wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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venting publication, is merely an instance of the enforcenment
of the more general right of the individual to be let alone. It is
like the right not to be assaulted or beaten, the right not to be
imprisoned, the right not to be maliciously prosecuted, the right
not to be defamed. In each of these rights, as indeed in all other
rights recognized by the law, there inheres the quality of being
owned or possessed - and (as that is the distinguishing attribute
of property) there may be some propriety in speaking of those
rights as property. But, obviously, they bear little resemblance
to what is ordinarily comprehended under that term. The prin-
ciple which protects personal writings and all other personal
productions, not against theft and physical appropriation, but
against publication in any form, is in reality not the principle of
private property, but that of an inviolate personality.'
1 " But a doubt has been suggested, whether mere private letters, not intended as
literary compositions, are entitled to the protection of an injunction in the same manner
as compositions of a literary character. This doubt has probably arisen from the habit
of niot discriminating between the different rights of property which belong to an un-
published manuscript, and those which belong to a published book. The latter, as I
have intimated in another connection, is a right to take the profits of publication. The
former is a right to control the act of publication, and to decide whether there shall be
any publication at all. It has been called a right of property; an expression perhaps not
quite satisfactory, but on the other hand sufficiently descriptive of a right which, however
incorporeal, involves many of the essential elements of property, and is at least positive
and definite. This expression can leave us in no doubt as to the meaning of the learned
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206 HARVARD LAW REVIEW.
If we are correct in this conclusion, the existing law affords a
principle which may be invoked to protect the privacy of the
individual from invasion either by the too enterprising press, the
photographer, or the possessor of any other modern device for
recording or reproducing scenes or sounds. For the protection
afforded is not confined by the authorities to those cases where
any particular medium or form of expression has been adopted,
nor to products of the intellect. The same protection is afforded
to emotions and sensations expressed in a musical composition or
other work of art as to a literary composition; and words spoken,
a pantomime acted, a sonata performed, is no less entitled to
protection than if each had been reduced to writing. The cir-
cumstance that a thought or emotion has been recorded in a
permanent form renders its identification easier, and hence may
be important from the point of view of evidence, but it has no
significance as a matter of substantive right. If, then, the deci-
sions indicate a general right to privacy for thoughts, emotions,
and sensations, these should receive the same protection, whether
expressed in writing, or in conduct, in conversation, in attitudes, or
in facial expression.
It may be urged that a distinction should be taken between the
judges who have used it, when they have applied it to cases of unpublished manuscripts.
They obviously intended to use it in no other sense, than in contradistinction to the
nmere interests of feeling, and to describe a substantial right of legal interest." Curtis
on Copyright, pp. 93, 94.
The resemblance of the right to prevent publication of an unpublished manuscript
to the well-recognized rights of personal immunity is found in the treatment of it in
connection with the rights of creditors. The right to prevent such publication and the
right of action for its infringement, like the cause of action for an assault, battery, defa-
mation, or malicious prosecution, are not assets available to creditors.
" There is no law which can compel an author to publish. No one can determine
this essential matter of publication but the author. His manuscripts, however valuable,
cannot, without his consent, be seized by his creditors as property.." McLean, J., in
Bartlett v. Crittenden, 5 McLean, 32, 37 (I849).
It has also been held that even where the sender's rights are not asserted, the re-
ceiver of a letter has not such property in it as passes to his executor or admin'strator as
a salable asset. Eyre v. Higbee, 22 How. Pr. (N. Y.) I98 (i86i).
" The very meaning of the word' property' in its legal sense is ' that which is pecu-
liar or proper to any person that which belongs exclusively to one.' The first mean-
ing of the word from which it is derived - pJo5rius - is 'one's own.'" Drone on
Copyright, p. 6.
It is clear that a thing must be capable of identification in order to be the subject of
exclusive ownership. But when its identity can be determined so that individual owner
ship may be asserted, it matters not whether it be corporeal or incorporeal.
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THE RIGHT TO PRIVACY. 207
deliberate expression of thoughts and emotions in literary or ar-
tistic compositions and the casual and often involuntary expression
given to them in the ordinary conduct of life. In other words,
it may be contended that the protection afforded is granted to
the conscious products of labor, perhaps as an encouragement
to effort.1 This contention, however plausible, has, in fact, little
to recommend it. If the amount of labor involved be adopted
as the test, we might well find that the effort to conduct one's
self properly in business and in domestic relations had been far
greater than that involved in painting a picture or writing a book;
one would find that it was far easier to express lofty sentiments in
a diary than in the conduct of a noble life. If the test of delib-
erateness of the act be adopted, much casual correspondence
which is now accorded full protection would be excluded from
the beneficent operation of existing- rules. After the decisions
denying the distinction attempted to be made between those
literary productions which it was intended to publish and those
which it was not, all considerations of the amount of labor in-
volved, the degree of deliberation, the value of the product, and
the intention of publishing must be abandoned, and no basis is dis-
cerned upon which the right to restrain publication and reproduc-
tion of such so-called literary and artistic works can be rested,
except the right to privacy, as a part of the more general right to

venting publication, is merely an instance of the enforcenment

of the more general right of the individual to be let alone. It is

like the right not to be assaulted or beaten, the right not to be

imprisoned, the right not to be maliciously prosecuted, the right

not to be defamed. In each of these rights, as indeed in all other

rights recognized by the law, there inheres the quality of being

owned or possessed - and (as that is the distinguishing attribute

of property) there may be some propriety in speaking of those

rights as property. But, obviously, they bear little resemblance

to what is ordinarily comprehended under that term. The prin-

ciple which protects personal writings and all other personal

productions, not against theft and physical appropriation, but

against publication in any form, is in reality not the principle of

private property, but that of an inviolate personality.'

1 " But a doubt has been suggested, whether mere private letters, not intended as

literary compositions, are entitled to the protection of an injunction in the same manner

as compositions of a literary character. This doubt has probably arisen from the habit

of niot discriminating between the different rights of property which belong to an un-

published manuscript, and those which belong to a published book. The latter, as I

have intimated in another connection, is a right to take the profits of publication. The

former is a right to control the act of publication, and to decide whether there shall be

any publication at all. It has been called a right of property; an expression perhaps not

quite satisfactory, but on the other hand sufficiently descriptive of a right which, however

incorporeal, involves many of the essential elements of property, and is at least positive

and definite. This expression can leave us in no doubt as to the meaning of the learned

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

206 HARVARD LAW REVIEW.

If we are correct in this conclusion, the existing law affords a

principle which may be invoked to protect the privacy of the

individual from invasion either by the too enterprising press, the

photographer, or the possessor of any other modern device for

recording or reproducing scenes or sounds. For the protection

afforded is not confined by the authorities to those cases where

any particular medium or form of expression has been adopted,

nor to products of the intellect. The same protection is afforded

to emotions and sensations expressed in a musical composition or

other work of art as to a literary composition; and words spoken,

a pantomime acted, a sonata performed, is no less entitled to

protection than if each had been reduced to writing. The cir-

cumstance that a thought or emotion has been recorded in a

permanent form renders its identification easier, and hence may

be important from the point of view of evidence, but it has no

significance as a matter of substantive right. If, then, the deci-

sions indicate a general right to privacy for thoughts, emotions,

and sensations, these should receive the same protection, whether

expressed in writing, or in conduct, in conversation, in attitudes, or

in facial expression.

It may be urged that a distinction should be taken between the

judges who have used it, when they have applied it to cases of unpublished manuscripts.

They obviously intended to use it in no other sense, than in contradistinction to the

nmere interests of feeling, and to describe a substantial right of legal interest." Curtis

on Copyright, pp. 93, 94.

The resemblance of the right to prevent publication of an unpublished manuscript

to the well-recognized rights of personal immunity is found in the treatment of it in

connection with the rights of creditors. The right to prevent such publication and the

right of action for its infringement, like the cause of action for an assault, battery, defa-

mation, or malicious prosecution, are not assets available to creditors.

" There is no law which can compel an author to publish. No one can determine

this essential matter of publication but the author. His manuscripts, however valuable,

cannot, without his consent, be seized by his creditors as property.." McLean, J., in

Bartlett v. Crittenden, 5 McLean, 32, 37 (I849).

It has also been held that even where the sender's rights are not asserted, the re-

ceiver of a letter has not such property in it as passes to his executor or admin'strator as

a salable asset. Eyre v. Higbee, 22 How. Pr. (N. Y.) I98 (i86i).

" The very meaning of the word' property' in its legal sense is ' that which is pecu-

liar or proper to any person that which belongs exclusively to one.' The first mean-

ing of the word from which it is derived - pJo5rius - is 'one's own.'" Drone on

Copyright, p. 6.

It is clear that a thing must be capable of identification in order to be the subject of

exclusive ownership. But when its identity can be determined so that individual owner

ship may be asserted, it matters not whether it be corporeal or incorporeal.

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

THE RIGHT TO PRIVACY. 207

deliberate expression of thoughts and emotions in literary or ar-

tistic compositions and the casual and often involuntary expression

given to them in the ordinary conduct of life. In other words,

it may be contended that the protection afforded is granted to

the conscious products of labor, perhaps as an encouragement

to effort.1 This contention, however plausible, has, in fact, little

to recommend it. If the amount of labor involved be adopted

as the test, we might well find that the effort to conduct one's

self properly in business and in domestic relations had been far

greater than that involved in painting a picture or writing a book;

one would find that it was far easier to express lofty sentiments in

a diary than in the conduct of a noble life. If the test of delib-

erateness of the act be adopted, much casual correspondence

which is now accorded full protection would be excluded from

the beneficent operation of existing- rules. After the decisions

denying the distinction attempted to be made between those

literary productions which it was intended to publish and those

which it was not, all considerations of the amount of labor in-

volved, the degree of deliberation, the value of the product, and

the intention of publishing must be abandoned, and no basis is dis-

cerned upon which the right to restrain publication and reproduc-

tion of such so-called literary and artistic works can be rested,

except the right to privacy, as a part of the more general right to