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Although no legislation specifically designed to protect the right to
privacy was passed until after the turn of the century, the courts
recognized a man's right to control public disclosure of his personal
affairs in various rulings on domestic violence. 15s For
example, in 1868, noting that "the subject is at sea," the Supreme
Court of North Carolina tried to fix the boundaries between "State
government" and "family government" in
State v. A.B. Rhodes.3p
The question at issue was the degree of chastisement that husbands
would be permitted to inflict on their wives, and, without
countenancing any severe or lasting injury, Judge Edwin Godwin Reade
held that in cases such as that before him, in which the wife had not
been permanently harmed, the state should refrain from intervention.
Reade emphasized that he was not implying that any "husband has the
right to whip his wife much or little," but only that the attempt
to rely on the courts to settle domestic disagreements would
needlessly transform private "trifles" into public traumas.
"For, however great are the evils of ill temper, quarrels, and even
personal conflicts inflicting only temporary pain," Reade argued,
"they are not comparable with the evils which would result from
raising the curtain, and exposing to public curiosity and criticism,
the nursery and the bed chamber." 3p
In one aspect, Reade's argument in favor
of domestic privacy directly contradicted Brandeis and Warren's
conclusions. Specifically, whereas "The Right to Privacy"
stressed that courts should take account of the emotional distress
engendered by privacy violations, Reade maintained that the state
should stay out of the private realm because courts would never be
able to weigh the relative value of feelings. According to Reade,
any court that attempted to measure emotional injury would founder
on the complex relationship between social standing and emotional
sensitivity. In a remarkable testament to class prejudice,
Reade argued that the diverse degrees of refinement among the
different ranks of society create such a range of susceptibility to
suffering that it would be impossible to apply any uniform standard
in various cases. Contrasting the brutal oblivion of the lower
orders with the exquisite sensibilities of those above them, Reade
expounded a class-based scale of emotional pain:
Suppose a case coming up to us from a hovel, where neither
delicacy of sentiment nor refinement of manners is appreciated or
known. The parties themselves would be amazed, if they were to be
held responsible for rudeness or trifling violence. What do
they care for insults and indignities? ...Take a case from the
middle class, where modesty and purity have their abode, but
nevertheless have not immunity from the frailties of nature, and
are sometimes moved by the mysteries of passion. What could be
more harassing to them, or injurious to society, than to draw a
crowd around their seclusion? Or take a case from the higher
ranks, where education and culture have so refined nature, that a
look cuts like a knife...where an indignity is disgrace and
exposure is ruin. Bring all these cases into court side by
side...and what conceivable charge of the court to the jury would
be alike appropriate to all the cases, except that they all have
domestic government, which they have formed for themselves, suited
to their own peculiar conditions."
3p
Reade's class-consciousness is more apparent than that of Brandeis and
Warren, but the themes sounded in his opinion have much in common with
the arguments advanced in "The Right to Privacy." Just as Reade
maintained that the middle and upper ranks were especially susceptible
to the pangs of publicity, Brandeis and Warren argued that the
progress of civilization had honed men's sensibilities so that they
had become more vulnerable to embarrassment and shame. The
members of modern industrial society therefore required new
protections from the public, not only because technological innovation
had created new means to invade the private sphere, but also because
social evolution made men feel those incursions more acutely.
Indeed, according to Brandeis and Warren, the depth of emotional
awareness in the modern age was so profound that men were apt to
suffer more from insults to their reputation than they would from
physical violence. Brandeis and Warren did not distinguish, as
Reade did, among lower, middle, and upper-class responses to
publicity, but they shared his conviction that an indignity could be
much more devastating than a physical attack.
The intensity and complexity of life,
attendant upon advancing civilization, have rendered necessary
some retreat from the world, and man, under the refining influence
of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual;
but modern enterprise and invention have, through invasions upon
his privacy, subjected him to mental pain and distress, far
greater than could be inflicted by mere bodily injury.
2p
To appreciate the implications of
Brandeis, Warren, and Reade's efforts to cordon off the domestic
sphere, the idea that the distress inflicted by invasions of privacy
could be much more profound than that attached to 'mere bodily
injury' needs to be unpacked. One way to deconstruct this
argument is to consider it from the perspective of the people whose
bodies were, to a large extent, at issue in this context, that is,
the girls and women involved in the type of 'frailty,'
'indiscretion,' or 'mystery of passion' most likely to undermine a
man's public stature. To take an especially horrific case,
imagine for a moment that you are Clara Hoffman. As a young
girl, you would probably not be aware of the legal principles that
deprived you of any interest or identity separate from that of your
father, but you would certainly know that disclosing Dimmock's
misdeeds would undermine your father's reputation, a possession that
had always been recognized, according to Godkin, as "the most
valuable thing on earth." Setting aside, as many such victims
do, your distress over your own bodily injury, wouldn't the
humiliation that your father would endure if Dimmock's crimes were
revealed to the public convince you to keep your "secret" even if
continued concealment would leave you open to additional attacks?
By acknowledging the silence that the
divisions between public and private imposed on women and children
at the turn of the nineteenth century, we can see how the
development of the popular press, commercial and news photography,
the telegraph, and, somewhat later, the telephone fueled what might
be described as an epistemological shift in American law and
society. With the evolution of new means and methods of
communication, men felt compelled to look to the law to control, not
only what individuals could or could not do, but whether their
conduct would become generally known. As illustrated in the
elevation of public disgrace above bodily injury, it is clear that
command over public knowledge of a man's 'private doings and
affairs, and those of his family' became an integral part of
prevailing conceptions of masculinity. As a result, at least
in the legal regulation of the private realm, fictions such as
per quod servitium amisit overtook the lived experiences of
female dependents.
In cases involving the 'intrusion by seduction upon the honor of the
family,' actual injuries to individual girls and women were, to a
great extent, displaced by worries over whether those injuries would
be publicly disclosed.
Go to page 4: The
Cult of Domesticity
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