1

Technologies of Publicity

Privacy is a distinctly modern product, one of the luxuries of civilization.

—E. L. GODKIN,
1890

“One sketches one’s age imperfectly if one doesn’t touch on that particular matter: the invasion, the impudence, the shamelessness of the newspaper and the interviewer, the devouring publicity of life, the extinction of all sense between public and private.”¹ Novelist Henry James wrote these words in 1888. His target was the new media of his time along with the “invasion,” “impudence,” and “shamelessness” it brought in its train. At the core of James’s protest, however, was “publicity” itself, at once a set of practices and a set of mind bent on eroding the once-sturdy line dividing public from personal matters. His characterization will sound familiar to Americans of a later day—so much so that we must pause to pin down the specific conditions that rankled the novelist more than a century ago. For James, the “devouring publicity of life” was inseparable from a host of modern technologies that threatened to expose to common view all that belonged to the private person. These ranged from the innocuous-seeming postcard, which casually divulged a writer’s secrets to anyone who could read, to the formidable X-ray, which sparked fears that “walls could no longer shield inhabitants from [its] piercing power” and that “the era of privacy was at an end.”²

Modern privacy was brought into being by these novel agents of “publicity.” In 1888, there was no contesting that new tools were at hand for rendering citizens more knowable to those outside their intimate circle. Particularly dramatic were “instantaneous” photography, telegraphy, telephony, sound recording, and the popular press, all of which flung open private life to the curious eyes and ears of others. That exposure was all the more unsettling for being virtual. While the intrusions of a “peeping Tom” or eavesdropper required physical proximity, the photographer and the wiretapper conducted their prying from a distance. These developments seemed to augur the “extinction of all sense between public and private.” And they presented urgent questions: How private in fact were private citizens? What limits, if any, governed their exposure to the larger society?

Many Americans thrilled to the possibilities of modern communications and their newfound ability to peer into others’ lives. Yet these same citizens often sought refuge from a culture intent on making public what had once been considered private. A knowing society would be defined in large part by this tension between the desire to see or be seen and the wish to evade society’s gaze. For a man of James’s milieu, the privileged class of America’s gilded age, citizens appeared more open to view than ever before, but also more willing to place themselves on display.

The novelist aimed his outrage at professional purveyors of gossip, at the newspapers that unveiled private lives for public consumption. But he pointed to a broader transformation of public life—and with it, the conditions for individual privacy—in the post–Civil War United States. The changes were often first apparent to city dwellers, the vast numbers who migrated to urban centers from farms or small towns.³ Those who had been subject to the close regulation of their families or local communities often welcomed the freedom from scrutiny that came from joining a “society of strangers.”⁴ The very gift of partial anonymity that city life offered, however, was being chipped away by new technologies and commercial interests. Technical leaps in the ability to peer into and record intimate scenes and a bolder, brasher journalism made private matters newly vulnerable. These practices—altering what individuals knew of others and how they themselves could be known—lifted privacy to a new status in American public culture.⁵

James’s characterization of these developments as an offense to individual dignity and public decency had precedents.⁶ But in the last decade of the nineteenth century his analysis resonated widely, entering political and legal discussions with fresh intensity. Even some far removed from James’s upper-middle-class world grasped toward a right to be free of such intrusions. A modern answer to a modern problem, privacy emerged as a common language: one that women and men from many walks of life employed to parse, and sometimes protest, the knowingness of their own society.

This privacy was, in key respects, new. It was concerned less with an individual’s immediate surrounds than with image, information, biography, and what Americans were beginning to call “personality.” In James’s complaint we can spy an older vision of privacy, one rooted in ownership and property lines, giving way to another. The novelist worried not about physical trespass or government officials pounding down the door, but—strikingly—about commercial agencies that delivered the news. In their aggressive uses of the camera and the pen, photographers and journalists mounted virtual rather than material invasions of citizens’ affairs. These assaults on individual personality were the product of new machineries of exposure but also the modern sensibilities that accompanied them.

The shift from a property- to a personality-based form of privacy was never total: witness recent debates over police frisking and body scans at airports. But it was a harbinger of the way Americans would more and more invoke privacy in the century to come. Tracking when and where this new sort of privacy appeared illuminates the specific pressures a mass-mediated and information-based society placed on its inhabitants, unsettling the customary relationship between private citizens and the public world they inhabited. “Privacy” was, among other things, a counterweight to a knowing society, an attempt to calibrate the balance between the knowers and the known. It named a value that modern U.S. society deemed precious, but also, perhaps inevitably, made precarious.

The Beginnings of the End of Privacy

By some measures, Americans had from their earliest history enjoyed a good deal of freedom from the intrusions of state and society. Scholars have noted that a “substantial degree of personal privacy” obtained in the British colonies, the fruit of scattered settlement and light governance.⁷ This description would not of course have applied to indentured servants, slaves, and other unfree laborers, nor to most women or youth. It was restricted to white adult male landholders and those of free birth. For this select group of colonists, property ownership, including the claim of self-possession, marked the borders of legitimate interference into one’s affairs. Officially, the law of trespass and unreasonable search and seizure ruled, following the Anglo-American legal tradition in which the house and home were associated with “security against violent invasion.” As the famed jurist William Blackstone had it, “The law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity.”⁸ This propertied conception of “immunity” would play a key role in the American Revolution and its memorialization, summoning up the specter of British soldiers forcibly quartered in colonists’ domiciles.

This is not to say that early Americans were great respecters of each other’s privacy. Eavesdropping, gossip, and other forms of meddling were part and parcel of life in small communities. Such interference may have been irritating, but it was commonplace. The watchfulness with which colonists supervised their neighbors’ behavior and households, especially in the Puritan settlements, has been well documented.⁹ Claims to privacy were suspect, even a threat to community values. Because “family and community, private and public life, formed part of the same moral equation,” writes one historian of Plymouth colony, “the two realms became in a sense indistinguishable.” Indeed, he concludes, privacy of the sort that contemporary Americans enjoy was inconceivable given colonists’ tight living quarters and equally confining social strictures.¹⁰ Privacy, at least as we now imagine it, was not “a highly publicized or articulated concept” in colonial America.¹¹

The same was true in the new nation, where citizens had recourse to a number of bedrock legal protections to guard against intrusions into their homes, the reading of their mail, and the disclosure of confidential information.¹² These rights stood out against the utter lack of such safeguards for the marginalized and disenfranchised. The brutal controls on enslaved people in particular, imposed through slave passes and patrols, lantern laws, the branding of individual bodies, and the breakup of families, were the mirror image of the legally enforced entitlements that white property-holding Americans enjoyed.¹³ And yet, before the Civil War, few discussed privacy as “a generalized legal, moral, or natural right.”¹⁴ This right was instead implicit, understood to belong to white men of land and wealth, including slaveholders, but also to small property owners, who reigned over their households and dependents: wives and children if not servants and slaves.¹⁵ This kind of privacy, underwritten by property rights in land and people, the expansive sovereignty of the household head, and the denial of self-ownership to African Americans, was perhaps so assured that it did not require enunciation.

When “privacy” was invoked in the early United States, it was typically a more limited sort of claim, joined to the circumstances of one’s immediate physical environment. Curiosity and outright prying were often billed as “democratic” American habits, but the conflicts they gave rise to were generally resolved through social sanctions rather than courts.¹⁶ What legal discussions of privacy there were centered on shielding citizens’ homes and papers from governmental interference.¹⁷ But even these disputes were scarce. The Fourth Amendment guarantee of freedom from unreasonable searches and seizures was rarely invoked, cited just twice in federal court decisions between 1787 and 1865. Before the Civil War, summarizes one scholar, the legal understanding of privacy “had not expanded to encompass much beyond one’s home and postal correspondence.” Even the war itself, despite abundant telegram interceptions and some censorship of the mails, sparked “no organized public discussion” of the proper limits of official probing into citizens’ personal affairs, nor calls for a “right” to privacy.¹⁸ Until the last quarter of the nineteenth century—when growing corporate and state power as well as new citizenship claims would press the issue—privacy remained largely dormant as a public language.

At the same time, however, a more fulsome notion of the private sphere and its prerogatives was taking root. It trailed the evolving meaning of the word “privacy” itself. Privacy had once been considered a form of privation, implied by the Latin privatus and privare. Linked etymologically to selfishness—the love of one’s own private interests—as well as deprivation, the concept was undergoing a slow metamorphosis.¹⁹ Already by the turn of the nineteenth century, privacy carried far more positive connotations, unlike the similar terms of “alienation, loneliness, ostracism, and isolation.”²⁰ Not simply the condition of being alone, privacy was coming to refer to a set of ideas about personal freedom and individual autonomy, an “inner uncoerced realm.”²¹ It denoted an interior sanctuary as much as an exterior, physical one.

This revaluation of privacy was linked to the emergence of the “home”—as distinct from the household or the physical house—as an idealized bourgeois realm of domesticity.²² Private property and the “affective private life of the family” became tightly linked across the nineteenth century.²³ In architectural forms, prescriptive advice, and individual habits, there was new attentiveness to fortifying the borders between private and public arenas.²⁴ The walls of the family dwelling symbolized these divisions, physically as well as psychologically.²⁵ Well-off Victorians took active steps to guard their domestic affairs from prying, inventing back stairs for servants, for example. They also rejected an older Greek style of house that afforded little protection from the eyes of others, gravitating toward a Gothic or “Picturesque” style that allowed for retreat and seclusion.²⁶ Etiquette manuals offered elaborate instructions for proper conduct on sidewalks and public thoroughfares, making an implicit but clear contrast to one’s conduct in the familial, intimate sphere.²⁷ And young women’s diaries testified to the labor involved in cultivating the private self, understood to be different from the roles one was called on to play in public society.²⁸

Writing in the 1960s, sociologist Edward Shils concluded that the third quarter of the nineteenth century was the age of privacy’s “efflorescence” in the United States. Finely tuned codes of respectability had by that point entered working-class as well as middle-class life, reinforcing “a sense of the inviolateness of what went on within the family.” Domestic privacy, he suggested, was newly valued and socially enforced; curious neighbors—“Nosy Parkers”—were disparaged; and individuals erected barriers to being known by those outside the family circle. Legal protections for private property, along with the reigning ethos of economic individualism, Shils argued, underwrote and “helped stiffen a general regard for privacy.”²⁹ This sort of privacy, very close to contemporary understandings of propriety, was not in any simple sense “private.” It was a social good, keyed to dominant norms. Private life, properly ordered, was the very foundation of public morality. Privacy as such was coming to play a new role in public life, with “the potential to promote or betray one’s moral self.”³⁰

Moralists of all kinds reinforced the message. The prominent minister Henry Ward Beecher, for example—his own alleged affair with a member of his congregation the object of avid press coverage in the 1870s—sermonized about the family’s “sacred right to privacy.”³¹ Were by chance an outsider to glimpse domestic intimacies, the reverend advised, “honor would require him to turn from them”; if such knowledge were “forced” on him, it “should be locked in a sacred silence.”³² Victorians, British as well as American, invested enormous resources in the project of insulating private affairs from the knowledge and view of outsiders. Even the shames of the household gained new protection, as parents and siblings, cousins and aunts, guarded one another’s secrets—including shocking ones like homosexuality or interracial liaisons—in order to preserve family respectability.³³

Such respectability was found in its most distilled form in the good name of the head of the household. Legal scholar Susan Gallagher observes that much of the uproar about the popular press in the second half of the nineteenth century concerned less the behavior it exposed—sexual indiscretions in particular—than the “evil of public revelation” itself. This was because “command over public knowledge of a man’s domestic affairs” had become the very marker of bourgeois masculinity.³⁴ Control over one’s reputation—a right, even, to be known as one wished—was a privilege to which only some citizens were entitled, however. Long after the Fourteenth Amendment secured citizenship for African Americans in 1868, protection from public exposure in the name of one’s dignity remained, in conception and in practice, a white man’s right.

With reputation its sign and propriety its watchword, the bourgeois privacy of the late nineteenth century was exclusive and patriarchal. It was also corporate, the male-governed family its proper locus. As such, its liberties and protections were distributed unevenly across the household. The domestic ideal displaced pre-Revolutionary legal remedies that wives and subordinates had once possessed, including redress against physical punishments for disobedience.³⁵ Charlotte Perkins Gilman understood in her 1898 treatise on Women and Economics that honoring “private life” was not the same as honoring the rights of its participants, especially women and other dependents. She contended, “Such privacy as we do have in our homes is family privacy, an aggregate privacy; and this does not insure—indeed it prevents—individual privacy.”³⁶ Nineteenth-century family and marriage law, two legal scholars concur, offered women “too much of the wrong kinds of privacy—too much modesty, seclusion, reserve, and compelled intimacy—and too little individual modes of personal privacy and autonomous, private choice.”³⁷

Because “aggregate” privacy was firmly aligned with the interests of the man of the house, a quest for individual rights within the family could easily be cast as a violation of his prerogatives. The woman’s suffrage movement met opposition on exactly these grounds. One senator who opposed the franchise for women equated it in 1881 with breaking in “through a man’s household, through his fireside … to open to the intrusion of politics and politicians that sacred circle of the family.”³⁸ The U.S. Supreme Court in 1888 underscored the public benefits of this cordoned-off sanctuary for the male head of the household, tethering “the sanctity of a man’s home and the privacies of life” to “his indefeasible right of personal security, personal liberty and private property.”³⁹

Privacy of this sort, profoundly marked by gender, class, and racial privilege, was by the late nineteenth century regularly depicted as “the crowning achievement of polite, liberal society.”⁴⁰ It was, however, destined to be disrupted by that era’s technological and commercial achievements. A newly aggressive journalism, as Henry James suggested, was at the very center of the disruption. The impulse to peer into others’ affairs—an age-old feature of village life—had never actually subsided even during the high tide of domesticity and respectability.⁴¹ In the waning years of the century, however, it found a formidable ally in the popular press.⁴² Its bold intrusions, through the printed word and image alike, scrambled the neat Victorian compartmentalization of personal and public life, jeopardizing the careful management of reputation so valued by elites. New calls for legal rights to privacy at the end of the nineteenth century indicated that an established privilege in the form of mastery over one’s own affairs was under strain. The privacy of elite white men, it seemed, could no longer be assumed.

Some citizens welcomed, even sought out, the breakdown of old proprieties that accompanied incursions into previously private places. Others resisted. But the conflict itself laid the groundwork for modern claims to personal, rather than domestic, inviolability. Privacy of a recognizably modern kind, built not on property but on personality, was born in this era—not fully possible, perhaps, until it had been both individualized and endangered. Only under the glare of new forms of publicity would privacy become an overt and explicit category of American public life: an object to be argued over and a gathering place for a wide variety of political and social concerns. Elite citizens who attempted to fortify domestic privacy, starting with control over their good names, were among the first to make privacy a public cause. In the process, however, privacy lost some of its propertied foundations and gained a more psychological profile. It also slipped from the exclusive grasp of “men of reputation,” becoming the demand—if not yet typically the possession—of a wider band of citizens. Charges of privacy’s “extinction” in the late nineteenth century in this way launched its public career. In announcements of its end were the beginnings of a modern political claim.

Privacy and Publicity in Practice

The immediate trigger for Henry James’s warning about the “devouring publicity of life” was the outpouring of intimate details in popular broadsheets. But an inquisitive press was just one marker of a new culture of exposure. Publicity, like privacy, had many champions at the turn of the century. For every critic who insisted that publicity diminished its victims and public discourse alike, there was a social scientist or realist novelist convinced that stripping back the veneer of society to reveal it as it really was would enlighten and improve public life.⁴³ Indeed, many venerated “publicity” as a positive good and exposure as essential to social progress. Louis Brandeis, the American jurist most associated with the right to privacy, himself advocated passionately for what he termed “the duty of publicity.”⁴⁴ For those who wielded publicity in the cause of reform—the social survey movement, the muckrakers bent on unearthing the evils of corporate malfeasance or political wrongdoing, newly professionalized journalists pledged to “objectivity”—scientific, fact-finding investigations were the solvent for all manner of social ills, from poverty to corruption.⁴⁵

Historian Rochelle Gurstein has categorized these warring sensibilities as “the party of reticence” and the “party of exposure.” To those in the camp of reticence, new forms of publicity were one piece of a larger assault on customary standards of propriety, the popular press collaborating with sex reformers and literary naturalists to undermine the sanctity of private life and the “high-mindedness” of public conversation. For those committed to exposure, on the other hand, discretion was the language of cover-up, repression, and prudery.⁴⁶ Centrally at issue was what properly ought to appear in public.

Thoroughgoing changes in information practices would interlace with these debates. Technological and commercial innovations in particular would present steep challenges to “reticence.” Questions of privacy came to the fore in the post–Civil War decades as Americans reckoned with the massive private entities that “conveyed, broadcast, bought, and sold information—a commodity of growing importance in a more and more organized society.”⁴⁷ Controversies over news monopolies as well as sensational reportage signaled the new power of this economic sector, as did the consolidation of the telegraph and newspaper industries in the form of the Associated Press wire service.⁴⁸ Railroad financiers and other corporate titans were keenly aware of the threat to their reputations—and bank accounts—posed by the quicksilver spread and international reach of damaging pieces of information.⁴⁹ These developments were disruptive enough to prompt some “to look to the law to control, not only what individuals could or could not do, but whether what they did would become generally known.”⁵⁰

When less prominent citizens took note of these trends, they focused on threats to privacy rather than to profits. For them, the communications revolution that picked up steam in the 1870s was experienced as a series of dazzling inventions. Among the most significant were the transcontinental telegraph and transatlantic cable of the early 1860s, laying the groundwork for the commercial telegraph in 1874. Right on its heels was the “Harmonic Telegraph,” or telephone, in 1876.⁵¹ Just five years later, the United States boasted the world’s largest telephone network, soon to be incorporated as American Telephone & Telegraph. A flurry of other inventions—the commercial typewriter (1874), microphone (1876), and dictaphone (1889)—allowed information to be transferred still more accurately and efficiently. Meanwhile, the transmission of images was revolutionized through the introduction of photoengraving in 1881 and roll film in 1889.⁵² Each of these technologies carried the potential to alter how news of both a private and public nature traveled. Words and pictures could be disseminated much more swiftly and smoothly through these means—but also less securely. As such, the new communications media of the late nineteenth century, much like today’s, fascinated and perturbed their users in turn.

Conflicts over privacy grew up alongside new modes of communication. This was true even in the case of the postal system, one of the most familiar and trusted ways of transmitting news. Ralph Waldo Emerson had in the 1860s reflected admiringly on the confidentiality of the mails: “To think that a bit of paper, containing our most secret thoughts, and protected only by a seal, should travel safely from one end of the world to the other, without anyone whose hands it has passed through having meddled with it.”⁵³ In fact, letter opening was hardly unknown, and in the 1870s, public moralist Anthony Comstock’s campaign to root out obscenity in the mails further dented assurances of confidentiality.⁵⁴ A different sort of challenge stemmed from the introduction of the postcard, patented in 1861 but first authorized for sale by the U.S. Post Office in 1873. Postcards, inexpensive to send, were enormously popular with consumers: 200,000 were reportedly purchased in the first two hours they were on offer in New York City. Both the new method of sending words through the mails and its users, however, were vigorously critiqued for their role in changing the terms of personal disclosure.⁵⁵ In 1890, the editors of a literary magazine announced their contempt for the postcard as a means of personal communication: “We do not wish to have our affairs discussed publicly, nor do we care for servants and landladies to have the full benefit of our private matters.” Even into the twentieth century, the Atlantic Monthly denounced the practice and, specifically, “a lady who conducts her entire correspondence through this channel,” revealing “secrets supposed to be the most profound, related misdemeanors and indiscretions with a reckless disregard to the consequences.” (The writer added that despite this woman’s confidence “in the integrity of postmen and bell-boys,” the latter “may be seen any morning, sitting on the doorsteps of apartment houses, making merry over the post-card correspondence.”⁵⁶)

The postcard ruffled elite standards of privacy and propriety. But far more disruptive changes to communications were in the offing, and they would make social exposure a central conundrum of the day. The telegraph and telephone provided the most dramatic examples. Each increased the volume and circulation of all kinds of information. Private correspondence as well as news of public events now flowed more quickly and freely, communication no longer dependent on the physical delivery of messages.⁵⁷ The telegraph in particular, which came into general use at mid-century, helped “create modern expectations of timeliness and newsworthiness,” altering the very “psychology of news consumption.”⁵⁸ Both inventions would spark privacy questions, especially as they evolved from a form of “rich man’s mail” to more widespread use.⁵⁹ The assumption that private messages would reach only their intended recipient would be seriously undercut by the penetrability of the new communication technologies. As one scholar observes, telegraph and telephone networks—precisely because they were networks—“made the personal lives and personalities of individuals increasingly accessible to large numbers of others, irrespective of acquaintance, social or economic class, or the customary constraints of propriety.”⁶⁰

The very cables by which telegraph messages sped through air put their users at risk. Wiretapping, a military art during the Civil War, found new uses by law enforcement agents, not to mention criminals, in the decades thereafter, prompting many states to enact laws banning the practice. According to an early court ruling, such legislation was necessary “to prevent the betrayal of private affairs … for the promotion of private gain or the gratification of idle gossip.”⁶¹ The telegraph network, dubbed the “Victorian Internet” by one scholar, posed a now familiar trade-off between privacy and convenience.⁶² Telegram messages required the disclosure of their contents to a third party and companies retained copies of each transmission, meaning that ostensibly personal communications might exist in three or four separate locations.⁶³ Stored messages proved especially vulnerable to seizure by government subpoena, triggering political debate from the 1870s onward about the legal status of telegrams as compared to letters. The question, not to be resolved until well into the twentieth century, was as follows: Were communications via this means deserving of less protection than the mails because of the means?

Telephone lines, which proliferated after the first commercial exchanges were established in 1878, proved equally conducive to prying. Technically speaking, listening in on telephone conversations was even easier to accomplish than accessing information on the telegraph wires, with early experimenters impressed by “the rapidity and simplicity of the means by which a wire could be milked, without being cut or put out of circuit.”⁶⁴ Urban police seized on the possibilities for virtually intercepting the plots of criminals and radicals.

Meanwhile, law-abiding citizens were subject to eavesdropping of a less systematic kind. The fact that the human operators of the phone lines were always liable to overhear was a common justification for treating telephone conversations as inherently unprivate by law enforcement.⁶⁵ Moreover, the structure of the network practically invited clandestine listening by curious neighbors. The earliest subscribers were connected on a single line to a central switchboard; later, it would be standard for four customers to share each “party line.” As an Indiana woman later recalled, “When the ring occurred, everybody in the community would take down [the receiver] and would listen.”⁶⁶ Their presence undetectable, multiple users could tune in to any conversation on the line, prompting one contemporary to denounce a dawning age of “electronic exhibitionism and voyeurism.”⁶⁷ Concerns about unimpeded access to supposedly private conversations sent engineers scurrying for technical fixes such as selective ringing, introduced by the Chicago Telephone Company in 1896, and the “lockout system,” which dashed the hopes of eavesdroppers with a busy signal.⁶⁸

There were, naturally, two sides (at least) to this conversation: the listener and the listened-to, with their distinctly opposed interests. Also arrayed against each other were the avid users of new technologies and their detractors. Like postcard writers, telephone enthusiasts came in for plenty of censure. Against industry expectations that the new telephones would be used primarily as a business tool, consumers began to seek them out for personal conversation and what critics often branded as “trivial gossip,” with some telephone companies even attempting to staunch the use of the wires for “visiting.” The fact that women seemed to put the new device to this use much more regularly than men explains some of the resistance; one study finds that in the early twentieth century farm women in particular embraced the telephone to escape the loneliness of rural life. But telephones also seemed to promote improper conversations across gender lines, including “illicit wooing” and other indiscretions, which could now go unmonitored by parents or guardians.⁶⁹ Dispensing with polite conventions that had ruled face-to-face meetings—such as formal introductions and chaperones—users of the phones redrew spatial and social boundaries, blurring the lines between the public and domestic world, and male and female, spheres in the process. Telephone users’ pronounced desire for connection and sociability, and for more informal modes of communication, says something about how privacy was being remade by rural and urban folk far outside Henry James’s ken.⁷⁰

Fascination with the potential these technologies held for penetrating others’ secrets was evident in pulp thrillers about “the wire” published at the turn of the century. Novels like Arthur Stringer’s The Wire Tappers (1906) and Phantom Wires (1907) were populated by villains and heroes able to intercept, cut, and redirect supposedly private communications.⁷¹ The latter novel wove a sensational narrative around tapping the wire of a key character, “whereon instructions and information were secretly hurried about the city to his dozen and one fellow-operators.” The hero of the novel “worked for an hour … before the right wire fell under his thumb. Then he listened intently, with a little start, for he knew he was reading an operator whose bluff, heavy staccato ‘send’ was as familiar to his long-practiced ear as a well-known face would be to his watching eyes.”⁷² The notion that a telegraph operator’s “send” could be as recognizable as a “well-known face” hints at the novel ways that individuals were becoming known in a society linked by wires. Clearly, the kind of virtual spying that the telegraph and telephone permitted could enthrall as well as endanger their users. Social practices and popular culture alike suggest a certain amount of comfort with trespassing on others’ privacy—and forfeiting some of one’s own—in the era that would produce the first legal calls for a “right to be let alone.”

New uses of the camera would place even more pressure on reigning norms of privacy and propriety. Photography had in its early days been slow and cumbersome, awkward equipment and long exposure times making it “virtually impossible … to capture an image of someone” without the subject’s express permission. Samuel Morse, inventor of the telegraph, was reportedly surprised during a visit to the workshop of Louis Daguerre, inventor of the daguerreotype, to see no human figures in depictions of “even the busiest places in Paris.” Daguerre explained that because of exposure times of fifteen to twenty minutes, individual people and even carriages on the street eluded capture.⁷³ But by 1884 George Eastman had developed the “snap” camera that dramatically reduced the amount of time necessary for exposure. Two years later, what was tellingly labeled the “detective” camera could take a picture “instantaneously,” no longer depending on the cooperation of its subject. These would be followed by the true amateur device, the Kodak, advertised as a camera that required no expertise at all. By 1889, the taking of instantaneous photos was described as a common hobby and even a “craze.”⁷⁴ With cheap, automatic cameras on offer to consumers, the phrase “Kodak fiends” entered the vernacular.⁷⁵

These developments set the stage for virtual invasions of a new kind, whether from picture hunters hoping for candid shots of the unsuspecting or the urban mass press. The sudden ubiquity of photography and photographers in late nineteenth-century America, historian Jessica Lake argues, “radically altered the experience of seeing and being seen by others.”⁷⁶ Amateur cameras were small and explicitly designed to be used surreptitiously—shaped as hip flasks, pocket watches, binoculars, and even revolvers. Advertisements for them banked on the “thrill of capturing the likeness of another person without their knowledge or consent.”⁷⁷ Early skirmishes over covert photo taking themselves garnered plenty of publicity, with amateur photographers the object of irritation as well as serious protests. Public outcries quickly led to restrictions on the use of cameras not only in the White House but also on trains, ferries, and private property. The capturing of women on camera was of special concern to those already wary about changing norms of gendered propriety. In England, there were reports of the formation of a “Vigilance Association” in 1893 whose aim was the “thrashing of cads with cameras who go about in seaside places taking snapshots of ladies emerging from the deep.”⁷⁸ By the turn of the century, “Kodaker” had become an insult, “an unflattering term used to describe the impertinent and annoying behavior of chronic picture takers.”⁷⁹

American newspapers, for their part, were already known for their impertinence. One critic of the 1870s lambasted “keyhole journalism” for carrying out “espionage as universal and active as any despot ever established.”⁸⁰ Readers were scandalized, for instance, by published revelations about ex-President Grant on his deathbed in 1885, detailing “all his private, personal habits,” up to and including “a minute description of the state of his teeth.”⁸¹ Such audacity would be compounded by the pairing of instantaneous photography with a prurient press, possible once the halftone printing process was perfected. The first newspaper photograph was published in 1880, opening the floodgates for the mass circulation of images. By 1885, “illustrated journalism” had arrived in the form of 10-cent weeklies such as Harper’s and Scribner’s as well as “society news” pages in venues like New York’s Town Topics, a self-proclaimed pioneer of society journalism.⁸² The kernel of Henry James’s consternation can be seen in the latter organ’s boast, a mere six years later, that “nearly every Sunday paper in New York now devotes a full page to the movements and habits of society people.”⁸³

1.1.   Kodak’s Brownie camera, so simple to use that it could be “operated by any school boy or girl,” was introduced at the price of one dollar in 1900.

The new papers made exposure their mission, their primary target the exclusive parties and displays of wealth that had come to define the upper echelons of American urban society. These affairs inspired a brew of popular curiosity and hostility in a class-conscious culture—a voyeurism that the commercial press was only too happy to satisfy.⁸⁴ Gossip about the parties, marriages, honeymoons, and divorce trials of the urban elite flourished at the turn of the century, circulating in newly visible and durable fashion.⁸⁵ To cite just one example, a Newport, Rhode Island, beach that had been favored by social elites “had long been off-limits to reporters.” In 1902, Joseph Pulitzer’s New York World—its motto, “Spicy, Pithy, Pictoral”—was emboldened to print, for the first time, candid photos of beachgoers enjoying what had been theretofore “regarded as private space.”⁸⁶ Glimpsing a market for pictures and news about members of society who had largely been shielded from public view, reporters pursued all manner of tactics to pursue a story. Libel proceedings against Town Topics in 1906 disclosed allegations of blackmail and character assassination—as well as evidence that a journalist on staff had “disguised himself variously as a telegraph operator, a tambourine player, and a mathematics professor in order to get inside information about society folk.”⁸⁷

Society folk were not the only ones to come in for close and embarrassing scrutiny. Inside the same broadsheets and magazines that circulated scandalous photographs and salacious gossip were new “human interest” stories featuring bizarre or tragic incidents in the lives of private citizens.⁸⁸ As the press sought out this untapped source of drama—thriving on tales of secret marriages, hidden crimes, and loose conduct (and with few scruples about the truth of its reports)—lives that at one point would have been lived in obscurity were placed on display. Offense over the tarring of one’s reputation was not restricted to the elite. The striking uptick in libel suits in the last decades of the century by citizens from all walks of life speaks to the felt damage of “false, embarrassing, and unflattering depictions” in both print and image. As legal scholar Samantha Barbas argues, the anonymous settings of late nineteenth-century urban society and the growth of a mass-mediated culture were awakening Americans across the class spectrum to the importance of managing the personas they projected to the world.⁸⁹

That project was made considerably more challenging by another set of commercial invaders: advertisers, easily the equal of journalists in circulating embarrassing depictions. In a context where photography was still new and questions of copyright favored the picture taker rather than the pictured, advertisers made brazen use of people’s likenesses for profit. It meant that individuals could discover without warning their own image adorning a product or plastered on a public building. This was the essence of what Barbas has termed the “crisis of the circulating portrait.” Particularly at a time when many viewed advertising for commercial goods as “disreputable and even immoral,” the pairing of one’s image with a product could be a deeply felt affront.⁹⁰ The intense media publicity attending President Grover Cleveland’s wedding to his legal ward, Frances Folsom, only 21 years old, produced a flurry of public outrage in 1886. So did the unauthorized use of the new First Lady’s image, which found its way into advertisements for products ranging from soap to pianos to cigarettes.⁹¹ The actress Marion Manola, who had appeared “in tights” while performing on Broadway, went to court in 1890 to protest having a photograph (surreptitiously taken) of the same in circulation.⁹²

Unwanted publicity—whether via print or photograph—was the product of new technologies. But it was also the sign of a changing culture, in which commercial interests might override class prerogatives. For elite commentators, the harm to polite standards by “newspaperization” (to use Henry James’s term) was self-evident.⁹³ They chafed not so much at the fact of scrutiny as the fact that it was coming from those outside their social circle. For those used to controlling the terms of disclosure, the unfettered circulation of news stories and commercial photographs carried significant risks. The founding editor of The Nation and longtime editor of the New York Evening Post, E. L. Godkin, spoke for many of his class when he called for a man’s freedom to “draw the line between his life as an individual and his life as a citizen, or in other words, the power of deciding how much or how little the community shall see of him, or know of him.”⁹⁴ Godkin, who judged reputation “the most valuable thing on earth,” understood that familiar methods of establishing and managing one’s public portrait were giving way to less controllable techniques by which a man might be identified or exposed.⁹⁵ His worry was the protection of one’s good name in a culture where the rules regulating speech, disclosure, and discretion seemed to be unraveling.

And yet, even those most strenuously opposed to the new modes of exposure conceded that publicity was not always unwelcome. “To some people it causes exquisite pain to have their private life laid bare to the world,” reflected Godkin. But others—whose “taste must be recognized as … depraved,” he urged—“put themselves in the way of having their private life explored by the press.”⁹⁶ Included in this group were certain members of high society, who deliberately courted publicity and burnished their reputations by opening the interiors of their homes to photo spreads for the new Sunday papers.⁹⁷ Godkin’s code of honor and reputation was coming up hard against the desire for notoriety and the “frenzy of renown,” a common theme of contemporary critics and novelists.⁹⁸

Popular journalism, along with telegraph cables and telephone wires, made citizens’ private affairs newly vulnerable. At the same time, the very fact that private life had become a subject of public exposure could encourage fuller disclosure.⁹⁹ A culture newly immersed in advertisements and other visual media was slowly but surely changing its understanding of what would be known and what could be displayed without shame. This swirl of practices—not simply the novel array of intrusions but also the new quest to see and be seen—did not just distress Henry James. It also generated the first modern American crisis around privacy.

Inventing the Right to Privacy

It was not a novelist but rather two lawyers, Samuel Warren and Louis Brandeis, who would be credited with sounding the alarm about privacy and the modern person. But the source was the same: the potent trinity of press, photography, and publicity in the late nineteenth century. In 1890, the two published a Harvard Law Review article on “The Right to Privacy” that went on to become a legal as well as a cultural sensation.¹⁰⁰

Brandeis and Warren, law school classmates at Harvard in the 1870s (first and second in their class, respectively) and then partners at a Boston law firm, had collaborated most recently on two articles on the law of ponds.¹⁰¹ Their decision to wade into the arena of privacy—prompted by the well-born Samuel Warren’s irritating brushes with the Boston society papers—catapulted both the authors and the issue to prominence.¹⁰² Intriguingly, it was a decision they made with publicity in mind, hoping to broadcast the name of their firm and to produce provocative copy for the journal, which Brandeis had helped establish.¹⁰³ They succeeded beyond their expectations. Their demand that the individual’s “private personal affairs shall not be laid bare to the world,” Dean Roscoe Pound of Harvard Law School later declared, “did nothing less than add a chapter to the law”—earning Warren and Brandeis pride of place as modern privacy’s expounders up to the present day.¹⁰⁴ Their 1890 essay offered a compelling case for privacy as a defense against contemporary society’s press on the individual, as well as a set of concepts and tools that some citizens immediately took up in state courts.

The career of Warren and Brandeis’s essay has been nothing short of extraordinary, its mere twenty-eight pages spawning a vast legal and scholarly corpus. The subject of immediate interest and commentary, “The Right to Privacy” is an enduring presence in American jurisprudence, cited in “virtually every case utilized by the highest state courts as a vehicle for recognizing or refusing to recognize privacy rights” and relied on as recently as 2001 (by concurring and dissenting justices alike) in an important Supreme Court privacy case, Kyllo v. United States.¹⁰⁵ Scholars have examined Warren and Brandeis’s arguments with great care, plumbing the genesis of their understanding of the “right to be let alone” (a phrase that was not theirs but Thomas Cooley’s in his 1879 treatise on torts), the French and Roman law examples they drew on, and the aptness of their extrapolations from copyright law, intellectual property, and the protection against self-incrimination.¹⁰⁶ Still others have dissected the consequences of their 1890 formulation of a “right to privacy”—notably the four U.S. privacy torts that would develop over the course of the twentieth century—and its present relevance.¹⁰⁷ Even Warren and Brandeis’s sharpest critics have been unable to escape the essay’s lasting imprint.¹⁰⁸

1.2.   Samuel Warren and Louis Brandeis’s essay on “The Right to Privacy” called for legal recognition of “a right to one’s personality.”

The Boston lawyers, like Henry James and E. L. Godkin, built their case for privacy on the shoals of publicity. They cited the indignities of the “unauthorized circulation of portraits of private persons” and of newspapers that trafficked in gossip “as a trade,” adding to the list the exploitation of “any other modern device for rewording or reproducing scenes or sounds.” They pointed in particular to recent inventions, the “mechanical devices” that “threatened to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” The precariousness of privacy in these new conditions, they argued, fully warranted “the next step which must be taken for the protection of the person.”¹⁰⁹ Whereas other late nineteenth-century commentators on the problem (namely Godkin) could only muster remedies such as “the cudgel or the horsewhip,” Warren and Brandeis spied a solution in tort law.¹¹⁰ In seeking to justify a right to be free of unwanted publicity, a right that they argued was not new but rooted in the common law, the lawyers sought to protect the private person as well as the seemliness of public discourse.

Warren and Brandeis argued that new technologies of publicity—“instantaneous photographs” and a “prurient” newspaper enterprise—had “invaded the sacred precincts of private and domestic life,” overstepping the “obvious bounds of propriety and of decency.” Their figuring of such incursions as a spatial breach borrowed rhetorically from a physical, property-based understanding of privacy. Yet their essay signaled an important rethinking of privacy’s reach. Warren and Brandeis pointed to modern conditions as triggering new privacy questions. They would also modernize the claim to privacy itself, suggesting that feelings and emotions might be just as important as property lines in judging whether an individual’s personal realm was violated. While the lawyers sounded many of the same notes as their peers, they underscored the psychic as much as the reputational harms that flowed from publicizing one’s private affairs. The printing of an unwanted photograph or story, they urged, could create “mental pain and distress, far greater than could be inflicted by mere bodily injury.” They went further still in arguing for “the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.”¹¹¹ Simply to be revealed—to be known when one wished not to be—ought itself count as an actionable harm.

Importantly, this harm resulted not simply from new methods of publicity, or even from the “intensity and complexity” of urban society, which had made “solitude and privacy” more “essential to the individual.”¹¹² For Warren and Brandeis, the damage stemmed from the very makeup of the modern person. The contemporary “personality,” the lawyers maintained, was uniquely pained by exposure. E. L. Godkin had declared privacy “a distinctly modern product, one of the luxuries of civilization.” It was “not only unsought for but unknown in primitive or barbarous societies”—even, he ventured, in those of “our Anglo-Saxon ancestors in England.”¹¹³ For Warren and Brandeis too, Americans’ sensitivity to the airing of private matters was a historical development, a triumph of civilization’s advance. In this sense, both the new-fangled invasions of privacy and the desire to escape them were marks of modernity. The collision between the highly refined sensibilities of contemporary citizens and the novel means of offending them was what required, even made “inevitable,” a response by the law. Thus at the close of the nineteenth century, as perhaps they had not before, “thoughts, emotions, and sensations demanded legal recognition.”¹¹⁴

Most famously, the Boston lawyers called for a shield around something they called the “inviolate personality,” or “the right to one’s personality.”¹¹⁵ In doing so they echoed the German sociologist Georg Simmel, who believed that “the personality value of the individual”—one’s “spiritual private property”—suffered any time the “ideal sphere” around it was transgressed.¹¹⁶ Simmel and the authors of “The Right to Privacy” alike turned to “personality” to capture an interior essence that both belonged to and defined the modern person.¹¹⁷ Privacy in this light was not simply an aspect of individual liberty or property but a psychological, even spiritual matter.¹¹⁸ A sensibility as much as a state, its violation did more than cheapen one’s public currency: it assaulted one’s very sense of personhood. While defamation law, the traditional resort for damage to reputation, responded only to one’s external relations with the community, a right to privacy might encompass incursions on a person’s “estimate of himself” and “his own feelings.”¹¹⁹ Warren and Brandeis’s call for novel legal protections was thus a bid for extending privacy’s scope as well as the law’s.

Given the ways that privilege and property colored elite understandings of privacy in the late nineteenth century, it is worth asking what the “obvious bounds of propriety” meant to Warren and Brandeis, and for whose rights they advocated. Some have pointed to an egalitarian strain in the lawyers’ thinking that was missing from most critiques of invasive journalism of their day.¹²⁰ In arguing for their new right, Warren and Brandeis asserted for example that it should “protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will.”¹²¹ They did not wish to shield only the polite classes from the scrutiny of a rogue press. But it is also clear that the privacy of “The Right to Privacy” was specific to the gender, race, and social class of its authors. Privacy’s appearance in the pages of the Harvard Law Review—the fact that it seemed to require deliberate enunciation—was a sign of privilege under siege.

Warren and Brandeis could not, for example, fully put aside Godkin’s understanding of privacy as a bourgeois entitlement. Their article can be read as a brief for reestablishing proper social boundaries and regulating public morality. One scholar calls the real subject of Warren and Brandeis’s concern a man “with a certain standing, habituated to controlling his environment and information about himself, and with an interest in continuing to do so.”¹²² Others have detected the conservative intent of the essay, even as they grant its radical approach to the law. A recent assessment characterizes Warren and Brandeis’s call for privacy rights as part of “a broader legal strategy by late-nineteenth century elites to protect their reputations from the masses in the face of disruptive social and technological change.”¹²³ The lawyers focused on prominent men like themselves, whose delicate sensibilities and public standing purportedly caused them to suffer most—both psychologically and practically—from privacy invasions.¹²⁴ This vision of privacy was patriarchal as well as privileged. Quoting approvingly Godkin’s defense of “a man’s house as his castle,” the 1890 essay linked a man’s reputation to the modesty and reserve of his wife and daughters, enlarging his privacy as it circumscribed theirs.¹²⁵ As two feminist legal scholars write, “The privacy tort was the brainchild of nineteenth-century men of privilege, and it shows.”¹²⁶

Privacy would have been imagined otherwise by those situated differently from the Boston lawyers. To establish the limits of their vision is not however to dethrone their social analysis or their essay’s place in privacy jurisprudence. The two authored a ringing statement of the right to be let alone that resonated in 1890 as much as it does today. If they were, indisputably, speaking from a particular vantage point, they were not only speaking for themselves. Nor is it to deny what many later commentators have applauded: Warren and Brandeis’s prescient articulation of the need for sanctuary from the invasiveness of modern society and their “acute insight into the ways new technologies can so disrupt social life and practices as to threaten moral and political values.”¹²⁷

Situating Warren and Brandeis in their place and time simply clarifies the multiple strains in American ideas about privacy that were churning around them. To identify new kinds of intrusion in “The Right to Privacy” was to reinforce an argument about particular spaces as private and needing protection. Yet it was also to glimpse a changing social landscape. An older sort of privacy that the lawyers prized, grounded in propriety and the male-headed household, was beginning to come apart—the victim not simply of new technologies and commercial impulses but also of the social practices and political demands of a more democratic culture. These developments were fraying the assumption that a wall of secrecy was universally desirable and in need of buttressing, even among their peers. Brandeis seemed to recognize this in a letter to his fiancée, Alice Goldmark, regarding the famous essay. He mused, “Our hope is to make people see that invasions of privacy are not necessarily borne—and then make them ashamed of the pleasure they take in subjecting themselves to such invasions.”¹²⁸

Indeed, by setting in motion a modern narrative of privacy in peril, he and Samuel Warren simplified the problem. Positioning an aggressive, prurient press against discreet and properly regulated individuals, they underestimated the force of citizens’ desire to know others and also to be known as they wished. As the rapid emergence of the “Kodak fiend” and the eager readers of the illustrated weeklies implied, fear of intrusion was always only one side of the coin. A desire to transgress settled boundaries, in order both to discover and to disclose, was the other. The evident allure of new technologies and opportunities for self-display pointed to substantial disagreement with Warren and Brandeis’s social vision in both the lower and upper echelons of American society. For all their essay’s fame, then, the lawyers may have been poor guides to what was happening to privacy at the turn of the twentieth century. Trying to ward off threats to a set of values they held dear, Warren and Brandeis could not see that new conceptions of personal privacy were already at play in the social practices around them.

In contrast, the readers of wire thrillers, writers for the popular press, and listeners on party lines may have been finding their way to a modern understanding of the private person. This amounted not to a renunciation but a redrawing of the line between public and private—and a clue to the way self and sociability were being reorganized in a mass-mediated world. Godkin for instance in 1890 pronounced “social promiscuousness” along with “loss of seclusion” as a special kind of grievance for those of finer sensibilities.¹²⁹ A New Orleans sleeping car conductor in 1899 begged to differ. He claimed that “the average American doesn’t want privacy”—and indeed that his patrons regarded “the privacy of a [rail] compartment as a positive infliction.” Travelers instead, he declared, sought out the “promiscuous mingling of passengers.”¹³⁰ We need not substitute the conductor’s judgment for Brandeis and Warren’s, or “promiscuous mingling” for the “inviolate personality.” Rather, their juxtaposition helps us better perceive what was at stake in debates about privacy at the turn of the century than does the famous Harvard Law Review essay alone.

In the late nineteenth century, the “sacred precincts of private and domestic life” were not simply being invaded; they were also being rethought. New means of sharing and communicating information were altering the very contents of public and private life. Telephone wires and photojournalism were just two of the modern technologies prompting this change. But they did not cause the boundaries around the private person to collapse. Those boundaries were just becoming less material and less tethered to the bourgeois household—and they could still be ardently defended.

Such would become clear in the many attempts by litigants to make a reality of the “right to privacy” and in the ways privacy would be wielded in struggles over how citizens would and should be known in the years to come. Even if designed with men of reputation in mind, the new right clearly carried much broader appeal. From the outset, it was employed by a diverse cast of characters. In the decade after the two Boston lawyers published their essay, a right to privacy would be tested in a series of state court decisions, especially in New York. Not surprisingly, unwanted publicity cases were rare, its victims wary of drawing still more press. Instead, and quite conspicuously, most of the early trials centered on disputes over the rightful ownership of photographs. These were cases in which individuals sought control over their images and did not shrink from using the law to seek redress for emotional distress, embarrassment, and hurt feelings.¹³¹ Something like the “inviolate personality”—rather than property or even propriety—would underpin these claims.

Even before Warren and Brandeis took up the issue of privacy, Congress had introduced legislation designed to bar women’s images from being used in commerce without written consent—a direct consequence of the outrage visited on Frances Folsom, President Cleveland’s bride. “A Bill to Protect Ladies,” introduced in the House of Representatives in 1888, responded to the fact that women were much more often than men the subject of surreptitious photographs.¹³² The bill did not refer to individual privacy, however, but to the offense caused by the circulation of “vulgar and unauthorized” images of “the wife, daughter, mother or sister of any citizen of the United States.” As its language suggests, the bill was a paternalistic effort, rooted in understandings of domestic respectability and aimed at shoring up female modesty. Yet it was also an admission of the threat that commercial culture, and its new agents of penetration and publicity, posed to that vision.

Female litigants would mount an equal challenge to patriarchal privacy in the years to come. Embarrassed, even disgraced, by the use of their faces and bodies in advertisements and other commercial peddling, they would soon take up the tools of the law on their own behalf, employing the first modern uses of a “right to privacy” in the courts. At a time when women were the minority of litigants overall, historian Jessica Lake has found that they constituted the majority of privacy plaintiffs. They pioneered arguments about the dangers that publicity posed not to the bourgeois household but to individual personality. Their suits were certainly undergirded by gendered norms of modesty and decency, but women’s protest against the unwanted use of their images struck a different note than did the “Bill to Protect Ladies.” They staked their claims to privacy as individuals, decoupling that right from the family, household, or physical home. Female plaintiffs, Lake contends, thus helped divert the law of privacy from its focus on property to a more modern concern with personality.¹³³

Such arguments did not immediately succeed, notably in the notorious 1902 case, Roberson v. Rochester Folding Box Company. Abigail Marie Roberson’s 1900 claim was lodged against the Franklin Mills Flour company for “equitable relief and damages” to compensate for the unauthorized use of her image. More specifically she cited the making and then displaying—in stores, saloons, and other public venues—of 25,000 “lithographic prints, photographs, and likenesses” of herself without her knowledge or prior consent. (Indeed, she only learned of the campaign when she glimpsed her own face on a neighbor’s bag of flour.) Roberson charged that the advertisements and their viewing by acquaintances caused her “great distress and suffering in both body and mind.” A sympathetic lower court acknowledged that “the theory upon which this action is predicated is new.” Still, it ruled in her favor, judging her “right of privacy” violated. The New York Court of Appeals, however, reversed the decision. Testifying to changing norms around publicity, it did so in part based on its determination that the portrait in question was not libelous (indeed it was “a very good one”) and that some would have found the advertisement “agreeable”—even a “compliment to their beauty.”¹³⁴

Referring to the celebrated Warren and Brandeis article only to dismantle its arguments, the Chief Justice of the New York Court of Appeals found no precedent for “a right to be let alone,” nor even any mention of such a right before 1890, when it appeared “in a clever article in the Harvard Law Review.” The judge dismissed what he derided as the “so-called right to privacy” for its preposterous claim “that a man has the 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.”¹³⁵ In effect, the court dismissed out of hand the law’s interest or ability to comprehend what it termed “psychological injuries”—although in so doing, it seemed to confirm the popular demand for such a remedy, positing the “vast amount of litigation … bordering on the absurd” that would follow from recognizing a right to privacy.¹³⁶

Others, however, embraced Warren and Brandeis’s notion of an inviolate personality, entitled to society’s protection. Commentators pounced on the judge’s unyielding heart toward the humiliated Abigail Roberson, furious about the wanton use of her features to advertise flour. A popular outcry against the decision would lead the New York legislature to pass the nation’s first privacy tort statute the following year. It allowed individuals to sue for invasion of privacy where their “name, portrait, or picture” was used without consent “for purposes of trade.”¹³⁷ Three years later, the Supreme Court of Georgia would be the first to recognize this species of privacy claim, in this instance a man’s right not to have his photograph accompany an advertisement for life insurance.¹³⁸ In time, nearly every state would follow Georgia’s example.¹³⁹

The inviolate personality would thus have its day in court.¹⁴⁰ Roberson’s suit, after all, was unrelated to literal trespass or invasion of private property. In litigants’ claims to their own images and their attempt to halt others’ use of them, we can chart a sea change in commonplace understandings of privacy. A version of Warren and Brandeis’s right to privacy would be embraced, although it would not typically be in the service of shielding the polite classes from an impolite press.¹⁴¹ A far more eclectic group of individuals sought instead to bar the unauthorized commercial use of their unique personalities in the form of a name, likeness, or photographed image. State laws and courts would in ensuing decades define a range of privacy harms, falling into four more or less distinct categories: intrusion on seclusion or solitude; public disclosure of private facts; publication placing a person in a false light; and appropriation or unauthorized use of one’s name or likeness.¹⁴² As these privacy torts evolved in the twentieth century, easily the most successful of them—and the one in best working order today—was the last, the so-called right of publicity, including the privilege of profiting from one’s distinctive persona.¹⁴³ That a right to publicity is the most enduring legacy of Warren and Brandeis’s 1890 article is ironic indeed.¹⁴⁴ But it testifies to the force with which ephemeral and distinctly nonpropertied matters of “personality” had moved into the legal as well as popular definition of privacy.

Techniques of Public Order

Photographers and journalists attracted the lion’s share of attention in privacy controversies at the turn of the twentieth century because they encroached upon the well-defended lives and spaces of urban elites. The ability of upper- and middle-class citizens to define what counted as a violation of privacy would prove a durable pattern. But the press was not the only party seeking to know citizens or to provoke debates over how and to whom Americans ought to be known. Novel techniques of “publicity” were taking root in many other corners of U.S. society in these years. Some of the most significant of these arrived not in the service of scandal or entertainment but in the name of public order—and in the hands of those tasked with policing, governing, and otherwise deciphering urban crowds.

This form of knowing citizens was the work of public officials, private companies, and enforcers of the law. Together, they represented the stirrings of a modern surveillance society. Their techniques differed from those employed by the popular press, although they often relied on the same technologies that had prompted Warren and Brandeis to take up their pens. Instead of splashing private matters across the front pages of newspapers, these agents of exposure quietly collected and collated information, putting private facts to work for larger purposes. They did not, as a rule, target elites. And their labors would not result in anything as enduring as a new legal claim or a “right to one’s own personality.” Yet credit bureaus, census schedules, and public health campaigns, along with innovations in tracking criminals and other suspect citizens, sparked insistent questions about individual privacy. They kept open—and widened—the debate over the proper bounds of a knowing society.

The judge in the 1902 Roberson case had pointedly disputed the notion that “a man has the right to pass through this world, if he wills, without having his picture published.” That same year, a Chicago editorialist suggested that the very category of “private citizen” was becoming obsolete in an ever more “organized” society. Once, he argued, there had been a meaningful distinction between a public man and a private one. The former rose “into the scope of the public eye by reason of his wealth or business or philanthropy or interest in politics.” Such a figure was “in a sense public property,” required on account of his power and prominence to “turn over his life to the public.” Private citizens, by contrast, were properly “the unknown,” their concerns the business of no one but themselves and their families. For this writer, it was ordinary Americans, not denizens of high society, who were the true claimants to privacy. The critical difference between a public and a private life was, however, dissolving—the “so-called private citizen” falling victim to a long list of inquisitors: the city health department, the board of education, the gas inspector, the life insurance agent, the loan officer, the detective sergeant, the telephone directory, and the marriage license clerk.¹⁴⁵ If less spectacularly than the popular press, each agency on this list played a part in making “public men” of all Americans.

As this writer implied, new modes of sharing and recording information at the turn of the century alerted citizens to the fact that the hidden recesses of their lives might not remain hidden. Public health measures, for one, seemed more uncomfortably probing to some at the turn of the century. Earlier reformers had often, without much comment, entered into the homes of the urban poor in search of the roots of contagious disease.¹⁴⁶ African American washerwomen in Atlanta and Baltimore and Chinese laundry workers in San Francisco, suspected of being vectors of tuberculosis and plague, had been especially prone to “sanitary surveillance.”¹⁴⁷ Scholars have documented how intrusive such inspections were. Early tuberculosis case reports in Maryland included not only information about employment and earning power but also data on the size and habits of the family—whether members kissed each other on the mouth, shared utensils and napkins, or spat on the floor, for instance—and on sleeping arrangements and cleaning practices.¹⁴⁸

Only as disease prevention became professionalized in the early twentieth century and as more Americans came under the gaze of public health officials, however, did the indignities of “disease surveillance” become an object of mainstream discussion. During the New York City polio epidemic of 1916, for instance, officials placarded the homes of the infected and also turned to the press to publicize the path of contagion, broadcasting a daily list of the names and addresses of those with the disease in the local papers.¹⁴⁹

City health departments and boards of education were simultaneously bringing individual inspections and disease tracking into the schools. Even the youngest of citizens were now subject to what some deemed improper prying. If the American schoolboy “has had smallpox, diphtheria, or measles, the Board of Education wants to know it,” charged one critic. As if this were not enough, officials would periodically appear at the student’s school, “look at his tongue and in other ways pierce the veil of privacy to see whether he has been careless enough to contract croup or anything that may be dangerous to the pupil that sits next to him.”¹⁵⁰ Considerable resistance to compulsory vaccination in the early twentieth century, as historian Michael Willrich has shown, exposed the rift between those who brought “the best scientific knowledge” to bear in the service of social welfare and the “right of a free people to take care of their own bodies and children according to their own medical beliefs and consciences.”¹⁵¹

New methods of tallying the population inspired their own scattered protests. The invention of the Hollerith card puncher in 1889 made possible the astonishingly swift processing of census forms the next year—a task previously done by hand, by hundreds of clerks—and at a fraction of the cost. Automated counting made new kinds of cross-tabulation feasible, a development that dovetailed with new demands for statistical data from Congress, as well as business associations, reformers, and “university men,” leading to calls for a permanent federal agency. The upshot, observes historian Margo Anderson, was that apportionment became almost incidental to the census, which was now a “full-fledged instrument to monitor the overall state of American society.”¹⁵²

As did the new public health measures, the expanded length and inquisitiveness of the census schedule came under fire. In particular, questions added to the 1890 census about matters related to health and finances—quickly dubbed the “disease and debts” questions—provoked a storm of criticism.¹⁵³ E. L. Godkin once again weighed in, this time to protest the propriety of a “stranger popping in from the street with a note-book” to probe one’s history of contagious disease or levels of indebtedness. Godkin charged, “No man, and especially no woman, likes to tell a stranger about a secret disease or disability—that is, about one which is not visible—and about debts and liabilities.”¹⁵⁴ The New York Sun likewise branded the questions “an outrageous invasion of the personal and private business of the citizen.”¹⁵⁵ Some of these citizens protested with their silence, refusing to answer the questions or even reveal their names to census enumerators. Whereas fewer than a half-dozen “total refusals” had been recorded for previous censuses, in 1890 there were sixty arrests for noncompliance in New York City alone.¹⁵⁶ This particular scuffle between official information seekers and the public would be resolved by a less capacious census form in 1900. In the meantime, it revealed that the quest for better information about the population could fuel popular resentment.

Newfound capacities to know and to track citizens were, however, most telling—both in their practical use and their political logic—in the domain of law enforcement. When Warren and Brandeis made their case for a right to privacy in 1890, the state’s grip on citizens’ lives was light and its role in crime control minimal. Policing was relegated to localities and private detectives, with just a few federal enforcement units in existence to combat mail fraud, counterfeiting, and the like.¹⁵⁷

This situation was changing rapidly at the turn of the century. The “mechanical devices” that the Boston lawyers had singled out for imperiling privacy, including instantaneous photography and the telephone lines, were partly to thank. Agents of the law had early on glimpsed the possibilities of photography for extending the eyes of the police, following early experiments in France. Already in 1858, the New York City Police Department had organized the nation’s first “rogue’s gallery,” reasoning that by placing criminals’ faces on file, police officers would be better equipped to apprehend them.¹⁵⁸ In police work, the camera—once “an artistic device for portraying and honoring individuals”—was transformed into “a powerful political technology with which to capture and control them.”¹⁵⁹ In the later nineteenth century it became a routine tool for identifying criminals and establishing permanent records, giving new substance to a person’s classification as a “known criminal.” Wiretaps would likewise become a favorite instrument of urban police, and eventually federal law enforcement.

The period spanning “The Right to Privacy” and the 1920s witnessed the at first hesitant and then far more confident steps by the police and the federal government to keep tabs on those Americans judged a threat to the public order. “In the space of a few decades,” summarizes historian Alfred McCoy, the United States went from being a “society with fragmentary records and local constables” to one with “centralized criminal files, wired cities, nascent intelligence services and systematic social indices.”¹⁶⁰

More systematic policing was the joint product of separate developments that fused in the first two decades of the new century: the rise of a national security apparatus to ward off external threats and the churn of disorder from anarchists and criminals within American society. Official U.S. surveillance capacities, honed during the Philippine-American War in the waning years of the nineteenth century, would find a home in the domestic Bureau of Investigation. The Bureau was founded in 1908 as an outfit for thwarting customs and postal fraud, but it would soon expand its portfolio. Rife with class conflict, the late nineteenth and early twentieth centuries witnessed a rash of violent attacks, bombings, and assassination attempts. These riveted local and federal agents’ attention to the threat of radical and labor movements and the unchecked flow of immigrants entering the country. The Bureau in turn began to use the tools that had been employed to quash insurrection abroad to quell problems at home.¹⁶¹

In the 1910s, as conflict brewed overseas, the war in Europe and class warfare in the United States became “increasingly intertwined” in the eyes of those responsible for law enforcement and national security.¹⁶² The fledgling Bureau of Investigation would remake itself into a domestic surveillance unit as fears of German spying grew, with the agency almost doubling in size during the war.¹⁶³ As scholars have well documented, wartime prejudices and fears of subversion during Woodrow Wilson’s administration led to the extensive monitoring of radicals and other suspect citizens, which included the censorship of mail, the interception of international telephone and telegraph communications, immigrant roundups, and loyalty investigations.¹⁶⁴ Especially critical to the evolving shape of policing was the “wartime assault on enemy aliens,” which as one historian notes, “laid the foundations of twentieth-century political surveillance.”¹⁶⁵ It did so by enlisting, via the American Protective League, several hundred thousand volunteers to watch their neighbors and engage in mass raids.¹⁶⁶ This effort revealed the vigilance with which some citizens were willing to invade others’ privacy in the name of patriotism and national security. Collectively, they generated a million pages of surveillance reports in just eighteen months of war.¹⁶⁷

World War I made clear the perils of being known to authorities. The federal government in sudden and unprecedented fashion reined in dissent and “seditious speech,” such that more than a thousand men and women were imprisoned for the crime of “speaking out” under the Espionage Act of 1917.¹⁶⁸ Believing African Americans to be especially receptive to antiwar propaganda and a “weak link in the political, economic, and military cohesion required for total war”—ironically, precisely because of their unjust treatment in American society—the Wilson administration unleashed a “constant watch on the activities of black civilians and soldiers,” including equal rights organizations and publications.¹⁶⁹ Even more intensive scrutiny was brought to bear on German Americans, non-naturalized aliens, and radicals.

The knowledge that resulted was often slapdash and inaccurate. Domestic surveillance reports on African American “subversives” revealed, in one historian’s assessment, “just how little whites typically knew, or could be bothered to know, about their black fellow citizens.”¹⁷⁰ But this did not mean the watching was inconsequential. Nor would the crackdown let up after the war, as race riots, labor strikes, communist plots, and bootlegging took center stage as the new forces of disorder. The Red Scare of 1919–1920 led to the deportation of hundreds of immigrant radicals. And as historian Lisa McGirr documents, the “war on alcohol” following the passage of the Volstead Act in 1919 “left a powerful imprint on the federal state, tilting it toward policing, surveillance, and punishment.” Calls for law and order enabled the Bureau of Investigation to federalize its knowledge of criminals and pilot new surveillance strategies.¹⁷¹ It would make ample use of the technologies of publicity to strengthen the capacities of the central state.

The war and its aftermath revealed the extent to which a knowing society had grown up in the early twentieth-century United States. Its victims would find champions in the new American Civil Liberties Union, which mounted an organized response to the draconian wartime constraints on speech and dissent.¹⁷² But this did not amount to a defense of individual privacy or a right to personality—suggesting that privacy was not yet a plausible civil liberty equal to freedom of speech or association nor the most promising place to ground a claim for protection.

Early twentieth-century law enforcement exposed the unevenness with which citizens were coming to be known in a modern state. It also made clear that the kind of privacy imagined by Warren and Brandeis to be imperiled by publicity and the sort of privacy compromised by the demands of public order might have different trajectories. Elites lodged loud protests, provoked by the impudence of the society press. But the burden of new technologies of scrutiny fell much more heavily on those at the other end of the class spectrum. These invasions did not however stir the outrage of the privileged; indeed, they were rarely classed under the banner of privacy at all. Claims to a right to privacy may have been expanding in this era, but they still belonged first and foremost to the white, law-abiding middle and upper classes.

This disparity is underscored by the strong appeal of biometric techniques for both law enforcement agents and elite Americans in these same decades. Fingerprinting was yet another new technology of the 1890s, identifying the person not through a photograph or a news story but through a unique pattern on the tip of a finger. Dactyloscopy, as it was known in scientific circles, was the product of the search for “a better technology of criminal identification” during the last decades of the nineteenth century. Bertillonage—a set of precise bodily measurements taken by calipers and rulers to create an individual record, and which vied with fingerprinting for preeminence as a method of identification—was another.¹⁷³ First used systematically by the Argentine Central Police in 1891, then by colonial police in India in 1897, and by Scotland Yard beginning in 1902, fingerprinting was, as Simon Cole writes, a technique made for “modern, anonymous, socially mobile societies … brimming with people who were strangers, both to one another and to the state.” U.S. police departments became enthralled with the technique after viewing demonstrations at the 1904 St. Louis World’s Fair. For them, fingerprinting held out the promise that they might be able to detect and thus control “the invisible danger hidden beneath the social fabric.”¹⁷⁴

Fingerprinting, Cole makes clear, was developed not with the respectable but with the suspect classes in mind: the natives of European colonies, recent immigrants, people of color, vagrants, degenerates, and prostitutes. It was a technique thought to be particularly well suited to the Americas, where vast immigration waves and native whites’ equally vast suspicion of the foreign born mingled so powerfully. Cole argues that fingerprint identification was early on adopted by U.S. police departments and then the Federal Bureau of Investigation for its ability to decipher the masses of “racially unfamiliar” and thus menacing streams of newcomers to America’s cities whom the state might have an interest in knowing. Only later would its advocates and professional societies look toward an era when the fingerprint might serve as a key “civilian identifier” used “in all aspects of daily life and social interaction.”¹⁷⁵

Like the new journalism, then, fingerprinting was a modern instrument for monitoring individuals. But whereas the popular press had pursued some of society’s most privileged citizens, this particular technology of publicity homed in on much less favored populations: anarchists, aliens, dissidents, union members, and potential criminals. These were people who had never been sheltered by social codes of reputation and honor or an implicit right to privacy. The difference this made was evident in the disputes over proposals for mandatory fingerprinting that unfolded in scattered cities in the 1910s and 1920s. “Universal registration societies” composed of affluent citizens and corporate leaders led the campaign.¹⁷⁶ Although it might seem counterintuitive, it was no coincidence that many who endorsed mandatory identification were drawn from the same ranks of the respectable who would have in Warren and Brandeis’s day been most chagrined by unwanted publicity. The visibility promised by a fingerprint registry was not intended for them.

As it turned out, the ostensible objects of this campaign had no desire for this form of publicity either. Mandatory fingerprinting was greeted with strong denunciations and organized protests. Taxicab drivers and hotel employees, along with the young American Civil Liberties Union, were the strongest claimants to this version of a right to privacy. A 1920 cabbie strike, 300 people strong, in fact began as a protest against a Cleveland fingerprinting ordinance, complete with “antifingerprint picket lines.” The struggles that broke out in several other U.S. cities would eventually derail the campaign.¹⁷⁷

In the 1890s, privacy was a tool of the elite, brandished against less prominent citizens who pried into their affairs. In the 1920s, laborers invoked the right to be free of elite scrutiny. The inversion of class positions suggests privacy’s growing rhetorical availability. By the second decade of the twentieth century, workers, and not simply “men of reputation,” believed themselves possessed of a right to privacy, of domains where middle-class reformers had no right to intrude. The strikers had a hold on the concept, a certainty about what privacy meant, that paralleled the claims of 1890s elites. If theirs was not precisely the right to privacy that Warren and Brandeis envisioned, they still made a bid for something like personal inviolability. Fingerprinting could appear, in one angry letter writer’s terms, as an “outrage upon the individual.”¹⁷⁸

The cabbies who refused to be tagged subscribed to an understanding of privacy detached from property. This was a form of privacy unyoked from status—rooted not in reputation but in personhood or “personality.”¹⁷⁹ Underneath Warren and Brandeis’s seminal 1890 essay and the fingerprint protest alike was this shifting conceptual ground. In this sense, the legal treatise signaled an important reworking of privacy’s contours for those far beyond the social elite. A concept like the “inviolate personality” was not the Boston lawyers’ alone. Its other users, whether litigants or laborers, were no less serious in their search for some accord between society’s scrutiny and the person’s need to be free of it. Women suing for the right to their photographs and taxi drivers who would not abide fingerprinting were thus, alongside the famous essayists, authors of the modern claim to privacy.

To travel from the concerns of Henry James and E. L. Godkin in the 1890s to those of striking “chauffeurs” in the 1920s is to glimpse the broad landscape of privacy debates that accompanied the growth of a knowing society, even as it throws into sharp relief the unequal attention they garnered. Calls for a right to privacy in the United States escalated alongside an aggressive press and commercial culture. But they did not end or even truly begin there, despite later claims that Warren and Brandeis had singlehandedly “invented” the right.¹⁸⁰ Turn-of-the-century Americans did not require legal exposition to persuade them that their privacy was endangered by new technologies of scrutiny or that they were entitled in some situations to be left alone. Even before Warren and Brandeis had framed the complaint, citizens had made scattered assertions of “private rights” in opposition to irksome forms of “publicity,” ranging from compulsory vaccinations to census taking.¹⁸¹ What enabled a right to privacy to gain traction in the last decade of the nineteenth century was not an unprecedented set of violations but that new right’s primary subjects and spokesmen. The fact that new media and communications technologies had come to intrude even on the lives of powerful Americans, prompting them to call for the private citizen’s inviolability, made the claim stick.

The modern right to privacy was first floated as a means of preserving an older form of propriety rooted in the domestic household and polite society. But its appearance, in the culture as much as the courts, signaled a fundamental transformation of the concept. Privacy’s meanings became less stable and more splintered after Warren and Brandeis’s “The Right to Privacy.” Private homes and private men were not the fortresses they were once presumed to be. In a mass-mediated, “organized,” information-hungry age, privacy would have to be found elsewhere. Conflicts over telephone lines and tattletale journalism, postcards and photographs, fingerprints and files, would over time shuttle new ideas about inviolability and rights, and more elastic boundaries around the person, into common culture.

Devotion to a right to privacy—that “distinctly modern product”—proved to be both fragile and fickle in the decades surrounding the turn of the century. The question of its contents as well as who it would cover closely tracked existing lines of privilege. While a few complaints and even lawsuits were lodged concerning the use of criminals’ images for display in rogues’ galleries, they did not rise to the level of public comment.¹⁸² And elites who railed against a “shameless” and “impudent” press for reporting on their affairs fell silent when it came to fingerprinting immigrants or common laborers. The unbounded surveillance of suspect persons during World War I and the Red Scare—often by their own neighbors and fellow citizens—far outstripped the transgressions of turn-of-the-century journalists and photographers, even though it sparked no privacy crusade. Still, privileged citizens alongside less prominent ones were giving voice to a question that would define many public debates in modern America. In a society that relentlessly sought to know, what claim did citizens have to a private realm or even to their own persons? Or as Warren and Brandeis put the same question in reverse, at what point must “the dignity and convenience of the individual” bow to “the demands of the public welfare”?¹⁸³

In this fashion, the “end of privacy,” or at least the end of one sort of privacy, would be fertile terrain for thinking about the nature of citizenship in a modern public. The debate that began in the late nineteenth century echoed an old question about the proper boundary between self and society. But it gained urgency by pitting inviolate selves against the unique intrusions of a knowing society. That clash generated a call for rights. More importantly, it set in motion a new politics. Demands to be free of the agents of publicity triggered fresh conflicts: between journalist and quarry, photographer and subject, surveillor and surveilled. The struggle could be more internal too. Citizens’ interest in knowing as well as their desire to remain unknown—or to be known only on their own terms—ensured that privacy would not relinquish its new prominence in American public culture.