Ben Bratman on the First Amendment and Brandeis & Warren's "The Right to Privacy"
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.”
What is the First Amendment?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The (scientific) development of common-law precedent
One of the defining characteristics of common law (as opposed to civil law) is the binding nature of precedent, sometimes referred to by its Latin name of stare decisis. But before the seventeenth century, the defining characteristic of English common law was not this one, but rather that common law reflected universal and customary law, and as such the goal was for judges to utilize previous decisions as merely guides to help them get closer to the true (unwritten) laws of England, not as binding in themselves.
Daniel Solove's six general types of privacy
Daniel J. Solove’s 2008 book, Understanding Privacy, attempts to characterize and understand the complex and contradictory modern views and approches to privacy. For Solove, “[p]rivacy concerns and protections do not exist for their own sake; they exist because they have been provoked by particular problems” and it “is protection from a cluster of related problems that impinge upon our activities in related ways.”
Narrative, free will, and legal responsibility: reading Cathy Gere reading Michael Gazzaniga
Michael Gazzaniga suggests that his finding that we construct post-hoc narratives potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them – our decision-making moral sense, as it were – only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”
Privacy as secrecy and privacy as autonomy
The concept of “privacy” – as in “the right to privacy” – can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).
Freedom of speech in the "Second Gilded Age"
In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments.
Copyright and authorship: reading Thomas Streeter's Selling the Air
Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?
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