One of the many ironies of the history of privacy is that public sentiment in favor of confining all women to the private realm enabled a few women to gain great notoriety for trying to avoid the public eye.  The case of Roberson v. Rochester Folding Box Company (1902) shows how much public clamor could be incited by an ostensibly retiring woman's struggle to "walk in the noiseless vales of private life." ^{47s 10p} The Roberson case arose after Rochester Folding Box Co., working with Franklin Mills Flour Co., obtained of a photograph of Abigail Roberson, who was still a minor, placed it on an advertising poster, and circulated thousands of copies throughout New York and other states.  Roberson claimed that, after the poster was "conspicuously posted and displayed in stores, warehouses, saloons and other public places," people who recognized her picture subjected her to "scoffs and jeers" that were so humiliating that she "suffered severe nervous shock" and required the care of a doctor.  Since Rochester Folding Box had never sought her permission and refused to stop circulating the poster, Roberson sued for $15,000, asserting that damages were due for the extreme mental suffering caused by the company's unauthorized exhibition of her photograph.^10p

Writing for the 4-3 majority, Alton B. Parker sympathized with Roberson's embarrassment and marveled at the defendants' "impertinence," but held that the "so-called 'right of privacy'" was too much of a novelty to sustain legal intervention.  He did, however, acknowledge the appeal of the plaintiff's reasoning, which he attributed directly to Brandeis and Warren, noting that "a clever article in the Harvard Law Review" had tried to show that injunctions against publication of personal information had rested in several cases on the conviction that peace of mind deserves as much protection as physical well-being.  "In other words," Parker summarized, "the principle, actually involved though not always appreciated, was that of an inviolate personality, not that of private property."  In Parker's view, this argument went too far because it extended the basis of legal action beyond reputation, an inherently public phenomena, to the mercurial world of purely personal feelings.  Consequently, Parker regretfully denied Roberson's claim by defining her personal distress as "one of the ills that under the law cannot be redressed." ^10p

The minority opinion, written by Justice John Clinton Gray, turned out to be much more in tune with the public's response to Roberson's complaint. Pointing out that the right to privacy had never been explicitly denied in New York State, Gray maintained that the injury done to Roberson by the unauthorized use of her portrait was certainly sufficient for her to seek relief in court.  In fact, Gray asserted, the scale and scope of modern advertising made the exploitation of personal portraits for commercial purposes "possibly more formidable and more painful in its consequences, than an actual bodily assault might be."  In direct response to the call for control over the circulation of photographs sent out in "The Right to Privacy," Gray concluded that the courts would be derelict in their duty if they stood by while companies such as Rochester Folding Box forced innocent young women such as Abigail Roberson to withstand "mortifying notoriety" for the purpose of their own "selfish gain." ^10p

Unlike Parker, Gray seems to have sincerely believed that Roberson had been gravely injured, or he may have simply understood that the public would be outraged if the court failed to come to Roberson's aid.  After all, as the Albany Law Journal observed in a comment on the lower court's ruling in favor of Roberson, "Every considerate person will sympathize with pretty young women in their aversion to having their portraits or photographs paraded before the public to advertise brands of flour, corsets, or mayhap, cheap cigars." ^48s  Collier's Weekly likewise congratulated Gray for "marching more closely in step with the general notion of the duty of courts to protect the weak from the strong."  ^49s

The Roberson case was, however, not over yet.  In 1903, Alton Parker, who ran against Theodore Roosevelt in the presidential election of 1904, made the mistake of complaining about being hounded by news photographers.  After he and his wife were repeatedly bothered by intrusive reporters, Parker issued a press release defending his claim  to privacy. "I reserve the right," he declared, "to put my hands in my pockets, and to assume comfortable attitudes without having to be everlastingly afraid that I shall be snapped by some fellow with a camera."  Roberson, who was amazingly resourceful, responded forthwith in a letter to Parker that was published on the front page of the New York Times. "I would like to take this opportunity," Roberson wrote, "to remind you that you have no such right as that which you assert.  I have very high authority for my statement, being nothing less than a decision of the Court of Appeals in this State, wherein you wrote the prevailing opinion."^11p  Then, having pointed out that Parker, a candidate for the highest office in the country, was asserting the same right that he had denied to a "poor girl" who "never had courted publicity," Roberson observed that her plea for privacy was vastly more plausible than his.^11p  Roberson thus capitalized on her celebrity to reassert her claim to privacy.  In struggling to to shun the limelight, she became the emblem of a cause.

The role of gender in assessing claims to privacy did not diminish when the Georgia Supreme Court explicitly recognized the right to pursue legal remedies for the unauthorized publication of personal photographs in Pavesich v. New England Life Insurance (1905).^12p The case began after Paolo Pavesich discovered his picture in an insurance advertisement in the Atlanta Constitution.  The ad, which suggests that buying insurance will somehow keep a person healthy, contrasted Pavesich, a robust man who had sensibly purchased a policy from New England Life, with a sickly and unhappy man who had unfortunately failed to do the same.  Since Pavesich had never done business of any sort with New England Life, he sued the company for $25,000 on the grounds that its agents had violated his privacy and published misleading information about him that had exposed him to ridicule.

Although Pavesich, like Roberson, addressed the unauthorized use of personal portraits, the Georgia court described the two cases in distinctly different terms.  Specifically, when the Pavesich court ruled the "right of privacy is embraced within the absolute rights of personal security and personal liberty," it depicted women's claims to privacy as prayers for protection while interpreting men's claims to privacy as an expression of every man's natural authority to control his personal affairs.^12p  For women, in other words, the right to privacy was premised mainly on the need for protection; for men, in contrast, the right to privacy was associated more closely with their ability to  defend themselves and their dependents.  The court accordingly seconded John Gray's contention that Roberson, a defenseless young woman, had every reason to expect the court to step in to save her from commercial exploitation, but warned that if the legal system failed to give men a way to retaliate against invasions of privacy, they would take the law into their own hands:

the individual feels and knows that he has a right to exercise the liberty of privacy, and that he has a right to resent any invasion of this liberty; and if the law will not protect him against invasion, the individual will, to protect himself and those to whom he owes protection, use those weapons with which nature has provided him as well as those which the ingenuity of man has placed within his reach. Thus the peace and good order of society would be disturbed by each individual becoming a law unto himself to determine when and under what circumstances he should avenge the outrage which has been perpetrated upon him or a member of his family. ^12p

Likewise, echoing Brandeis and Warren, the court affirmed Gray's assertion that Roberson's face and form belonged to her exclusively and, in contrast, brought up "the common-law maxim that 'every man's house is his castle'" to justify men's right to refuge and repose. ^12p

Thus, at the start of the twentieth century, gender determined the substance and boundaries of the right to privacy.  Without examining the asymmetrical assumptions at work in their definitions of the public/private dichotomy, judges, moralists, and politicians routinely equated a woman's body with a man's home.  As a result, discussions of women's privacy, in keeping with the weakness and vulnerability associated with the female body, centered on women's natural dependence on men for assistance, and discussions of men's privacy turned on their capacity to safeguard their family honor.  It is, therefore, not surprising that Brandeis and Warren concluded their famous essay with the chivalrous declaration that the common law furnished every man with  "a weapon...forged in the slow fire of the centuries, and to-day fitly tempered to his hand."  Privacy, was not, as twentieth-first century commentaries frequently imply, synonymous with freedom, but a socially and, ultimately, legally recognized context in which men and women both were obliged to conform to rigidly enforced gender roles.