AUTONOMY AND INFORMATIONAL PRIVACY, OR GOSSIP: THE CENTRAL MEANING OF THE FIRST AMENDMENT a
My thesis is simple. The right of informational privacy, the great modern achievement often attributed to the classic Samuel Warren and Louis Brandeis article, “The Right to Privacy” (1890), asserts an individual's right not to have private personal information circulated. Warren and Brandeis claimed that individual dignity in a modern society requires that people be able to keep their private lives to themselves and proposed that the common law should be understood to protect this dignity by making dissemination of private information a tort. As broadly stated, this right not to have private information distributed directly conflicts with a broadly conceived freedom of speech and of the press. My claim is that, in cases of conflict, the law should reject the Warren and Brandeis innovation. Speech and press freedom should prevail; the privacy tort should be ignored. This conclusion requires a normative argument concerning the appropriate basis and status of speech freedom that this essay will not really provide but for which I have argued elsewhere. Here, instead, I will describe that theory of speech freedom, explore its implications for informational privacy, and finally suggest some reasons to think that rejection of the privacy tort should not be so troubling and is, in fact, pragmatically desirable.
a An earlier version of this essay was presented to Martha Nussbaum and David Strauss's Law and Philosophy Workshop at the University of Chicago Law School in 2000. I thank the participants in that workshop, fellow contributors to this volume, Michael Madow, Diane Zimmerman, and the editors of Social Philosophy & Policy for helpful comments, questions, and encouragement.