If Only J-Law Could Retain Brandeis
The distribution on the Internet of stolen nude photos of Jennifer Lawrence and other actresses has prompted anguished hand-wringing over the erosion of privacy in the cyber-age and the danger posed by people who use sites such as 4chan, where the photos first appeared.
This was a breach too far even for blogger Perez Hilton, who has made a career of trafficking in the private lives of celebrities, and initially published the photos on his own site. He has issued a mea culpa and promised not to publish “intimate” photos in the future.
It's worth remembering, however, that this is by no means the first time that sex, new forms of media, anxiety over technology and the culture of celebrity have converged to create a moment of societal soul-searching.
In 1890, two eminent thinkers issued broadsides lamenting the erosion of personal privacy. The first, E.L. Godkin, the founding editor of the Nation and a prominent social critic, published “The Rights of the Citizen to His Own Reputation” in Scribner’s. He lamented a “particular class of newspapers” that thrived on making “gossip into a marketable commodity.” The inevitable consequence of this obsession, he warned, was a “disposition to intrude on privacy.”
These gossip papers were home to the Victorian equivalent of Perez Hilton, and Godkin despised them. The details of people’s private lives, which once circulated exclusively within small communities, could now be distributed without limits, so that a person’s imperfections and peccadilloes might reach an audience “hundreds or thousands of miles from his place of abode.”
In the “Right to Privacy,” published in the Harvard Law Review the same year, future Supreme Court Justice Louis Brandeis and his co-author, Samuel Warren, formulated a more robust defense of the right to privacy. Like Godkin, they hated the newspapers that filled their pages with gossip.
“To satisfy a prurient taste,” they observed, “the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”
But Brandeis and Warren were also concerned about another innovation: photography. The first hand-held camera, or Kodak, went on sale in 1888. Within two years, the country was awash with the devices, and much like smartphones today, critics described Kodak cameras in the language of addiction. The New York Tribune claimed that “opium, hasheesh, even the fascinations of Monte Carlo are supposed to pall before its many attractions.”
While amateur photographers pointed their cameras at just about anything, famous people -- politicians, actors and, of course, actresses -- immediately proved particularly popular targets, with prints often put up for sale. (In a perverse twist, the contemporary practice of creating bogus nude photos of celebrities originated at this time. In New York, an amateur photographer took pictures of “the most fashionable ladies in the city,” cropped the heads off the negative, affixed them to nude torsos, and sold them.)
But Brandeis and Warren were most concerned with actual invasions of privacy, not manufactured ones. For them, the twin threats of “instantaneous photographs” and tawdry, gossipy newspapers had “invaded the sacred precincts of private and domestic life.” The dismaying spread of high-speed printing presses, hand-held cameras and other innovations led them to conclude that “numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”
Brandeis and Warren did more than complain; they proposed a solution. In an ingenious legal argument, they welded together property, libel and copyright law to argue that people had a right to privacy. This was somewhat ill-defined, though they may have said it best when they described it as the “right to be let alone.”
If a person’s privacy was violated, they offered a solution of sorts: a tort that would give victims a measure of restitution. The idea caught fire in the succeeding decades, with legislatures and courts in numerous states recognizing the “right to privacy” in their statues and decisions. It lives on today in a more weakened state.
What would Brandeis think of the Jennifer Lawrence affair? He would be horrified, no doubt, by Perez Hilton's work, never mind 4chan. And he might question the wisdom of uploading nude photos of yourself to the “cloud.” But it's a safe bet that his sympathies would be with Lawrence.
“If you may not reproduce a woman's face photographically without her consent,” Brandeis and Warren argued in 1890, “how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.”
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