The Right to Privacy." As I will show, many of the article's key passages can very plausibly be interpreted as a reflection of Sam's desire to protect Ned from a fate of the sort Wilde would suffer.

If my backstory of "The Right to Privacy" is plausible, the article might acquire special resonance in this, its one hundred twenty-fifth anniversary. The rhetoric in the 1890 piece can be traced, link by link, case by case, to Supreme Court decisions that gradually established a constitutional right to personal autonomy. From its influence on Justice Brandeis's famous dissent in Olmstead v. United States (1928) (echoing the views articulated largely by Warren in their article) to the Supreme Court's 1967 ruling in Katz v. United States (a pivotal Fourth Amendment decision citing "The Right to Privacy" in the heart of its reasoning) to the penumbra-based theory of privacy rights in Griswold v. Connecticut (1965) to the more recent gay-rights cases of Romer (1996), Lawrence (2003), and Windsor (2013), the article arguably served as a catalyst for a series of events and judicial decisions that culminated in the Supreme Court's 2015 recognition of a constitutional right to same-sex marriage in Obergefell v. Hodges.

In short, if the protection of Ned Warren was indeed a driving factor in Sam's decision to write "The Right to Privacy," then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a crucial right for every gay person in the United States.

Suggested Citation

Colman, Charles E., On 'The Right to Privacy' (August 30, 2015). 129 Harv. L. Rev. F. __ (Jan, 2016, Forthcoming); NYU School of Law, Public Law Research Paper No. 15-38. Available at SSRN: https://ssrn.com/abstract=2652426

Charles Edward Colman (Contact Author)

William S. Richardson School of Law, University of Hawai'i at Manoa ( email )

2515 Dole Street
Honolulu, HI 96822
United States
8089567966 (Phone)

HOME PAGE: http://www.law.hawaii.edu/person/charles-e-colman

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