Controlling Identity: Plessy, Privacy, and Racial Defamation
28 Pages Posted: 22 Apr 2005
This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had a deeply racial component. Part II of this Article considers how Plessy implicated legal interests in the control over and construction of racial identity. Part III examines how our understanding of Plessy's treatment of identity interests can be deepened and broadened by reading Plessy in relation to Pavesich, the first American case to recognize a free standing legal interest in a right to privacy. Here, I argue that central to both cases were issues relating to an individual's access to legal means to control his identity. Part IV then elaborates on the relationship between Jim Crow laws and privacy by examining a series of racial defamation cases brought during this same period.
In drawing connections between Jim Crow laws, privacy, and racial defamation, the article brings to the foreground a fuller understanding of the status of identity in the American legal tradition. Privacy and Jim Crow share an obvious common concern for the legal management of space and community relations. Historically, they emerged together in an era beset by anxieties about the rapid social changes being wrought by modernity. These anxieties manifested themselves in deep concerns over control of individual identity and the relationship of that control to the conservative impulse to maintain the structures of an old social and economic order. As they played themselves out at the turn of the twentieth century, these concerns produced legal structures that allocated power over identity on the basis of race. Jim Crow and privacy informed each other to reinforce racial hierarchy and subordination. Nonetheless, in rereading Plessy and privacy law cases in relation to each other, I have also tried to lay out some of the unexplored potentials for using legal interests in identity to subvert racial hierarchy. By articulating control over identity as an explicit legal interest, I believe it is possible to supplement our traditional understandings of equal protection doctrine to encompass new grounds for challenging legal regimes of hierarchy and subordination.
Keywords: Race, privacy, defamation, discrimination, identity, equal protection, dignity, torts, constitutional law, critical race theory
JEL Classification: K1, K11, K13, K30, J7
Suggested Citation: Suggested Citation