Three Milestones in the History of Privacy in the United States

Vernon Valentine Palmer, Tulane University of Louisiana

Abstract

Over the course of more than 120 years the right of privacy has somehow acquired, absorbed and incorporated various tangential interests such as the right to control use of one’s name, one’s image, one’s writings, one’s life story, and even the right to exploit one’s own publicity value. Obviously those who seek to capitalize upon the publicity value of their name or talent are not in fact seeking privacy in the usual sense of the word, and yet American tort law protects the publicity right either in the name of privacy or describes it as a related offshoot. Somewhat more remarkable is that our Supreme Court, in the name of protecting “privacy,” has swept together various liberties not expressly stated in the Constitution, like the decision freely to marry, the right to procreate, the freedom to have an abortion or not, to educate one’s children in a foreign language and so forth. These rights, important as they are, are not exercised in private but in public settings, as in public schools, public hospitals, and churches. Such rights and liberties do fall somewhere on an inclusive tableau of personality rights, but the question remains: are they aspects of privacy? Why should they be called “privacy”? If privacy is supposed to mean all these things, in tort law and constitutional law, how can it be defined? My paper does not dwell upon the definitional question. It merely assumes that privacy cannot be defined coherently to mean so many things. It simply asserts that privacy in the United States is now an umbrella concept under which diffuse personality interests are brought together. I believe that how this came about is interesting and to understand the development we must follow the course of the development of this intriguing concept back to its beginnings in American law.