From Brandeis to Roe v. Wade, a brief history of a troublesome right.

1. Privacy and the press
From Brandeis to Roe v. Wade,
a brief history of a troublesome right

2. Journalists and privacy
• The press wants information to be public

3. Journalists and privacy
• The press wants information to be public
• Freedom of Information Act sometimes
intrudes on privacy

4. Journalists and privacy
• The press wants information to be public
• Freedom of Information Act sometimes
intrudes on privacy
• Truth is a defense in libel, but not in
invasion of privacy

5. Journalists and privacy
• The press wants information to be public
• Freedom of Information Act sometimes
intrudes on privacy
• Truth is a defense in libel, but not in
invasion of privacy
• Privacy law exists somewhere between
libel and copyright law

6. Privacy and the Constitution
• No explicit guarantee

7. Privacy and the Constitution
• No explicit guarantee
• Griswold v.
Connecticut
established a
beachhead

8. Privacy and the Constitution
• No explicit guarantee
• Griswold v.
Connecticut
established a
beachhead
• Roe v. Wade extended
right of privacy

9. Louis D. Brandeis
• Saw Constitution as an
evolving document

10. Louis D. Brandeis
• Saw Constitution as an
evolving document
• Encountered anti-
Semitism when
named to the
Supreme Court

11. Louis D. Brandeis
• Saw Constitution as an
evolving document
• Encountered anti-
Semitism when
named to the
Supreme Court
• Friend of First
Amendment

12. The Right to Privacy (1890)
• Co-authored with partner Samuel Warren

13. The Right to Privacy (1890)
• Co-authored with partner Samuel Warren
• Law grows in response to social change
– Right to life includes right to be left alone
– Right to liberty includes “civil privileges”
– “Property” now refers to intangibles

14. The Right to Privacy (1890)
• Co-authored with partner Samuel Warren
• Law grows in response to social change
– Right to life includes right to be left alone
– Right to liberty includes “civil privileges”
– “Property” now refers to intangibles
• New technology calls for new remedies

15. A unique legal solution
• Libel laws inadequate because a violation
of privacy is “spiritual” rather than
“material”

16. A unique legal solution
• Libel laws inadequate because a violation
of privacy is “spiritual” rather than
“material”
• They propose that copyright laws be
adapted to cover privacy violations

17. A unique legal solution
• Libel laws inadequate because a violation
of privacy is “spiritual” rather than
“material”
• They propose that copyright laws be
adapted to cover privacy violations
• One’s private life can be seen as part of his
or her property

18. Six principles
1. “The right to privacy does not prohibit
any publication of matter which is of public
or general interest”

19. Six principles
2. “The right to privacy does not prohibit
the communication of any matter, though
in its private nature, when the publication
is made under circumstances which would
render it a privileged communication
according to the law of slander and libel”

20. Six principles
3. “The law would probably not grant any
redress for the invasion of privacy by oral
publication in the absence of special
damage. … The injury resulting from such
oral communications would ordinarily be so
trifling that the law might well, in the
interest of free speech, disregard it
altogether”

21. Six principles
4. “The right to privacy ceases upon the
publication of the facts by the individual, or
with his consent”

22. Six principles
5. “The truth of the matter published does
not afford a defence”

23. Six principles
6. “The absence of ‘malice’ in the publisher
does not afford a defence”

24. Proposed remedies
• Civil lawsuits

25. Proposed remedies
• Civil lawsuits
• Restraining orders

26. Proposed remedies
• Civil lawsuits
• Restraining orders
• They suggest criminal penalties, too

27. Olmstead v. U.S. (1928)
• An early wiretapping case

28. Olmstead v. U.S. (1928)
• An early wiretapping case
• Taft’s majority decision relies on doctrine of
original intent

29. Olmstead v. U.S. (1928)
• An early wiretapping case
• Taft’s majority decision relies on doctrine of
original intent
• Brandeis: “Discovery and invention have made it
possible for the government, by means far more
effective than stretching upon the rack, to obtain
disclosure in court of what is whispered in the
closet”