In 1875, the future Supreme Court Justice Louis Brandeis met his classmate Samuel Warren at Harvard Law School. The two became close friends and soon formed a law firm together. Warren was from one of Boston’s wealthiest families, whose doings were fodder for gossip columns; when Warren married a senator’s daughter, details of wedding décor, guests, and dresses were extensively covered in national newspapers. This irritated Warren, who, even in his undergraduate days, had castigated Boston papers for divulging private facts about Harvard’s secret societies.
Brandeis later pointed to Warren’s “deepseated abhorrence of the invasions of social privacy” in explaining why the two men published their famous law-review essay “The Right to Privacy,” in 1890. It decried invasions of “the sacred precincts of private and domestic life.” It deplored “the details of sexual relations” being “broadcast in the columns of the daily papers” and the publication of “idle gossip, which can only be procured by intrusion upon the domestic circle.” People should have legal recourse, it suggested, against those who publish private facts about them.
For decades afterward, courts debated whether the right to privacy existed. But, by the nineteen-sixties, many courts and legislatures had recognized such a right, in various forms, entitling people “to be let alone” and protected from incursions into their private affairs. The tort-law scholar William Prosser, an architect of modern privacy jurisprudence, noted in a classic 1960 study that the right to privacy had, confusingly, come to encompass rights against not only publishing private facts but also several other kinds of harm: portraying a person in a false light; appropriating a person’s name or likeness; and intruding on a person’s “seclusion.”
As privacy widened in scope, it seemed to grow in power. In the 1965 case Griswold v. Connecticut, the Supreme Court constitutionalized a right to privacy, ruling that prohibiting the use of contraceptives was unlawful because of “a right of privacy older than the Bill of Rights.” As Justice William O. Douglas, writing for the Court, put it, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” Douglas, who married four times, explained that marriage is “intimate to the degree of being sacred” and promotes “harmony in living.” And so the constitutional right to privacy—which soon became the basis for the right to abortion and, later, the right to same-sex intimacy—was derived from the common law of marriage, in which an established doctrine of “marital privacy” had traditionally shielded the life of a married couple from interference.
Douglas’s repulsed imaginings drew on at least two distinct senses of privacy. First, privacy as secrecy: the idea that some personal matters, especially those of a sexual nature, should be sequestered from others’ view. And, second, privacy as autonomy: the idea that some personal decisions should be unimpeded by government interference. With marital sex serving as the paradigmatic private act—private in both senses—the rhetorical logic of Griswold suggested that the obvious importance of the first kind of privacy meant that the state must respect the second.
In Roe v. Wade (1973), the valence of constitutional privacy, helped along by the sexual revolution of the late sixties, broadened from sacred marital beds and domestic enclosures to personal autonomy and bodily integrity. People having control over decisions about their own bodies, free from the state, was the core liberty value that privacy represented. In Lawrence v. Texas, three decades later, the Supreme Court struck down a Texas anti-sodomy statute as an unjustified “intrusion into the personal and private life of the individual.” In effect, “Don’t look” had become “Hands off.”
The shifting terrain here invites the question of whether, when we talk about “the right to privacy,” we’ve been treating as interchangeable two terms that are merely homonyms: roughly, privacy as nondisclosure and privacy as noninterference. Justice Samuel Alito, in his leaked draft opinion overturning Roe v. Wade, asserted that the Court, in holding that privacy covered abortion, had previously “conflated two very different meanings of the term: the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.” Alito’s purpose, of course, was to deny the constitutional basis for the right to abortion. And yet disaggregating the two concepts of privacy—the right to hide and the right to decide—may do the opposite, revealing both their interdependence and the contribution each makes to personal liberty.
Contemplating the overruling of Roe v. Wade, scholars have often speculated that abortion access might have been less vulnerable if it hadn’t been grounded in a right to privacy at all. (Some have seen a sturdier foundation in the equal-protection clause of the Fourteenth Amendment.) In the decades after Roe, many feminists argued that privacy had long offered a cover for the subordination and abuse of women in the home and in marriage; as one unit in the eyes of the law, husband and wife were alone in their privacy—including in instances when a wife sought protection against her husband. The feminist legal theorist Catharine A. MacKinnon, along these lines, sharply criticized the Supreme Court’s reliance on privacy to protect rights to abortion and same-sex intimacy. “Privacy works to protect systematic inequality,” she argued. The claim is particularly resonant at a time when Roe’s fragility is apparent.
Today, the right to privacy may implicate “everything from sexual intimacies and private scandals to police eavesdropping and computer data,” Amy Gajda writes in “Seek and Hide: The Tangled History of the Right to Privacy” (Viking). Although she notes the disparate interests that demand legal protection under privacy’s tent, her focus is on privacy as secrecy, on the right to prevent information about oneself from becoming public. Commentators these days regularly warn that Big Tech is getting rich by preying on our privacy for commercial purposes; they also point out that eliminating the right to abortion will disproportionately harm the poor and the marginalized. Yet Gajda, a journalist turned law professor, has a different story to tell. She contends that the right to privacy has, from the start, served the interests of rich men and élite society. “When we laud ‘The Right to Privacy,’ ” she writes, “we laud language influenced at least indirectly by a man—men, really—with much to hide.” Consonant with the feminist critique, Gajda’s theme is that privacy sounds “pretty darned great” until it’s used “to protect the most powerful, thereby shrinking public knowledge about the nation and its key players.”
Like Samuel Warren, early American proponents of privacy were powerful men with secrets to keep. Thomas Jefferson was bothered by innuendo circulating about his hidden life, which included his relationship with the enslaved Sally Hemings, who was a teen-ager when she first bore his children. Jefferson attacked the very press whose freedoms he had previously championed, and he encouraged the prosecution of a newspaper editor. But, as Gajda recounts, he also gave money to an editor who reported on Alexander Hamilton’s adulterous affair with the married Maria Reynolds. Hamilton, another champion of a free press, responded by complaining about the loss of his privacy. In letters exchanged in 1789, John Adams and William Cushing, soon to become a Supreme Court Justice, agreed that malicious press revelations of politicians’ “male conduct” should be punishable, even if true.
When President Grover Cleveland, in his forties, started dating the young daughter of a friend of his who had died (they eventually married) and newspapers began making insinuations about the relationship, he complained of the “outrage upon all the privacies and decencies of life” and demanded that reporters respect the “rights of privacy.” Gossip about a child born out of wedlock, domestic abuse, bacchanalian orgies, and his wife’s preference for the company of older men drove Cleveland to deliver an address at Harvard in which he emotionally condemned newspapers that “violate every instinct of American manliness, and in ghoulish glee desecrate every sacred relation in private life.” President Warren G. Harding, who had a secret child with one of his mistresses, persuaded journalists to adopt a national ethical code, which stipulated that “a newspaper should not invade private rights or feelings without sure warrant of public right as distinguished from public curiosity.”
Gajda’s point is that, throughout American history, enthusiasm for privacy has been linked to a truth that the #MeToo movement made familiar: privacy shields men’s conduct concerning women. The “sacred precincts” that Warren and Brandeis so wanted protected are often the unholy environs of privileged misbehavior. A person’s right to privacy can be at odds with the public’s “right to know,” which has been critical to the functioning of our democracy. Cue President Bill Clinton’s statement, with respect to his affair with a White House intern, that “even Presidents have private lives,” and President Donald Trump’s insistence on keeping private his financial dealings, which included hush-money payments to a porn star.
Look more closely at the jurisprudence of privacy in the postwar era and you see that the two kinds of privacy had very different trajectories. The cause of noninterference bounded from Griswold to Roe to Lawrence. The cause of nondisclosure, meanwhile, was largely in retreat, as the Supreme Court increasingly gave priority to press freedom. The vicissitudes of privacy were exemplified by the saga of Frederick Wiseman’s documentary “Titicut Follies,” which portrayed inmates in a state hospital for the criminally insane. A court limited access to the film in 1967, citing the right to privacy; in 1991, a court allowed the film to be shown to the public without restriction. Later in that decade, a woman who objected to a television show that aired closeup footage of her rescue from a car wreck that left her a paraplegic lost parts of her privacy case because, the California Supreme Court pronounced, “the desire for privacy must at many points give way before our right to know.”
Only recently has privacy as secrecy made something of a comeback. Nearly a decade ago, after Gawker published a video of Hulk Hogan having sex with a friend’s wife in that friend’s canopy bed, Hogan sought damages for invasion of privacy, in a suit funded by the tech billionaire Peter Thiel. The result was the biggest modern-day showdown between press freedom and privacy. Gawker’s brazen stance at trial—in a deposition, a former Gawker editor said that the site was entitled to post any celebrity sex tape it wanted, unless the video depicted a child under the age of four—didn’t bode well for its prospects. (Gawker said that he had answered “in a flip way.”) A 2016 verdict awarding Hogan a hundred and forty million dollars and the resulting demise of Gawker Media showed, Gajda says, the right to privacy “rallying back with full-nelson force.”
Gajda worries that “in our zeal for privacy” we will err in a direction that limits the public’s right to know. Still, her emphasis on privacy as a weapon wielded by the powerful means giving less attention to the protections that privacy might afford the vulnerable. In cases involving charges of rape, intrusive questions about an accuser’s sexual history used to be routine; efforts to limit them have been informed by privacy interests. Instances in which press freedom has trumped privacy, on the other hand, have included the right to publish a rape victim’s name, and sometimes video of the crime. Even when it comes to sexual assault, privacy cuts both ways.
The suspension of privacy can harm poor women in particular. In the realm of domestic violence, for example, one effect of the feminist critique of privacy has been the rise of police and prosecutorial policies that were developed to counter an older regime of abuse-shielding marital privacy. The policies, which focus on mandatory punitive enforcement, consciously override the wishes of the victim, and can result in a kind of state-imposed de-facto divorce. People who lack privacy as secrecy, simply because their living quarters leave them exposed, are especially subject to being reported to the authorities, which can encroach on privacy as autonomy. And these people are, disproportionately, poor women of color. Privacy rights, in short, can shield victims no less than victimizers.
Where Gajda casts journalism as privacy’s main opponent, Brian Hochman’s “The Listeners: A History of Wiretapping in the United States” (Harvard) focusses on the government’s eavesdropping. Hochman, a scholar of American studies, chronicles how electronic surveillance became “normalized” in the U.S. Although we once recognized that wiretapping was a “dirty business,” as Justice Oliver Wendell Holmes put it in 1928, we now, Hochman regrets, accept it as “a mundane fact of American life,” spurred by routine crime-control measures and the policing of people of color.
Soon after the Supreme Court expressed revulsion at the thought of police searching marital bedrooms, it heard the case of Charles Katz, a Los Angeles bookie whose communications of wagers while using a public pay phone were intercepted by F.B.I. agents who had bugged the phone booth without a warrant. The Court decided that this counted as a “search” under the Fourth Amendment, because “electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth,” even though it was in a public place. Katz v. United States (1967) is widely understood as an important win for privacy, but Hochman points out that the ruling also “articulated the conditions under which wiretapping and electronic eavesdropping could be construed as permissible”—such as when police get a warrant and limit the duration and the scope. The case thus set the stage for electronic surveillance “to become an ordinary tool of law and order.”
Americans, Hochman says, could have shut down electronic surveillance for good. President Lyndon Johnson even supported a Senate bill to stop government eavesdropping. Instead, we got law-and-order politics, which translated to racial politics, and helped domesticate wiretapping as a technique for criminal investigation. In 1994, the year that President Clinton signed a crime bill that has been blamed for ushering in a raft of further tough-on-crime measures and aggravating gross racial disparities, he also signed into law a bipartisan bill requiring telephone companies to design their equipment and services to enable surveillance and easily meet official requests for information.
For Hochman, the history of wiretapping ultimately feeds into the larger racial tragedy of mass incarceration and overcriminalization. Just as punishment and policing have had a disproportionate impact on Black communities, he notes, key moments in the history of wiretapping involve surveillance of Black individuals. The federal government eavesdropped on Black political leaders and civil-rights groups, from Martin Luther King, Jr., and Malcolm X to the Black Panthers and the Nation of Islam. Today, he writes, electronic surveillance has “turned up in cases involving drug dealers in Baltimore, undocumented immigrants in Detroit, and Black Lives Matter activists in Chicago.”
It’s striking that the two major social movements of the past five years, #MeToo and Black Lives Matter, respectively, lend their frames to Gajda’s and Hochman’s projects: too much deference to privacy serves male entitlement, on the one hand, and insufficient deference to privacy serves white supremacy, on the other. An oscillation between the two sets of concerns captures not only our unstable moral and social-justice intuitions, which often depend on who’s the violator and who’s the violated, but also the real trade-offs between privacy and competing concerns.
The F.B.I. notoriously wiretapped Martin Luther King, Jr.,’s home, office, and hotel rooms for years, seeking ways to discredit him, listening in on dozens of extramarital affairs, and, at one point, anonymously mailing him tapes of his sexual activities alongside a letter urging suicide to avoid exposure. In 1977, a federal court ordered the F.B.I. intercepts to be sealed at the National Archives until 2027. But they have been largely reconstructed and made available by the historian David Garrow, through clever Freedom of Information Act requests for wiretap transcripts of King’s associates. Unlike Garrow, whose examination of these private conversations, in “Bearing the Cross” (1986), resulted in a Pulitzer Prize, Hochman, who urges resistance to “intrusion into the most mundane corners of social life,” generally avoids using material that is available because of wiretaps. Indeed, his discussion of Garrow’s use of government intercepts omits mention of Garrow’s explosive publication, in 2019, of an F.B.I. agent’s notes about the contents of one particular hotel-room recording. (The recording, and the rest of the intercepts, will become available in five years.) The notes, released as part of the John F. Kennedy assassination records, state that King “looked on, laughed and offered advice” as a friend of his, a Baptist minister, raped a woman.
Readers looking for discussion of this contentious disclosure won’t find it in Gajda’s history of privacy, either, though she is not otherwise shy about describing allegations, even gossip, about prominent American leaders’ behavior. Should Garrow have published the allegations? Many people denounced him for doing so. They properly warned that we should not take as established fact a highly motivated F.B.I. agent’s account of what the recording contains. But they also recapitulated the familiar concern for the privacy of public men and invoked the privacy of female sexual partners, or victims. If all this seemed at odds with #MeToo and its suspension of male-protective privacy prerogatives, the collision of gender and race in public accountability remains deeply uncomfortable. We recognize that the privacy claims of oppressors may have to be restricted in order to curb their ability to oppress. The trouble is that the oppressor and the oppressed, the subordinator and the subordinated, aren’t two distinct groups. People who are victims in certain contexts can be victimizers in others. And so privacy claims—and privacy critiques—will routinely clash.
Privacy, in its various forms, is ultimately about control. The ethic of nondisclosure involves our ability to control access to information about ourselves, whether the information is favorable or unflattering. The ethic of noninterference involves our ability to control decisions about our own lives, for good or ill. When we disaggregate these meanings, it becomes easier to understand how their connection, through mutual reinforcement, is basic to personal liberty.
The knowledge that others—whether private citizens or the government—may be observing our words and actions against our will alters the environment in which our decisions are made; it makes it harder to exercise true control over personal decisions. What Alito dismisses as a conceptual conflation is better understood as a necessary alliance. As we head into a world without Roe v. Wade, the enforcement of abortion restrictions will depend, tellingly, on industrious efforts to ferret out information about individuals seeking, obtaining, and performing abortions. People arriving at certain clinics already find themselves filmed, their license plates recorded.
So it’s unfortunate but unsurprising that the use of one term to refer to the personal dimensions of both secrecy and autonomy has led to confusion over whether privacy really is a fundamental right. The problem arises when we take secrecy as an end in itself, and thus as the paradigm of privacy—an error that can be traced back to Warren and Brandeis’s parochial preoccupations. In truth, privacy with respect to the disclosure of information is an outgrowth of the deeper concern to preserve the conditions for individual autonomy, not the other way around. Rather than a prerogative of the privileged, intent on keeping the general public at bay, the right to privacy should have been understood from the start as a prerogative of the people, establishing a zone where the state cannot readily trespass.
Deciding where the zone extends and when that zone can be breached will always be a vexed and demanding process, because it takes place at the very interface between a polity and a person. Yet when we diminish an individual’s protections against the state the costs are far from insignificant. That shouldn’t be a secret. Personal autonomy, the ultimate value that privacy enshrines, doesn’t just buttress freedom; it is freedom. ♦
