Warren+and+Brandeis+1890

=//The Right to Privacy// (1890) by Samuel Warren and Louis B. Brandeis= http://[|www-swiss.ai.mit.edu/6805/articles/privacy/Privacy_brand_warr2.html]
 * This now classic Harvard Law Review paper is accessible on line at:

Please share comments and reflections on this paper below.

Inviolate Personality//**// Notes from Andreas Teuber (posted by Mark Auslander)://

Brandeis and Warren do not rely on the Constitution to make their case but craft their argument out of common law: "The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others."

What shocked them at the end of the 19th century serves to underscore both the degree to which our privacy has eroded since more than a century ago and the ways in which our sense of it has shifted and changed.

It's the most famous article on privacy ever written

They base their case not on any amendments but on a principle of the person and the right to an "inviolate personality."

So their case rests on a conception of persons, how individuals are constructed and are or are not able to live together with one another in a society. Protection of "solitude and privacy [becomes] more essential to the individual" Brandeis and Warren believe because "modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."

Since areas where one might experience solitude thereby become essential to sustain a sense of privacy, Brandeis and Warren refer to its protection in spatial terms, disturbed by the "overstepping in every direction of the obvious bounds of propriety and of decency" or by "idle gossip" that can "only be procured by intrusion upon the domestic circle."

They are also keenly aware how the invention of new technologies further threaten "the right to be let alone" and are especially outraged by picture taking, which on their view is a lieral form of taking, a lifting from the person what rightully belongs to him or her, complaining, in spatial terms once again, how "instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life."

The right to an "inviolate personality" - on their view - "does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music. ..

"The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public."

//Comment by Ellen Schattschneider:// It would be an interesting exercise to read the Warren & Brandeis 1890 essay in light of Georg Simmel's roughly contemporaneous article, "The Aesthetic Experience of the Face." (1901) Simmel famously observes, "in the features of the face the soul finds its clearest expression" (1901, p. 276) Simmel's sense of the privileged status of the face was presumably, in large measure, a product of the same proliferation of portrait photography that so struck Warren and Brandeis. What a fascinating paradox of the modern self: the deepest, interior recesses of the //private// self ( which, as Andreas observes, constitute the "inviolate personality" for Brandeis and Warren) are most accessible through our most //public// manifestation, the face itsel. Hence, it is through the face, and its vulnerability to capture and dissemination by technologies of mass reproduction, that that inner self is potentially most imperiled.
 * The Features of the Face**

see: Simmel, Georg, "The Aesthetic Significance of the Face" [1901]; "How is Society Possible?" [1908]. Essays on Sociology, Philosophy & Aesthetics. Ed. Kurt H. Wolff. New York: Harper & Row, 1965.

I have a paper (accessible on line) on the face, photography and memorial practice in Japan: Schattschneider, Ellen. [|Family resemblances: Memorial images and the face of kinship]. [141–62] Japanese Journal of Religious Studies. 2004, 31/1.

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The Violated Wedding Party
//Comment by Mark Auslander:// I have been thinking a bit about why Brandeis & Warren (1890) would have found the violation of the wedding breakfast party by a news photographer (the event that reportedly inspired their authoring of the piece) to have been particularly heinous. After all, a picture of the bride and groom taken that afternoon after the wedding ceremony would presumably have been viewed as an entirely appropriate addition to the Society page. The key violation seems to lie in the (premature) interruption of the processual structure of the wedding rite. As Van Gennep and Victor Turner note, rites of passage are structured in three phases: (a) separation of the principals from everyday life,(b) the liminal or "betwixt and between" phase, in which the principals stand outside of conventional categories and experiential coordinates, and (c) re-integration or re-aggregation, in which the principals re-enter ordinary life, usually at a higher or altered social level or status. At the Warren breakfast wedding party, the photographer seems to have invaded the first phase, of separation, from which even the groom would have been excluded, as the bride's immediate family celebrate their solidarity with one another through commonsality just as they are about suffer their impening partial dissolutoin, that is to sy the 'loss' of their daughter. The unauthorized photograph in this sense punctures the restricted ritual domain of the separation phase, thus imperiling the overall logic of the entire wedding ceremony, the quintessential rite of bourgeois social reproduction. == ==