Amy Gajda, Privacy Before The Right to Privacy: Truthful Libel and the Earliest Underpinnings of the Privacy Tort

Amy Gajda, Privacy Before The Right to Privacy: Truthful Libel and the Earliest Underpinnings of the Privacy Tort

Comment by: Dorothy Glancy

PLSC 2009

Workshop draft abstract:

Samuel Warren and Louis Brandeis are widely credited with spurring the creation of legal protection for personal privacy in the United States. Their 1890 Harvard Law Review article, The Right to Privacy, lambasted what the two authors considered sensational and invasive newspaper coverage and, it is often said, laid the foundation for modern privacy law, including the tort remedy for Publication of Private Facts.  This Article, however, traces the underpinnings of that tort protection back long before Warren and Brandeis’ landmark article.  Even before the two law partners famously slammed journalism and suggested that journalists be punished for publishing stories regarding private behavior, courts in the United States had both recognized the value of personal privacy and strongly condemned journalists for their invasive practices.  This Article explores those early legal foundations and suggests why Warren and Brandeis may have elected not to enlist this precedent in support of their cause:  some of the rulings most relevant to expanded legal protection against invasive news coverage are pointedly aligned with past abuses of legal power, including the infamous Star Chamber.