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

1. Privacy and the press From Brandeis to Roe v. Wade,a brief history of a troublesome right

2. Journalists and privacy The press wants information to be public

3. Journalists and privacy The press wants information to be public Freedom of Information Act sometimes intrudes on privacy

4. 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

5. 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

6. Privacy and the Constitution No explicit guarantee

7. Privacy and the Constitution No explicit guarantee Griswold v. Connecticut established a beachhead

8. Privacy and the Constitution No explicit guarantee Griswold v. Connecticut established a beachhead Roe v. Wade extended right of privacy

9. Louis D. Brandeis Saw Constitution as an evolving document

10. Louis D. Brandeis Saw Constitution as an evolving document Encountered anti-Semitism when named to the Supreme Court

11. Louis D. Brandeis Saw Constitution as an evolving document Encountered anti-Semitism when named to the Supreme Court Friend of First Amendment

12. The Right to Privacy (1890) Co-authored with partner Samuel Warren

13. 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

14. 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

15. A unique legal solution Libel laws inadequate because a violation of privacy is “spiritual” rather than “material”

16. 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

17. 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

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

19. 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”

20. 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”

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

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

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

24. Proposed remedies Civil lawsuits

25. Proposed remedies Civil lawsuits Restraining orders

26. Proposed remedies Civil lawsuits Restraining orders They suggest criminal penalties, too

27. Olmstead v. U.S. (1928) An early wiretapping case

28. Olmstead v. U.S. (1928) An early wiretapping case Taft’s majority decision relies on doctrine of original intent

29. 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”