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Google+If a core reason that copyright has always been compatible with the First Amendment is that it is a property right, then perhaps a way out of the conflict between privacy and freedom of speech and the press is to conceive of privacy in the same way–as a property right. Certainly it is already on its way there, as the “right of publicity” in many jurisdictions already implicitly does so, since it provides control over unauthorized commercial use by others.
Louis Brandeis
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.”
“The Right to Privacy” by Warren and Brandeis
he modern “right to privacy” is frequently attributed to Warren and Brandeis’ groundbreaking 1890 law review essay of that same name. Its initial purpose, according to Steven Childress, was to recognize, within the traditional common law, “a civil and non-contractual right of protection against invasions of privacy.”
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.”
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).
Neil Richards on “Reconciling Data Privacy and the First Amendment”
In “Reconciling Data Privacy and the First Amendment,” argues that privacy regulation is not speech regulation at all, and, additionally, that in commercial contexts at least, “speech restrictions … have never triggered heightened First Amendment scrutiny.” In other words, either the data being protected isn’t “speech” in the legal sense, or “because they are legitimate speech regulations under existing doctrine.”
Thinking about privacy and the First Amendment
This post is about Eugene Volokh’s article on free speech and privacy in relation to Samuel D. Warren and Louis D. Brandeis’s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?
Judge Noble Hand hints at the move from property to people
I have already discussed how Fourth Amendment protections and related “right to privacy” have shifted from a focus on property in the 19th century to one focused on people in the 20th. Judge Noble Hand’s 1897 law review article, Schuyler against Curtis and the Right to Privacy, gives some interesting hints about how American jurists contributed to this shift.
Confidentiality vs. privacy
In the law, there is a difference between confidentiality and privacy, and it’s a difference that’s important for both legal history (highlighted by the 20th century focus on the right to privacy in American law, as opposed to a 19th century focus on confidentiality) and contemporary law.
