The Right to What Kind of Privacy?

14May10

Louis D. Brandeis and Samuel Warren’s article “The Right to Privacy” continues its reign as the most cited law review article ever with two new articles discussing its implications.

In “The So-Called Right to Privacy” (43 UC Davis Law Review 715 and on SSRN) Jamal Greene announces the death of the right to privacy. Not tort privacy as outlined by Brandeis and Warren, but rather the “constitutional right to privacy” as formulated by William Douglas in Griswold v. Connecticut and then furthered by Harry Blackmun in Roe v. Wade. Greene argues that there has been a backlash against using privacy as a defense for things like sexual orientation and abortion from both the right and the left and that the current court has found other, better constitutional strategies for defending these rights.

Neil M. Richards takes a different tack in “The Puzzle of Brandeis, Privacy and Speech” (to be published in a forthcoming issue of Vanderbilt Law Review, but available now on SSRN). He notes a contradiction between what Brandeis wrote in “The Right to Privacy” and in his later opinions in Olmstead v. United States and Whitney v. California — or to put it another way, the tension between privacy and free speech.  Richards’ argument is that once Brandeis began to consider free speech issues while on the Court, he began to back away from the views expressed in his article and instead formulated a new theory of  privacy that protects freedom of thought and  expression. Richards calls this new theory intellectual privacy. It will be interesting to see if this phrase catches on.

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