seems to be right in saying of this passage: "The paragraph is given over entirely to a discussion of the doctrine of assault. The author is not, therefore, ushering in a new right of complete immunity. The right to be let alone' refers unmistakably to the right to be free from bodily injury, or from a reasonable fear of bodily injury, at the hands of a fellow being." 995 4. Definitions of right of privacy.-Chief Justice Parker defined the right of privacy as follows: "The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has a right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers; and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise." The Chief Justice further developed what he conceived to be logically involved in a right of privacy. But his purpose seems to have been to demonstrate the absurdity of the existence of such a right and its consequent untenability. In the same case Justice Gray, in a dissenting opinion, described his conception of the right of privacy in the following language: "The right of 5 Henry v. Cherry, 30 R. I. 13, 73 Atl. 97. • Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, LEADING ILLUSTRATIVE CASES. privacy, or the right of the individual to be let alone, is a personal right, which is not without judicial recognition. It is the complement of the right to the immunity of one's person. The individual has always been entitled to be protected in the exclusive use and enjoyment of that which is his own. The common law regards his person and property as inviolate, and he has the absolute right to be let alone. The principle is fundamental and essential in organized society that every one, in exercising a personal right and in the use of his property, shall respect the rights and properties of others. He must so conduct himself in the enjoyment of the rights and privileges which belong to him as a member of society, as that he shall prejudice no one in the possession and enjoyment of those which are exclusively his." A well-considered discussion of the subject says: "It becomes necessary, then, to determine whether the right of privacy exists upon common law principles as a legal personal right. It seems fair to argue that it should be embraced within the guarantee of personal security, which includes the right to enjoyment of life, and is invaded by a deprivation of those privileges and immunities which are reasonably necessary to such enjoyment according to the temperament of the individual. But the doctrine of an absolute right of privacy, if adopted without qualification, would evidently result in prohibiting acts long recognized as lawful, and not intended to be embraced within it, and it would conflict to a very 7 Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, LEADING ILLUSTRATIVE CASES. great extent with the principle of liberty of speech and of the press. If, however, the right were less broadly stated as an 'immunity from wrongful publicity,' these difficulties would largely be obviated; the line of demarcation in determining what should constitute the wrong would be ascertainable as readily as it is in cases involving negligence and reasonable user; and the sound distinction between men who have waived their immunity by entering on a public life, and those whose mode of life is a private one, would be not only preserved but accentuated."8 5. Analogy between the right to privacy and the right to intellectual and artistic property. "The legal doctrines relating to infractions of what is ordinarily termed the common law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which, properly understood, afford a remedy for the evils under consideration. The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. Under our system of government, he can never be compelled to express them (except upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music. Neither does the 8 11 Columbia Law Review, 566. existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public,-in other words, publishes it. It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all. The statutory right is of no value, unless there is a publication; the common law right is lost as soon as there is a publication."" 94 Harvard Law Review, 193, 198. 6. Distinction between right to privacy and right to reputation."Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men,-the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. 99 10 7. Classification of the decisions.-If there is legal right of privacy, it is now in process of being judicially recognized. Certain courts have strenuously denied the existence of such a right; other courts have as emphatically affirmed its existence. 10 4 Harvard Law Review, 193, 197. |