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Subject Area: Political Theory

Privacy & Freedom of the Press - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Privacy & Freedom of the Press

Thomas I. Emerson

  • Lines Professor of Law Emeritus, Yale Law School

“The Right of Privacy and Freedom of the Press.” Harvard Civil Rights-Civil Liberties Law Review 14 (Summer 1979):329–360.

lf0353-11_1980v3_013

The right of privacy as an independent concept made its first appearance in American law as a civil tort whose remedy was suit for damages or injunction in protection against unwarranted invasion of the “right to be let alone.” Its first articulation was the renowned article by Warren and Brandeis in the Harvard Law Review (1890). As an alleged and court decreed constitutional right against state interference with inner zones of space pertinent to “individual dignity and autonomy,” Griswold v. Conn. (1965) is the premier case.

While freedom of the press has a long and well-established history in American law, the theoretical foundations of the right of privacy remain relatively unformed and inchoate. Against this background, coupled with such modern developments as the increasing scope of governmental intercession in most areas of national life, the development of modern technology for ferreting out and monitoring everyone's affairs, and the closing in of physical and psychic space for the average person, the need for creation of an adequate law of privacy is imperative for the future health of society.

Emerson concedes that on most points the law of privacy and the law sustaining a free press are mutually supportive features of the basic system of individual rights. There are, however, two major areas when accommodation must be developed. One of these is where the privacy right comes into sharp contrast with the right to publish. The other involves the rights of the press to obtain information from the government which confronts an individual's claim that data about one's personal affairs may be inappropriately disseminated by invocation of right-to-know principles.

In examining the conflict between the status of the law concerning the right to publish and the privacy tort, Emerson surveys theories of the right to privacy, and traces the formulation and application of legal doctrines and remedies. With respect to the conflict between the right of privacy and the right to obtain information, Emerson examines the legal basis and right of the press to obtain information, the legal basis of the right of privacy, and the application of privacy protection.

His overall objective is to make some progress toward formulating an accommodation between the freedom of the press which has an ancient lineage in our jurisprudence and the right of privacy which has developed out of the needs of a technological civilization. Both are now vital features of our system of individual rights. Emerson suggests that a balancing can best be achieved by focusing more on the privacy side of the equation than has been done in the past since the press is strong, healthy, and well-organized, whereas individuals whose privacy is at stake are scattered and weak.