wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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3.
Inviolate Personality in the United States and Germany. The authors
describe privacy as not “the principle of private property but that of
inviolate personality.” What does that mean? James Whitman traces the
idea of the personality right from Warren and Brandeis back to
nineteenth-century German legal philosophy:
. . . [N]ineteenth-century Germans often thought of “freedom” as opposed primarily to
determinism. To be free was, in the first instance, not to be free from government control,
nor to be free to engage in market transactions. Instead, to be free was to exercise free
will, and the defining characteristic of creatures with free will was that they were
unpredictably individual, creatures whom no science of mechanics or biology could ever
capture in their full richness. For Germans who thought of things in this way, the purpose
of “freedom” was to allow each individual fully to realize his potential as an individual:
to give full expression to his peculiar capacities and powers.26
Although the Warren and Brandeis article has been highly
influential, their concept of a personality right has failed to gain
traction in U.S. privacy law. Nonetheless, the idea of a personality right
has formed the basis of modern German information privacy law. As
Paul Schwartz and Karl-Nikolaus Peifer state, it is “a ‘source right’ that
has proven a fertile source for the creation of a related series of legal
rights” in Germany.27 More specifically, they note that “the right has
been used to protect honor and reputation, privacy in a spatial sense (a
‘Privatsphäre,’ or a private area), individuality, and commercial uses of
personality.” Why do you think the concept of a “right of personality”
has been unsuccessful as a legal concept for privacy in the United
States?
4.
“The Right to Be Let Alone.” Warren and Brandeis refer to privacy as
“the right to be let alone.” This phrase was coined by Judge Thomas
Cooley earlier in his famous treatise on torts.28 Do Warren and
Brandeis define what privacy is or elaborate upon what being “let
alone” consists of? If so, what do they say privacy is? Is this a good
account of what constitutes privacy?
5.
The Scope of the Right to Privacy. Brandeis and Warren were careful
not to describe privacy as an absolute right. They set out six limitations
on the right to privacy. Consider the first limitation and the relationship
between the right to privacy and the need for publication on matters of
public concern. What conclusions do the authors reach about these
competing claims? According to Warren and Brandeis, would the
reporting that a public official engaged in illegal business practices be
protected by a right to privacy? What about illicit sexual activity?
Consider the holding of the Sidis court regarding a person who was
once of public interest due to his great achievements. Do you think that
Warren and Brandeis would agree with the conclusion of Sidis?
6.
The Economics of Gossip. Warren and Brandeis begin with a startling
observation about the economics of gossip: “In this, as in other
branches of commerce, the supply creates the demand.” Have Warren
and Brandeis inverted the normal concept in which demand drives
supply? Note that already in the early nineteenth century, Jean-Baptiste
Say, the French economist, famously expressed the idea, henceforth
known as Say’s Law, that the supply of a product would inherently
create demand for it. Is gossip such a product?
7.
The Nature of the Injury Caused by Privacy Invasions. Warren and
Brandeis argue that privacy invasions are more harmful than bodily
injuries. Do you agree? Warren and Brandeis characterize the injury
caused by the violation of privacy as an injury to the feelings. Do you
agree? Or do you think that the injury extends beyond an injury to the
feelings?
8.
Remedies. Brandeis and Warren suggest two remedies for an invasion
of privacy — an action in tort and injunction. These remedies are
similar to those in defamation and copyright. What do the authors say
about a criminal remedy?
9.
Criticisms. Some have argued that the article is a defense of bourgeois
values, i.e., the freedom of an elite group to avoid public scrutiny.29
Which aspects of the article support this view? Do parts of the article
suggest otherwise? Is privacy, as described in the Warren and Brandeis
article, a class-based right?
10. Did Brandeis Change His Mind? Neil Richards argues that Brandeis’s
views about the importance of publicity and free speech eventually
eclipsed the views he set forth in his article with Warren. According to
Richards, the First Amendment views that Brandeis developed in the
1920s are “inconsistent with many aspects of the right to privacy that
he called for in 1890.” As a further matter, Richard contends that “to
the extent [Brandeis] retained a belief in tort privacy to the end of his
life, it was a narrow category subordinated to the interests of publicity
and free speech.” At a normative level, Richards builds on Brandeis to
develop a “concept of intellectual privacy” — a more focused concept
that views privacy as a paramount value when it “is relevant to the
activities of thinking, reading, and discussing safeguarded by the First
Amendment.”30
(b) The Recognition of Warren and Brandeis’s Privacy Torts
Warren and Brandeis’s 1890 article suggested that the existing causes of
action under the common law did not adequately protect privacy but that
the legal concepts in the common law could be modified to achieve the
task. As early as 1903, courts and legislatures responded to the Warren and
Brandeis article by creating a number of privacy torts to redress the harms
that Warren and Brandeis had noted. In Roberson v. Rochester Folding Box
Co., 64 N.E. 442 (N.Y. 1902), the New York Court of Appeals refused to
recognize a common law tort action for privacy invasions. Franklin Mills
Flour displayed a lithograph of Abigail Roberson (a teenager) on 25,000
advertisement flyers without her consent. The lithograph printed her
photograph with the advertising pun: “Flour of the Family.” Roberson
claimed that the use of her image on the flyer caused her great humiliation
and resulted in illness requiring medical help. The court, however,

argument?

3.

Inviolate Personality in the United States and Germany. The authors

describe privacy as not “the principle of private property but that of

inviolate personality.” What does that mean? James Whitman traces the

idea of the personality right from Warren and Brandeis back to

nineteenth-century German legal philosophy:

. . . [N]ineteenth-century Germans often thought of “freedom” as opposed primarily to

determinism. To be free was, in the first instance, not to be free from government control,

nor to be free to engage in market transactions. Instead, to be free was to exercise free

will, and the defining characteristic of creatures with free will was that they were

unpredictably individual, creatures whom no science of mechanics or biology could ever

capture in their full richness. For Germans who thought of things in this way, the purpose

of “freedom” was to allow each individual fully to realize his potential as an individual:

to give full expression to his peculiar capacities and powers.26

Although the Warren and Brandeis article has been highly

influential, their concept of a personality right has failed to gain

traction in U.S. privacy law. Nonetheless, the idea of a personality right

has formed the basis of modern German information privacy law. As

Paul Schwartz and Karl-Nikolaus Peifer state, it is “a ‘source right’ that

has proven a fertile source for the creation of a related series of legal

rights” in Germany.27 More specifically, they note that “the right has

been used to protect honor and reputation, privacy in a spatial sense (a

‘Privatsphäre,’ or a private area), individuality, and commercial uses of

personality.” Why do you think the concept of a “right of personality”

has been unsuccessful as a legal concept for privacy in the United

States?

4.

“The Right to Be Let Alone.” Warren and Brandeis refer to privacy as

“the right to be let alone.” This phrase was coined by Judge Thomas

Cooley earlier in his famous treatise on torts.28 Do Warren and

Brandeis define what privacy is or elaborate upon what being “let

alone” consists of? If so, what do they say privacy is? Is this a good

account of what constitutes privacy?

5.

The Scope of the Right to Privacy. Brandeis and Warren were careful

not to describe privacy as an absolute right. They set out six limitations

on the right to privacy. Consider the first limitation and the relationship

between the right to privacy and the need for publication on matters of

public concern. What conclusions do the authors reach about these

competing claims? According to Warren and Brandeis, would the

reporting that a public official engaged in illegal business practices be

protected by a right to privacy? What about illicit sexual activity?

Consider the holding of the Sidis court regarding a person who was

once of public interest due to his great achievements. Do you think that

Warren and Brandeis would agree with the conclusion of Sidis?

6.

The Economics of Gossip. Warren and Brandeis begin with a startling

observation about the economics of gossip: “In this, as in other

branches of commerce, the supply creates the demand.” Have Warren

and Brandeis inverted the normal concept in which demand drives

supply? Note that already in the early nineteenth century, Jean-Baptiste

Say, the French economist, famously expressed the idea, henceforth

known as Say’s Law, that the supply of a product would inherently

create demand for it. Is gossip such a product?

7.

The Nature of the Injury Caused by Privacy Invasions. Warren and

Brandeis argue that privacy invasions are more harmful than bodily

injuries. Do you agree? Warren and Brandeis characterize the injury

caused by the violation of privacy as an injury to the feelings. Do you

agree? Or do you think that the injury extends beyond an injury to the

feelings?

8.

Remedies. Brandeis and Warren suggest two remedies for an invasion

of privacy — an action in tort and injunction. These remedies are

similar to those in defamation and copyright. What do the authors say

about a criminal remedy?

9.

Criticisms. Some have argued that the article is a defense of bourgeois

values, i.e., the freedom of an elite group to avoid public scrutiny.29

Which aspects of the article support this view? Do parts of the article

suggest otherwise? Is privacy, as described in the Warren and Brandeis

article, a class-based right?

10. Did Brandeis Change His Mind? Neil Richards argues that Brandeis’s

views about the importance of publicity and free speech eventually

eclipsed the views he set forth in his article with Warren. According to

Richards, the First Amendment views that Brandeis developed in the

1920s are “inconsistent with many aspects of the right to privacy that

he called for in 1890.” As a further matter, Richard contends that “to

the extent [Brandeis] retained a belief in tort privacy to the end of his

life, it was a narrow category subordinated to the interests of publicity

and free speech.” At a normative level, Richards builds on Brandeis to

develop a “concept of intellectual privacy” — a more focused concept

that views privacy as a paramount value when it “is relevant to the

activities of thinking, reading, and discussing safeguarded by the First

Amendment.”30

(b) The Recognition of Warren and Brandeis’s Privacy Torts

Warren and Brandeis’s 1890 article suggested that the existing causes of

action under the common law did not adequately protect privacy but that

the legal concepts in the common law could be modified to achieve the

task. As early as 1903, courts and legislatures responded to the Warren and

Brandeis article by creating a number of privacy torts to redress the harms

that Warren and Brandeis had noted. In Roberson v. Rochester Folding Box

Co., 64 N.E. 442 (N.Y. 1902), the New York Court of Appeals refused to

recognize a common law tort action for privacy invasions. Franklin Mills

Flour displayed a lithograph of Abigail Roberson (a teenager) on 25,000

advertisement flyers without her consent. The lithograph printed her

photograph with the advertising pun: “Flour of the Family.” Roberson

claimed that the use of her image on the flyer caused her great humiliation

and resulted in illness requiring medical help. The court, however,