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The Right to Privacy
Excerpted from the December 25, 1890 Issue
In the last number of the Harvard Law Review two members of the Boston bar, Messrs. Warren and Brandeis, attempt to extract from reported cases a rule of the common law which will protect individuals from the intrusion of the press on their private life: “When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance? Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse survive, its blighting influence.”
The remedies they suggest are “an action…for damages in all cases, or, in the absence of special damages, substantial compensation for injury to the feelings, and in some cases an injunction,” for invasions of privacy. But strong as are the arguments of our authors in support of the power of the courts to interfere, we doubt very much whether such interference would have any serious effect on the evil to be remedied, and this for two reasons.
The first is, that the legal remedy would very closely resemble that old-fashioned cure for headache caused by too much intoxicating drink—“the hair of the dog that bit you.” That is to say, the man who feels outraged by publicity will, in order to stop or punish it, have to expose himself to a great deal more publicity. In order to bring his persecutors to justice, he will have to go through a process which will result in an exposure of his private affairs tenfold greater than that originally made by the offending article.
The second reason is, that there would be no effective public support or countenance for such proceedings. There is nothing democratic societies dislike so much to-day as anything which looks like what is called “exclusiveness,” and all regard for or precautions about privacy are apt to be considered signs of exclusiveness. A man going into court, therefore, in defence of his privacy, would very rarely be an object of sympathy on the part either of a jury or the public.