Zimmerman, Diane Leenheer

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Musings on a Famous Law Review Article: The Shadow of Substance

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 41 | Issue 31991Musings on a Famous Law Review Article: TheShadow of SubstanceDiane Leenheer ZimmermanFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationDiane Leenheer Zimmerman, Musings on a Famous Law Review Article: The Shadow of Substance, 41 Case W. Res. L. Rev. 823 (1991)Available at: https://scholarlycommons.law.case.edu/caselrev/vol41/iss3/13MUSINGS ON A FAMOUS LAW REVIEWARTICLE: THE SHADOW OF SUBSTANCEDiane Leenheer Zimmerman*ALL YEAR, SCHOLARS and practicing lawyers have beengathering to celebrate, and occasionally to ponder why theywere celebrating, the hundredth anniversary of the law review ar-ticle "which launched a tort."' Although Samuel Warren andLouis Brandeis's The Right to Privacy2 is the most famous schol-arly endeavor of its kind (at least in the United States), the pre-cise nature of its claim to such fame becomes increasingly unclearwith the passing years. The tort those august authors are mostclearly and centrally identified with-the disclosure to the publicof true but personal information--has retained just enough life togive it nuisance value and to provide some interesting work formedia attorneys. However, even this slim breath of life seems tobe failing as many courts refuse to apply the tort or even reject itoutright." While The Right to Privacy has fame, does it also havesubstance?Professor Leebron takes an unusual and creative approach inexploring the Warren and Brandeis phenomenon in the context ofthe history of tort theory.5 He cogently demonstrates that privacyas Warren and Brandeis conceived it is an anachronism as a mat-* Professor of Law, New York University.1. Bloustein, Privacy, Tort Law, and the Constitution: Is Warren and Brandeis' TortPetty and Unconstitutional as Well?, 46 TEx. L. REV. 611, 612 (1968).2. 4 HARV. L. REV. 193 (1890).3. This tort is described in RESTATEMENT (SECOND) OF TORTS § 652D (1976).Three other forms of behavior are also recognized as tortious invasions of privacy by theRestatement and by many states. The first is intrusion, a nontrespassory breach of an indi-vidual's reasonable expectation of seclusion, see id. § 652B; the second is the so-called"false light" tort where inaccurate information about the plaintiff is publicized, see id. §652E; the third is the misappropriation of a name or likeness for commercial purposes, seeid. § 652C. This commentary is directed to the private facts branch of the tort.4. These cases continue to pile up. See, e.g., Hall v. Post, 323 N.C. 259, 372 S.E.2d711 (1988).5. Leebron, The Right to Privacy's Place in the Intellectual History of Tort Law, 41CASE W. RES. L. REV. 769 (1991).CASE WESTERN RESERVE LAW REVIEWter of tort theory and was so even when they formulated theiridea. Professor Leebron notes that Warren and Brandeis's conceptwas rights-based and plaintiff-centered when the tort law wasmoving powerfully toward an analysis of liability focused on thefault of the defendant. More specifically, tort law was moving to-ward a relativistic universe where a defendant's desire to act wastempered by rules of reason rather than being strictly constrainedby a plaintiff's absolute right to integrity of the body or property.6In contrast, Warren and Brandeis proposed a tort which, in math-ematical terms, is a rather simple equation: right + invasion =liability. While this formula is invariable, its result could be can-celed not by a defense of reasonableness but only by the availabil-ity of one or another policy-based privilege.Accepting that Warren and Brandeis lost the battle for theo-retical dominance in tort law,7 Professor Leebron's discussion nev-ertheless tempts one interested in the problem of privacy and lawto hope for a new lens to view both the law's romance with TheRight to Privacy, and the substantive failure of the tort it gener-ated. If Leebron's thesis explains why Warren and Brandeis hadso little lasting impact on tort theory, does his thesis also explainwhy their tort has remained problematic?The prospect is tantalizing, but ultimately the answer is no.Holmes's attempt in The Common Law8 to unify tort law by bas-ing liability on negligence rather than on the invasion of rightsprimarily responded to the most common class of mishaps: acci-dentally inflicted harms to persons and property. Neither Holmesnor negligence theory has been very much concerned with chang-ing the way the law deals with intangible injuries to personhoodand identity, or with protecting persons and property from inten-tional assaults. In this terrain, which focuses on maintaining per-sonal and physical boundaries, rights-based analysis flourishes, asit did in the thinking of Warren and Brandeis. Trespass, assault,false imprisonment, offensive battery, and even defamation9 con-6. See Leebron, supra note 5, at 771-72.7. Negligence has been the basis of modern tort law, at least until the post-WorldWar 11 resurgence of strict liability in products liability (a phenomenon susceptible to vari-ous theoretical interpretations).8. O.W. HOLMES, THE COMMON LAW (1881).9. At least as formulated before New York Times Co. v. Sullivan, 376 U.S. 254(1964), defamation was a strict liability tort. More recently the Supreme Court has hintedthat defamation as a true strict liability tort may have survived New York Times, absentmatters of public concern. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.824 [Vol. 41:823RIGHT TO PRIVACYtinue in the tradition of the early writs, retaining a kinship withstrict liability and the scent of natural law wafting about them.Although the numbers of cases are few and torts professors tendto view them as intellectually as well as numerically peripheral,these old-fashioned torts continue to serve a largely uncontrover-sial function.10 These rights-based actions were not abandoned inthe rush to negligence principles, but instead they still functioneffectively in a way that Warren and Brandeis's private facts tortdoes not. Why? Clearly, the difference does not depend on whichtort theory serves as the basis of these various actions.Indeed, the privacy tort is not even necessarily premised inrights-based thinking despite the way that Warren and Brandeischose to make the case for it. To a certain extent, classification isa word game and may be played in numerous ways to achievesimilar results. Privacy may easily be reformulated to conformmore closely to the Holmesian model, focusing primarily on thedefendant's behavior and on the compensatory function ratherthan on the plaintiff's interest. In essence, this is Dean Prosser'scontribution. 1 In Prosser's, and subsequently, the Restatement(Second) of Torts,12 view, the law actually permits defendants toinvade another's "privacy" if they do so reasonably; the behaviorbecomes tortious only if the information disclosed would be highlyoffensive by community standards. 3 Furthermore, victims arecompensated not for a violation of an abstract right, but for theiremotional distress. 4 While Prosser's modernization gave courts anew shared language with which to discuss "privacy," this formu-lation was unsuccessful at breathing life into this languishing bodyof law. Reasonableness and offensiveness remain as elusive asWarren and Brandeis's original distinction between public andprivate. The problems with privacy as a tort seem to remainproblems whether it is clothed in ancient or in modern dress.749, 755-63 (1989).10. The controversy that does exist is often generated by conflicts with first amend-ment values. For example, this conflict has led courts to remake large parts of defamationlaw. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (recovery by publicofficials for defamation limited to instances of knowing falsehood or reckless disregard fortruth). Similar conflicts arise in the tort of intentional infliction of emotional distress. SeeHustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (recovery by public officials limitedto instances of false statements of fact made with actual malice).I1. See Prosser, Privacy, 48 CALIF. L. REv. 383 (1960).12. RESTATEMENT (SECOND) OF TORTS §§ 652A, 652B, 652D (1976).13. See Prosser, supra note I1, at 396-97.14. See id. at 409.1991]CASE WESTERN RESERVE LAW REVIEWPrivacy as a tort remains problematic because torts work wellonly when fairly broad-based and particularized agreement existsabout what society wishes to protect, deter, and compensate plain-tiffs for. Tort law fails when there is disagreement on these issues.This society is comfortable with protecting bodily integrity, withthe notion that reputation is a valuable good, and with the ideathat property owners have a largely unassailable interest in exclu-sive control. Whether the underlying interest is protected with arule of reason or strict liability, members of our society believe theunderlying values are important to themselves as individuals andare equally willing to defend them when others' interests are in-fringed. Furthermore, judges and juries share a reasonably consis-tent understanding of these values.In contrast, privacy is not so well-defined. Like a flag whichhas not been assigned a country, privacy is rich in symbolic valuebut has little particularized meaning. There is sparse evidencethat our society shares Warren and Brandeis's core assertion thatinformation about an individual's life "belongs" to that individualand cannot be used by others without the individual's consent."6This does not mean that people would not prefer to have controlover the circles where information about themselves circulates;rather, it means that they are uncertain about their willingness inthe long-term to support that right for other people. In a complexsociety, individuals value some forms of privacy highly. However,it is not clear that one of these forms is the right of our fellowcitizens to be free from publicity about details of their personallives, obtained in a legal, nonsurreptitious way. Indeed, peopleboth desire and legitimately need a wide variety of informationabout others.1 6 Information serves many functions for people bothindividually and collectively, some of which cannot be predictedex ante. It is difficult to achieve stable and serious agreement onthe sort of personal information that can readily be foregone, andwhich disclosures are therefore "unreasonable." Although thisproblem often arises in the form of a conflict with first amend-ment values, the problem would exist and marginalize this torteven if there were no Bill of Rights. In addition to time and15. Warren & Brandeis, supra note 2, at 195-96, 205-06.16. Many have studied the importance of gossip. For examples of these studies and adiscussion of the importance and persistence of gossip, see Zimmerman, Requiem for aHeavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L. REV.291, 332-37 (1983).[Vol. 41:823RIGHT TO PRIVACYmoney, courts expend credibility in administering the tort systemif they deter behavior that many would prefer to encourage anddo so to protect interests that, in particular cases as opposed toabstract theory, will surely strike many people as marginal. Theultimate conclusion may be that this is a misconceived body oflaw.Perhaps this point is best illustrated by examining the waysin which the law has successfully protected some aspects of pri-vacy. Trespass, for example, does not merely protect existing allo-cations of wealth, but it also stabilizes physical boundaries behindwhich people are free to conduct their lives unobserved, or at leastonly selectively observed. It is not surprising, therefore, that one ofthe law's most workable and least controversial branches specifi-cally denominated as protecting privacy is the branch barring non-physical intrusions into seclusion. This tort shares a clear intellec-tual kinship with the values underlying the tort of trespass. Thisinterest is effectively protected because society agrees that peopleare entitled to establish protected spaces; society does not have tomake controversial value judgments about the desirability (or lackof it) of shielding each particular activity the individual may en-gage in behind those boundaries with a tort action. Similarly,commercial uses of personal information, with its overtones of eco-nomic injury, have won a far firmer place in common law juris-prudence than uses of personal information generally. 1  Preventionof unjust enrichment is also a well accepted legal objective, andcourts do not perceive this form of privacy protection as requiringelusive judgments about the value of information.By contrast, it seems difficult to give convincing content tothe values underlying the private facts tort action regardless ofhow it is conceptualized as a matter of tort theory. This makes ithard to give the tort an enduring place in our jurisprudence.Despite the intellectual affinity of Warren and Brandeis'srights-based analysis to constitutional analysis, some of the sameweaknesses afflicting their concept as a tort have also kept it fromplaying a meaningful role in the context of constitutionally-basedprivacy as well. Professor Leebron specifies numerous instanceswhere both the Supreme Court of the United States and statecourts have explicitly referred to the constitutional dimensions of17. This includes the privacy tort of appropriation of names or likenesses for com-mercial purposes, and the newer, related right of publicity.1991]CASE WESTERN RESERVE LAW REVIEWWarren and Brandeis's right to privacy. 18 However, the article'scontribution in this area has been rhetorical rather than substan-tive. The notion that judges in constitutional cases do not alwaysmean what they seem to say when quoting from The Right toPrivacy is readily apparent from the result of the collision of War-ren and Brandeis's conception of privacy with a right actuallywritten into the Constitution. Plaintiffs lose.' 9 It is difficult to ar-gue, as a constitutional matter, that protection against publicationof ill-defined "private" facts, causing entirely intangible harms,should outweigh for example a defendant's right to publish mate-rial acquired through personal observation or other fair means.Professor Leebron notes that the Supreme Court stopped cit-ing Warren and Brandeis in constitutional privacy cases after1967.20 This is hardly surprising since the article is essentially ir-relevant to the issues posed.Constitutional privacy and the right to protect private infor-mation have little in common. First, only occasionally do constitu-tional privacy claims directly concern the distribution of informa-tion. Instead they often concern bodily integrity, the sanctity ofnonpublic places, or the ability to make intimate decisions withoutregulation. Furthermore, the core issue in cases decided on consti-tutional grounds is the allocation of power within our system ofgovernment in disputes pitting claims of individual autonomyagainst assertions of legitimate government interests. The objec-tive is a stable accommodation of both interests by enunciatingclear limits on the government's coercive force. Government can-not invade our homes without cause and adequate procedural pro-tections; it cannot command our speech; and it has only limitedpower to interfere with our religious practices and procreativechoices. Beyond the contribution of a felicitous phrase or two, it isdifficult to see what the Warren and Brandeis article can contrib-ute to the maintenance of this balance. Thus, we are left with thesame question with which we started. Why are we still discussingthis tort and this law review article one hundred years later, if ithas had so little solid effect on our jurisprudence?18. Leebron, supra note 5, at 802-07.19. See, e.g., Florida Star v. B.J.F., 491 U.S. 524 (1989) (first amendment rightprevails); Cox Broadcasting Corp. v. Cohn, 420 U.S. 323, 469 (1975) (same); cf. Time,Inc. v. Hill, 385 U.S. 374 (1967) (limiting actions for false light invasions of privacy toinstances involving knowing or reckless falsity).20. Leebron, supra note 5, at 806.[Vol. 41:823RIGHT TO PRIVACYThere are good reasons, although these reasons are not onesthat the law is especially well-equipped to address. Warren andBrandeis remain with us because they suggested, probably incor-rectly, that the dilemma inevitably created by participation in anycommunity can be resolved. Humans want to maintain boundariesbetween themselves and others. However, we cannot maintain ab-solute control of identity and information unless we are willing, asfew are, to endure the pain of total isolation or we can limit theinformation's escape by obtaining a veto over the autonomy of theknower. Realistically, communities are unwilling to provide such aveto in more than token form, if at all, since the exchange of in-formation is crucial to the cohesiveness of the community and tothe full development of all its members. The desire for privacy is awish for a room of one's own, but almost inevitably this room issimultaneously too large and too small for comfortable habitation.The august authors of The Right to Privacy have provided uswith an object lesson about the limits of the law in solving socialproblems. At best, the law can guard the periphery, the four walls.However, the law cannot resolve the inherent central tension andshould not continue to try. If Warren and Brandeis's article is stillbeing discussed at the end of another century, the discussionshould be led by psychologists, sociologists, and moral philoso-phers. We lawyers should be content to sit in the audience for thatanniversary celebration.1991]

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