The Supreme Court and James Q. Whitman’s “The Two Western Cultures of Privacy: Dignity Versus Liberty”

By Kristopher A. Nelson
in August 2017

1200 words / 6 min.
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James Q. Whitmore reveals an interesting contrast: whereas American law and rhetoric is strongest when privacy is approached as a protection against state interference, privacy protections in Germany and France are at their peak when the dignity of the individual is at stake. Justice Kennedy, interestingly, emphasizes this more European approach in a number of his Supreme Court decisions.

Please note that this post is from 2017. Evaluate with care and in light of later events.

James Q. Whitman‘s 2004 article, “The Two Western Cultures of Privacy: Dignity vs. Liberty,” compares American perspectives on privacy with those of Germany and France, and reveals an interesting contrast: whereas American law and rhetoric is strongest when privacy is approached as a protection against state interference, privacy protections in Germany and France are at their peak when the dignity of the individual is at stake.

Picture of James Q. Whitman
James Q. Whitman of Yale University

United States vs. Europe

The differences result in rhetorics and legal approaches to questions of privacy that often appear incommensurate across national boundaries.

“Intuitions” about privacy in the United States and Europe have “shifted and mutated over time” (1154); both “obsessed with privacy” in their own particular way (1157-58).

The American tradition is tied to eighteenth-century values, particularly to the “right to freedom from intrusions by the state especially in one’s own home” (1161).

The European tradition, exemplified by Whitman’s French and German examples, is instead tied to a “right to respect and personal dignity,” particularly the right to control one’s “public image” (1161). This “protection of personal dignity has been a consuming concern for many generations” (1161), starting with the law of “insult” as applied originally to aristocrats and monarchs in the seventeenth and eighteenth centuries, but extending to everyone today as Europe has undergone a “slow-maturing revolt against that style of status privilege” (1163-64). In essence, “the continental law of privacy” demonstrates a “social commitment to extend to royal treatment to everyone” (1170).

Still, despite Whitman’s conclusion that the law of privacy “is not the product of logic,” but is rather “the product of local social anxieties and local ideals” (1219), the interconnectedness of the modern world has not allowed either American or European law to remain isolated in its perspective on privacy. Over time, each approach has resisted, incorporated, and modified “intuitions” from other sources.

“The Right to Privacy”

Perhaps most notably, the seminal 1890 law-review article by Samuel Warren and Louis Brandeis, “The Right to Privacy,” sought to “introduce a continental-style right of privacy into American law” (Whitman 1204) as they railed against intrusions of the media and the loss of control by elites over their public image.

Although in their article they insist they are merely analogizing to well-settled principles of the common law, Warren and Brandeis ground their “right to an inviolate personality” in a very continental fashion, “by drawing both on the law of insult and on Urheberrecht, on intellectual and artistic property” (1207).

Warren and Brandeis recognize, however, that the Anglo-American system lacks a remedy for “mental suffering” caused by “mere contumely and insult, from an intentional and unwarranted violation of the ‘honor’ of another” (Warren and Brandeis 198). But they nonetheless argue that the common law had come to recognize “the legal value of ‘feelings'” (197, n. 1).

Thus, to bring European-style privacy protections to American law, they turn instead to “the common-law right to intellectual and artistic property” (198). Warren and Brandeis, despite rejecting one key strand of continental privacy development, develop their version in a manner reminiscent of German civil-law jurists, tracing the “evolutionary” development of the law from the “protection of mere material ‘property rights'” to include “new protections for the immaterial damage of emotional and moral harms” (Whitman 1208).

The result of Warren and Brandeis’ work was the “famous four forms of the privacy tort, as analyzed by William Prosser in 1960”:

intrusion upon seclusion, appropriation of the name or likeness of another, public disclosure of private facts “not of legitimate concern to the public,” and disclosure of private facts in such a way as to portray victims in a “false light” (Whitman 1202).

These “privacy torts” brought, in a limited way, a European concern with dignity and, especially, one’s “public image” into American law. But despite the much-vaunted impact of “The Right to Privacy,” the torts have had only limited success, tending in an American fashion to protect most in the case of monetarily quantifiable harms to reputation, and least when considerations of the free market and the free press were balanced against them (1208).

Lawrence v. Texas, 539 U.S. 558 (2003)

The American rapprochement did not end in the twentieth century with Warren and Brandeis’ privacy torts. In 2003, for example, Justice Kennedy looked approvingly to European approaches1 as he sought to ground Lawrence — which struck down a Texas anti-sodomy law — in both “liberty and dignity” (1162). But even then, true to American tradition, the home, bastion of liberty, remained at the core of the decision2.

Picture of Justice Anthony Kennedy
Justice Anthony Kennedy

Drawing primarily on American traditions of privacy versus the state, Justice Kennedy begins by explaining privacy as a form of liberty in the following terms:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. Lawrence, 539 at 562.

Kennedy pays tribute to European “intuitions” on the matter of privacy by noting that the European Court of Human Rights rejected the reasoning in the case Lawrence overturned — Bowers v. Hardwick, 478 U.S. 186 (1986):

And, to the extent Bowers relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. Lawrence, 539 U.S. at 560.

Kennedy then attempts, albeit in a limited way, to unify the overriding European concern about “dignity” with the American valorization of privacy within the home: “adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” Lawrence, 539 U.S. at 567.

  1. “The Supreme Court has reaffirmed the importance of international law in defining the liberties protected by the Bill of Rights. See Lawrence v. Texas, 539 U.S. 558, 123 So. Ct. 2472, 2481, 2483 (2003) (discussing the relevance of laws and practices of other nations, international treaties, and decisions of the European Court of Human Rights, in determining what limits the Due Process Clause of the Fourteenth Amendment places on states’ power to regulate private sexual conduct between consenting adults).” Kane v. Winn, 319 F. Supp.2d 80 (D. Mass. 2004). 
  2. Lawrence “recogniz[ed a] narrowly defined fundamental right to engage in consensual sexual activity, including homosexual sodomy, in the home without government intrusion.” Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007). 

Relevant cases