Neil Richards, Brandeis, Privacy, and Speech
Comment by: Andrew Taslitz
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1584831
Workshop draft abstract:
Although most courts and commentators assume that privacy and free speech are in conflict, in American jurisprudence, each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 dissent in Whitney v. California. How can privacy and speech be irreconcilable if Brandeis played a major role in creating both? And how, if at all, did Brandeis recognize or address these tensions? These questions have remained neglected not just by privacy scholars, but by those of Brandeis and free speech as well. In this paper, I argue that the puzzle of Brandeis’ views on privacy and speech can be resolved, and that its resolution points the way towards a more fruitful and helpful understanding of both privacy and free speech. My basic claim is that “The Right to Privacy” should be considered neither the central text of American privacy law nor an accurate record of Brandeis’ mature views of privacy and its relationship with free speech. Brandeis’ views on privacy and speech evolved over the course of his life, from a relatively simplistic theory of privacy at the expense of speech as a young lawyer to a more nuanced understanding of the complex relationships between these two values later in his life. Unlike tort privacy, which Brandeis seems to have thought about infrequently, a more important hallmark of Brandeis’ public career was the contradictory idea that public disclosure of many kinds of fraud and wrongdoing are in the public interest. As he famously put it, “sunlight is the best disinfectant.” In understanding Brandeis’ entire body of work, the best interpretation of his mature views on civil liberties is that we should minimize the importance of tort privacy where it conflicts with free speech. But to minimize tort privacy is not to suppress it altogether. A consideration of Brandeis’ free speech writings in light of Olmstead, also written late in his life, suggests some interesting ways in which privacy and First Amendment values are related in the generation of new ideas and the freedom of thought. Although prior scholarship on Brandeis has overlooked these interesting connections, they suggest some tremendously important implications for modern understandings of our civil liberties.