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America’s first newspaper, Publick Occurrences Both Forreign and Domestick, was also one of its shortest-lived. Motivated by the creed “That Memorable Occurrents of Divine Providence may not be neglected or forgotten,” the inaugural issue, published in 1690, aired rumors of an affair between the French king and his daughter-in-law, along with other scandalous reports—and was promptly censored and confiscated by British authorities in Boston. But the American appetite for such salacious fare was irrepressible. By the time of the Civil War, journals such as The Illustrated Police News were devoted to graphic depictions of real-life criminal cases: Readers were served up vivid woodcuts of brothel raids, hangings, suicides, and child deaths—the more violent and gruesome, the better.
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The invasiveness of contemporary gossip sites, social media, and search engines, it turns out, has a long pedigree. Although the technologies of dissemination have changed, the impulse to portray—and profit from—intimate material has thrived for centuries.
The lineage of the counter-impulse—legal efforts to restrain intrusions into Americans’ private lives and affairs—is shorter and its legacy more elusive. Public calls for a right to privacy emerged only at the turn of the 20th century, triggered by a more aggressive press as well as technical innovations like instantaneous photography, new communication platforms like the telegraph and the telephone, and, later, novel uses of personal information by private companies and government agencies. In response, state legislatures, the Supreme Court, and eventually Congress stepped in to patrol the boundary between the properly public and the deservedly private.
The battles were at times spirited. But many commentators now claim that the war is over, and that privacy has lost. Public and private organizations alike mine the minutiae of our lives, and citizens—enmeshed in a culture of confession and data-driven consumerism—are unable, or unwilling, to resist. Older modes of discretion have given way to an ethos of self-disclosure, an urge to be known. In this view, the sidelining of privacy as a social and cultural value—as well as a legal right—was only a matter of time.
The rise of powerful technologies (facial recognition) and businesses (Facebook) that hinge on access to our personal information understandably inspires such fatalism. Yet over the past two decades, ever-expanding surveillance has been accompanied by a wide-ranging public debate about protecting aspects of our lives from scrutiny—evidence that privacy, endangered though it may be, is not yet extinct as a cultural concern. Indeed, that debate has sparked a welter of new proposals for protecting private life, such as the “right to be forgotten” and the right to move through public spaces undetected.
In Seek and Hide: The Tangled History of the Right to Privacy, the legal scholar Amy Gajda links our present struggle to an underappreciated tradition in American law and thought. She argues that although the right to privacy may have been a 19th-century innovation, privacy sensibilities have since the nation’s beginnings served as a durable counterweight to the hallowed principles of free speech, free expression, and the right to know. Ranging across several centuries, her account of the determined fight to protect privacy sounds like just the sort of road map we could use right now. But legal victories won in the name of privacy have often been sorely inadequate. What’s more, they have historically favored the privileged over the vulnerable. A realistic defense of privacy in the digital age isn’t a lost cause, but it will require grappling with new social as well as technological challenges. It will also entail reckoning with privacy’s past uses and abuses.
Seek and Hide focuses on a specific kind of privacy conflict: the propriety of publicizing true but intimate or embarrassing facts about a person. That sort of shame-inducing exposure may sound almost passé in the era of Twitter and TMZ. We’re by now used to personal missteps forever preserved online, innuendo circulating on the web, doxing as a weapon of rhetorical war. We take for granted the constant prying that seems to come with a life hooked up to the internet. But the history of disputes over press invasions serves as a kind of barometer, revealing the cyclical nature of privacy’s fortunes. It also highlights the persistent disparities in whose privacy has mattered to lawmakers and courts.
Gajda traces the championing of privacy (and skepticism of an overly free press) back to the nation’s founding. Thomas Jefferson and Alexander Hamilton—who otherwise agreed on little—both spoke to the damage that truthful-but-embarrassing disclosures could cause. To let such details loose in the world, Hamilton charged, was a “two-edged sword, by which to wound the public character and stab the private felicity of the person.” (Both men, it should be noted, were considerably less bothered when those details concerned a political rival.)
Not incidentally, these men each had a personal investment in keeping certain matters quiet: Jefferson’s sexual relationship with the enslaved Sally Hemings and Hamilton’s affair with a married woman, made still more scandalous by his payoffs to her husband. Courts, following the lines of status in American society, were generally happy to oblige, punishing journalistic invasions chiefly when they threatened the reputations of elite white men.
The cohort of Americans who could count on their privacy being respected grew over the course of the 19th century. The middle class, with its newly genteel sensibilities and domestic sanctuaries, was now included, although women’s and children’s privacy continued to matter mostly as an extension of that of male heads of household. At a time when immigrants, nonwhite people, the poor, criminals, and other “unworthies” were neither allotted much privacy nor thought to deserve it, the well-heeled and respectable won libel suits against reporters for printing potentially damaging stories. In the mid-19th century, for example, the New Hampshire Supreme Court ruled that a local newspaper was unquestionably out of line in tarnishing the name of a “good, pious, virtuous and honest” woman by recounting that, during the course of a party she had attended, “kisses were bestowed on ripe lips and cheeks … generally innocent of such sweet tokens.”
Long before a “right to privacy” was codified, American law thus drew a line between issues of public import that needed to see the light of day and intimate affairs that individuals had every right to cloak. Certain matters were considered especially intimate. Personal correspondence, sexual liaisons, indecorous divorce proceedings, medical diagnoses, and images of the naked body were all deemed worthy of protection. By the 1880s, the U.S. Supreme Court seemed to recognize this boundary in a search-and-seizure case, describing the “privacies of life” as an essential component of liberty and a “sacred right.”
It was in the next decade that privacy became a major public concern. This was prompted by the growing audacity of the scandal press, but also by the impact of new technologies, such as the telegraph and the telephone (and with it, the potential for wiretapping). Instantaneous photography in particular let loose a whole new species of virtual invasion in the form of “Kodak fiends,” proto-paparazzi who were now able to capture—and disseminate—individuals’ images without their knowledge or consent.
In 1890, in what went on to be hailed as a landmark Harvard Law Review essay, Samuel Warren and Louis Brandeis, Boston lawyers, decried the press for transgressing the “obvious bounds of propriety and of decency” and trafficking in gossip as “a trade.” They also fretted over the novel forces allowing the “unauthorized circulation of portraits of private persons.” What they demanded in response was an actionable “right to privacy.” Their article helped give shape to a new legal claim for damages: the publication of private facts. (Ironically, Warren was heir to the paper company whose product made the printing of illustrations and photographs financially feasible for the scandal press—even as it also supplied paper to more reputable organs like The Atlantic.)
Although their call for a new right was inspired by modern privacy invasions, Brandeis and Warren traded in older gender- and class-bound ideas about who suffered most, both materially and psychologically, from the slings and arrows of publicity. Delicacy around embarrassing revelations was still often imagined as the privilege of elites. As their contemporary, the editor E. L. Godkin, put it, privacy was “one thing to a man who has always lived in his own house, and another to a man who has always lived in a boardinghouse.” Yet the ability to at least stake a claim against unwelcome public scrutiny was becoming available to a wider array of Americans.
One flash point was a 1900 suit filed by a 17-year-old named Abigail Roberson, charging that she was “made sick” by the unauthorized use of her image (shown in profile, revealing a bit of collarbone, and accompanied by the tagline “Flour of the family”) in advertisements for the Franklin Mills flour company—25,000 posters displayed in grocery stores, saloons, and other public venues. As Gajda recounts, a lower court sided with Roberson, stating that “every woman has a right to keep her face concealed from the observation of the public.” A higher court pointedly disagreed, however, that anyone had a right to move through the world free of unwanted publicity. Indeed, “others would have appreciated the compliment,” Judge Alton Parker pronounced. Popular outcry led the New York legislature to pass the nation’s first privacy statute the following year. Tellingly, Parker changed his tune just a couple of years later, when he ran for president and became desperate to escape “camera fiends” and what he described as the “sleepless surveillance of surreptitious snapshotters.” His own private life and affairs, unlike a pretty young girl’s, seemed obviously worthy of shielding.
The Roberson case pointed to the way commercial interests and evolving cultural values would recast privacy debates in the 20th century. Even as privacy rights gained a firmer footing, the notion that one could not realistically live outside the public gaze was taking hold. It was a position that scandalmongers as well as respectable papers endorsed as part of the First Amendment guarantee of press freedom. Defined relatively narrowly in Hamilton and Jefferson’s day, the people’s right to know was becoming a more expansive concept, promoted by publishers and reporters and backed by courts. The ebbing of Victorian norms of propriety, which had sought to keep unseemly matters out of public places, helped loosen rules on what was publishable, too.
The impulse to tell all was tempered—for a time—by the professionalization of journalism in the 1920s. The American Society of Newspaper Editors drafted national standards of behavior for its members, more of whom now came out of journalism schools. The dean of the University of Missouri’s journalism school, the first such program in the country, wrote in 1914 that “no one should write as a journalist what he would not say as a gentleman.” (The choice of language suggests the lasting association between privacy rights and social status.) In turn, jurists began to trust reporters to make their own calls as to what was in the public interest to expose—to adjudicate what was newsworthy and what was not.
For a moment, the United States enjoyed a rare alignment of privacy sensibilities, journalistic practice, and the law. It didn’t last long. As the legal historian Samantha Barbas has explained, the courts’ deference to the press led, by mid-century, to a transformation in the very meaning of the term newsworthy. It came to refer not to what the public needed to know but to what it wanted to know. And what the public demanded was still the stuff of The Illustrated Police News: voyeuristic accounts of sex and violence.
The courts ratified this shift. In 1966, the Supreme Court heard Time, Inc. v. Hill, which concerned Life magazine’s misrepresentations of a family’s experience being taken hostage during an armed robbery. The Court ruled in favor of the publisher. In an echo of the Roberson case, the majority indicated that “exposure of the self to others” was simply part and parcel of life in a modern society that placed “a primary value on freedom of speech and of press.”
In subsequent decades, courts tilted further still, offering constitutional protection to parties who had exposed a private citizen’s sexual orientation against his wishes, published a rape victim’s name because it was discoverable in public documents, and televised a horrific accident scene in the name of public interest. Under American law, a private person could become a public one, his or her life stripped bare, simply by virtue of bad luck. Well before the advent of the internet age, American jurisprudence was coming around to the view that everyone was a public figure, and without the restrictions, cultural or legal, on the flow of personal information that Hamilton and Jefferson had counted on.
The vicissitudes of the right to privacy over the past two centuries suggest that we may be overdue for a reckoning akin to Brandeis and Warren’s. Even in a no-holds-barred social-media landscape, we are not without resources—whether in the form of legal precedents or changing social values.
California’s privacy regulations now permit minors to erase their past social-media posts, a version of Europe’s “right to be forgotten.” New statutes criminalize the humiliating nonconsensual sharing of explicit photos and videos known as revenge porn. Whistleblowers have begun to reveal the calculated damage to both private and public life caused by unregulated social media. Cities have banned facial-recognition technologies. Courts have ruled that Americans are entitled to some privacy in even the most public of places. Details that were never before treated as private—such as home addresses and geolocation data—have earned legal protections.
Pitched battles over claims of privacy and publicity underscore the urgency, and unsettled boundary lines, of our own historical moment. So far, these efforts have been scattershot. But they make clear that privacy is not “over.” As in the past, new privacy claims are emerging in tandem with novel violations.
History of course provides no tidy formula for the present. Gajda’s chronicle reveals an enduring tension between principles of free speech and respect for individuals’ private lives. But it also throws into sharp relief how much the context for that debate has changed in the past several decades. Highly visible privacy invasions have by no means abated: Take Jeff Bezos’s recent fight with the National Enquirer over its threat to print embarrassing photos of him and his girlfriend, or Hulk Hogan’s lawsuit against Gawker over the publishing of a sex tape featuring the former wrestler. (The success of the latter was, depending on your point of view, a victory for privacy or proof that it remains a prerogative of powerful men.) But such episodes in the tabloid press are now swamped by a much more extensive and complex ecosystem of incursions.
Our models and tools for safeguarding privacy need to catch up. We live in a world where daily, continuous—and often unfelt and unseen—intrusions are the rule, the work not just of traditional media but of tech companies, data-analytics firms, entertainment systems, financial industries, and state agencies seeking unfettered access to our information. Each of us now navigates competing claims of transparency and privacy every time we swipe a credit card, download an app, or pass through a smart home. Focusing on individual violations and litigation in the courts, a strategy that once served to protect (some) Americans’ privacy, is insufficient in the present. For a shot at privacy in the digital age—to say nothing of the coming metaverse—we will need to envision privacy as a collective social good in need of collective solutions: strong public regulation that systematically reins in the parties who trample it.
There is another lesson to be drawn from Gajda’s history. From the earliest days of the republic, privacy law has best served the most privileged in American society: those with considerable clout and resources at their disposal. To enact meaningful protections today, advocates will need to challenge the uneven allotment of privacy in the United States, taking careful account of who has and hasn’t been served by past victories. If they do, Americans may yet summon defenses of privacy responsive to the needs and desires of ordinary citizens.
This article appears in the May 2022 print edition with the headline “Privacy Isn’t Dead.”
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