Ben Bratman on the First Amendment and Brandeis & Warren's "The Right to Privacy"

Samuel Warren and Louis Brandeis’ 1890 law review arti­cle, “The Right to Privacy,” has been deeply influ­en­tial over the last 100+ years. In it, Warren and Brandeis argue for a gen­er­al­ized right to an “invi­o­late per­son­al­ity” in the face, espe­cially, of grow­ing press pry­ing and pub­lish­ing of details of people’s pri­vate life, includ­ing photographs.

Given this focus on press inva­sions, it is unsur­pris­ing that many schol­ars have seen their pro­posed new tort as inter­fer­ing with the First Amendment guar­an­tees of press free­doms. (See, e.g., Lorelai Van Wey’s Note, “Private Facts Tort: The End is Here.”) Ben Bratman’s 2002 law review arti­cle, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” dis­cusses the back­ground of this issue in light of “the con­sid­er­able focus that Brandeis and Warren placed on the print media and its alleged vio­la­tions of pri­vacy” (636).

In 1890, when Warren and Brandeis’ pub­lished their arti­cle, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own ver­sions. Despite this, in many ways “free­dom of speech and the press” was viewed in stronger terms then than now (despite the fact that the Alien and Sedition Acts of 1798 was never chal­lenged by the Supreme Court). There was, for exam­ple, no per­ceived dif­fer­ence between com­mer­cial and polit­i­cal speech – both were granted the same level of pro­tec­tion. The nine­teenth cen­tury juries Thomas Cooley’s posi­tion on the issue was gen­er­ally con­sid­ered the most persuasive:

The con­sti­tu­tional lib­erty of speech and ofthe press, as we under­stand it, implies a right to freely utter and pub­lish what­ever the cit­i­zen may please, and to be pro­tected against any respon­si­bil­ity for so doing, except so far as such pub­li­ca­tions, from their blas­phemy, obscen­ity, or scan­dalous char­ac­ter, may be a pub­lic offense, or as by their false­hood and mal­ice they may inju­ri­ously affect the stand­ing, rep­u­ta­tion, or pecu­niary inter­ests of indi­vid­u­als. (Bratman 637)

Warren and Brandeis were not unaware of this poten­tial con­flict, and carved out an excep­tion to their pro­posed tort by adding a

“pub­lic inter­est” or “pub­lic char­ac­ter” excep­tion to their tort, which rec­og­nized that the press or com­mer­cial pho­tog­ra­phers had to be free to record and report the actions of pub­lic char­ac­ters and offi­cials (Bratman 636)

In other words, even Warren and Brandeis, despite their argu­ment that they were not invent­ing any­thing new at all, rec­og­nized that the right to pri­vacy they were artic­u­lat­ing had the poten­tial to con­flict with the guar­an­tees of the First Amendment.