Louis Brandeis — Wuss or Snob?

A few people on the Volokh Conspiracy have complained that some of my posts seem to be deriding privacy advocates.  I think that’s close, but not quite right.  We all believe in privacy, certainly I do.  But as I see it, today’s privacy advocates, often in alliance with industry (what I called the “privacy-industrial complex”), have begun to do real harm to our ability to respond to new technological threats, and when they do, they deserve at least good-humored criticism.

My run-ins with the privacy community have also led me to spend some time thinking about why privacy advocates are the way they are.

Poking around in the history of privacy was actually quite illuminating.  I’m excerpting below a passage from Skating on Stilts.  In it, I conclude that reactionary Luddism is an inextricable part of the privacy movement, at least when it deals with new technology.

(And, for those who think I’m flogging my book with too much enthusiasm, I can offer one defense:  at least it’s free.  The chapter that this excerpt comes from is now available under a Creative Commons license at the Skating On Stilts website.)

***

In the 1880s, Samuel Dennis Warren was near the top of the Boston aristocracy. His father was a self-made paper-manufacturing tycoon. His wife, Mabel Bayard Warren, was the daughter of a U.S. senator and secretary of state.

Warren himself was no slouch. He had finished second in his class at Harvard Law School. He founded a law firm with the man who finished just ahead of him, Louis Brandeis, and they prospered mightily. Brandeis was a brilliant, creative lawyer and social reformer who would eventually become a great Supreme Court justice.

But Samuel Dennis Warren was haunted. There was a canker in the rose of his life. His wife was a great hostess, and her parties were carefully planned. When Warren’s cousin married, Mabel Warren held a wedding breakfast and filled her house with flowers for the event. The papers described her home as a “veritable floral bower.”

No one should have to put up with this.

Surely you see the problem.

No? Well, Brandeis did.

He and Warren both thought that, by covering a private social event, the newspapers had reached new heights of impertinence and intrusiveness. The parties and guest lists of a Boston Brahmin and his wife were no one’s business but their own, he thought.

And so was born the right to privacy.

Angered by the press coverage of these private events, Brandeis and Warren wrote one of the most frequently cited law review articles ever published.

In fact, “The Right to Privacy,” which appeared in the 1890 Harvard Law Review, is more often cited than read—for good reason, as we’ll see. But a close reading of the article actually tells us a lot about the modern concept of privacy.

Brandeis, also the father of the policy-oriented legal brief, begins the article with a candid exposition of the policy reasons why courts should recognize a new right to privacy. His argument is uncompromising:

The press is overstepping in every direction the obvious bounds of
propriety and of decency. Gossip is no longer the resource of the
and of the vicious, but has become a trade, which is pursued with
industry as well as effrontery . . . To occupy the indolent, column
upon column is filled with idle gossip, which can only be procured
by intrusion upon the domestic circle. The intensity and complexity
of life, attendant upon advancing civilization, have rendered necessary
some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual;
but modern enterprise and invention have, through invasions upon
his privacy, subjected him to mental pain and distress, far greater
than could be inflicted by mere bodily injury . . . Even gossip apparently
harmless, when widely and persistently circulated, is potent
for evil . . . 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 . . . Triviality destroys at once robustness of
thought and delicacy of feeling.

What does Brandeis mean by this? To be brief, he thinks it should be illegal for the newspapers to publish harmless information about himself, his partner, and their families. That, he says, is idle gossip, and it distracts “ignorant and thoughtless” newspaper readers from more highminded subjects. It also afflicts the refined and cultured members of society—like, say, Samuel Dennis Warren and his wife—who need solitude but who are instead harassed by the fruits of “modern enterprise and invention.”

What’s remarkable about “The Right to Privacy” is that the article’s title still invokes reverence, even though its substance is, well, laughable.

Is there anyone alive who thinks it should be illegal for the media to reveal the guest-list at a prominent socialite’s dinner party or to describe how elaborate the floral arrangements were? Today, it’s more likely that the hostess of a prominent dinner party will blog it in advance, and that the guests will send Twitter updates while it’s under way. For most socialites, what would really hurt is a lack of media coverage. To be blunt, when he complains so bitterly about media interest in a dinner party, Brandeis sounds to modern ears like a wuss.

Equally peculiar is the suggestion that we should keep such information from the inferior classes lest they abandon self-improvement and wallow instead in gossip about their betters.

That makes Brandeis sound like a wuss and a snob.

He does sound quite up-to-date when he complains that “modern enterprise and invention” are invading our solitude. That is a familiar complaint. It’s what privacy advocates are saying today about Google, not to mention the NSA. Until you realize that he’s complaining about the scourge of “instantaneous photographs and newspaper enterprise.”

Huh? Brandeis evidently thinks that publishing a private citizen’s photo in the newspaper causes “mental pain and distress, far greater than could be inflicted by mere bodily injury.”

If we agreed today, of course, we probably wouldn’t have posted 3.5 billion photographs of ourselves and our friends on Flickr.

Anachronistic as it seems, the spirit of Brandeis’s article is still the spirit of the privacy movement. The right to privacy was born as a reactionary defense of the status quo, and so it remains. Then, as now, new technology suddenly made it possible to spread information more cheaply and more easily. This was new, and uncomfortable. But apart from a howl of pain—pain “far greater than . . . mere bodily injury”—Brandeis doesn’t tell us why it’s so bad.

I guess you had to be there.