II

One reason for the legal confusion over privacy is that law in the United States distinguishes between two kinds of privacy. On the one hand, there is the constitutional right of privacy that protects against governmental actions. On the other, there is the common law or tort right to privacy that protects against actions by other private parties. Constitutional privacy is in large measure a creation of the Warren Court, especially Justice Douglas, who argued that various amendments of the Bill of Rights contain "penumbras," which, when taken together, create "zones of privacy" into which the government should not intrude.^[4] For instance, a constitutional right of privacy is the basis of Roe v. Wade (1973), the Supreme Court case that limits the government's power to interfere with a woman's choice to have an abortion or not. In contrast, the common law right to privacy grows out of a Harvard Law Review essay published in 1890. Its authors, Samuel Warren and Louis Brandeis, like James, attended Harvard. Constructed out of his milieu and at almost the same time that he was writing, this right to privacy would seem to be the one most pertinent to his works.

Brandeis and Warren graduated first and second in their law school class. Warren came from a wealthy Boston family. Brandeis would become the first Jewish member of the Supreme Court. Roscoe Pound is quoted as saying that their article did "nothing less than add a chapter to our law."^[5] Its intent was to protect human dignity from the prying of others. They were most concerned about the press' violation of "obvious bounds of propriety and of decency." Condemning the commercialization of gossip that leads to intrusions "upon the domestic circle," the two argue that the "intensity and complexity" of life accompanying "advancing civilization" necessitate "some retreat from the world." If, on the one hand, "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"; on the other, "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."^[6]

This hostility to the press has sparked imaginative accounts of the article's origin. According to legend, Warren sought Brandeis's help in response to press coverage of his family's social life. In 1883 Warren married Miss Mabel Bayard, daughter of Thomas Francis Bayard Sr., a

senator from Delaware who was nearly nominated for president by the Democrats, although his Southern connections raised suspicion about him with some Northerners. As Secretary of State, Bayard forged a cooperative alliance with Great Britain known as "hands across the Atlantic."^[7] It is only appropriate, then, that the famous writer of trans-atlantic novels, Henry James, knew Bayard's daughter, having met her on a visit to Washington, D.C., in 1882. Impressed by her charm, he wrote to his mother that she and her friends were "such as one ought to marry, if one were marrying."^[8] James, of course, did not marry, but the next year Warren did. According to one of Brandeis's biographers, when the Warrens "set up housekeeping in Boston's exclusive Back Bay section and began to entertain elaborately, The Saturday Evening Gazette, which specialized in 'blue blood items,' naturally reported their activities in lurid detail."^[9] Reporters, we are told, snuck into social affairs as waiters, carrying hidden cameras. For six years, according to the authors of a book on privacy, Warren and Brandeis considered legal means to halt such intrusions, using that time meticulously to arrange "the words that convey the ideas that constitute [their] argument."^[10]

This account of the article's origins has since been disputed. Unearthing very few reports of the Warrens' social life, less sympathetic scholars speculate that the actual cause of Warren's outrage was the press's handling of Senator Bayard in 1889.^[11] But whether the image of Samuel Warren knocking a camera out of a disguised reporter's hands is a fabrication or not, it is clear that many of the so-called "best men" of the time were concerned about the intrusiveness of the press. For instance, Warren and Brandeis cite a Scribner's Magazine article written the same year by E. L. Godkin, the editor of The Nation . Godkin argues that the threat to privacy grows out of the development of new technologies of publicity. Admitting that there is "some substance" to the claim that "the love of gossip is after all human," he warns that gossip is no longer confined to the "immediate circle" of someone's acquaintances. Instead, it can "make his name, or his walk, or his conversation familiar to strangers." If oral transmission spared someone the "pain or mortification of knowing that he was gossiped about" because he seldom heard that which "simply made him ridiculous, or trespassed on his lawful privacy, but made no positive attack on his reputation," the wide circulation of papers reveals his imperfections to people hundreds or thousands of miles away, and, worst of all, "brings to his knowledge exactly what is said about him, with all of its details." Thus he must suffer "the great pain of feeling that everybody he meets in the street is

perfectly familiar with some folly, or misfortune, or indiscretion, or weakness, which he had previously supposed had never got beyond his domestic circle."^[12]

The press's power to affront personal dignity intrigued James. In The Reverberator (1888), for example, a vulgar American reporter almost halts the wedding of a sophisticated French-American man to an innocent American woman when he publishes information that she confidentially tells him about the private life of her family-to-be, which, in turn, considers anyone who would give such information to a reporter unworthy of membership in its exclusive circle. Whether or not we can trust a biographer's summary of journalistic accounts of the private life of the Warren family, James's plot indicates that Warren and Brandeis had available vivid, if fictional, accounts of the press's lack of scruples. Their concern was not with libel, which was already covered by the law. Instead, they wanted legal protection against the sort of intrusions that James imagines, whether the information was true or not .^[13] They sought this protection by claiming that, although it had never been articulated, the common law guaranteed a right to privacy, or, as they put it, "the right 'to be left alone.'"^[14]

The political consequences of such a right to privacy in our own day are not clear. Some liberals point to its mugwump origins as proof that it is a relic of an elitist, bourgeois ideology. For evidence they could cite an 1890 editorial in The Nation commenting on the Warren and Brandeis article. While deploring violations of privacy, the author is pessimistic about providing for its protection because "in all democratic societies today the public is disposed either to resent attempts at privacy, either of mind or body, or turn them into ridicule."^[15] Defense of privacy, in other words, is perceived as undemocratic. But an editorial in Scribner's Magazine takes issue with this account. "It is important to note," it insists, "that privacy is not by any means an attribute of aristocracy as opposed to democracy." Nonetheless, the Scribner's article confirms those who find the defense of privacy conservative. It begins: "In the great future battle of the world between the two systems of Socialism and Individualism, one of the vital points of difference is to be privacy ."^[16]

But lest we succumb to the identification of privacy with individualism, we should remember John Dewey's argument in 1927 that "the distinction between private and public is ... in no sense equivalent to the distinction between individual and social, even if we suppose that the latter distinction has a definite meaning." Drawing on the pragmatic

definition of actions by their consequences, Dewey insists: "When indirect consequences are recognized and there is an effect to regulate them, something having the traits of a state comes into existence. When the consequences of an action are confined, or are thought to be confined, mainly to the persons directly engaged in it, the transaction is a private one."^[17]

If Dewey's argument is not enough to make us resist equating the protection of privacy with conservative individualism, the argument of radical feminist Andrea Dworkin should. Describing media coverage of rape victims as "the third rape" (after the act itself and the trial), Dworkin decries the New York Times and NBC News policy of reporting the names of victims. "If a woman's reporting a rape to the police means she will be exposed by the media to the scrutiny of voyeurs and worse, a sexual spectacle with her legs splayed open in the public mind, reporting itself will be tantamount to suicide." Like Warren and Brandeis years earlier, Dworkin considers the truth of the reporting irrelevant. "The media," she says, "use you until they use you up." What the rape victim needs, she argues, sounding very much like our mugwumps, is "privacy, dignity, lack of fear."^[18]

Similarly, the mugwumps' fear that the threat to privacy was socialism is challenged by the attack on the tort right to privacy by that staunch defender of free enterprise, Judge Richard Posner. "Very few people want to be left alone. They want to manipulate the world around them by selective disclosure of facts about themselves.... Reputation is what others think of us, and we have no right to control other people's thoughts. Equally we have no right, by controlling the information that is known about us, to manipulate the opinions that other people hold of us. Yet this is the essence of what most students of the subject mean by privacy."^[19]

Posner's stand on privacy is consistent with his defense of market freedom. Indeed, the purpose of Warren and Brandeis's article was to provide legal protection for those who wanted to keep information about themselves, true or not, from circulation in the market. Any consideration of the political effect of their construction of a right to privacy should take into account their desire to resist the logic of the market.

To resist that logic the two lawyers distinguished a right to privacy from property rights. Their need to do so grew out of the relation between property and contract at the time. Whereas in the eighteenth century there was a general tendency to assume the intrinsic value of a

piece of property, in the highly developed market economy of the late nineteenth century value was determined by contractual exchanges. Thus, although the law may have protected vested interests of property, the value of property was subordinate to the contract relation. The consequences of the reign of contract for a guaranteed right to privacy are best understood if we remember Locke's crucial distinction between life and labor. For Locke labor is alienable from the person and thus becomes a form of property. Life, however, is not alienable. To subordinate the right to privacy to that of property is to make it alienable. But the entire point of a right to privacy is to protect aspects of the personality from circulation in the marketplace. Privacy, therefore, had to be related to an inalienable part of one's personality.

One way of looking at the history of the tort right to privacy is to note how difficult it has been to disassociate it from property.^[20] For an example, we can turn to Godkin's argument that reputation is one of man's most valuable possessions, as important or more important for the comfort and happiness of life as "tangible property." For proof he quotes Othello:

Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that felches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.^[21]

But even though Godkin insists on reputation as being more valuable than money, the courts protected reputation by linking it to tangible property. Because reputation could increase earning power, it, like labor, was a form of property. For instance, one of Albion W. Tourgée's most ingenious attacks on the "separate but equal" law challenged in Plessy v. Ferguson was that, in labeling Homer Plessy, who was seven-eighths white, black, the Jim Crow law deprived him of his reputation as a white man, which affected his earning power and consequently violated the 14th Amendment's protection of life, liberty, and property.

If reputation itself is marketable, how can it be an inalienable part of someone's personality? Indeed, the inability to disassociate the right to privacy from property would seem to undercut Warren and Brandeis's claim that an "inviolate self" is capable of resisting the market. As a generation of literary critics has been trained to believe, the very notion of an inviolate, private self is a construct. Students of late nineteenth-century United States culture have used this insight to suggest that far

from resisting the logic of the market, the notion of an inviolate, private self is a product of it. For instance, Philip Fisher problematizes the opposition between public and private by arguing that in The Bostonians the private self does not preexist the public but is created by disappearing from it. The "genius" of James's novel he asserts, "is not to ask the question of how, out of normal human materials" a performing public self is constructed. "Instead [James] begins with Verena's instinctively public self and asks how, out of this, an intimate and human-scale personality might be won." Verena's "full possession of an individual self," he argues, comes from her final act of disappearing from the public.^[22]

Fisher's reading seems to complicate a genteel, mugwump vision of a private, autonomous self that preexists the realm of publicity. It is worth noting, however, that the mugwumps were not quite the essentialists that contemporary critics make them out to be. For Godkin a private self is not an ahistorical self. "Privacy," he maintains, "is a distinctly modern product, one of the luxuries of civilization, which is not only unsought for but unknown in primitive or barbarous societies."^[23] Even if we are put off by Godkin's Eurocentric views of civilization and barbarism, we have to acknowledge that they make clear that, for him, a private self is not some preexisting, natural self, but one that is produced by a particular civilization, a self that he feels is well worth preserving. Likewise, the purpose of Warren and Brandeis's article was to demonstrate that the common law is a historically adaptable institution that contains within it principles that provide legal protection against new threats to a particular version of the self. Present commentators almost always overlook the fact that Warren and Brandeis refer to a right to privacy, not a right of privacy, which is the common phrase today. They shouldn't. The difference is subtle, but a right to privacy implies that unless people are guaranteed the right to be left alone they will not be able to maintain an inviolate personality, whereas a right of privacy, a bit more strongly, implies something that an inviolate personality has as an inalienable possession. A right to privacy is more a creation of the law, a right of privacy more an appeal to natural rights.

My point is that Warren and Brandeis come closer than some give them credit for to Robert Post's very contemporary argument that the issue at stake concerning privacy "is not whether the law ought to protect personality, but rather how the law ought to conceptualize personality for the purposes of legal protection."^[24] The mugwumps conceptualized personality in a very particular way and felt that it should

be protected. What is interesting when we look at James in conjunction with their concept of personality is that he, too, asserts a notion of personality, but one that challenges the mugwump version. In challenging it he does not, however, reduce it to a pure product of the public sphere or the market. The private self in James does respond to new techniques of publicity and a market dominated by contractual relations. But even though those forces shape the nature of the self, they do not completely determine its shape.

The problem with a reading like Fisher's is that it corrects the notion that a private self preexists a public realm by turning the relationship upside down. James's novel works by a "reversal of terms." He underlines a "strategy of self-creation that inverts the strategy of publicity and visibility that are the machinery of the celebrity" (my emphasis).^[25] The private is formed by disappearing from what must be a preexisting public realm. The legal distinction between the constitutional and tort rights of privacy points to the flaw in such an inversion.

To recall, constitutional privacy concerns violations by the government; tort privacy violations by other private parties. If privacy can be violated by private parties, we cannot rest content with a simple opposition between public and private. Instead, we need to distinguish among different realms of the private. For instance, whereas it makes sense to contrast the private self with the "public" realm of the market, in the late nineteenth century the market was considered part of the private realm into which the public realm of government should not intrude.^[26] But even if we grant that the realm of the market was for the most part considered private rather than public, it still makes sense to consider the market less private than the domestic sphere into which Verena disappears at the end of The Bostonians . It is the almost sacred realm of the domestic circle that Warren and Brandeis and Godkin seem most concerned to protect. They share that concern with Justice Douglas, who in Griswold v. Connecticut (1965) appealed to the sanctity of the domestic circle to uphold the right of a married couple to use contraceptives. Waxing eloquent he asks: "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. We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."^[27]

The domestic circle may be considered the most sacred zone of privacy, but, as Douglas's quotation makes clear, it is not an asocial realm. Indeed, it is constituted by a contractual relation between husband and wife. The nature of that contract complicates any exploration into the notion of privacy.