Secondary Sources

Note:  In the main text, endnotes for secondary sources are designated by a number followed by a lowercase "s," while primary sources are designated by a lowercase "p" and hyperlinked to full-text versions on separate pages.  All documents designated as primary sources are housed on pages within the Public/Private Dichotomy web site or on other reliable sites on the Internet.  Hyperlinks are provided to full texts of secondary sources or to pages that contain additional information about these sources whenever possible.

1. ""I believe privacy is a fundamental right," said the candidate George W. Bush one month before his election, "and that every American should have absolute control over his or her personal information,"" William Safire, "Privacy in Retreat," The New York Times, Op-Ed Column, March 10, 2004.  For an overview and documents on the historical evolution of legal approaches to privacy, see Richard C. Turkington and Anita Allen, eds., Privacy Law: Cases and Materials (St. Paul: West Group, 1999). Ken Gormley surveys the influence of "The Right to Privacy" in American law in "100 Years of Privacy," Wisconsin Law Review 1335 (1992).  Also see Daniel Sokolov, "Conceptualizing Privacy," California Law Review 1087 (July 2002).  For a glimpse of the mountains of recent works on privacy, see the results of a search on "right to privacy" on Amazon.com on March 14, 2004.  Anita Allen and Amitai Etzioni have both recently criticized the wholesale rush to glorify privacy.  See Anita Allen, Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (Rowman and Littlefield, 2003); and Amitai Etzioni, The Limits of Privacy (New York, Basic Books, 1999).  

2. Kevin Drew, "Cases Pit Right to Privacy Against Public's Right to Know," CNN.com Law Center, August 7, 2003.  Craig L. Lamay, editor, Journalism and the Debate over Privacy (Mahwah, NJ: Lawrence Erlbaum Associates, 2003). Health Privacy Project at Georgetown University. United States Department of Health and Human Services, Office for Civil Rights, "Medical Privacy - National Standards to Protect the Privacy of Personal Health Information: HIPPA."

3. Martha Minow, Partners, Not Rivals: Privatization and the Public Good (Boston: Beacon Press, 2002); video of talk by Martha Minow, "Privatization and the Common Good," The 2003 Keenan Lecture, Harvard Law School.

4. Ted V. McAllister, The Revolt Against Modernity: Leo Strauss, Eric Voglin, and the Search for a Post- Liberal Order (Lawrence: University Press of Kansas, 1996); James G. Banks, Strom Thurmond and the Revolt Against Modernity, Ph.D. Thesis, Kent State University, 1970.

5. For a review of the extensive literature on privacy and women's rights, as well as analyses of feminist critiques of the public/private dichotomy, see Anita Allen, "Privacy," The Oxford Handbook of Practical Ethics (Oxford: Oxford Press, 2003), 485-513.  Anita Allen,  "Privacy Isn't Everything: Accountability as a Personal and Social Good," 2003 Daniel J. Meador Lecture, Alabama Law Review, 54 (Summer, 2003).  Tracy E. Higgins, Reviving the Public/Private Distinction in Feminist Theorizing," Chicago Kent Review, 75 (2000), 847-867. Anita L. Allen, Privacy, in Iris Young and Alison Jaggar, eds. A Companion to Feminist Philosophy (Oxford, U.K.: Blackwell, 1998). Ruth Gavison, "Feminism and the Public/Private Distinction," Stanford Law Review, 45 (November, 1992), 1-45.  Carole Pateman, "Feminist Critiques of the Public/Private Dichotomy, "The Disorder of Women, Polity Press, 1990), 118-140.  Anita Allen and Erin Mack, "How Privacy Got its Gender," Northern Illinois University Law Review 10 (1990).  A pdf version of this article will be available shortly.  Anita L. Allen, Uneasy Access: Privacy for Women in a Free Society, (Totowa, NJ: Rowman and Littlefield, l988).  Anita L. Allen, Women and their Privacy: What is at Stake?, in Carol Gould, ed. Beyond Domination (Totowa, NJ.: Rowman and Allanheld, 1983).

6. National Humanities Center, "Cult of Domesticity," Online Professional Development Toolboxes.  Annenberg/CPB, "The Radical in the Kitchen: Women, Domesticity, and Social Reform," American Passages: A Literary Survey.  Barbara Welter, "The Cult of True Womanhood: 1820-1860," American Quarterly, Vol. 18 (1966), 151-74.

7. Victoria Woodhull's losing confrontation with the disciplinary aspects of the family system supports this perspective.  See "First Wave Feminist Views of the Right Privacy" below.

8. Kristin Kelly locates the roots of this aspect of American exceptionalism in Lockean political philosophy in Domestic Violence and the Politics of Privacy (Ithaca: Cornell University Press, 2003).  For recent reconsiderations of the general idea of American exceptionalism see Cato Institute Book Forum, "American Exceptionalism, Past and Future," John Samples, moderator, Seymour Martin Lipset and Aaron L. Friedberg, participants, Septermber 13, 2000.   Seymour Martin Lipset, "American Exceptionalism: A Double-Edged Sword," at washingtonpost.com.  Michael Kammen, "Perceptions of Public Life," In the Past Lane: Historical Perspectives on American Culture, (New York: Oxford University Press, 1997).

9. Hannah Arendt provided a comprehensive overview of the distinction between public and private in Western philosophy, politics, and society in The Human Condition (Chicago: University of Chicago Press, 1958).  Some of Arendt's writings are available at American Memory: The Papers of Hannah Arendt.

10. This is not to minimize the sensational in twentieth-century tabloids, which is especially evident in famous headlines such as the New York Post's attention-getting "Headless Body in Topless Bar."  However, in contrast to Donald Pember's argument that Brandeis and Warren over-reacted to the sensationalism of nineteenth-century newspapers, I would point out that mainstream papers such as the Boston Globe became much more reticent after the turn of the century.  Brandeis and Warren should, in other words, be included in the chorus of voices that gradually separated respectable journalism from the tabloids.  Donald Pember, Privacy and the Press (University of Washington Press, 1972).

11. E.L. Godkin, "The Right of the Citizen to his Reputation," Scribner's Magazine (July 1890), 65 at Making of America, a digital resource created and maintained by Cornell University Library.

12. E.L. Godkin, "The Right of the Citizen to his Reputation," Scribner's Magazine (July 1890), 65 at Making of America.

13. E. L. Godkin, "Libel and Its Legal Remedy," Atlantic Monthly, No. 278, December 1880, 730 at Making of America.

14. E. L. Godkin, "Libel and Its Legal Remedy," Atlantic Monthly, No. 278, December 1880, 736 at Making of America.

15. Kristin Kelly examines the role of the public/private dichotomy, especially as expressed in Lockean political theory, in shaping social responses to household violence in Domestic Violence and the Politics of Privacy (Ithaca: Cornell University Press, 2003). Jill Elaine Hasday explores how nineteenth-century women's rights advocates sought to promote women's safety by fighting for the legal recognition of married women as separate individuals in "Contest and Consent: A Legal History of Marital Rape," California Law Review 88 (October, 2000).

16. William Aiken, Life at Home (New York: Samuel R. Wells Publishers, 1870), 24, 26 at Making of America.

17. William Aiken, Life at Home (New York: Samuel R. Wells Publishers, 1870), 50 at Making of America.

18. Hannah Arendt, "The Public and the Private Realm," Section II, The Human Condition (Chicago: University of Chicago Press, 1958), 23-65.  Also see Joan B. Landes, Feminism, The Public and the Private (Oxford: Oxford University Press, 1998), available at Questia.com.  Also see Jurgen Habermas, "The Public Sphere," in Jurgen Habermas on Society and Politics: A Reader (Boston: Beacon Press, 1989), available in the Digital Reserve Book Room, American Studies at University of Virginia (AS @ UVA).

19. Karl Marx, Capital, vol. 3, excerpts from Chapter 48, at The Marx-Engels Library.  Available in print in Karl Marx, "The Trinity Formula," Karl Marx: Selected Writings, edited by David McLellan (Oxford: Oxford University Press, 1977), p. 495.

20. Michael Kammen, "The Problem of American Exceptionalism: A Reconsideration," American Quarterly, vol. 45, Issue 1 (March, 1993), available in the Digital Reserve Book Room, American Studies at University of Virginia (AS @ UVA).  Also see Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), available at Questia.com.

21. Charlotte Perkins Gilman, "The Yellow Wallpaper," New England Magazine (May 1892), available at Catherine Lavender, American Studies Resources, College of Staten Island.

22. Anita Allen and Erin Mack, "How Privacy Got its Gender," Northern Illinois University Law Review 10 (1990).  A pdf version of this article will be available shortly.

23. Charlotte Perkins Gilman, Women and Economics (Boston: Small, Maynard & Company, 1898) available at A Celebration of Women Writers, a section of the Online Books Page at the University of Pennsylvania, no pagination.

24. Charlotte Perkins Gilman, Women and Economics (Boston: Small, Maynard & Company, 1898) available at A Celebration of Women Writers, a section of the Online Books Page at the University of Pennsylvania, no pagination.

25. Charlotte Perkins Gilman, Women and Economics (Boston: Small, Maynard & Company, 1898) available at A Celebration of Women Writers, a section of the Online Books Page at the University of Pennsylvania, no pagination.

26. Charlotte Perkins Gilman, Women and Economics (Boston: Small, Maynard & Company, 1898) available at A Celebration of Women Writers, a section of the Online Books Page at the University of Pennsylvania, no pagination.

27. Charlotte Perkins Gilman, Women and Economics (Boston: Small, Maynard & Company, 1898) available at A Celebration of Women Writers, a section of the Online Books Page at the University of Pennsylvania, no pagination.

28. Information on Woodhull's life and excerpts from her writings are available at Victoria Woodhull, the Spirit to Run the White House and Legal Contender: Victoria Woodhull.  Also see Helen Lefkowitz Horowitz, "Victoria Woodhull, Anthony Comstock, and Conflict over Sex in the United States in the 1870's," The Journal of American History September 2000, which is available online to members of the History Cooperative.  A fairly extensive collection of images and newspaper stories is available at http://copperas.com/history.html, an eclectic website apparently posted by Joe Knapp.  Southern Illinois University Carbondale, which owns the Woodhull-Martin Papers, has posted a detailed biography, along with a inventory of its Woodhull collection. Recent studies of Woodhull include Mary Gabriel, Notorious Victoria: The Life of Victoria Woodhull, Uncensored (Chapel Hill: Algonquin Books, 1998);  Barbara Goldsmith, Other Powers: The Age of Suffrage, Spiritualism, and the Scandalous Victoria Woodhull (New York: Knopf, 1998); Miriam Brody, Victoria Woodhull: Free Spirit for Women's Rights (Oxford: Oxford University Press, 2003).

29. Victoria Woodhull, "Constitutional Equality," Memorial to the Hon. Judiciary Committee of the Senate and the House of Representatives of the Congress of the United States, January 2, 1871, available at An American Time Capsule: Three Centuries of Broadsides and Other Printed Ephemera, American Memory, Library of Congress.  For Woodhull's views on free love, see  "And The Truth Shall Set You Free, a speech on the principles of social freedom, delivered in Steinway Hall, Nov. 20, 1871, by Victoria C. Woodhull," Votes for Women: Selections from the National American Woman Suffrage Association Collection, 1848-1921, American Memory, Library of Congress.

30. The story of Annie Claflin's charges against her son-in-law and the trial that ensued received extensive coverage in the Brooklyn Daily Eagle, which featured numerous stories on Woodhull and Tennie C. Claflin's activities throughout the 1870's.  All of these reports are available at The Brooklyn Daily Eagle Online, 1841-1902.

31. J.E. Doyle, Plymouth Church and its Pastor, or, Henry Ward Beecher and his Accusers (New York: Park Publishing Company, 1874) 48, available at Making of America (University of Michigan and Cornell University).

32. Studies of the Beecher-Tilton scandal include Richard K. Sherwin, "The Notorious Adultery Trial of the Reverend Henry Ward Beecher," an excerpt from When Law Goes Pop: The Vanishing Line Between Law and Popular Culture (Chicago: University of Chicago press, 2000), available at Writ, Legal Commentary section of FindLaw.  Tracy Benjamin, The Case of Henry Ward Beecher; The Beecher Tilton War: Theodore Tilton's Full Statement of the Great Preacher's Guilt; What Frank Moulton Had to Say: the Documents and Letters from Both Sides at Making of America.  Jana Malamud Smith includes a chapter on the Beecher-Tilton affair in Private Matters: In Defense of the Personal Life (New York: Perseus Publishing, 1997).  Also see Laura Hanft Korobkin, Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery (New York: Columbia University Press, 1998).

33. Janna Malamud Smith, it should be noted, does point out, "Victoria Woodhull's assertion of a right to privacy may be the first American public call for such a right," Private Matters: In Defense of the Personal Life (New York: Perseus Publishing, 1997), 82.  However, since her purposes are wide-ranging, she does not discuss this insight in any great detail.

34. Harriet Beecher Stowe, My Wife and I, or Henry Henderson's History (New York: J. B. Ford and Co., 1871).

35. Woodhull, quoted in J.E. Doyle, Plymouth Church and its Pastor, or, Henry Ward Beecher and his Accusers (New York: Park Publishing Company, 1874) 38, available at Making of America (University of Michigan and Cornell University).

36. Woodhull, quoted in J.E. Doyle, Plymouth Church and its Pastor, or, Henry Ward Beecher and his Accusers (New York: Park Publishing Company, 1874) 39, available at Making of America (University of Michigan and Cornell University).

37. Woodhull, quoted in J.E. Doyle, Plymouth Church and its Pastor, or, Henry Ward Beecher and his Accusers (New York: Park Publishing Company, 1874) 38, available at Making of America (University of Michigan and Cornell University).

38. Nicola Biesel, Imperiled Innocents: Anthony Comstock and Family Reproduction in Victorian America (Princeton: Princeton University Press, 1998).  Also see Helen Lefkowitz Horowitz, "Victoria Woodhull, Anthony Comstock, and Conflict over Sex in the United States in the 1870's," The Journal of American History September 2000, available online to members of the History Cooperative.

39. Timeline of U.S. History, Comstock Law. Comstock is featured in Planned Parenthood's pictorial history of efforts to outlaw contraception in the United States.  Molly McGarry examines Woodhull's confrontation with Anthony Comstock in "Spectral Sexualities: Nineteenth-Century Spiritualism, Moral Panics, and the Making of U.S. Obscenity Law," Journal of Women's History, vol. 12 No. 2 (Summer 2000).  This article can be ordered online at Indiana University Press, Journals Online Document Delivery.

40. For a brief summary of the evolution of laws governing women's right to own property, see Married Women's Property Laws, a site developed as part of the History of Women project, a section of the National Digital Library at the Library of Congress.  A great deal of additional information on this topic can be found on the Women and the Law section of Women, Enterprise, and Society, a site developed by Harvard Business School.

41. Anita Allen and Erin Mack, "How Privacy Got its Gender," Northern Illinois University Law Review 10 (1990), 466.

42. The Brooklyn Daily Eagle, June 15, 1890, p. 10.

43. Dorothy Glancy, "Privacy and the Other Miss M.," Northern Illinois University Law Review, 10 (1990), 401-440.

44. Anthony Comstock, quoted in Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 188.

45. Thus Allen and Mack point out, "The notion that female dignity required individuality belonged scarcely to the period at all," "How Privacy Got Its Gender," 455.

46. Edward Bloustein, "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser," in Philosophical Dimensions of Privacy, ed. Ferdinand D. Schoeman (Cambridge: Cambridge University Press, 1984); Allen and Mack, "How Privacy Got its Gender," 454.  Also see Caroline Danielson, "The Gender of Privacy and the Disembodied Self: Examining the Origins of the Right to Privacy in U.S. Law," Feminist Studies (Summer, 1999). (Note: This article may no longer be available on line.)

47. Daniel Wise, The Young Lady's Counsellor, or, Outlines and Illustrations of the Sphere, the Duties and the Dangers of Young Women (1855), 88-89 at  Making of America, Cornell University. Wise's work is cited in The Making of a Homemaker, a digital exhibition at the Smithsonian Institution.

48. Quoted in Lawrence Edward Savell, "Right of Privacy Appropriation of a Person's Name, Portrait, or Picture For Advertising or Trade Purposes Without Prior Written Consent: History and Scope in New York," Albany Law Review, 48 (Fall, 1983).

49. "Current Topics," Albany Law Journal  63 (1901), quoted in Savell, 8.

51. Thomas M. Cooley, excerpt from A Treatise on the Law of Torts (1880) in Privacy Law: Cases and Materials, ed. Richard C. Turkington and Anita Allen (St. Paul: West Group, 1999), 52.   

52. Personal immunity. The right to one's person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed. But the attempt to commit a battery involves many elements of injury not always present in breaches of duty; it involves usually an insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance. There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed, in this case the law goes still further and makes the attempted blow a criminal offense also. 

53. Daniel Wise, The Young Lady's Counsellor, or, Outlines and Illustrations of the Sphere, the Duties and the Dangers of Young Women (1855), 88-89 at  Making of America, Cornell University. Wise's work is cited in The Making of a Homemaker, a digital exhibition at the Smithsonian Institution.

54. Quoted in Lawrence Edward Savell, "Right of Privacy Appropriation of a Person's Name, Portrait, or Picture For Advertising or Trade Purposes Without Prior Written Consent: History and Scope in New York," Albany Law Review, 48 (Fall, 1983).

55. "Current Topics," Albany Law Journal  63 (1901), quoted in Savell, 8.

ohn Stuart Mill, On Liberty (London: Longman, Roberts and Green, 1869), available at Bartleby.com.

Certainly social attitudes towards rape victims have changed since the 1890's, but, as evidenced by new debates about anonymity inspired by the trial of Kobe Bryant, who was charged raping a woman who, at this point, has yet to be named by major media outlets, anxieties about public disclosure remain remarkably the same.  In a CNN report, "Rape Victims' Names Withheld by Choice, Not Law," which was posted on  October 16, 2003, Victoria L. Lutz of the Pace Women's Justice Center, suggested that the "big question" people still ask in regard to news reporting on rape is, "'Do you want to see your daughter's name in 28-point type on the front of The New York Times as a rape victim?,'"  (http://www.cnn.com/2003/LAW/10/16/rape.confidential/ ).