Seek and Hide: The Tangled History of the Right to Privacy by Amy Gajda

Americans have a long established belief in a right to privacy — even as that right has been outshined by others.

The right to know is prominently American, with its relationship to the Freedom of the Press. The 20th century was “the era of the journalist,” according to James Reston, a one-time New York Times executive editor, who led the publication of the Pentagon papers and died in 1995.

Today, the right to be forgotten is a prominent trend emanating from Europe. But the right to privacy relates to both and much more. It’s important to understand it.

So goes Seek and Hide, a new book by academic Amy Gajda. It is thorough and compelling, rich with court law and the stories that help describe our cultural relationship to privacy. Go buy a copy. (New Yorker coverage here)

Below I share notes for my own future reference.

My notes:

Our modern sense of a “Right to Privacy” begins with a 1890 Harvard Law Review article by Brandeis and Warren
The American common law system, informed by English common law, is rare in the world; most systems are civil law, where statutes pre-empt judicial rulings
Cape Cod Folks book by author who didn’t identify herself while reporting the book: it was an early privacy case against book publishers that also reflected era of gilded age newspapers. Brandeis was attorney in 1884
Cowley vs Pulsifer case put Oliver Wendell Holmes and Boston Herald into the question: how far could a newspaper pry into private life?
Justice Thomas Cooley wrote “the right to be let alone,” which caught hold more than its opposite “the right to know”
Truthful libel
Thomas Jefferson paid Publisher James Callender to attack Alexander Hamilton who likely published the (mostly true) rumors of Jefferson’s affairs
Hamilton warned of publishers that learn private details of public figures: “It becomes at once in their hands a two edged sword, by which they wound the public character and stab the private felicity of the person.”
The infamous overreaching Star Chamber and truthful libel, also the influential Blackstone‘s commentaries on the laws of England which influence the United States too
Zenger court case is famous as a sign of First Amendment rights to come but it didn’t settle anything; journalists were arrested through the Grover Cleveland administration (16)
William Cushing wrote to John Adams in 1789: if publications of the press should be punished for revealing instances of “male conduct “ by politicians that are immoral and repugnant but also absolutely true
Ben Franklin wrote that “every person has a little secrets and privacies that are not proper to be exposed even to the nearest friend”, speaking to his early view of importance of privacy
Even James Madison wrote in 1800 “key players were “not unaware of the difficulty of all general questions which may turn on the proper boundary between the liberty and licentiousness of the press.”
In 1786 Jefferson wrote the famous line that “liberty depends on the freedom of the press and that cannot be limited without being lost.“ But by 1803 is President Jefferson shared in confidence with Pennsylvania’s governor that he had “long thought that a few prosecutions of the most eminent offenders “of journalism excess “would have a wholesome effect in restoring the integrity of the presses “and that’s such prosecutions would “place the whole band more on their guard. “”The restraints provided by the laws of the states are sufficient for this if applied “
Publisher Callender had a falling out with his old benefactor and spilled Jefferson’s relationship with him, still Jeffersons’s relationship with Sally Hemmings was only more publicly confirmed by 2000, in part because it became a libel fight
“The greater the truth the greater the libel” was an old standard
Hamilton argued in the Harry Croswell appeal case a Blackstonian liable principle that an unrestricted press would be a bad thing, “a pest of society “a “terrible liberty “that would “encourage vice, compel the virtuous to retire, destroy confidence, and confound the innocent with the guilty.” “The liberty of the press “only consisted of “publishing the truth from good motives and justifiable ends “ 25
The government argued a similar point noting that unlike public matters reporting on the private lives of left and officials like Jefferson “tends to drive useful men from office” (26)
Oliver Wendell Holmes wrote “no state of society would be more deplorable than that which would admit an indiscriminate right and every citizen to arrange the conduct of every other before the public…”
Commonwealth v Blanding: A newspaper reporter was charged with liable for reporting the customer had died of alcohol poisoning at a local tavern, the court wrote private vices “should be left “to the corrections of conscience”
Lawyer Henry Denis case in 1810: wrote a letter telling a woman he loved her. She shamed him by sharing it with a newspaper, Denis got a judge to offer an injunction, the newspaper put out a house ad telling people to go to he court house and their print shop to see the letter. Who has right to publish the letter? The sender or the receiver? At that time the law felt private letters must stay private
Among newspaper chasing of salacious stories like Philip Key and Beecher Tilton
The Nation founder trying to raise journalistic standards and Missouri press corps and the black American press on 1875 are all trying to keep privacy for private lives
Sprague-Conklin affair of 1879
Grover Cleveland gave a Harvard speech about press invasion as he’s been overwhelmed by coverage of his private life
1884 Wall Street nobility illustrations in Pulitzer’s World newspaper started the boom of illustrator, a new kind of storytelling t (Vanderbilt)
Nellie Bly in Sunday World snuck onto Cleveland’s home estate, part of her trendsetters undercover reporting. How ethical was it?
The author of “American nervousness: its causes and consequences:” a treatise published in the 1880s, had already put his finger on it: “the periodical press [has] increased 100 fold the distresses of humanity” (63)
Sam Warren’s family close to Grover Cleveland (through Bayard) , and his family was a printing family behind The Atlantic etc
Louis Brandeis tried to elevate Boston Post but lost money doing so
Nation founder El Godkin wrote in July 1890 the Scribners The rights of the citizens to his own reputation

Five arguments in the famous Brandeis-Holmes Harvard law review right to privacy article

Newspapers have overreached. Especially with sex gossip (A scholarly study of newspapers that same year called the press “a horrible octopus… Ever ready to publish scandalous… matter”)
Tech like cameras and audio recording presented a new perversion, especially sharing women likenesses
Privacy is absolutely necessary to human happiness
Elites understood what was best for society (and should help block those Pulitzer reading lower classes
Existing law could be tweaked to create this right to privacy, but not libel

More general notes:

Louis Brandeis wrote to his fiancé Alice after his famous article first appeared “most of the world is in the more or less hypnotic state, and it is comparatively easy to make people believe anything, particularly the right”
“The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world” Warren and Brandeis wrote
“Right to know“ was the only exception that the two outlined in their article and they argued it was very close to matters of public good, because otherwise even public figures deserved a degree of “right to privacy”
Brandeis and Warren did direct outreach to newspapers to grow the interest in the article
1962 American Journalism by Frank Luther Mott
Journalist W Calvin Chase imprisoned by Cleveland administration . Chase promised “we will tackle all skunks” as a black journalist bulldog
1884~: the Times of Philadelphia : “ it is an unwritten law of this land that the people have a right to know what their servants in public capacities are doing” — the “right to know” phrase was becoming popular (81) This was oppositional to Victorian sense of privacy
Price vs Price divorce: San Jose Mercury reported on the salacious details of an otherwise private citizen divorce. Did that stretch right to know?
Sam Warren’s likely gay brother Ned also confronted gossip. He collected sexual peculiarities (example) and later donated to Boston Museum of Fine Arts as a “plea against” the more restrictive culture. (It reminds me of the Albert Barnes )
Helicon Hall created by Upton Sinclair was a white-only writers colony
Like Nellie Bly and ida Tarbell, Upton was a nationally-known investigative journalist. Teddy Roosevelt called Upton Sinclair a “muckraker” first. But Sinclair started off wrong foot by tricking press into publishing a fake autobiography he wrote (Profile here)
George Seldes called Upton “not a journalist” but after brutal treatment of his messy divorce Upton wrote The Brass Check: a study of American journalism (106) The book included a chapter “cutting the tiger’s claws” on setting an ethical code
High Brow Magazines really established journalistic norms before newspapers: Ida at Mclures on Standard Oil; Upton in Colliers; El Godkin in The Nation
In 1938, Tarbell sent a letter to Mrs Cleveland for permission to use paragraphs from letters Grover had sent her (107)
Dr James Melvin Lee’s History of American Journalism didn’t include Sinclair, Tarbell or Calvin Chase (110)
Though Sinclair had beef with NYT and others, his Brass Check book and journalistic approach did shape others. In the 1920 (New Republic) book Liberty and The News, Walter Lippman wrote: “ The present crisis of Western democracy is a crisis in journalism” … journalism needed a “court of honor”
Disclosing someone’s sexually transmitted disease has a special place in privacy law
Today it is “publication of private facts” or “ publicity given to private life”
William Posser in 1960 wrote a law article and contributed to a second Restatement of American common law that helped shape that
Publication of private facts was a major component of Hulk Hogan’s suit against Gawker for publishing his sex tape
The 1930 edition of Restatement also included the reproduction of likeness , and that “misappropriation” is why we can’t misuse people in advertising
In 2015, Arne Svensson photography project was a modern example of why in New York privacy is more constrained
Abbie Roberson case on use of her likeness
Elbridge Adams said months after the Roberson case: the journalism of the day had resulted “in the lowering of social standards and of morality “belittled and converted the understanding, vulgarize the tastes dwarfed thoughts and aspirations of the people ” (123)
Press reported extensively on Supreme Court justices private lives (Horace Gray’s young wife etc) and leaked court rulings, which were had “for a little liquor”
Supreme court justices Oliver Wendell Holmes Louis Brandeis, our first amendment legends, introduced the “marketplace of ideas” from the 1919 Abrams versus United States all the way to the 1931 Near vs Minnesota, though they both also respect and privacy
Oliver Wendell Holmes wrote that it seems newspapers are motivated solely to reveal that men in the public eye “were all rascals “ (132)
In the Holmes-Laski letters book, the portion in which Holmes asks Laski to burn his letters is edited out, (133) “ by the by I have never asked you to burn my letters “ Holmes wrote but I should like to feel that their permanent privacy was secured in that or some other way“
Brandeis later wrote “what publicity can do “
Brandeis’s Supreme Court nomination featured considerable public airing of the “Warren affair”
The Holmes and Brandeis duo contributed the famous limitation of the first amendment that it “would not protect a man in falsely shouting fire in a theater”
They defended the ancient doctrine that “whatever a man publishes, he publishes that in peril
“Trade in idea” language was influenced by John Stuart Mill and John Milton
Brandeis wrote three months after the Abrams decision to Felix Frankfurter that the “general American trouble is that we make public that which should be private [and] treat as private what is strictly a public matter.”
In Whitney versus California defending the importance of full information Brandeis wrote that “men fear witches and burnt women, “ noting that in his view first amendment rights are “fundamental “but “not in their nature absolute”
“Freedom of the press “ wrote frankfurter “is not a freedom from responsibility for its exercise”
Holmes wrote in Homestead the famous line that “It is a less evil that some criminals should escape then that the government should play in ignoble part”
Near vs Minnesota called by Fred Friendly the most important freedom of the press case
Harding vs Creed, the president was a newspaper man who later joined the ASNE. Gathering on journalism ethics (one year after WSJ broke the Teapot Dome scandal); Harding also had a heckuva extramarital affair
Journalism was professionalizing: 1875 Cornell university started but lagged journalism classes; in 1890 Missouri had begun and Penn had classes in “Newspaper Practice” and the “Law of Libel and business management”; Reporting for The News book in 1901 with chapters like “what is news” and “a news story analyzed” , in 1915, Mizzou had its Journalists Creed; in 1922, Fisk University had an “ethics in journalism” class , many regional codes established so ASNE wanted to nationalize. Reminder black journalists formed earlier ethics (148)
ASNE canons of journalism, wirh 7 sections: responsibility; freedom of press; Independence; sincerity, truthfulness, accuracy; impartiality; fair play; decency
Frank Mott in American Journalism called 1920s the beginning of the end of “gutter journalism” and by 1937 Disney had Mickey create a newspaper in a cartoon, Clark Kent and Brenda Starr follow
Sullivan v NYT
But it couldn’t save My Life and Loves
American Law Institute restatement of common law in the 1930a set first national standard in privacy
FDR tried to have for newspapers a “blue eagle seal of approval” as part of his National Recovery Act to get newspapers to be supportive
AL Institute proposed international bill of rights included “ freedom of opinion and speech” not freedom to publish
Never ratified but influenced Universal declaration of Human rights
July 10 1937 New Yorker talk of the town criticism of a news guild ethics code: ”unless newspapermen in the aggregate are disorganized in their personal life,” they wrote (maybe James Thurber) “they are valueless yo society” They need a variety of approaches and perspectives. Journalism is not like making steel
William Sidis v New Yorker is seen as major turning point to when American courts chose press over privacy though Sodis won a tort case followup and argued young stars shouldn’t always be stars
Supreme Court. “A free press stands as one of the great interpreters between the government and the people. To allow to be fettered is to fetter ourselves”
The magazine Headquarters Detective that routinely used the crime scene photographs taken by news photographer weeGee push boundaries of decency by routinely publishing photos of real life dead people
Winters vs NY protected them so journalism ethics went beyond to self-regulate
The Hutchins Commission on Freedom of the Press: if [journalists] are irresponsible not even the first amendment to protect their freedom from government control”
The Supreme Court argued that the first amendment required “breathing space”
In Time vs the Hill from 1967 justices wrote “exposure of the self to others in varying degrees is a con commitment of life in a civilized community”
In the 1970s, A whopping 72% of Americans said they believed in and trusted of the media 171
In 1975 in Cox broadcasting versus Cohn court sided with a local TV station that identified victim of a gang rape
Oklahoma o publishing vs Dustict court
Smith v Daily mail
Florida star va BJF
A journalism textbook argued that journalism only had two limitations libel and obscenity

July 1970 Newsweek cover asks, "Is privacy dead?" pic.twitter.com/JAyG0bSBci
— Newsweek (@Newsweek) June 10, 2013

By July 1970, a Newsweek suggested asked whether privacy was dead with a cover that featured prying cameras microphones and computers;
Time magazine reported that in the first amendment cases it was “clear that the news media had prevailed, at least in a court of law, and by Aug. 25, 1997 Time reporters confirmed that Americans right to be let alone have disappeared and cover headlined the death of privacy

The 2001 Bartnicki v Voppeer marked the apex of press independence (allowed to surreptitiously record)
Can you wear a “Fuck the Draft” jacket into court? Supreme Court case said yes
Branzburg v Hayes case oh anonymous sources
Doe vs McMillan: The justices wrote that they were particularly worried that “the age of technology has produced databanks“ into which Social Security numbers and other personal information collected and would devastate people’s future
Time vs. Firestone showed someone made famous can return to private life
In Nebraska Press Association vs. Stuart, a judge said that the first amendment carried with it a fiduciary duty to publish responsibly that editors and publishers acknowledged “but not always observed” (180)
In the 1980s, suddenly 68% of Americans expressed concern for the personal privacy, “sparked perhaps in significant part by data privacy concerns” (181)
The Supreme Court held in the 1990s a journalist who promised confidentiality to a source but later publish the source’s name could be sued for breach of contract, despite the first amendment. “The Constitution’s promise of press freedom does not grant the press… Limitless protection”
Titicut Follies: did the documentary take advantage of mentally ill inmates or did it demonstrate the terrible track record of a government institution?

https://www.youtube.com/watch?v=2t3XAbrnG1o

By 1991 scholars suggested that the Holmes-Brandeis privacy perspective was dead and that the Constitution was a “nearly insurmountable“ barrier in privacy cases.
The author writes “you might say that in response to all that freedom, media had grown a little cocky” (190)
In 1973 PBS aired An American Family, the first “reality show,” which was followed up by shows like Cops and Unsolved Mysteries which began to form into what we call reality television today
Shulman vs On Scene Emergency : publishing the video of first responders at a crash was fine but how it was obtained was not. As her lawyer put it “it has now been affirmed that the right to privacy exists in public places.”
U.S. Marine Oliver Sipple was outed as gay after saving President Ford
Courts routinely said they wouldn’t become censors of professional journalists: How carefully were newsrooms always deliberating the right to privacy?
Cultural stance in the late 20th century: if you’re part of a news event voluntarily or involuntarily than you forfeit your right to privacy
Ki Suk Han’s imminent death was put on New York Post cover
Post-Watergate trust in the media was as high as 72%, by 2016, Gallup showed only 32% said they have a great deal or a fair amount of trust the media (198)
Nik Richie, founder of gossip site The Dirty, had successive legal battles with former Bengals cheerleader Sarah Jones (230)
The Dirty and cheatersandbastards.com, etc et. Revenge porn: who owns and what is privacy?
Influential Section 230 of the federal Communications Act had a cyberbullying carve out passed after college student Tyler Celementi’s 2010 suicide and incidences surrounding Backpage
Tucker Max and Miss Vermont story: does this mark the turning of the tide of 230 as “cyber” first amendment and creating press freedom backlash?
Dateline’s To Catch a Predator caught district attorney Bill Conradt in sexual chats with a minor; Conradt shot himself to death
Court used Society for Professional Journalists ethics against Dateline, and later SPK adjusted those ethics to clarify that they ought not be used in court
Boxer Floyd Mayweather was sued for libel for posting to social media a girlfriend’s medical records to show her abortion
The internet age has brought more privacy protection in
Today it’s up to 80% of Americans feel that the loss of privacy is a major concern
Sun Microsystems executive told Congress in 1999 “you already have zero privacy – get over it”
Illinois’s biometric information privacy and a Facebook “tag suggestions” settlement are major landmarks
Facebook required to block news articles that show personal details
Deepfakes
John Timpane’s 2014 inquirer story on the right to be forgotten: “any European right will surely not cross Atlantic”
Courts are increasingly showing that a right to be forgotten aligns with an American sense that over time once important information loses its importance; there are “timeliness boundaries”
In an 1895 case, justices agreed a girl might sue her mother in the future for agreeing that the child’s nude photo could be published in a medical journal (246) (May 1898 St Louis medical journal)
In Louisiana versus Bienvenu in 1884: the court said that it would be “barbarous” to bring forth embarrassment by “expos[ing] follies, faults or crimes long since forgotten.”
In 1975 Virgil vs Time Inc.: an interviewee was interviewed and then changed their mind and didn’t want to be included in a news story; The federal appellate court decided that the reporter doesn’t have the right to publish the information learned. And in Schaefer versus Shippensburg Chronicle a Pennsylvania court in 1977 decided that of the “offensive facts that occurred 25 years ago” may not be able to be used (247)
Charles Tobin wrote on the 40th anniversary of Cox broadcasting vs Cohen, that the trends in right to be forgotten “pose serious threats to publishers”
Times vs Sullivan includes suggestion that there might well be privacy in “a man’s forgotten conduct” Privacy in an individual’s past
Google will remove harmful content about people’s pasts when requested
Oregon mayor turned Governor Neil Goldschmidt had a sexual relationship with a 14 year old 30 years earlier: where is the line between public official and not? Is there a statute of limitation?
Influential William Prosser wrote in the 1960s that “perhaps there is very little in the way of information about the President of the United States, or any candidate for that high office, that is not a matter of legitimate public concern.”
In 2013 Closer Magazine had to pay damages to the mistress of then French present François Hollande (different countries have different privacy threshold for even public figure)
In 1960, JFK who was a journalist early in his career, spoke to the American Society of Newspaper editors convention in Washington DC; he scolded the journalists “to concentrate on the issues, the real issues, and not a single soothing journalist had a follow-up question. “Well Senator“ the SNE president said that day, “I do not know whether you silenced your critics but you silenced the questioners”.
Kennedy was known womanizer, including 19 year old intern Mimi Alford, but there was a strong gentlemen’s agreement then, unlike Clinton years
ASNE members agreed to not focus or report on Nelson Rockefeller‘s divorce even though Rockefeller announced it publicly
Arthur Schlesinger (a JFK friend) wrote “If a politician takes a bribe it is the public‘s business “he wrote “if he has an affair at all to be his own.”
In 1970 for six months before he was to resign the presidency Richard Nixon gave a presidential radio address in titled “American right of privacy” (260)
“Today why should news organizations publish what might bring an expensive privacy lawsuit when you’re already in such a difficult financial straits, when they may feel too short-staffed to investigate a scandalous truthfully and when the law that seemingly would’ve want to put a quick and any privacy claim now seems to embolden one?” (261)
Loss of dignity Is not popularly known in the United States but it had a precedent and it is the protection against privacy invasion and freedom of speech and press
Even Warren and Brandeis wrote that at some point dignity “of the individual must yield the demand to the public welfare or of private Justice”
Zoom hearings of domestic abuse gone viral
“We are beginning to learn about how much may be lost in a culture of transparency, “wrote Jeffrey Rosen in the New York Times Mgazine in the year 2000 “the capacity for creativity and a centricity, for the development of self and soul”
99% or Americans now say privacy is core right
Shakespeare wrote that our “best men” are “moulded out of faults “ and made “much more the better for being a little bad “ Shakespeare lived during the English Star a chamber period
Supreme Court Justice Neil Gorsuch wrote .in 2021 “the deck seems stacked against those of traditional (and expensive ) journalistic standards — and in favor of those who can disseminate the most sensational information as efficiently as possible”
Recommendation: 230 should have carved out those with harmful goals
Deciding what to publish and what not, and “it protects journalism to differentiate itself from other publishers” (270)
Some of those who will put on trial for the January 6 insurrection argued they were journalists seeking truth
“ content, form and context ” determine what information is in public interest (justices wrote)
Facebook’s oversight board rights in its charter that “there are times when the speech can be at odds with… Privacy and dignity”
Nudity, sexual details and medical information are hallmarks of being unpublishable, maybe others like criminal history and sexual orientation or gender identity too
Arthur Ashe outed by USA Today for having AIDS. Privacy our public right to know?

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