wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
was confined to the immediate circle of his acquaintances. It did not reach, or but rarely
reached, those who knew nothing of him. It did not make his name, or his walk, or his
conversation familiar to strangers. . . . [G]ossip about private individuals is now printed, and
makes its victim, with all his imperfections on his head, known to hundreds or thousands
miles away from his place of abode; and, what is worst of all, brings to his knowledge
exactly what is said about him, with all its details. It thus inflicts what is, to many men, the
great pain of believing that everybody he meets in the street is perfectly familiar with some
folly, or misfortune, or indiscretion, or weakness, which he had previously supposed had
never got beyond his domestic circle. . . .
In truth, there is only one remedy for the violations of the right to privacy within the
reach of the American public, and that is but an imperfect one. It is to be found in attaching
social discredit to invasions of it on the part of conductors of the press. At present this check
can hardly be said to exist. It is to a large extent nullified by the fact that the offence is often
pecuniarily profitable.17
Warren and Brandeis referred to Godkin’s essay, and their article does bear
some similarities to his work. One difference is that Godkin, although
recognizing the growing threats to privacy, remained cynical about the
possibility of a solution, expressing only the hope that attitudes would
change to be more respectful of privacy. Warren and Brandeis had a
different view. In their judgment, the law could and should provide
protection for privacy.
Another theory suggests that incursions by journalists into the privacy
of Samuel Warren inspired the article. Warren, a wealthy and powerful
attorney in Boston, practiced law with Louis Brandeis, who later went on to
become a U.S. Supreme Court Justice. In 1883, Samuel Warren married
Mabel Bayard, the daughter of a prominent senator from Delaware, and set
up house in Boston’s Back Bay. The Warrens were among the Boston elite
and were frequently reported on in the Saturday Evening Gazette, “which
specialized in ‘blue blood items,’ ” and “reported their activities in lurid
detail.”18
According to William Prosser, Warren was motivated to write the article
because reporters intruded upon his daughter’s wedding. However, this
certainly could not have been the reason because in 1890, Warren’s oldest
daughter was not even ten years old!19 Another theory suggests that the
impetus for writing the article was Warren’s displeasure about a number of
stories in the Gazette about his dinner parties.20
A final account of the impetus for this famous article looks to the
relationship between Samuel Warren and his younger brother Edward
(Ned). According to Charles Colman, the “origin story” of The Right to
Privacy is tied to Warren’s concern about the risk posed by potential gossip
and press intrusions on Ned, who was engaged in building “an increasingly
visible gay life” for himself in the years leading up to the article’s
publication.21 This period was also marked by increased criminal
prosecutions of gay men. In Colman’s reading, Warren, as “self-appointed
guardian” for Ned and his other siblings, was seeking to develop a legal
interest to protect Ned from “anyone with a personal, political, or financial
axe to grind.” The new right to privacy would also stop potential invasions
on familial honor, which would also protect Warren himself, his other
siblings, his wife, and their children.
Whatever inspired them to write, Warren and Brandeis published an
article that profoundly shaped the development of the law of privacy.
SAMUEL D. WARREN AND LOUIS D. BRANDEIS, THE RIGHT TO PRIVACY
4 Harv. L. Rev. 193 (1890)
It could be done only on principles of private justice, moral fitness, and public convenience,
which, when applied to a new subject, make common law without a precedent; much more
when received and approved by usage.
— Willes, J., in Millar v. Taylor, 4 Burr. 2303, 2312
That the individual shall have full protection in person and in property is a
principle as old as the common law; but it has been found necessary from
time to time to define anew the exact nature and extent of such protection.
Political, social, and economic changes entail the recognition of new rights,
and the common law, in its eternal youth, grows to meet the demands of
society. Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis.22 Then the
“right to life” served only to protect the subject from battery in its various
forms; liberty meant freedom from actual restraint; and the right to property
secured to the individual his lands and his cattle. Later, there came a
recognition of man’s spiritual nature, of his feelings and his intellect.
Gradually the scope of these legal rights broadened; and now the right to
life has come to mean the right to enjoy life, — the right to be let alone; the
right to liberty secures the exercise of extensive civil privileges; and the
term “property” has grown to comprise every form of possession —
intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the
protection against actual bodily injury was extended to prohibit mere
attempts to do such injury; that is, the putting another in fear of such injury.
From the action of battery grew that of assault. Much later there came a
qualified protection of the individual against offensive noises and odors,
against dust and smoke, and excessive vibration. The law of nuisance was
developed. So regard for human emotions soon extended the scope of
personal immunity beyond the body of the individual. His reputation, the
standing among his fellow-men, was considered, and the law of slander and
libel arose. Man’s family relations became a part of the legal conception of
his life, and the alienation of a wife’s affections was held remediable.
Occasionally the law halted, — as in its refusal to recognize the intrusion
by seduction upon the honor of the family. But even here the demands of
society were met. A mean fiction, the action per quod servitium amisit,23
was resorted to, and by allowing damages for injury to the parents’ feelings,
an adequate remedy was ordinarily afforded. Similar to the expansion of the
right to life was the growth of the legal conception of property. From
corporeal property arose the incorporeal rights issuing out of it; and then
there opened the wide realm of intangible property, in the products and
processes of the mind, as works of literature and art, goodwill, trade secrets,
and trademarks.
This development of the law was inevitable. The intense intellectual and
emotional life, and the heightening of sensations which came with the
advance of civilization, made it clear to men that only a part of the pain,
pleasure, and profit of life lay in physical things. Thoughts, emotions, and
sensations demanded legal recognition, and the beautiful capacity for
growth which characterizes the common law enabled the judges to afford

was confined to the immediate circle of his acquaintances. It did not reach, or but rarely

reached, those who knew nothing of him. It did not make his name, or his walk, or his

conversation familiar to strangers. . . . [G]ossip about private individuals is now printed, and

makes its victim, with all his imperfections on his head, known to hundreds or thousands

miles away from his place of abode; and, what is worst of all, brings to his knowledge

exactly what is said about him, with all its details. It thus inflicts what is, to many men, the

great pain of believing that everybody he meets in the street is perfectly familiar with some

folly, or misfortune, or indiscretion, or weakness, which he had previously supposed had

never got beyond his domestic circle. . . .

In truth, there is only one remedy for the violations of the right to privacy within the

reach of the American public, and that is but an imperfect one. It is to be found in attaching

social discredit to invasions of it on the part of conductors of the press. At present this check

can hardly be said to exist. It is to a large extent nullified by the fact that the offence is often

pecuniarily profitable.17

Warren and Brandeis referred to Godkin’s essay, and their article does bear

some similarities to his work. One difference is that Godkin, although

recognizing the growing threats to privacy, remained cynical about the

possibility of a solution, expressing only the hope that attitudes would

change to be more respectful of privacy. Warren and Brandeis had a

different view. In their judgment, the law could and should provide

protection for privacy.

Another theory suggests that incursions by journalists into the privacy

of Samuel Warren inspired the article. Warren, a wealthy and powerful

attorney in Boston, practiced law with Louis Brandeis, who later went on to

become a U.S. Supreme Court Justice. In 1883, Samuel Warren married

Mabel Bayard, the daughter of a prominent senator from Delaware, and set

up house in Boston’s Back Bay. The Warrens were among the Boston elite

and were frequently reported on in the Saturday Evening Gazette, “which

specialized in ‘blue blood items,’ ” and “reported their activities in lurid

detail.”18

According to William Prosser, Warren was motivated to write the article

because reporters intruded upon his daughter’s wedding. However, this

certainly could not have been the reason because in 1890, Warren’s oldest

daughter was not even ten years old!19 Another theory suggests that the

impetus for writing the article was Warren’s displeasure about a number of

stories in the Gazette about his dinner parties.20

A final account of the impetus for this famous article looks to the

relationship between Samuel Warren and his younger brother Edward

(Ned). According to Charles Colman, the “origin story” of The Right to

Privacy is tied to Warren’s concern about the risk posed by potential gossip

and press intrusions on Ned, who was engaged in building “an increasingly

visible gay life” for himself in the years leading up to the article’s

publication.21 This period was also marked by increased criminal

prosecutions of gay men. In Colman’s reading, Warren, as “self-appointed

guardian” for Ned and his other siblings, was seeking to develop a legal

interest to protect Ned from “anyone with a personal, political, or financial

axe to grind.” The new right to privacy would also stop potential invasions

on familial honor, which would also protect Warren himself, his other

siblings, his wife, and their children.

Whatever inspired them to write, Warren and Brandeis published an

article that profoundly shaped the development of the law of privacy.

SAMUEL D. WARREN AND LOUIS D. BRANDEIS, THE RIGHT TO PRIVACY

4 Harv. L. Rev. 193 (1890)

It could be done only on principles of private justice, moral fitness, and public convenience,

which, when applied to a new subject, make common law without a precedent; much more

when received and approved by usage.

— Willes, J., in Millar v. Taylor, 4 Burr. 2303, 2312

That the individual shall have full protection in person and in property is a

principle as old as the common law; but it has been found necessary from

time to time to define anew the exact nature and extent of such protection.

Political, social, and economic changes entail the recognition of new rights,

and the common law, in its eternal youth, grows to meet the demands of

society. Thus, in very early times, the law gave a remedy only for physical

interference with life and property, for trespasses vi et armis.22 Then the

“right to life” served only to protect the subject from battery in its various

forms; liberty meant freedom from actual restraint; and the right to property

secured to the individual his lands and his cattle. Later, there came a

recognition of man’s spiritual nature, of his feelings and his intellect.

Gradually the scope of these legal rights broadened; and now the right to

life has come to mean the right to enjoy life, — the right to be let alone; the

right to liberty secures the exercise of extensive civil privileges; and the

term “property” has grown to comprise every form of possession —

intangible, as well as tangible.

Thus, with the recognition of the legal value of sensations, the

protection against actual bodily injury was extended to prohibit mere

attempts to do such injury; that is, the putting another in fear of such injury.

From the action of battery grew that of assault. Much later there came a

qualified protection of the individual against offensive noises and odors,

against dust and smoke, and excessive vibration. The law of nuisance was

developed. So regard for human emotions soon extended the scope of

personal immunity beyond the body of the individual. His reputation, the

standing among his fellow-men, was considered, and the law of slander and

libel arose. Man’s family relations became a part of the legal conception of

his life, and the alienation of a wife’s affections was held remediable.

Occasionally the law halted, — as in its refusal to recognize the intrusion

by seduction upon the honor of the family. But even here the demands of

society were met. A mean fiction, the action per quod servitium amisit,23

was resorted to, and by allowing damages for injury to the parents’ feelings,

an adequate remedy was ordinarily afforded. Similar to the expansion of the

right to life was the growth of the legal conception of property. From

corporeal property arose the incorporeal rights issuing out of it; and then

there opened the wide realm of intangible property, in the products and

processes of the mind, as works of literature and art, goodwill, trade secrets,

and trademarks.

This development of the law was inevitable. The intense intellectual and

emotional life, and the heightening of sensations which came with the

advance of civilization, made it clear to men that only a part of the pain,

pleasure, and profit of life lay in physical things. Thoughts, emotions, and

sensations demanded legal recognition, and the beautiful capacity for

growth which characterizes the common law enabled the judges to afford