Privacy Blog: About Ned
By: Alec Webley
Modern privacy law in the United States is often traced to “The Right to Privacy,” a law review article written by Samuel Warren and Louis Brandeis in the late nineteenth century. Arguing for protection for invasions of privacy through the tort law, the article served as a seminal point of reference in ongoing debates about the right of the state and private individuals to enter the private lives of U.S. citizens (helped, no doubt, by the elevation of one of its authors to the United States Supreme Court).
The origins of the article were conventionally thought to be Warren’s irritation about the media’s coverage of his daughter’s wedding, an anecdote that forms a treasured part of a law professor’s repartee when teaching the privacy torts. It turns out, however, that the truth is stranger and more interesting.
In a new piece for the Harvard Law Review Forum, NYU’s Charles Colman recounts the story of Samuel Warren’s brother Ned, who was as close to being “openly gay” as it was possible to be in the late nineteenth century (as the first period of what we would today identify as anti-gay hysteria began to sweep the nation). Ned was, in more ways than one, Samuel’s skeleton in the closet—revelation of Ned’s same-sex attraction would have seriously damaged Samuel’s reputation. Samuel’s only protection was privacy, and Ned’s own decision to live largely in seclusion at the family manor.
Colman is right, I think, to point to cases like Ned’s in linking privacy as it is commonly understood (our ability to keep parts of our lives away from others) to privacy in the constitutional, substantive due process sense (such as in Griswold v. Connecticut). After all, it is precisely those most intimate details about our lives—our sexuality, our families—where we are as intolerant to the gaze of the state as we are of the public.
But Colman could afford to take this analysis a step further. Ned would not have needed to remain private about his same-sex attraction (his interest in Gracean urns is another matter) if he had lived in 2015. I think there is some cause to suspect that one of the reasons homosexuality has become more commonly accepted is because it is more difficult to keep it private; as we learn more about each other’s lives it becomes harder to vilify them. By designating certain parts of our lives as private, are we helping to create the conditions that make them necessarily so? Broader tolerance of non-conformity to familial and sexuality conventions may well be as essential as good privacy law in smoothing our society’s passage into the Information Age.