Privacy and the First Amendment: privacy as property?

"Property of the Hess Estate" by Flickr user Jason Eppink. CC BY-NC-SA 2.0.

In Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief. A few quick highlights:

• Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent.
• There were some who noted, at the least, a prior lack of recognition of the potential conflict, as in this Columbia Law Review note from 1913 on “Freedom of the Press and the Injunction.”

The main reason Hart identifies as to why legal thinkers did not consider there to be a conflict?

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Hart points out that the earliest (1839) case — Brandreth v. Lance, from New York — ruling on the constitutional grounds of free speech noted the following when denying an injunction for potential libel:

There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright.

(Note: there is another key ground on which judges — including the Supreme Court — have said that injunctions can be granted in regards to copyright: the fact that copyright is granted in the Constitution itself. See New York Times v. U.S., from 1971.)