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The Puzzle of Brandeis, Privacy, and Speech

Posted by on Thursday, October 28, 2010 in Articles, Volume 63, Number 5, Volumes.

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis—his 1890 Harvard Law Review article The Right to Privacy and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this Article, I argue that the puzzle of Brandeis’s views on privacy and speech can be resolved in a surprising and useful way.

My basic claim is that Brandeis’s mature views on privacy and its relationships to free speech were more complex and interesting than the simplistic tort theory of privacy he expounded in The Right to Privacy. As a young lawyer, Brandeis envisioned privacy as a tort action remedying emotional injury caused by the revelation of embarrassing private facts by the press. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.

But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some modern implications of Brandeis’s ambivalence about tort privacy and his linkage of intellectual privacy with free speech.