by industrialism. More people rose above subsistence living. They had residences with walls separating areas allowing people to sleep or dress without observation, and they could afford beds for each of their bedrooms. A majority of these people were literate, were sending letters or telegraphs and were concerned about who, besides the intended recipient, might be reading them.ii Rural and urban life and value coexisted uneasily. Values of stability and family were being challenged by new processes, including newspapers, especially of the “yellow journalism” variety, many of which were comparable to the worst of our current supermarket gossipy weekly magazines. Some of this change disturbed what had been the normal family/ small circle relationships, adding unwanted public attention to the normal realm of life. Possibly a reason why interest in privacy expanded during the mid-to-late 19th century was a desire to protect the house and family from prying eyes and the wife of said respectable family from unwanted publicity, especially in the creative yellow journalism newspapers. In some cases, privacy was to prevent public knowledge of the then-legal right of a husband to beat his wife. But, even with this development in some realms of society, in poorer households, privacy was still limited—if it existed at all, with families continuing to be cramped into small spaces.iii
Perhaps the most influential force in the creation of a legal right of privacy in the U.S. was Samuel Warren and Louis Brandeis’ 1890 Harvard Law Review,iv which began by recognizing a fundamental principle that “the individual shall have full protection in person and in property.” Warren and Brandeis drew on threads of past jurisprudence, constructing a legal concept of personality out of property doctrine, tort law, copyright law and damage principles. Warren and Brandeis suggested that privacy evolved over time, reflected the social environment in which people lived and was culturally based. They drew a line between information shared between close friends/ family and that available for general public knowledge. They thought that in the increasingly complex world in which they lived, both solitude and privacy were essential to the well-being of the individual and of the culture. While there had been some privacyoriented litigation before this article,v the privacy tort came into being after it. Noted also was Justice Brandeis’ dissent in Olmstead v. United States,vi where he characterized “the right to be let alone” as “the right most valued by civilized men.” In the 1960s, the Fourth Amendment was strengthened by a U.S. Supreme Court decision finding an individual had a “reasonable expectation of privacy”,vii thereby expanding the protection from unwarranted governmental searches beyond physical searches into constitutionally protected property to also cover what a person might want to keep private. In Griswold v. Connecticut, the Court described a constitutionally-protected “penumbra” of privacy,viii a “zone” that would be free from governmental intrusion. In Griswold, the Supreme Court recognized the Fourteenth Amendment as providing a substantive due process right to privacy.
36 | Columbus Bar L aw yers Quarterly Spring 2019