Privacy and the press

From Brandeis to Roe v. Wade,a brief history of a troublesome right

Journalists and privacy

• The press wants information to be public

• Freedom of Information Act sometimes intrudes on privacy

• Truth is a defense in libel, but not in invasion of privacy

• Privacy law exists somewhere between libel and copyright law

Privacy and the Constitution

• No explicit guarantee

• Griswold v. Connecticut established a beachhead

• Roe v. Wade extended right of privacy

Louis D. Brandeis

• Saw Constitution as an evolving document

• Encountered anti-Semitism when named to the Supreme Court

• Friend of First Amendment

The Right to Privacy (1890)

• Co-authored with partner Samuel Warren

• Law grows in response to social change– Right to life includes right to be left alone– Right to liberty includes “civil privileges”– “Property” now refers to intangibles

• New technology calls for new remedies

A unique legal solution

• Libel laws inadequate because a violation of privacy is “spiritual” rather than “material”

• They propose that copyright laws be adapted to cover privacy violations

• One’s private life can be seen as part of his or her property

Six principles

1. “The right to privacy does not prohibit any publication of matter which is of public or general interest”

Six principles

2. “The right to privacy does not prohibit the communication of any matter, though in its private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel”

Six principles

3. “The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage. … The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether”

Six principles

4. “The right to privacy ceases upon the publication of the facts by the individual, or with his consent”

Six principles

5. “The truth of the matter published does not afford a defence”

Six principles

6. “The absence of ‘malice’ in the publisher does not afford a defence”

Proposed remedies

• Civil lawsuits

• Restraining orders

• They suggest criminal penalties, too

Olmstead v. U.S. (1928)

• An early wiretapping case• Taft’s majority decision relies on doctrine of

original intent• Brandeis: “Discovery and invention have

made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet”