The Private Interest

Life in America is marked by two apparently contradictory tendencies. On the one hand, we are a nation of exhibitionists and voyeurs. Sometimes it’s an intimate who “tells all” (as when the first lady reported that her husband had been abused as a child), but usually we have no one but ourselves to blame for the disappearance of privacy. Whether it’s the president blabbing about his taste in underwear, “ordinary” Americans divulging their fantasies on The Ferry Springer Show, or “cyber-exhibitionists” broadcasting their lives on the Internet, we seem unable to keep anything to ourselves. 60 Minutes hit an all-time low in 1998 when it televised Dr. Jack Kevorkian killing a man by lethal injection.

But if we are a nation of exhibitionists and voyeurs, we are also the only nation in history to invent a “right of privacy.” Decades ago, the Supreme Court declared that embedded in the Constitution is a right that frees the individual “from unwarranted governmental intrusion” in certain fundamental matters, including the right to buy contraceptives and, eventually, the right to have an abortion. In taking what was once thought a matter of high public concern — the killing of unborn human beings — and privatizing it, the Court extended privacy beyond anyone’s wildest imaginings.

This coexistence of a confessional culture with constitutionally protected privacy is no contradiction. Rather, these are the combined results of the breakdown of the wall that once separated the private from the public in American culture. Though two recent books on the subject do not solve this fundamental problem, The Limits of Privacy by Amitai Etzioni and The End of Privacy by Charles J. Sykes make important contributions to our understanding of the problem’s implications.

We might begin the modern story of privacy with Samuel D. Warren and Louis D. Brandeis’s 1890 Harvard Law Review article, “The Right to Privacy.” Known as the most famous law review article ever written, it contains one of the first declarations of a “general right of the individual to be let alone.” By this, they did not mean to become fore-runners of today’s “leave us alone” coalition of gun owners, home schoolers, and libertarians. Rather, Warren and Brandeis were promoting the idea that an individual should have some measure of control over what is said and published about him. (This has come to be known narrowly as “informational privacy.”)

In declaring a right “to be let alone,” Warren and Brandeis sought to conserve a tradition that was then under siege. In her groundbreaking 1996 work The Repeal of Reticence, the historian Rochelle Gurstein aptly labeled the defenders of that tradition the “party of reticence.” It included such nineteenth-century leading lights as Charles Eliot Norton, Henry James, and James Stephens. They sought, unsuccessfully, to counteract “the forces of exposure,” including the new mass circulation newspapers, the liberal reformers of the sexual hygiene movement, and the avatars of a new literary style known as realism, which sought to tell it like it is.

We can learn much from these defenders of reticence, about the character of both the private and public realms. Warren and Brandeis said their goal was to protect, as they put it, “the privacy of private life.” Today, their concern might seem like mere prudery, but as Gurstein pointed out, such was not the case. The party of reticence believed that private life, by its very nature, was unsuited to, and distorted by, a public light. And thus they wished to shelter private things — love, friendship, birth, death — from the destructive gaze of strangers.

It’s not only private life that suffers when its contents are tossed into the public square. As Warren and Brandeis show, our public life is also harmed:

When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

Warren and Brandeis’s concern for the delicacy of private life and the robustness of public life, and their perception of the connection between the two, was swamped in the century to come. As a matter of law, Warren and Brandeis had negligible influence. Little of our private lives is off limits to the public — a fact to which we have all too readily accommodated ourselves. Meanwhile, the public realm has become flooded with what would have once been dismissed as mere gossip or pornography.

But if Warren and Brandeis’s understanding is dead, the modern view is alive and well. This year marks the thirty-fifth anniversary of Griswold v. Connecticut, in which the Supreme Court declared, “the Bill of Rights have penumbras, formed by emanations” that create zones of privacy. One of those zones was the right of married couples to purchase contraceptives. In subsequent decisions, the Court extended the right beyond married couples, and in Roe v. Wade, the Court found the privacy “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Many legal scholars argue that it’s broad enough to encompass “physician-assisted suicide” as well. Thus, Warren and Brandeis’s discrete understanding of privacy has become an outsized concept containing a variety of rights that together form a radical version of personal autonomy.

The difference between privacy and autonomy cannot be overstated. Liberal reformers at the turn of the last century charged the party of reticence with being ashamed of things relating to the body, especially sex. When liberals took up the banner of privacy later on, it was not because they suddenly recalled how to blush. Rather, these defenders of contraception, abortion, and physician-assisted suicide, far from rediscovering shame, were defying its power. The new right of privacy has nothing to do with reticence and everything to do with personal empowerment. What were once thought to be, by definition, private matters (sex) are now public, and what were once thought to be, by definition, public matters (deliberate killing) are now private.

In The Limits of Privacy, Amitai Etzioni claims that we suffer from too much privacy. As the country’s fore-most communitarian, Etzioni has, in scores of books and articles, taken liberalism to task for pushing individual rights, including privacy, beyond what is good for the country. According to Etzioni, a radical individualism overtook the culture during the last quarter century, raising the right of privacy above the commonweal. In his thoughtful examination of issues from the testing of infants for HIV to the public use of medical records, Etzioni argues that we have generally erred on the side of privacy. He usefully reminds rights-happy liberals that privacy should not automatically trump the common good. And he usefully reminds road-to-serfdom libertarians that, historically, privacy and other individual liberties have been lost because of breakdowns in social order, not because of Big Brother’s long reach.

For all of his sensible criticism of liberalism, however, Etzioni remains in the liberal camp. It’s not simply that he defends liberalism’s ultimate trump card — abortion. It’s a larger problem in his attempted defense of the common good gainst the excessive rights-claims of individuals. Repeatedly, Etzioni defines the public good as “public safety and public health.” But that’s how most of the contemporary liberals whom he attacks would define it too. It’s a view that allows for anti-smoking campaigns but falls short of anything resembling a moral dimension.

Charles J. Sykes takes a different approach in The End of Privacy. Written from an individualist or classical liberal perspective, Sykes argues that we suffer not from an excess of privacy, but from too little. On most policy issues, he disagrees with Etzioni, arguing for encryption and against national ID cards, for example. The two authors also disagree about what poses the greatest threat to privacy. Sykes says it’s Big Government. Etzioni says its Big Business.

Sykes recognizes, and this is the great strength of his book, the larger cultural backdrop of the privacy debate. Strictly speaking, we have today neither a public nor a private realm. The former has long since been overrun by gestures and sentiments that do not rightly belong to it. At a reception during the Constitutional Convention of 1787, Gouverneur Morris, on a dare, approached George Washington, slapped him on the back, and asked how he was doing. According to one account, Washington stepped back and angrily glared at Morris, who withdrew in fear and shame at what he had done. In this single story, no matter how apocryphal, we see the vulnerability of the public to the private. Familiarity, it was once understood, breeds contempt.

If the public square is in a shambles, so too is the private realm. As Warren and Brandeis foresaw, the delicacy of private life cannot withstand publicity’s glare. Nor can it survive, ironically enough, the Court’s discovery of a zone of privacy. What becomes of the delicacy of a private realm that sanctions the most extreme forms of personal autonomy? This part of the breach in our public and private lives will have to be attended to as well.

Adam Wolfson is executive editor of the Public Interest.