How Warren and Brandeis Viewed Tort Law as the Law Defining and Protecting Rights - Essay Example

Running Head: Law Of Privacy Law of Privacy of the appears here] of the appears here] Law of Privacy Few torts have developed as diverse offspring as the invasion οf the right οf privacy. Seventy years after Warren and Brandeis, William Prosser sought to bring order to the "haystack in a hurricane" that privacy law had arguably become. Prosser identified four distinct torts: intrusion upon seclusion or solitude, public disclosure οf private facts, false light in the public eye, and appropriation ("exploitation οf attributes οf the plaintiffs identity"). Prosser and others have suggested that Warren and Brandeis really only had the second tort, public disclosure οf private facts, in mind.1 This evaluation fundamentally misses the conceptual approach to tort law advanced by Warren and Brandeis in finding a right to privacy and elaborating some aspects οf that right. They did not identify a new tort, but rather a new right that ought to be protected by tort law. That new right in turn was derived from an old right, perhaps a natural right, namely the right to be let alone. In light οf these origins, it would have been surprising if the tort protection given to privacy remained confined within the narrow bounds οf public disclosure. The very theory οf torts upon which privacy was based implied its fluidity. I have sought in the preceding sections to show how Warren and Brandeis viewed tort law as the law defining and protecting rights, and how this view was at odds with other conceptions οf tort law that emerged at the end οf the nineteenth century and eventually prevailed. Holmess defendant-based instrumentalist vision provided the conceptual foundation οf tort law well into the twentieth century. Strict liability largely gave way to negligence, even in such bastions οf rights-based thinking as property. The common law, and most particularly the law οf torts, became the domain οf reasonableness rather than rights. Intentional torts, once the focus οf torts, receded to near irrelevance. Indeed, despite occasional manifestations οf life, intentional torts have remained in a formal structure much like the writ system from which they are descended. This in essence has been the fate οf privacy. Promulgated as part οf a jurisprudence οf rights, with strong natural law overtones, the privacy tort had no intellectual place in modern tort law. Rights now belong to the language οf public law discourse rather than private law discourse. Prossers 1960 article stands as the modern source οf the privacy tort. Prossers analysis is a return to the essentials οf the writ system that continue to characterize the law οf intentional torts. Each tort is identified with the interest it seeks to protect, the elements οf a cause οf action, and the defenses available. While there may be common principles, these play little role in adjudication. But thinking about invasion οf privacy as just one more intentional tort dooms most οf it in the face οf constitutional challenges. Where the tort cause οf action is perceived to conflict with the freedom οf speech or press, courts in effect weigh the constitutional right against the mere tort claim for damages or injunctive relief. Put in these terms, it is a balance that indeed seems skewed, and one wonders whether the tort can survive at all.2 The new right quickly captured the interest οf the legal press, which for the most part responded favorably. The Harvard Law Review in particular kept tabs on what it apparently regarded as its progeny. In a note published in March οf 1894, the Harvard Law Review criticized the English courts decision in Monson v. Tussaud for treating as a libel case one that really involved the right οf privacy. That case appeared to be the impetus for an article in The Green Bag. This article lavished praise on Warren and Brandeiss article, and the authors unequivocally concluded "we can feel no doubt as to the recognition οf the right [to privacy] itself." The leading early criticism οf Warren and Brandeis appeared in October 1894 in the Northwestern Law Review. The author, Herbert Spencer Hadley, identified three decisions that have recognized a right to privacy, and claims they "seem to rest almost entirely upon the authority οf the Harvard Law Review article." Hadley made several criticisms. First, he noted that if Warren and Brandeiss proposed limitations and defenses were accepted, "the right would be so completely pruned away that the shadow remaining would hardly furnish sufficient substance to interest the ordinary man or woman." Yet the existing law οf defamation and right οf free speech would not permit any lesser restrictions on the proposed tort. Mostly, Hadley argued that the precedent cited did not support the recognition οf the right, coupling this with an argument about the nature and evolution οf the common law. Hadley argued that while equity had emerged as a "softening, broadening influence" on the common law, "based upon general principles οf justice," the need for certainty and definiteness in the law had "resulted in the end in the establishment οf a system οf [equity] jurisprudence confined within limits only a little less rigid and based upon principles only a little less definite than was the case with the common law." In short, equity had been transformed from a natural law based system to one based on positive law. This argument was one οf the approaches adopted by the majority in Roberson. Hadley made an additional point about equity, that it was connected primarily with the interest in property. "[I]t is true . . . that equity has a jurisdiction separate and distinct from legal rights, but that independent jurisdiction is not based upon considerations οf conscience and a sense οf moral fitness, but upon principles οf justice connected with the ownership and enjoyment οf property." Finally, Hadley argued that the right οf privacy is in essence a claim for mental anguish, which the law does not recognize as an independent ground for damages. He concludes: These contentions are tacitly admitted in the Harvard Law Review article, but the contention is still made that on ground οf propriety and moral fitness the privacy οf one [sic] personality should be protected. This contention must rest upon the assumption that equity is a shifting, ambulatory system οf jurisprudence which is to be exercised in any case where the relief asked for seems to meet to the conscience οf the Chancellor. That equity is not such a system it is submitted has been clearly shown. An 1898 article further confirmed the identification οf privacy with natural law jurisprudence. Its author declared: We contend that it is one οf the rights οf life, and that, in this sense, it is a natural or absolute right. By natural rights, we do not mean those that belonged to man in a state οf nature and which, because οf their fundamental character, were retained by him when he became a member οf society. This theory οf a state οf nature in which men existed has degenerated and become scarcely a fancy; such a state never did nor ever can exist. . . . But when we speak οf natural rights we refer to those which universal experience has designated as essential and has agreed should be conceded to man, as a member οf society, by the State, denominated by governments, and guarded by courts. Acceptance οf the new tort, at least in the form offered by Warren and Brandeis, required first, a dynamic evolutionary view οf the common law (including the recognition οf rights), and second, a notion that the purpose οf tort law was to recognize rights and provide remedies for injuries to them. While some courts and commentators rejected the tort because their view οf the common law was more static, others rejected it because they did not accept a rights-based notion οf tort law. In the view οf the latter, tort was about the deficient conduct οf the injurer, or the damages suffered. Much οf the early debate centered on whether equity relief was appropriate. It is difficult to say whether this debate was related in some way to other questions arising at the time regarding the granting οf injunctions by courts. Perhaps most important οf these was the growing use οf labor injunctions. Similarly, some οf the hostility to natural law and natural rights certainly came from progressives who opposed the use οf such rights in invalidating progressive and redistributive legislative action.3 Brandeiss own views on these matters are well known. Whether recognition οf a right to privacy had an antiprogressive element is less clear. Warren and Brandeiss article was part οf a rights-based conceptual approach to tort law that arose in the mid-nineteenth century and remained as an alternative to the Holmesian paradigms through the early part οf this century. Some οf the early references to the right to privacy, the sources relied on by Warren and Brandeis, and its initial reception by courts and commentators, suggest that this right was regarded as a natural right derived from principles οf natural law. However, the approach to natural law and the common law was dynamic, responsive to changing times and circumstances. In practical terms, recognition οf the right to privacy was caught up in two other, although not unrelated, legal controversies οf the late nineteenth and early twentieth centuries. Both concerned the nature οf equitable remedies. First, there was some question whether equitable relief could be obtained to protect rights that were not property based. In the view οf some courts, Warren and Brandeiss separation οf the right to privacy from any interest in property compelled the conclusion that equitable remedies were not available. A second issue was the open-ended natural justice orientation οf equity. Some courts and commentators, while recognizing that equity jurisprudence had once been οf this nature, found that by the end οf the nineteenth century it was as precedent bound as law.4 The Crossover Warren and Brandeis first identified a right and then determined what tort remedy should be made available. Tort law, in their view as well as in the view οf Cooley and others, was the general law οf remedies for invasion οf rights. While this right was considered completely separate from the right protected by defamation, Warren and Brandeis nevertheless relied extensively on the law οf defamation in determining the scope οf the remedy. Yet the right identified was not simply a tort law right, it was a general right to be protected by the law against all who would invade it. Brandeiss right-based vision οf tort law is in one way reflected in the subsequent influence οf the article. It is among the very few "crossover" articles, that is an article in the private law area, in particular tort law, that has had influence in the interpretation, indeed one might argue the creation, οf constitutional rights. The article is frequently cited in the constitutional context; that is, in connection with some constitutional right οf privacy. And while one might claim that the right οf privacy as protected by tort law has amounted to little over the last one hundred years, this could hardly be said οf the constitutional right. What remains surprising is that the constitutional right, as well as the tort right, traces part οf its lineage to the 1890 article.5 It may be useful in connection with this point to briefly describe the use οf the article in opinions οf the Supreme Court οf the United States. It was first cited in 1941 in Justice Murphys dissenting opinion in Goldman v. United States, where the issue was whether the fourth amendment protected against the use οf a detectaphone. Justice Murphy saw the tort and the fourth amendment as different protections οf the same right. The next citation, also in dissent, came in Poe v. Ullman. Justice Douglas, disagreeing with the majoritys finding that the case was not justiciable, noted that the asserted right οf privacy (in this case against the states enforcement οf a prohibition οf contraceptives) "was not drawn from the blue" and that "The right to be let alone had many common-law overtones," citing, among others, Warren and Brandeis. Justice Douglas reiterated this point in a concurring opinion two years later in Gibson v. Florida Legislative Investigation Committee, writing that "[a] part οf the philosophical basis for this right [οf privacy against government intrusion] has its roots in the common law," again citing Warren and Brandeis. During the same term, Justice Brennan also relied on the Warren and Brandeis article and the common law οf privacy in his dissent in Lopez v. United States. That case raised the question οf whether a government agent who secretly records a conversation with the defendant violates the defendants fourth amendment rights. Brennan argued that the right οf privacy embraced "a concept οf liberty οf ones communications," and justified the argument historically by citing Warren and Brandeiss statement that an individual "generally retains the power to fix the limits οf the publicity which shall be given" to ones thoughts, sentiments, and emotions. The first decision οf the Supreme Court to explicitly recognize a right οf privacy outside the fourth amendment protection against warrantless searches was Griswold v. Connecticut. Neither the Courts opinion by Justice Douglas nor any οf the three concurring opinions related that right to the Warren and Brandeis tort. However, Justice Black, in a footnote to his dissent, attacked the majority for elevating common law rights to constitutional status. After noting the natural law justifications offered in Pavesich, Justice Black commented: References Barron, Warren and Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890): Demystifying a Landmark Citation, 13 SUFFOLK U.L. REV. 875, 891-94 (1979). HILLARD, F., THE LAW ΟF TORTS OR PRIVATE WRONGS (1859); Kalven, Privacy in Tort Law--Were Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBS. 326 (1966) Larremore, The Law οf Privacy, 12 COLUM. L. REV. 693 (1912) ("An article by [Warren and Brandeis] . . . enjoys the unique distinction οf having initiated and outlined a new field οf jurisprudence."). M. HORWITZ, THE TRANSFORMATION ΟF AMERICAN LAW, 1780-1860, at 8999 (1977) (citing cases). Pratt, The Warren and Brandeis Argument for a Right to Privacy, 1975 PUB. L. 171 WHITE, G.E., supra note 5, at 3 (discussing the development οf Torts as an independent branch οf law). Read More