The untold story behind the evolution of privacy rights

The article “The Right to Privacy” by Samuel Warren and Louis Brandeis, published in 1890, has been influential in shaping modern privacy law. This foundational work has indirectly contributed to securing protections for the LGBTQ+ community, including influencing decisions that decriminalized homosexuality in the U.S. and India. But recent scholarship suggests that Warren’s motivation for writing the article may not have been what we thought it was.

This article was first published in The Mint. You can read the original at this link.

Most people you ask will tell you that modern privacy law originated with an article called The Right to Privacy written by Samuel Warren and Louis Brandeis and published in the Harvard Law Review. It has been called the “most influential law review article of all time" and has affected the development of privacy law around the world. Roscoe Pound went so far as to remark that it did “nothing less than add a chapter to our law".

It featured prominently in the Right to Privacy judgment issued by nine judges of the Supreme Court of India in Puttaswamy vs Union of India, being mentioned by four of the five judges who wrote opinions. In his lead opinion, Justice D.Y. Chandrachud, while recognizing the shortcomings of using comparative legal and historical frameworks to establish Indian law, could not help but acknowledge its influence in articulating the notion that the right to privacy is an embodiment of the basic need of every individual to live with dignity.

When they wrote their article in 1890, Warren and Brandeis were young lawyers setting out to make a name for themselves and their eponymous law firm. They were both incredibly smart men who had graduated first and second in their class in Harvard—Brandeis with marks so high that they would not be surpassed for another 80 years. Like all good entrepreneurs, they tried to get published to showcase their scholarship, thereby enhancing the reputation of their practice. But why they chose this subject matter of all the options available to them is not quite clear. As good as it was, the article was nothing like the previous two they had authored in the Harvard Law Review—both of which had discussed the mundane but presumably more commercially lucrative Law of Ponds.

By all accounts, it was Warren who held the pen on this article. Brandeis reportedly distanced himself from the initial drafts, commenting that it was not as good as it should be. This in itself is strange, given that Brandeis was widely acknowledged as the “brains" of the duo. But when you consider Warren’s personal circumstances, it all starts to make more sense.

Sam Warren had married well above his so-called station. His wife, Mabel Bayard, was the daughter of a prominent Boston senator and by no means a shrinking violet. As a result, she was often featured in the society pages of Boston newspapers, the subject of the sort of gossip and innuendo that upset Samuel Warren no end. His distaste of yellow journalism comes through clearly in the article where he states: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery." It is for this reason that many legal historians have suggested that the Right to Privacy article was Warren’s defence against a yellow press corps that he believed had its sights on his wife’s family, and by association his own.

However, recent scholarship has thrown light on another theory that sounds just as plausible. In a deeply researched article titled About Ned, Charles Colman assembles a compelling theory, suggesting Warren’s motivation for writing the article was not gossip involving his wife, but the need to find a way to protect his younger brother, Edward. Young Ned Warren was openly homosexual at the time when to be so was not only a crime, but one for which personalities as famous as Oscar Wilde were aggressively prosecuted. Just a year before the article, newspapers in Boston had breathlessly reported the “Cleveland Street Scandal", about a homosexual services ring that catered to upper-class men.

Those were the particular circumstances under which Sam Warren set out to write the article. No doubt, all these factors had influenced his thinking, guiding his hand as he made a strong case for the development of a right to be left alone, which was clearly aimed at the press and its egregious intrusions.

The foundational impact that the article has had on privacy law is well known. But in the light of this new information, it is probably worth highlighting the role it has had in securing protections for the LGBTQ+ community. The US Supreme Court first reflected on the concepts set out in this article in Olmstead vs US, in which Louis Brandeis—who had by that time become a judge of the US Supreme Court—wrote a powerful opinion that was made law in the case of Griswold vs Connecticut. This, in turn, was invoked in a series of gay rights cases that culminated in Obergefell vs Hodges—the case in which the US Supreme Court recognized that everyone has a fundamental right to marry another person of the same sex.

In India, when a five-judge bench of the Supreme Court overturned the earlier decision of a smaller bench in Navtej Singh Johar vs Union of India, these cases featured in the rich tapestry of decisions from around the world that were cited in arguments in favour of writing down Section 377 of the Indian Penal Code in order to decriminalize homosexuality.

There is no way Samuel Warren could have made the motivations behind writing the article public at the time he wrote it. Back then, being even remotely associated with gay rights could have sunk his career. But his article on the right to privacy did eventually secure for the LGBTQ+ community the sort of rights and freedoms that he would have wanted for his brother. Even if it took over a century and a quarter to achieve.