Privacy Before 'the Right to Privacy': Truthful Libel and the Earliest Underpinnings of Privacy in the United States
Posted: 1 Jun 2017
Date Written: May 30, 2017
The Right to Privacy, written in 1890, is perhaps the most famous law review article ever published in the United States. In twenty-seven pages, Samuel Warren and William Brandeis argued that the time was ripe for new legal protection in the form of a privacy tort, one that would protect people from the prying ways of increasingly intrusive, technologically savvy journalists. Today, the article is often credited with establishing modern privacy law out of nothing. Yet, curiously unmentioned by Warren and Brandeis, the new tort that they advocated already had solid legal precedent in the American experience: In jurisprudence prior to 1890, truthful libel or other similar privacy-based causes of action provided a vehicle for punishing unwanted press disclosures of private information. That history would have provided direct precedent for Warren and Brandeis’s calls for privacy and for broader legal intervention against the press, but it also would have highlighted such a law’s potential hazards. In considering present-day calls to expand privacy protection, we would do well to understand the full pedigree of our present law and guard against overzealous restriction of the press. Early cases and their remarkable restrictions help prove why.
Keywords: The Right to Privacy, Privacy, Publication of Private Facts, Libel, Journalism, Media Law, Samuel Warren, William Brandeis
JEL Classification: K00, K13
Suggested Citation: Suggested Citation