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As indicated by the seal of the New York Society for the Suppression
of Vice, burning books, throwing birth control advocates in jail,
and other activities that we usually define as violations of
individual liberty were seen in the late nineteenth and early
twentieth centuries as efforts to strengthen family government.
By
purging public culture of overt discussion of sexual matters,
censors such as Comstock sought to contain sexuality within the hierarchical confines of the
normal home.  In this conservative spirit,
"The Right to Privacy" denounced the circulation of risqué images as
an affront to public decency. As
Anita Allen and Erin Mack observe, "Brandeis and Warren's consternation about vulgar portrayals of women
stemmed from patriarchal notions of female modesty and purity," an
ideological point of origin that placed their ideas about privacy
directly in conflict with the drive toward women's independence.
41s
A case in point is Brandeis and Warren's favorable
mention of Manola v. Meyers & Stevens (1890), in which Marion
Manola, a well-known actress employed by a New York City opera
company, enjoined the company manager from circulating a picture
that had been surreptitiously taken during one of her performances.
Manola objected to what the
Brooklyn Eagle termed "the deadly Kodak" because it was
created without her consent and featured her wearing tights, a
costume that she apparently felt was appropriate to the stage, but
too revealing for an advertisement. 42s The Eagle agreed that Manola had every right to
stop Stevens and Meyers from exhibiting a "counterfeit of her
symmetrical physique in shop windows and other public places," and
took the company to task for asking the actress to "make an
unwomanly surrender" of her sense of propriety. As Brandeis and
Warren recount in a footnote, a preliminary injunction was issued,
and a hearing was scheduled, but Meyers & Stevens never
appeared in court. Consequently, it seemed that Manola had secured
her right to be displayed as she desired.
2p
Since Manola, who earned her own living,
successfully exerted control over the exhibition and distribution of
her own image, Manola v. Meyers has been read as a rare
moment in which an unusually independent woman realized a level of
autonomy that has traditionally been reserved to men.
43s However, given Manola's ostensible concern over the
picture as a violation of her modesty, it seems more accurate to
place this case within the context of late nineteenth-century
efforts to cleanse American culture of visible signs of sexuality. After all,
her petition to a judge to help her
to preserve some degree of respectability by limiting the public's
opportunity to ogle her body has more in common with Comstock's
contemporaneous campaign to turn the courts into "schools of public
morals" than with the struggles of women's rights activists to persuade society to
accept women as free and equal participants in public life.
44s
There is, moreover, reason to suspect that
Manola's action was not an instance in which a woman endeavored to
affirm her right to privacy, but an example of exactly the kind of
lascivious attention-getting that Warren and Brandeis found so
distasteful. To draw on language that had yet to make its way
into American vocabulary, it seems that Manola and her manager may
not have been at odds about her potential over-exposure, but were
actually trying to create some buzz. The
Eagle accordingly suggested that the public would sympathize with Manola if
the theater company thwarted her feminine sense of propriety,
unless, that is, it turned out that the injunction was a "ruse to
advertise the lady, and boom her perhaps already prepared
photographs, tights and all." A few weeks later, the Eagle
again insinuated that the entire affair was a publicity stunt,
pointing out that Manola had not previously found this glimpse
of stocking especially shocking since she had allowed similar
photographs to be taken and sold before. There is no way
to pin down Manola's real motive, but it might well have been that
the actress simply pretended to object to the picture in order to
accomplish precisely what Brandeis and Warren sought to discourage,
which was the subjection of any woman to "the reproduction of her
face, her form, and her actions, by graphic descriptions colored to
suit a gross and depraved imagination."
2p
As minor as the Manola case may seem, it
illuminates the gender-based limitations of late-nineteenth century
ideas about the boundaries between public and private activities.
The right to privacy, in Brandeis and Warren's view, sheltered a
man's "personality," his intellect, emotions, thoughts, and
sensations, in other words, everything that defined him as an
individual human being. For a woman, in contrast, the right to
privacy pertained to "her face, her form, and her actions," in other
words, everything that classified her as female. Men, from
this perspective, were protected as distinct individuals, whereas
women were protected as physical types.
45s And while a man could stake a claim to his "inviolable
personality," a woman could assert her right not to be shown in an
advertisement, subjected to a physical examination, or displayed in
tights. Moreover, she could demand this right, not as a
specific person, but only as a wife, a daughter, or a mother, that
is, as a subordinate member of a family, apart from which, in the
eyes of the law, she had little or no cultural or legal identity.
Predictably, cases involving the privacy
rights of women around this time focused almost exclusively on the
unauthorized display or unwarranted exposure of their bodies.
For example, in De May v. Roberts, which was decided nearly a decade before
"The Right to Privacy" was published, Alvira Roberts filed suit
after John De May, the country doctor who attended her during childbirth,
utilized an assistant, John Scattergood, a young unmarried man who,
she later discovered, had no medical training or credentials.6p Since De May had failed to
inform either Roberts or her husband that Scattergood knew nothing
of medicine, the jury awarded Roberts $5,000. De May and
Scattergood appealed. The appeals court ruled in favor of
Roberts, asserting that a refusal to remedy such a wrong "would be
shocking to our sense of right, justice, and propriety" because "the
plaintiff had a legal right to the privacy of her apartment at such
a time." Given the "shame and mortification" of having her
person exposed to Scattergood during her "most sacred" ordeal,
Roberson was entitled to damages. 6p
De May has been interpreted as an
affirmation of Alvira Roberts' claim to "individuality and dignity,"
but, as Allen and Mack contend, reading the case as a defense of
female modesty seems closer to the mark.
46s The court, after all, did not recognize Roberts's general
right to privacy, but "a legal right to the privacy of her apartment
at such a time." Moreover, that Scattergood had no medical
training seemed irrelevant in relation to Roberts's health, but it
did matter --as did the fact that he was a young unmarried man--in
relation to her status as a married woman, which according to the
law and prevailing standards of decency, limited access to her body
to her husband and, in the words of the court, "medical men."
Consequently, having held Roberts's hand during a paroxysm of labor,
Scattergood had, the court ruled, "indecently, wrongfully and
unlawfully laid hands upon and assaulted her."
Meanwhile, De May's offense, as the court recounted in an outraged
tone, was that the doctor had wrongly invited Scattergood into the
Roberts home when he should have known that the young man would be
able to "hear...if not see all that was said and done." Thus,
at the very moment that Anthony Comstock was busy purging American
culture of all explicit references to sex and contraception, De
May suggested that child birth is "sacred" when assisted by the
right people, but when it is witnessed by "intruders," it becomes
obscene.
In 1891, in
Union Pacific Railway
Company v. Botsford, the Supreme Court adopted a similarly
protective approach to the female body. Clara Botsford was
sleeping on a train when the berth above her collapsed, hit her on
the head, and caused "permanent and increasing injuries."7p She
sued the railway company for negligence and received a $10,000
reward. Since the company had requested that Botsford submit
to a physical examination by her own doctor, and Botsford had
refused even though the defendant had promised "not to expose the
person of the plaintiff in any indelicate manner," Union Pacific
appealed. To show that Botsford's refusal was legitimate,
Justice Gray did not explicitly mention the right to privacy, but he
followed Brandeis and Warren's example by citing Thomas Cooley's
declaration that "the right to one's person
may be said to be a right of complete immunity: to be let alone."
37s Moreover, like Brandeis and Warren, the Court
stressed that the "inviolability" of the body was particularly
"sacred" in cases involving women.
The inviolability of the person is as much invaded by a compulsory
stripping and exposure, as by a blow. To compel anyone, and
especially a woman, to lay bare the body, or to submit it to the
touch of a stranger, without lawful authority, is an indignity, an
assault and a trespass.
7p
A few months later, in the first round of
Schuyler v. Curtis (1891), which specifically addressed a
woman's right to privacy, the New York State Supreme Court
explicitly endorsed Brandeis and Warren's arguments.8p The
dispute arose after a women's group planned to commission a statue
of the late Mrs. George Schuyler, a philanthr opist,
at the Columbian Exhibition, which was scheduled to open in Chicago
in 1893. Philip Schuyler, Mrs. Schuyler's nephew, sought an
injunction against the statue on several grounds including his late
aunt's distaste for any type of notoriety and her disapproval of the
views of Susan B. Anthony, who was supposed to be memorialized with
a similar statue that was to placed nearby. In affirming the
preliminary injunction, Justice Morgan O'Brien did not focus
on Philip Schuyler's insistence that his aunt would have been
mortified to find herself exhibited next to Anthony, whom the judge
described as a "well-known agitator."8p Instead, O'Brien's
comments addressed the defendants' contention that Mrs. Schuyler's
status as a public figure extinguished her relatives' right to
intervene.
While acknowledging Mrs. Schuyler's
magnanimity, O'Brien
emphasized that she was not a public figure because she had always exercised her generosity in an "unobtrusive way."
Then, after reciting Philip Schuyler's declaration that his aunt's
"great refinement and cultivation" had led her shun all forms of
publicity, the judge quoted at length from "The Right to Privacy."
"In a recent of the Harvard Law Review," O'Brien wrote, "we
find an able summary of the extension and development of the law of
individual rights, which well deserves and will repay the perusal of
every lawyer." O'Brien reiterated Brandeis and Warren's call for
control over the circulation of personal portraits, noted that
Godkin had provided similar justifications, and observed that the
individual's right to prevent certain types of public disclosure had
been confirmed in the Manola case. The examples cited by
Brandeis and Warren, especially Prince Albert v. Strange, signaled,
O'Brien concluded, "a clear recognition...of the principle that the
right to which protection is given is the right to privacy."
8p
In 1895, when the
New York Court of Appeals finally
decided the case, Philip Schuyler lost.9p The court did not
deny the existence of a right to privacy, nor did it deny that
damages may be rewarded to recognize the genuine distress endured by
victims of privacy violations. Rather, the court held that
whatever right to privacy Mrs. Schuyler may have enjoyed during her
life, it died
when she did, as did any legal consideration of what her feelings
might have been about having her likeness displayed in a public
place. The court also firmly rejected the plaintiff's
contention that his aunt would not have wanted to be displayed
alongside Susan B. Anthony. Whatever Mrs. Schuyler's opinions
may have been, the court took time to argue, no reasonable person
could object to being associated with Anthony, even if that person
did not share her ideas about women's participation in public life:
The fact, if it be a fact, that Mrs. Schuyler did not sympathize
with what is termed the "Woman's Rights" movement is of no
importance here... Many of us may, and probably do, totally
disagree with these advanced views of Miss Anthony in regard to
the proper sphere of women, and yet it is impossible to deny to
her the possession of many of the ennobling qualities which tend
to the making of great lives.
9p
The
Schuyler court's tension-filled comments on Anthony remind us
that the original assertion of the right to privacy unfolded at a time
when the term "Women's Rights" was still far enough from popular
acceptance to require capitalization and quotation marks.
Moreover, as noted in this opinion, the point at issue in the struggle
for sexual equality was 'the proper sphere of women.' While
advocates for equality such as Anthony were distinguished by their
unusual willingness to live "in the face of the whole world," even
relatively
prominent women such as Schuyler were still expected to at least try
to avoid public
attention. The court accordingly stressed that a "shy,
sensitive, retiring woman might naturally be extremely reluctant to
have her praises sounded, or even appropriate honors accorded her
while living,"
but the principle that death extinguishes all claims to individual
rights "applies as well to the most
refined and retiring woman as to a public man." 9p
Go to page 7: Privacy and Publicity in the
Early Twentieth Century
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