The Lawyer's Backstory: Samuel Warren and the Right To Privacy

Charles E. Colman, New York University School of Law & NYU Steinhardt Department of Visual Culture, Costume Studies, is publishing The Lawyer and the Aesthete in volume 129 of the Harvard Law Review Forum (December 2015). Here is the abstract.

In 1890, the Harvard Law Review published an article, co-authored by Boston law firm partners Samuel Warren and (future Supreme Court Justice) Louis Brandeis, titled "The Right to Privacy." The authors argued that existing legal authority provided a basis for the courts to recognize a new, increasingly necessary, cause of action for the invasion of individual privacy. Today, "The Right to Privacy" is widely recognized as one of the most influential -- if not the most influential -- law review article ever written, having played a key role in the Supreme Court's conceptualization of a constitutionally grounded right to personal autonomy. Because "The Right to Privacy" remains such an important article, more than a century after its publication, various scholars have set out to reveal the "backstory" of the piece. In the 2011 book American Property, legal historian Stuart Banner summarized that literature as follows: "The traditional explanation of the origin of 'The Right to Privacy' emphasizes Warren's irritation with sensationalist press coverage of his daughter's wedding." As Banner correctly observed, this traditional account cannot be accurate, as Warren's daughter was only six years old when the article was written. Law professor Amy Gajda took a different tack in her 2010 article, "What If Samuel D. Warren Hadn't Married a Senator's Daughter? Uncovering the Press Coverage that Led to The Right to Privacy." Gajda began by noting that "what truly provoked Warren, who is thought to be the moving force behind the article, has remained a mystery." Like other scholars who have written on the topic, Gajda focused on Warren's familial circumstances to shed light on Sam's motivation for taking the initiative on the influential piece. Departing from previous scholarly explanations, Gajda concluded that Warren's championing of privacy in the 1890 article was driven by his irritation at the invasive journalistic coverage of his own 1882 "engage[ment] to Miss Mabel Bayard, daughter of a high-profile politician on the national stage." In my view, Gadja was correct to pinpoint Warren's strong feelings about family as a central factor in the backstory of the article, but overlooked the crucial, idiosyncratic between Sam and his siblings. As I researched 1880s New England society for a recent project, "Design and Deviance: Patent as Symbol, Rhetoric as Metric," I learned that Samuel Warren had a younger brother, Ned, whose homosexuality was just under the public radar in Boston at the time -- a volatile period when scientists first proclaimed their "discovery" of homosexuality as a fixed identity trait (and purported sign of "degeneracy," illness, and even insanity.) This announcement led to what many Anglo-American historians have called a "homosexual panic" throughout England and the East Coast of the United States, resulting in (among other things) the passage of the 1885 English law under which famed playwright Oscar Wilde was soon prosecuted, convicted, and sentenced to hard labor for "indecency." Wilde and his family were internationally shamed; when the playwright was released from prison, he lived in exile until the toll of his prison years caused his premature death.

The article is not available from SSRN.