Given this focus on press invasions, it is unsurprising that many scholars have seen their proposed new tort as interfering with the First Amendment guarantees of press freedoms. (See, e.g., Lorelai Van Wey’s Note, “Private Facts Tort: The End is Here.”) Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy” (636).

In 1890, when Warren and Brandeis’ published their article, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own versions. Despite this, in many ways “freedom of speech and the press” was viewed in stronger terms then than now (despite the fact that the Alien and Sedition Acts of 1798 was never challenged by the Supreme Court). There was, for example, no perceived difference between commercial and political speech–both were granted the same level of protection. The nineteenth century juries Thomas Cooley’s position on the issue was generally considered the most persuasive:

The constitutional liberty of speech and ofthe press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. (Bratman 637)

Warren and Brandeis were not unaware of this potential conflict, and carved out an exception to their proposed tort by adding a

“public interest” or “public character” exception to their tort, which recognized that the press or commercial photographers had to be free to record and report the actions of public characters and officials (Bratman 636)

In other words, even Warren and Brandeis, despite their argument that they were not inventing anything new at all, recognized that the right to privacy they were articulating had the potential to conflict with the guarantees of the First Amendment.

In their twenty-eight page piece, Brandeis and Warren chastised the journalists o f their day, particularly photojournalists, for prying into people’s private lives in search oqawdry and alluring “news,” and then made a cogent plea for the law to recognize a right to privacy and to impose liability in tort for these and other types of invasions of privacy. They got what they wanted–and more. (Bratman 624)

Much of their argument focused on limiting the public dissemination of private details of a person’s life, a goal that many find to conflict with First Amendment protections of speech and the press. But Warren and Brandeis saw the right to privacy as articulating an existing principle that had already been applied in many other contexts without constitutional problems: protections of one’s home, prohibitions of the publication of one’s private papers, and prohibitions against slander and libel.

Warren and Brandeis began their article by discussing the well-settled protections afforded by the common law to both people and property. The argued that the law had responded to “social, political, and economic changes” by expanding what it protected, such that the law now protected not just against battery, but the threat of battery (assault), as well as assaults on reputation (slander and libel) and even intangible “products of the mind,” like copyright and goodwill (Bratman 630).

The starting point of their critique of existing protections is the press:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade. … To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. (Warren and Brandeis 196)

Warren and Brandeis proceed to reason that privacy deserves protection through analogy to existing law. Thus, the rights to “intellectual and artistic property” were “instances and applications of a general right to privacy.” In the case of copyright, for example, what is protected is not the quality of the writing or its artistic value: the “existence of the right [does not] depend upon the nature or value of the thought or emotion … [as] the same protection is accorded to a casual letter or an entry in a diary.” Thus, just because a photograph of me does not have artistic value does not mean it should not be protected, since its protection arises from being me, not from the effort invested by the photographer nor from its potential status as an important commentary on life. Even if I send a letter to someone else, they do not have the write to publish it without my consent. The underlying goal is to allow an individual to control the dissemination of what is, fundamentally, theirs. But it is not a property right in the traditional sense, and is not about physical possession or trespass:

The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality (205).

And the invasion of privacy, they continue, is like the “injuries sustained … by an attack upon reputation … or a violation of honor.” In each case the injury is non-physical, but real, and similar injuries are already punishable by law. In short, “existing law affords a principle which may be invoked to protect the privacy of the individual” (206).

Image by takomabibelot via Flickr

The First Amendment to the United States Constitution is first of ten Amendments that constitute the so-called “Bill of Rights.” It originally bound only the federal government–not state governments–but after the Civil War, it slowly began to be “incorporated” through the Fourteenth Amendment to apply to the states as well. It reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It consists of multiple parts:

1. The Establishment Clause, which forbids government support of any particular religion. This is also considered to be the foundation for the “separation of church and state”: the requirement that religious and governmental matters not overlap. It is not an absolute prohibition, and many conservatives see it not as requiring the removal of God or prayer from public life, but rather as a prohibition on establishing and promoting one specific state church.
2. The Free Exercise Clause, which generally forbids governmental interference in religious practices absent a “compelling state interest.”
3. Freedom of Speech, which generally–although not absolutely–protects the right to speak even if it offends others. The classic example of an acceptable limitation is that one may be punished for the harm that results from yelling, “Fire!” in a crowded theater. The protection is against government restrictions on speech, not private restrictions, although private restrictions that invoke state power (as with a libel action) are subject to First Amendment scrutiny as well.
4. Freedom of the Press, a right very related to the previous one, but focused more on publications than individuals. It is also subject to limitation (libel, for example). Regulation of broadcast media is not generally a violation of press freedoms, although content-based regulations are usually not allowable.
5. The Freedom of Assembly and to Petition, although directly stated, have rarely been ruled on by the Supreme Court. The general idea is that–subject to reasonable time, place, and manner requirements–citizens are allowed to gather and ask for a redress of grievances.
6. Freedom of Association is a right implied by the First Amendment, although not directly stated. Thus, political parties may exclude those of another party from voting in their primaries, and the Boy Scouts may exclude openly gay scoutmasters.

“Roman law” by Eugene Yurevich. CC BY-NC-ND 2.0.

It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law (see, e.g., Civil law and courts of equity: the common law is hybrid law and Civil law’s influence on American common law: the appeal).

Another interesting story of the influence of civil law involves a push early on in the history of the United States to bring in civil law approaches, in part as a means to distinguish American law from English law, as well as to help unify the laws of disparate states. Then as now, too, civil law–which emphasizes statutory rules over judicial lawmaking–was seen to reduce the potentially arbitrary power of an unelected judiciary.

In “The Attraction of the Civil Law in Post-Revolutionary America,” Peter Stein quotes Sir Henry Maine as saying in 1856 that the Unites States was not part of “the common-law camp,” but instead had ceased to adhere to the single English (or New English) common-law model by 1825 (403). Instead, claimed Maine, Roman law was “fast becoming the lingua franca of universal jurisprudence” as many newer American states were looking to it for their “substratum” instead of English common law (404).

Early legal education, both in America and in England, contained civil-law materials, including Justinian’s Digests and Institutes, along with treatises (in English translation) on international and natural law by Grotius and Pufendorf, among others (405). Also, many early American legal educators were Scots, and Scotland is a civil-law country (405). James Madison, John Adams, and Thomas Jefferson all engaged with the civil-law tradition in their educations (405–06).

Unlike the perceive chaos of the common law, “[i]n eighteenth century eyes the civil law was associated with order, clarity and coherence” (406). After the Revolution, there was a sense that the United States needed its own legal approach based on the best the world had to offer:

efforts should be made to develop a particular American jurisprudence, which would not be a slavish imitator of the English common law, but would be eclectic–selecting the best principles and methods from whatever system they might be found in (407).

Additionally, although the common law had been seen as a check to the King’s power, it was also viewed with “considerable distrust … as an English product and a corresponding sympathy for things French” (410). Is it any wonder, then, with this desire to create a new nation, along with the positive perception of civil law, that civil law influenced early American jurists?

In the early part of the nineteenth century, American judges cited approvingly to both English legal precedent and to civil law treatises: “in New York, at least, they adopted a policy of eclecticism, considering the common-law and civil-law authorities respectively and then choosing one or the other” (409).

Especially in the areas of commercial law, maritime law, and international law, the civil law was particularly influential. English commercial law was revolutionized by Lord Mansfield in the period just before and after the Revolution, but his influence had little impact initially on the new nation (412). Instead, jurists turned to well-developed mercantile principles in civil law. In maritime and international law, Roman law–since so many European nations based their system on it–had especially force, and continue to do so today (421).

Although English precedent and English cases were used extensively in early America, early nineteenth century jurists lacked today’s judges antipathy to foreign precedent and approaches. Caleb Cushing wrote in the early 1800s:

The common, civil, and customary law of Europe have each precisely the same force with us in this branch; that is, our courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either of course obligatory (422).

But by 1850, writes Stein, civil law had faded from American consciousness. Why?

1. The most zealous champions of the civil law held high office, but their ideas “never permeated down to the humdrum practitioner of the law.”
2. Codifiers of American law continued to turn to civil law statutes as models, but not to its general unifying principles; they looked instead to its practical implementations (like the Code Napoleon), and drew on English thinkers like Jeremy Bentham instead of Justinian.
3. Historians of Roman law then took over, emphasizing “questions of learned jurisprudence” and not “point[s] of great practical import.” (432)

Nonetheless, even though Stein sees the 1840s as the decline of civil law’s influence in America, I see point 2, above, as indicative that it continued to play a role in the development of American statutes–but one that is less obvious and more subtle than direct cites to civil-law authorities by American judges.

For this reason, Bracton’s thirteenth-century treatise On the Laws and Customs of England “reflected the canonist [i.e., the civil law] rule … that ‘one must judge not by examples but by reasons’” (see “The Transformation of English Legal Science” by Harold Berman and Charles Reid, Jr., ):

Cases, that is, judicial decisions, could be used to illustrate legal principles, but were not themselves an authoritative source of law. … If a judge did not approve of a previous decisions, or even of a previous custom of the court, he might say it was wrong and disregard it. (445)

In the seventeenth century, this began to change. Edward Coke began some of the first modern compendiums of judicial decisions, connecting the reasoning for new cases to the authority granted by previous decisions. But this was still not binding precedent, and Coke “would reach out for anything said by a judge in an earlier case if it seemed to him to reflect a true legal principle” (447). In other words, Coke made precedent more authoritative, but the ultimate search was still for universal principles. 

The eighteenth century jurist Matthew Hale saw prior decisions as evidence of the true principle or rule (448). But judicial decisions themselves “did not make a Law properly so-called, (for that only the King and Parliament can do)” (448). In other words, judges “do not ‘make’ laws, but ‘find’ them in the received legal tradition, and ‘declare’ them” (448). Modern judicial precedent–strict stare decisis, requiring lower courts to follow previous decisions (but not dictum)–did not emerge until the nineteenth century. Before this, it was a “line of cases” that mattered, not a particular holding. Judicial custom matters because it involves multiple decisions over time. Thus, in 1762, Lord Mansfield still maintained that “[t]he reason and spirit of cases make law; not the letter of particular precedents” (449).

Berman and Reid summarize the development of precedent as follows:

1. common lawyers had always discussed cases and opinions, and did not simply look to written statutes;
2. but prior to the sixteenth century, they had “no doctrine of precedent,” and only in the seventeenth century developed a version of persuasive authority largely confined to procedure and custom;
3. Coke and others challenged the King by using pre-Tudor precedents, and thus brought precedent forward as an important part of common-law decisions;
4. but common-law courts avoided binding precedent still, and looked to prior decisions to extract the principles of judicial custom, but began to apply precedent to both procedural and substantive matters;
5. at the end of the seventeenth century, common-law courts continued to develop doctrines involving precedent, especially distinguishing dicta from holdings to extract principles that could apply to the past and the future: “the principle of precedent was a dynamic and not a static one” (450).

Berman and Reid further tie the development of precedent to scientific and empirical developments of the Enlightenment as well. Even as Robert Boyle and Isaac Newtown emphasized reason and evidence in their scientific pursuits, so too did English jurists seek the “professional verification and acceptance of empirical observation” (450). Thus, repeated applications of similar approaches became good empirical evidence for the validity of a rule, “just as the repeated confirmation of the results of scientific experiments by physicists and chemists was treated as proof of the probable truth of their findings” (451).

“Silos” by Sean Kelly. CC BY-NC-SA 2.0.

The push for “privacy” that demands an ability to allow us to restrict who sees what–enabled, for example, by new tools in Facebook and Google+–also creates and reinforces silos (filter bubbles, echo chambers) that prevent our exposure to different ideas. But  this move highlights potential conflicts between a number of rights: freedom of association and freedom of speech and the press (both from the First Amendment) and rights to privacy (from the First, Fourth, Fifth, and Fourteenth Amendments). What is this conflict? Is it real? How can we (begin) to resolve it?

The Marketplace of Ideas

Core to many American arguments on behalf of the value to a liberal democracy (in the old sense of liberal) of the freedom to speak is the concept of a “marketplace of ideas,” articulated by both Thomas Jefferson and, perhaps most persuasively, by John Stuart Mill in On Liberty. The idea is that only through free and prolific competition amongst ideas, achieved through open discussion, can one ascertain truth and, in turn, advance society. Without hearing falsehoods, one can never be sure of one’s truth, and through proving something false one verifies and re-invigorates truth and beliefs. But without the competition, truth is unobtainable, and even if obtained, belief in it becomes enervated and weak. Constant exposure to different viewpoints is absolutely key to a functioning, progressing society.

Republic.com and the Problem of Silos

In 2002, prolific author Cass Sunstein (in Republic.com, then again in Republic.com 2.0 in 2007) expressed deep concern about exactly this, arguing that trends in individualizing information flow were as harmful to democracy as were trends to centralize information control. In other words, having 1,000 individual silos tailored to personal interests could limit the free-flow of ideas as much as (or more than) having, say, three sources of broadcast news once did. In either case we would limit our exposure to diverse viewpoints and, in the individualized, modern case, also limit the beneficial unifying effect that shared viewpoints provided.

Free Speech and Privacy

This concern is different, though possibly related, to that expressed by Eugene Volokh in regards to free speech and privacy. His argument is with governmental regulations/laws/decisions that attempt to protect privacy by restricting what other people can say. That is, privacy laws that prevent, for example, a journalist from writing about my medical history infringe on the First Amendment.

In contrast to governmental action, the impact of speech silos on democracy is not a question of infringement on private liberties. Instead, through purely private decisions, freely achieved by my own decisions and without interference from government, the same pernicious, long-term impact on democracy and liberty is achieved. In one case, government blocks the sharing of ideas to protect me, while in the other, I block my own sharing of, and my own exposure to, the ideas of others. But in both cases, the marketplace is undermined.

But in the case of government regulations, the Constitution can be invoked as an authority, while in the case of Facebook and Google+ privacy settings, there is no legal check aimed at preserving the marketplace of ideas. Arguments for liberty, which appear to fruitfully favor a multiplicity of viewpoints in the case of government regulations that restrict speech in the name of privacy, instead favor allowing individuals and companies to enable avoiding the kinds of other viewpoints that Mill–and Volokh–argue are valuable for a liberty-loving democracy. One might argue to simply get government out of the privacy game at all (since the government has encouraged Facebook, for example, to focus on allowing privacy controls)–but that doesn’t deal with the very real market ($$$, eyeballs) demand for greater control over sharing.

Sunstein advocates for a larger governmental role in overseeing media and sites in order to guarantee that people have the option, at least, of exposure to a myriad of viewpoints. (Exactly how one might do this is far from clear, though.) But the core of the contemporary filter problem is not one of big corporations restricting our exposure (or not that alone) to new ideas. Instead, it is our own individual choices to limit our own exposure to alternative viewpoints that is to blame. A benevolent dictator might be able to counteract this trend, but a liberal democracy cannot (or can it?) do so through government fiat. The conflict, then, is not so much between constitutional rights as much as it is a conflict between core values: privacy and control vs. exposure and learning.

Education

So how can we attempt to solve this conundrum? An effective K-12 educational system, backed up by a robust university education, is the best societal approach I can imagine. (Individual parents can help, too.) A classroom is one of the few locations where we as a society have the chance to force people to be exposed to new ideas. Teaching and inspiring students to seek out alternative perspectives and critically analyze them–without rejecting the new and unusual out of hand–is perhaps the least coercive method I can imagine for maintaining a marketplace of ideas in the face of tools that enable an individual to opt out.

But I’m open to other ideas, so if you have any, please share!

Related articles

• Thinking about privacy and the First Amendment (inpropriapersona.com)
• The Echo Chamber Revisited (On the Media, npr.org)
• The Filter Bubble (amazon.com)

Daniel J. Solove

We should conceptualize privacy by focusing on the specific types of disruption and the specific activities disrupted rather than looking for the common denominator that links all of them. … Instead of construction an understanding of privacy from the top down by first seeking to elucidate an overarching conception of privacy, we should develop our understanding from a bottom-up examination of the problems based on analogical reasoning. (76)

He takes a common-law jurist’s approach to analyzing a problem, one enshrined in the legal requirement that American courts must deal above all with specific “cases and controversies,” not general theories or philosophical ideas. From the specific facts and harms one can then reason by way of analogy to larger concepts, deriving rules that can be applied to current and future situations. In short, his is a classic American approach to legal reasoning. But it’s classic for a reason: it works.

The Six

To facilitate his analysis, Solove likes to use “classifications” and “taxonomies.” He thus begins by dividing privacy into six types (which he notes “often overlap”). These six are not so much normative or suggested analytic categories as they are ones commonly used in privacy analysis:

1. the right to be let alone–Samuel Warren and Louis Brandeis’ famous formulation of the right to privacy;
2. limited access to the self–the ability to shield oneself from unwanted access by others;
3. secrecy–the concealment of certain matters from others;
4. control over personal information–the ability to exercise control over information about oneself;
5. personhood–the protection of one’s personality, individuality, and dignity; and
6. intimacy–control over, or limited access to, one’s intimate relationships or aspects of life. (13)

1. The Right to Be Let Alone

This deeply influential category comes from Samuel Warren and Louis Brandeis’ 1890 law review article, “The Right to Privacy,” and “views privacy as a type of immunity or seclusion” (18). Warren and Brandeis were responding to the growth of an increasingly invasive and fast-moving press by seeking to demonstrate how traditional common-law torts could be rationally extended to cover this new situation, without introducing any radically new concepts.

Though it seems to emphasize noninterference, it actually often consists “of a claim for state interference in the form of legal protection against other individuals” (18). In many respects, especially as articulated to deal with the situation of invasive journalism, it runs into potential First Amendment conflicts that require, at the very least, balancing.

2. Limited Access to the Self

The point of this view of privacy–closely related to the previous–is to allow “every man to keep his affairs to himself” and “recognizes the individual’s desire for concealment and for being apart from others,” but it “is not equivalent to solitude [nor] of withdrawal from other individuals” (18). Conceptually, one flaw with this view is that it provides little guidance “as to the degree of access necessary to constitute a privacy violation” (20). It also does not clearly indicate who decides: is it about me deciding what access others have to my self? Or is there a sort of absolute or universal standard that can be brought into play?

3. Secrecy

Judge Richard Posner called this “concealment of information,” or the “right [of an individual] to conceal discreditable facts about himself” (21). Solove describes secrecy “as a subset of limited access to the self,” but in only one dimension: “the concealment of personal facts” (22). According to Solove, this conception “underpins the constitutional right to information privacy, an offshoot of … cases such as Griswold v. Connecticut and Roe v. Wade” (22). It is also the aspect of privacy I identify most firmly with a clear constitutional right: the Fourth Amendment right to be free from “unreasonable searches and seizures.”

Legally, a privacy-as-secrecy approach often means that once a fact leaks, “it can no longer remain private” (22). Thus, Fourth Amendment jurisprudence “holds that matters that lack complete secrecy are not private” (22). This, garbage receives no protection because it is “knowingly exposed to the public” since it is “readily accessible” (22). Surveillance from aircraft does not implicate the Fourth Amendment either, since “the surveillance was conducted from a public vantage point” (22).

But such characterizations of privacy as secrecy misses out on a desire for confidentiality: “sharing the information with a select group of trusted people” (23). Protecting confidentiality–which I, picking up on Solove’s work, identify as a 19th-century concern–is a critical form of privacy for many people, especially in the medical context. Thus, understanding privacy as secrecy alone is too restrictive and too limited.

4. Control over Personal Information

According to Solove, a Clinton-era task force on privacy defined it as follows:

an individual’s claim to control the terms under which personal information–information identifiable to the individual–is acquired, disclosed, and used (24).

This is also the conception that healthcare laws related to privacy (like HIPPA) use. But again, this conception is overly narrow, since excludes non-informational aspects of privacy, “such as the right to make certain fundamental decisions about one’s body, reproduction, or rearing of one’s children” (25). It also generally fails to define what “control” means, and usually fails to effectively define the scope of what is protected (25–26).

Another, related approach to control over personal information makes information into property. This Lockean approach is “the backbone of intellectual-property law,” which itself derives much of its justification from the “romantic-author” notion of individual authorial (or inventive) creation: “one gains a property right in something when it emanates from one’s self” (26). The tort of appropriation, and the connected right of publicity, “protects people against others’ using their image or likeness for commercial gain.

But this conception also has problems, too. Personal information “is both an expression of the self and a set of facts–a historical record of one’s behavior” (27). Denying journalists the right to present those facts implicates the First Amendment, among other issues. Thus, truth is a defense to defamation, which itself is tort related to privacy.

Additionally, personal information is often formed through relationships (see confidentiality, above, too), and not by a single individual’s “self.” Thus, one person recounting their own story may implicate the story of someone else–should they then be restricted from doing so because it infringes on the other person’s privacy?

5. Personhood

The conception here is to protect “the integrity of personality,” and “often is used in conjunction” with other theories (30). Solove describes this as the theory underlying Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade. It involves “choices central to personal dignity and autonomy” (31). I tend to agree with those that identify this right as more connected to liberty and autonomy than to privacy, but others (like Judith DeCew) suggest that there is an “intuitive notion of privacy invoked in the constitutional privacy cases” (31). In any case, I find “personhood” to be too vague to be useful, and I also find that thinking of it in terms of autonomy is more revealing than conceptualizing it as privacy.

6. Intimacy

This perspective connects privacy with personal human relationships as well as “individual self-creation” (34). It can be difficult to define exactly what is “intimate,” except in terms of what “individuals want to reveal only to a few other people” or similar “in-practice” definitions (35). It does help to unify certain conceptions of privacy with autonomy, though: “abortion is a private decisions because it is ‘an intimate one’” (36).

But again, this definitions tends to be too broad in scope. It is in many respects not much more useful than the term “privacy” itself (36). At the same time, it is overly limiting as a general theory because it is overly focused on interpersonal relationships alone.

So Now What?

Solove contends that the above theoretical conceptions “fail on their own terms” and “never achieve the goal of finding the common denominator” (38). So what should we do, then? His proposal is to dispense with “top-down” philosophy and to instead focus on the problems we face in four dimensions: method, generality, variability, and focus.

His method is pluralistic and draws on Ludwig Wittgenstein’s family resemblances: “privacy is not one thing, but a cluster of many distinct yet related things,” Solove writes (40). By generality, he means that he will pick a useful level of generality, one that is contextual and practical, not abstractly philosophical (40–41). He also acknowledges the variability of privacy and its historical and cultural contingency. He does not seek to provide a firmly fixed foundation for privacy, but does feel “it can still have sufficient stability while accommodating variability” (41). Finally, he limits his focus on privacy to privacy problems. Again, he seeks to avoid the abstract and philosophical and to stay with the particular and specific (41).

Solove’s approach may not appeal to philosophers, but it has the advantage (and, perhaps, disadvantage) of being practical for lawyers and judges to deal with. I approve of his practical goals, and I think the methods he uses can be usefully extended to historical cases as well as contemporary ones.

Image by cloois via Flickr

In my 1996 paper, “But that Speaking Makes it So”: The Role of Narrative in the Formation of Community, I wrote:

The creation of a narrative–the telling of a story–is a means of smoothing out the rough edges of existence, a means of transforming raw experience into the webs of significance which constitute culture. Indeed, narrative is such a basic component of culture, of humanity, that we never actually have access to “raw experience.” Nothing exists for us “but that speaking makes it so,” and it is this speaking which provides the coherent meaning in our lives, rather than leaving them a series of discontinuous, unrelated events.

I was speaking from a literary-critical point of view, but Michael S. Gazzaniga’s brain research suggests that this is actually how the brain deals with the world:

Gazzaniga suggests that one of the modules in the human brain should go under the name of the “Interpreter.” This system–located in the left hemisphere, along with the speech center–is what concocts a coherent narrative out of all the brain’s activity, and the annals of neuroscience are now full of bizarre neurological conditions and deft experiments that reveal this constant creative act at work. Of great importance to Gazzaniga’s argument are some oft-cited experiments purportedly demonstrating that conscious awareness of making a decision registers only after the brain has primed itself for that course of action, and sometimes even after the action has been performed. Gazzaniga calls this living in “a post-hoc world.” … According to Gazzaniga, the stories the Interpreter tells tend to be bravely forward-looking, all about steering the ship of fate into uncertain waters, equipped with free will and unity of purpose; but these parables of moral courage are no more than specious retrospective rationalizations for things we do automatically.

via Cathy Gere’s review in Atmospheric Disturbances: On Michael Gazzaniga | The Nation.

According to Gere, for Gazzaniga these “specious retrospective rationalizations” suggest a dis-unified consciousness that then calls into question the entire concept of free will: “If our brains act according to the causal laws governing all matter, in what sense can we be said to be free?” In legal terms, Gazzaniga suggests that this finding potentially undermines the criminal requirement of mens rea (the “guilty mind” element of most crimes): if our actions are in many situations automatic, and our explanations of them–our decision-making moral sense, as it were–only post-hoc, then “‘My brain made me do it’ threatens to become a get-out-of-jail-free card available to everyone, not just to sufferers of fetal alcohol syndrome or schizophrenia.”

Gere contests this conclusion by arguing that there is a difference between automatic reflexes–“primed by millenniums of natural selection”–and rational, deliberate consideration done before an act. She discusses the legal concept of “diminished responsibility”: the idea that, for example, children have a less-developed sense of moral thinking, and thus should not be held as responsible for their actions as an adult. Insanity–a complex area of interaction between medicine and law–is another site where the law recognizes that some people–but certainly not all people–lack the ability to properly consider their actions. (Although neither seems to mention it, this is pretty much the difference between murder “with malice aforethought” and manslaughter in American common law.)

Gazzaniga gestures at one standard of legal insanity–the “policeman at the elbow” test–but Gere says all he does is “wag an admonishing finger” at the notion. Gere suggests that Gazzaniga’s absolute standard is that one either has reason or not, and that one is thus either responsible or not for one’s actions. She argues that reality–and the law–is more complex in its evaluations that this, and that Gazzaniga fails to acknowledge this complexity.

In criticizing Gazzaniga’s overly simplistic, and overly worried, notions about what his findings do for the idea of responsibility, Gere writes that “the concept [of responsibility] has been refined by witnesses, judges and juries ever since naturalistic accounts of mental illness began to gain traction, and it seems fairly robust as an intuition about justice.”

Although I would agree with Gere in many respects, I am not convinced that the (American, at least) legal system has really developed a “fairly robust” (in the sense of having a common, stable agreement on the matter) sense of how responsibility should function. There are numerous definitions of “insanity” in various states, and the standards have gone back and forth as first doctors suggest grounds for diminished responsibility, and then the public reacts against a sense that criminals are “getting off too easily” by virtue of an insanity defense, and push for tightening the rules.

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Jared Lee Loughner, for example, the accused shooter of numerous people in Arizona (including U.S. Representative Gabrielle Gifford), was declared “unfit to stand trial” in federal court due to schizophrenia. Under federal law (revised due to popular anger after John Hinckley, the man who tried to assassinate President Ronald Reagan, was found not guilty by reason of insanity in 1982), this does not mean he is somehow not guilty. He can be forced to take medication until he is deemed “fit,” and can then be tried. Arizona state law is different: in Arizona, even if Loughner is found to have been completely insane at the time of the killings (and therefore “not responsible” in at least some sense), he would first be committed to a mental institution if convicted, then transferred to prison if he recovers his sanity. There is no such thing in Arizona as “not guilty by reason of insanity” anymore.

In the end, although I do not share Gazzaniga’s worry about the likelihood that his findings will result in reducing criminal liability, I am not convinced by Gere’s argument that the law has already established a more “robust” approach to the question. For me, the question of diminished responsibility, especially as a consequence of mental illness, is still a contested area of the law that is neither settled nor necessarily just.

But despite this quibble, I do agree with Gere that there is more risk that the legal rules that establish diminished responsibility  are being eroded than is the fundamental concept of individual responsibility itself: “the concept of diminished responsibility is almost as much a pillar of the Anglo-American legal system as responsibility itself, and its actual erosion–as in the tabloid-stoked trend in Britain of trying minors as adults–is at least as troubling as its still-theoretical extension to all of us.”

For me, at least, just because we construct a post-hoc narrative about an action does not mean we cannot still be responsible for that action, nor do I think there’s a real risk that the legal system will disagree.

Sir William Blackstone (1723–1780) via Wikimedia

One reason to examine the reception of English common law in the American colonies is the reliance by modern originalists (like Antonin Scalia) on the generalized understandings of what the Constitution meant in light of its common-law context. But finding that stability may not be as easy as it might seem, at least in part because jurists of the time were, in many ways, as sophisticated as we are today in arguing with, against, and around precedent–which itself was hardly either stable or fixed.

In Towards a Common Law Originalism, Bernadette A. Meyler writes:

A certain self-consciousness, furthermore, characterized common law jurisprudence of the seventeenth and eighteenth centuries, a self-consciousness that undermines the view–expressed by Justice Scalia, among others–that we became aware judges made rather than discovered law only with the legal realists. … [But] this distinction may not entirely hold up; early common lawyers were hardly less disingenuous than their contemporary counterparts. (7)

Key in Meyler’s analysis are three points: (1) that the originalist approach rejects the jurisprudence of the common law, but endorses William Blackstone’s summation of particular precepts of eighteenth-century common law; (2) the falsity of the claim that, at the time of the Founding, the common law was “uniform throughout the nation (rather than different from state to state)” (a quote from Scalia, although to be fair he is speaking of the prevailing view in the early 18th century, not necessarily his view of that time); and (3) common law jurists of the seventeenth and eighteenth century centuries–although perhaps purporting to “discover” rather than “create” law–in fact engaged in fairly self-conscious processes of law-making when participating in common law adjudication (8).

Blackstone

According to Meyler, Justice Scalia relies heavily on Blackstone’s Commentaries:

Scalia consistently emphasizes eighteenth-century English common law, and the work of Blackstone, only secondarily alluding to any developments in the colonies or the states, and generally for the purpose of confirming or substantiating the applicability of Blackstone’s statements. (11; see, e.g., 518 U.S. 415, 452)

But the Commentaries were not “simply a synopsis of existing doctrine”: first, Blackstone intended them for a lay audience; second, “he aimed through them to show legislators the problems with the state of the common law so that they might be inclined to exercise their statutory authority in amending it” (12).

Thomas Jefferson, for example, wrote that the Commentaries were “nothing more than an elegant digest of what [students] will have acquired from the real fountains of the law” (18; “Letter to Judge Tyler”). Additionally, in the 1760s, “the common law itself was on the wane, and parliamentary supremacy had been definitively established” (12). In relation to the United States, Blackstone wrote at a time when the American colonies had already substantially received English common law: “as a result, Blackstone’s vision of the relationship between statutory and common law may not accurately represent the indigenous American tradition” (12).

The Uniformity of the Common Law

Justice Scalia has emphasized that specific common law meanings are generally identifiable:

[Scalia] established a fairly strong presumption of common law unity, suggesting that litigants must argue strenuously for the proposition that a single common law meaning did not inhere in a term or phrase because of divergent or conflicting strands … This emphasis on a singular original meaning is correlated with an account of the common law at the time of the Founding as a monolithic body unaffected by statutory developments. (13–14)

Meyler goes on to explain that “writings from the Founding era and materials from the states in the period following ratification demonstrate that the common law occupied a disunified field  in late eighteenth century” (17). In other words, there was not a singular understanding of the law; the so-called “common” law was not entirely held in common at all. Thomas Jefferson, John Adams, and James Madison all critically discussed the common law of their era (18). Jefferson, for example, debated whether Christianity was a part of the common law, and maintained that it was not (19). Adams argued about the temporality of the common law, and “insisted on the return to an early seventeenth-century version of the common law, that in place before the accession of Charles I” (21). He also “resisted the notions that the common law had been introduced wholesale into America,” and instead argued that only the common law that was adapted to the American context had been imported (22).

James Madison wrote a report on the basis of the common law in 1799–80, and asked several key questions that are also applicable to any uniform understanding of Constitutional meaning through reliance on the common law:

1. Is it to be the common law with or without the British statutes?
2. Is it to be the date of the eldest or the youngest of the Colonies? Or are the dates to be thrown together and a medium deduced? Or is our independence to be taken for the date?
3. Is, again, regard to be had to the various changes in the common law made by the local codes of America? (25)

While Madison went on to reject the idea of federal common law in 1824, he did endorse the necessity of interpreting the Constitution on the basis of “the Common law because it borrows therefrom terms which must be explained by Com. Law authorities” (25). For Madison, the key was that the common law helped explain concepts and terms. It provided “an interpretive tool for understanding constitutional phrases, [but] it could not … entirely dictate the meaning of many of the Constitution’s clauses” (26).

Additionally, the laws–even the “common laws”–differed between various colonies and between the colonies and England (27). There were even attempts to abrogate the “Common Law of England” on several grounds, including that the “the common law did not boast uniformity even in England” and the “disparity … between American and English versions of the common law” (28).

In effect, the common law provided useful background information to help define and understand terms and meanings, but it was not fixed enough to provide a firm foundation for a uniform, consistent interpretation of the Constitution.

Sophisticated Common Lawyers

Common lawyers at the in the eighteenth century were aware of “the mutability of common law”:

To achieve a thoroughgoing originalism, it is thus necessary to acknowledge that the flexibility of the common law method was not unknown to the Founding generation and instead provided the backdrop for the U.S. Constitution itself (33).

Key eighteenth century legal theorists–Coke, Hale, and Blackstone–based its authority both on reference to natural or universal law, as well as the historicity and popular acceptance of common law (36). Thus, precedents helps evaluate particular problems, but it takes interpretation in evaluating specific questions (40).

Suggesting the importance of contemporary acceptance in the authority of the common law, and not its universality, the English historian Matthew Hale “insisted that the continued acceptance rather than the origin of the common law was essential in endowing it with authority” (41):

This release from grounding the authority of the common law in its immemoriality enabled Hale to explicitly acknowledge legal change and to write the first account of the common law that openly presented itself as a history and spoke of the common law’s extraordinary emergencies.

If, in originalist fashion, one goes back to look at the understandings of the Founders, the result is not fuzzy view into a fixed understanding of the common law, but rather a fuzzy view into an equally fuzzy, quite sophisticated and rather (post)-modern view of the common law as mutable through time and dependent on popular acceptance for at least part of its authority.

“Visible downgrading” by Alex Wellerstein. CC BY 2.0 license.

The concept of “privacy”–as in “the right to privacy”–can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).

Autonomy

This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called “The Right to Privacy.” In this article, Warren and Brandeis are actually concerned with something more akin to autonomy than secrecy: “from Greek autonomia, from autonomos  ‘having its own laws,’ from autos ‘self’ + nomos ‘law’” (from Apple’s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) yellow journalists. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.

“Paparazzi” by Clément Seifert. CC BY-NC-SA 2.0 licensed.

The Warren and Brandeis article advocated for the protection of a person’s “inviolate personality” and the “fundamental right to be let alone.” They were not concerned with illegal government searches of private residences–or even the trespasses of journalists in private land–but rather with the publication and dissemination of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or “right of publicity,” because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of “moral right,” in a sense, to own one’s own self, or to be “autonomous.” The implications of a right to control the publication of information about one’s self has the potential to conflict with the First Amendment rights of others in a way that a right to privacy as secrecy might not.

In 1928, now a Supreme Court justice, Brandeis wrote in dissent in Olmstead v. U.S. that the right to privacy was the “right to be left alone–the most comprehensive of rights, and the right most valued by a free people.” Cornell’s Legal Information Institute explains that the right to privacy has thus “developed into a liberty of personal autonomy protected by the 14th amendment.” The focus on a “right to privacy” as “a liberty of personal autonomy” is why the Fourteenth Amendment (due process and equal protection), and not the Fourth Amendment (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like Roe v. Wade.

Secrecy

“Completely Tapped” by Byung Kyu Park. CC BY-SA 2.0 license.

A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the “penumbra” of due process or equal protection. A right to keep things secret is also about “inviolability” in some sense. Thus, in Olmstead, Brandeis could argue that a wiretap could intrude on a “right to privacy”–the “right to be let alone”–as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one’s self, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, not secrecy.

Approaching a right to secrecy legally, one might prosecute an overzealous journalist not for the publication of embarrassing information–and certainly not for photos taken in public places–but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is not directly the publication of materials, but rather the manner in which they were obtained.

In this sense, then, data privacy laws–which Eugene Volokh, for example, has explained are in many ways in conflict with the First Amendment–might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against trespass. The law, then, would not be focused on preventing publication (although that might be an issue still, and might still have First Amendment implications), but rather on punishing transgressions or trespasses.