Why the “Privacy” Wars Rage On

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Why the “Privacy” Wars Rage On
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Privacy rights can shield both victims and victimizers. And so privacy claims—and privacy critiques—routinely clash.

In 1875, the future Supreme Court Justice Louis Brandeis met his classmate Samuel Warren at Harvard Law School. The two became close friends and soon formed a law firm together. Warren was from one of Boston’s wealthiest families, whose doings were fodder for gossip columns; when Warren married a senator’s daughter, details of wedding décor, guests, and dresses were extensively covered in national newspapers.

As privacy widened in scope, it seemed to grow in power. In the 1965 case Griswold v. Connecticut, the Supreme Court constitutionalized a right to privacy, ruling that prohibiting the use of contraceptives was unlawful because of “a right of privacy older than the Bill of Rights.” As Justice William O.

The shifting terrain here invites the question of whether, when we talk about “the right to privacy,” we’ve been treating as interchangeable two terms that are merely homonyms: roughly, privacy as nondisclosure and privacy as noninterference. Justice Samuel Alito, in his leaked draft opinion overturning Roe v.

Like Samuel Warren, early American proponents of privacy were powerful men with secrets to keep. Thomas Jefferson was bothered by innuendo circulating about his hidden life, which included his relationship with the enslaved Sally Hemings, who was a teen-ager when she first bore his children. Jefferson attacked the very press whose freedoms he had previously championed, and he encouraged the prosecution of a newspaper editor.

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