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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.
Samuel Warren
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.”
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).
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.
