There ought to be a law: The moral and legal aspects of privacy from the nineteenth-century press to twenty-first century attempts to protect individual privacy

Countless judicial opinions and scholarly writings address the clash between a perceived right to privacy and a constitutional right to free speech and a free press. That clash has a documented beginning in 1890 when Samuel Warren and Louis Brandeis wrote a law review article criticizing the press for publishing personal information that no one had a right to know---unless the "owner" of that personal information chose to share it. Warren and Brandeis provide few clues to what provoked them to create a framework for privacy in the common law, and that lack of clear explanation has fostered "urban legends" about the beginning of privacy in the law. Previous studies do not include the possibility that press coverage of President Grover Cleveland's wedding and subsequent family life might have been a catalyst for the call for privacy. This study includes an analysis of news coverage of Cleveland's first presidential campaign, his engagement and marriage to his former ward, and gossip that he beat his wife and mother-in-law. Information from the press reports, when compared with the Warren/Brandeis article, suggests that, perhaps, the two men were reacting to headlines about the president's sexual activity and domestic life---not to coverage of Warren's social life, as many scholars have suggested.; Warren and Brandeis recognized that privacy cannot be protected if the "private" information is in the public record. This study includes court decisions that support publication of the names of juveniles charged with crimes and women who have reported being raped, and more recent decisions to extend a right to privacy to family members. At the same time that court decisions are favoring family members, lawmakers are trying to keep "private" information out of the public record by closing reports that traditionally have been open to public inspection---and, by extension, to the media. This study discusses some of the more recent legislative attempts to protect individual privacy and some of the non-governmental attempts to convince journalists to consider the effect on victims when reporting sensitive information.