* [Alexander] Hamilton’s response to it all was a ninety-five-page booklet complaining about his own loss of privacy. He found “mortifying disappointment” in Callender’s “Scandal-Club” publication that had devoured “even the peace of [Hamilton’s] unoffending and amiable wife.” Was nothing sacred? Sure, Hamilton admitted that he had in fact had an amorous connection with Mrs. Reynolds, but this sort of intimacy wasn’t appropriate for public consumption. If “ any little foible or folly can be traced out in one, whom they desire to persecute,” Hamilton warned, referring to the publishers of the day, “it becomes at once in their hands a two-edged sword, by which to wound the public character and stab the private felicity of the person.”
That sort of thing—a stab to the private felicity of a person that wounded his public character—suggested a legal cause of action, something that would support a lawsuit at the time. Hamilton, a lawyer, likely knew that they called it truthful libel in some places and plain old regular libel in others and that it meant that anything harmful to a person’s reputation, even if true, could be punished. Libel, including truthful libel, had been helped along post–Star Chamber by an important British law book published in the 1760s, Blackstone’s Commentaries on the Laws of England , one that had been highly influential in the United States too. It said that a publisher certainly could put whatever he wanted to in his newspaper and that freedom of the press was essential to a free state, but if that publisher published something “ improper, mischievous, or illegal, he must take the consequence of his own temerity.” This included the publication of embarrassing truth, something like a tidbit about a husband who’d been unfaithful and had suffered his wife’s wrath in response; such a revelation, Blackstone believed, was punishable because it exposed the husband publicly and made him look ridiculous. The worry was that when private, personal, truthful things got reported, the emotional damage and desire for physical revenge would be even more profound to the outed individual than had falsity been published.
Sensibilities were similar stateside. “ This is an age,” one publisher in Philadelphia wrote in 1789, “when the prying eye of curiosity penetrates the privacy of every distinguished person,” with table talk and trivial pursuits both exposed with “the pomp of importance, by some officious hand, engaged to furnish anecdotes for the world.” At a time when newspapers carried ads promising strict privacy in the teaching of dancing, the treatment of seminal weakness in either sex, and the curing of venereal complaints, the trend, the writer said, appeared to be to veil such puerilities.
They didn’t call it a right to privacy. “The greater the truth, the greater the libel,” they used to say.
* Libel, as well as truthful libel, on the other hand, was also a common-law concept, the type of law that had developed through the courts, one that would be every bit as precedential as laws passed by legislatures, just usually not as instantly sweeping. Truthful libel wasn’t all that controversial either…
The First Amendment’s promises of freedom of speech and freedom of the press, meanwhile, didn’t fit much into the landscape back then; such principles didn’t have the same reverence or power as they do today. Not only was everybody still figuring out what those promises meant, but the Bill of Rights applied only to the federal government anyway, not yet to the states, and certainly not to individuals or private enterprise. Through it all, words on paper that seemed pretty darned absolutist like “no law” should abridge “the freedom of speech, or of the press” turned out to be not so protective of speech or the press after all.
* but as the penny presses took firmer hold and tempted their readers with scandalous sensationalism that invaded the privacy of interpersonal relationships, society’s polarizing schism, the trouble with newspapers, became socioeconomic: the elites wanted their privacy, and readers of the penny papers wanted to know why.
* The elites understood what was best for society and were therefore the best to make this sort of thing happen in the best way. The ignorant and thoughtless (surely meaning those in the Pulitzer-reading lower classes) had come to believe that newspaper gossip was important news, and when such fluff filled their brains, it dwarfed their thoughts and aspirations. Thinking people needed to step in to take action to protect the naive who could afford but a penny, and in doing so, the thinking would protect society itself.
* What seemingly went largely unnoticed by anyone concerned, however, was that in 1891, in an opinion written by Justice Horace Gray, the man for whom Brandeis had clerked at the Massachusetts high court, the U.S. Supreme Court had mentioned the right to privacy in a concrete way for the first time in a tort context. The case involved a woman injured on a train who had refused the defendant railroad company’s request that she “submit to a surgical examination” to prove her injuries. She had the right to be let alone, the right to keep her nude body to herself, Justice Gray and the other justices decided, though they never cited “The Right to Privacy.” That privacy right involved the inviolability, the dignity, of the person, the Court wrote, and was indeed both sacred to and guarded by the common law.
* President Harding praised the new ASNE [journalism] code, especially the privacy-protecting part. He died about three months later. Four years after that, one of Harding’s mistresses published The President’s Daughter, a “proper and true account of the relations of the author with Warren G. Harding,” including the fact that she’d fallen in love with Harding when she was thirteen and he was in his forties. Their first kiss would come when she was eighteen and he was in his early fifties, after Harding, then a U.S. senator, had invited her up to a New York hotel’s “bridal chamber” so that their discussion of a possible job and her admiration of him “might continue . . . without interruptions or annoyances.”
* surely the sex-crazed, celebrity-obsessed journalist Frank Harris, best known for his work for Pearson’s Magazine…
His goal, he said, was to teach young people “how to use their machine gun[s] of sex” and, in doing so, pit press and expression and speech freedoms directly against the right to privacy.
That meant readers of Harris’s autobiographical series My Life and Loves , published in multiple volumes throughout the 1920s, learned that the author Guy de Maupassant had once visited six prostitutes in one hour; Guy had stamina and syphilis. The illustrator Aubrey Beardsley first had sex with his own sister. And the poet Walt Whitman had “half a dozen illegitimate children and perverse tastes to boot.”
But the most graphic of revelations in Harris’s reportorial account involved his own real-life, noncelebrity conquests (student Kate, adult Laura, teenager Grace, many more, all identified) and their detailed bodily responses to his physical wooings. Some of the vignettes involve girls, and some involve what we’d surely consider sexual assault, including one that he describes as his most amatory experience. Friends do not escape his revelations; one real-life teacher had shared a deeply personal sexual problem with Harris and agreed to a bizarre remedy, all of which Harris described in gruesome and highly embarrassing detail. (“I went at once in search of whipcord, and tied up his unruly member for him night after night” offers some sense of the story.)
Frank Harris argued that he had the right to reveal all that, that, as a journalist, he’d always fought for the Holy Spirit of Truth and, here, he would once more. “ I am resolved to dare speak whatsoever I dare do,” the preface to volume 2 of My Life and Loves reads. He’d already fashioned himself a First Amendment soldier, criticizing the Supreme Court in a Pearson’s essay for putting Eugene Debs in jail “in direct contradiction of the Constitution.”
But he found few comrades this time. Upton Sinclair called the Harris autobiography vile, inexcusable, and poisonous. Others worried that My Life and Loves would taint all journalism and become “ a serious blow to the cause of freedom.”
The broad taint never materialized, but the government did ban My Life and Loves pretty much instantly. England did the same. Such punishment was easy enough, given that Harris had mainly published his work in Paris and the government could stop the books in customs on the rock-solid grounds of obscenity: while privacy required a wronged plaintiff motivated to sue, courts as early as 1811 agreeably prohibited the entry of “ pernicious animals, or an obscene book , or infectious goods, or anything else that the Legislature shall deem noxious or inconvenient.” Today, obscenity remains one of the categories that the Supreme Court routinely suggests has very little First Amendment protection, given its “ slight social value as a step to truth” and how that smidge of value is “clearly outweighed by the social interest in order and morality.” In modern times, the Supreme Court has suggested the same thing about privacy violations too.
Old copies of My Life and Loves , therefore, quite literally warned, “MUST NOT BE IMPORTED INTO ENGLAND OR U.S.A.”
The ban on My Life and Loves —the law’s rejection of Harris’s Holy Spirit of Truth—continued well beyond the time of Near . Twenty years after its initial appearance, judges in the 1940s sent bookshop owners in the United States to jail for selling the Harris work, and in 1959 reports were that smuggled-in copies were going for up to $150 on the black market.
An edited-for-certain-content version of Harris’s autobiography finally appeared in an official sense in the United States in 1963. That same year, a magazine called Eros published “expurgated” excerpts—“ I had hardly any sex-thrill with either sister” truncates things nicely—and a federal judge decided that they helped to support a criminal obscenity conviction against Eros because, given the prose, the judge had “little difficulty” finding all “the requisite elements.” There was no “saving grace” here either, no claims of the work’s contribution to great literature that had saved books like Lady Chatterley’s Lover .
The U.S. Supreme Court affirmed the Eros obscenity conviction in 1966, two years after deciding the landmark New York Times v. Sullivan . Sullivan strongly protects publications on First Amendment grounds, creating the actual malice standard that makes it difficult for a famous person to win a defamation case, and there the Court wrote that the whole point of the First Amendment was “ to secure ‘the widest possible dissemination of information from diverse and antagonistic sources’ ” and warned that freedom of expression should not be handicapped. But not even Sullivan could save Eros from My Life and Loves .
Given all this, is it any wonder that it takes some digging and a significant amount of cash to land original physical copies of My Life and Loves today? One single autographed volume was going for more than $1,000 recently…these are graphic, deeply personal stories about people in their most intimate moments, people who had no idea that they’d be revealed in such a way. As the poet Robert Browning told Harris when Harris asked about Browning’s sex life, there are “ things that the public has no right to know.”
But Frank Harris was an outlier whose focus on truth at all human emotional costs would soon be quieted in the groundswell of overall goodness that journalism was well on its way to becoming. In response to a stronger embrace of ethics principles, courts began to put into words that they deferred to journalists’ news judgment and their assessment of the public’s right to know. One decided that filming an Arctic expedition was okay even though the explorers didn’t want the journalists there. The “ heroic adventure” was one of great public interest, the court wrote, and “news concerning it or its progress, [was] a matter to which the public [was] entitled.” “ Certainly, this Court should proceed with caution before it attempts to sit as a censor and to interfere with the traditional right of the Press to print all printable news,” another court wrote.
In the next century, however, the Frank Harris story, as told by Frank Harris, would become a much more common one as media transformed itself in the age of the internet.
In more recent times, ethics has swept mainstream newsrooms, and modern journalists understand that they can lose their jobs if they fail to abide by certain ethics standards. This means that, today, Frank Harris would be fired at the first rat-a-tat of his machine gun of sex, freedom of expression or not. Those privacy-based ethics provisions are solid and universal:
• National Public Radio: “With all subjects of our coverage, we are mindful of their privacy as we fulfill our journalistic obligations.”
• The New York Times: “We do not inquire pointlessly into someone’s personal life.”
• Radio Television Digital News Association: “The right to broadcast, publish or otherwise share information does not mean it is always right to do so.”
Today, an organization called the Society of Professional Journalists oversees the national code of ethics for journalists, and that code too contains privacy-related provisions. The “ Minimize Harm” section, for example, suggests that “ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.” It reads in part,
—Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.
—Show compassion for those who may be affected by news coverage.
—Recognize that legal access to information differs from an ethical justification to publish or broadcast.
—Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence, or attention. Weigh the consequences of publishing or broadcasting personal information.
—Avoid pandering to lurid curiosity, even if others do.
—Balance a suspect’s right to a fair trial with the public’s right to know.
—Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.
* At the turn of the twenty-first century—during the Wild West of a new thing called the Internet that we blessed with a capital I, when suddenly anyone with a keyboard and a connection could make publishing happen—there was a grassroots movement to draft a similar code of ethics for those who had started what came to be known as weblogs or blogs. The movement failed. Bloggers, many of whom were delighted to be blasting through the gates of propriety, said they were worried that any such code would tie their hands, that it would curtail their First Amendment freedom to express themselves.
* they were right to worry about a standardized code in one sense because, by the first decade of the twenty-first century, some judges had become frustrated with modern media, and in response had started to use the Society of Professional Journalists’ code as a weapon against journalism itself. If journalists violated an ethics provision, these judges decided, that helped to establish the journalists’ liability. Privacy rights would triumph, supported even by the defendant.
In response, the Society of Professional Journalists placed a brand-new warning at the very end of its ethics code explaining that the code “is not intended as a set of ‘rules’ but as a resource for ethical decision-making.” “It is not—nor can it be under the First Amendment—legally enforceable,” the SPJ added hopefully.
* Those articles in the Universal Declaration of Human Rights in turn influenced the European Convention on Human Rights, adopted in 1953 and the most important human rights document in Europe, including its article 8, which protects privacy (“Everyone has the right to respect for his private and family life, his home and his correspondence”), and its article 10, which protects expression (“Everyone has the right to freedom of expression”).
And because privacy rights and press rights are, in effect, given equal weight in those documents, protection of people—the right to privacy—many times prevails. In 2016, for example, the highest court in the United Kingdom told its newspapers that they could not publish a story that had been widely distributed on the internet about a man identified only as “PJS,” who was married to a major celebrity and yet had had an affair with two others. Such a publication seemed a clearly unjustified invasion of privacy, the court decided, “however absorbing it might be to members of the public interested in stories about others’ private sexual encounters.” There, article 10 was little counterbalance against the importance of the unnamed celebrity’s right to privacy.
Ironically, therefore, as Europe and the world shifted toward greater protection for privacy, helped along by what was ultimately the sort of privacy initially suggested by the American Law Institute, the United States continued the weight of its legal protections more toward the press and the freedom to publish. The United States–based National Enquirer , for example, was only too happy to name Elton John’s husband, David Furnish, as the mysterious PJS.
* What The Boston Globe and other papers didn’t report, however, was that William Sidis had renewed his claim against The New Yorker , for a tort that sounded a lot like what today we’d call intentional infliction of emotional distress and, maybe, a touch of truthful libel. He argued that The New Yorker had published its story “ without justifiable motives or good ends,” leaving him “suffer[ing] greatly in his peace of mind and sense of dignity.” In 1944, he won that case, in effect, by settling with the magazine for an undisclosed amount.
“ I feel that it was at last some sort of victory in my long fight against the principle of personal publicity,” Sidis wrote shortly thereafter in a letter to a friend.
* The [Supreme Court] justices wrote that speech that embarrasses doesn’t lose protection and that speech that offends can’t be suppressed in the marketplace of ideas. The First Amendment requires adequate breathing space, they wrote, and press responsibility can’t be legislated and isn’t mandated by the Constitution.
The cases include the most famous of all time that promote press and speech and expression freedoms: the legendary defamation case from 1964, New York Times v. Sullivan , with language powerfully protective of the press (“safeguards for freedom of speech and of the press . . . are required” by the First Amendment, and “debate on public issues should be uninhibited, robust, and wide-open”); Time v. Hill from 1967 (“exposure of the self to others in varying degrees is a concomitant of life in a civilized community,” and “the risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press”); and the Pentagon Papers case from 1971, a three-paragraph decision after which many of the justices wrote separate opinions (“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable”: Justice Hugo Black, citing James Madison).
There were multiple others. It was a time when courageous reporting from civil rights struggles, from Vietnam, and from Watergate told the truths of everyday hatred, of war, and of presidential misdeeds, and in response a whopping 72 percent of Americans said they believed in and trusted the media. Supreme Court opinions with their powerfully memorable rhetoric seem reflective of that.
This meant that when privacy and press were pitted at the Supreme Court, the press won, even in increasingly difficult cases. To many on the outside, privacy interests surely seemed the right call, but instead the Supreme Court solidified the primacy of press freedom and, in a way, celebrated truth and the people’s right to know.
In 1975, the Court decided that a grieving father whose seventeen-year-old daughter had died after an apparent gang rape had no claim against a television station that had broadcast his daughter’s name in violation of a state statute that made it a crime to identify a rape victim. Media has a “great responsibility,” the justices wrote in Cox Broadcasting v. Cohn , “to report fully and accurately the proceedings of government,” including trials, and “interests in privacy fade when the information,” such as this victim’s name, “appears on the public record.” Moreover, this sort of news story had social value as a step toward truth, and to punish media for such reporting would “invite timidity and self-censorship” and lead to suppression.
In 1977, the Court protected media for reporting the name of an eleven-year-old boy who’d been arrested, for taking his picture, and for videotaping him as he left court, all in violation of a lower court order. “ Members of the press were in fact present at the hearing with the full knowledge of the presiding judge,” the Supreme Court explained in Oklahoma Publishing Co. v. District Court , and therefore acquired the information lawfully, so to punish their reporting of truth, even though it involved a child who would otherwise be protected, would abridge First Amendment press freedoms.
A couple of years later, in 1979, the Court held in Smith v. Daily Mail Publishing Co. that media could not be punished for publishing the name and photograph of a fourteen-year-old boy who’d shot a classmate despite a state statute that made it a crime to publish such information without court permission. Journalists had learned the boy’s name at the scene and therefore to hold them liable for such accurate reporting would be unconstitutional. “ If the information is lawfully obtained,” the Court wrote, “the state may not punish its publication except when necessary to further an interest more substantial than is present here.”
Then, ten years later, in 1989, the Court decided in Florida Star v. B.J.F. that a newspaper would not be liable for publishing the name of a living rape victim in violation of both a state statute and the newspaper’s own policy. An intern had found the information in a police report and had written a blurb for the police blotter naming the victim and explaining with surprising detail that an unknown man had run up behind her, placed a knife to her neck, then “undressed the lady and had sexual intercourse with her” before fleeing. Thereafter, the named victim received harassing phone calls that included new threats of rape and was forced to move from her home. Nevertheless, the Court wrote that it would be unconstitutional to hold the press liable for its accurate reporting: first, the media had acquired the victim’s name legally; second, the government itself had supplied the information; and third, the state statute that suppressed such information targeted only media and could have been more evenhanded.
There was a celebration of truth throughout this period on the access side too, an ever-growing sense that the public did indeed have a right to know certain information. In the wake of Watergate, Congress threw open the files of federal government agencies by amending the 1966 federal Freedom of Information Act so that the press and the people could evermore “pierce [the] veil of administrative secrecy and open agency action to light of public scrutiny.” Sure, FOIA has nine exceptions, including personal privacy, and Congress had passed the Privacy Act of 1974 in order to beef up protection for information the government held on individuals, but FOIA’s right-to-know language mandated that each agency “shall” make most government records available to the public as a sort of “ full agency disclosure.” Many similar state statutes suggest flat out that any document created by a government employee—including emails and texts in particular cases—is presumed open to the public the instant it’s created.
* One book about Supreme Court decisions written for journalism students explained that absolutist views on press rights from concurring and dissenting justices at the Court would appear more often in its pages without apology because its journalist-author felt most sympathetic to that viewpoint. Another suggested that the press had but two limitations: libel and obscenity. “Legally,” a third read, “ the right of privacy is not a major impediment to reporters and editors who seek to tell us about what is going on in the world.” Many highlighted the Sidis case. By 1970, Newsweek magazine suggested that privacy was dead on a cover that featured prying cameras, microphones, and computers; inside it wrote that Americans had surrendered “both the sense and the reality of their own right to privacy.” That same year, an excited Look magazine told its readers that sexual privacy was dying too: that protection for sexual behavior had arisen in Victorian times and there was no longer a need for it. A few years later, Time magazine suggested that in First Amendment cases, it was “ clear that the news media [had] prevailed, at least in the court of law,” and by 1997 Time reporters confirmed that Americans’ “ right to be let alone had disappeared” in a cover headlined the death of privacy.
* It’s hard to decide which scene from the 1967 documentary Titicut Follies is most difficult to watch because that’s the point: the cinema verité film reveals the horrifying plight of many locked inside Bridgewater State Hospital, the stone-block bastille forty minutes south of Boston that contained those we used to call the criminally insane.
The worst could well be the skeletal man being force-fed, a rubber tube inching its way up his nose while his doctor’s cigarette, nearly half of it ash, dangles perilously above. It could be the one featuring the dead body of an inmate—is it the man who’d been force-fed or just a nameless other?—packed into a drawer for later mostly solitary burial, cotton balls delicately placed into the eye sockets. Maybe it’s the man plunged into a bathtub, joyful when filthy bathwater seeps into his mouth, or the one who reveals that he sexually abused children to a psychiatrist more intrigued with his masturbatory behavior. But the worst is probably the scene featuring Jim, a former schoolteacher, naked inside an empty prison cell, stamping round and round louder and louder, growling through his teeth as guards repeatedly ask why he can’t keep his own cell clean.
The title Titicut Follies isn’t meant to titillate. “Titicut” is what locals called the land around the prison, and “Follies” refers to the variety show that drugged-up prisoners and pumped-up guards put on for the public each year. Vaudeville turned out to be a real moneymaker: the first show earned $1,500 to help pay for televisions and stereos—“ material needs”—that the inmates wanted but the state wouldn’t pay for. It became an annual tradition.