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Saturday, August 1, 1992

The Property Rights Origins of Privacy Rights

Mary Chlopecki is a graduate of the School of Law at George Mason University, and is co-author with Clint Bolick of Grass Roots Tyranny and the Limits of Federalism (Cato Institute).

Among the many sermons Senator Joseph Biden delivered from his pulpit as chairman of the Senate Judiciary Committee during the 1991 confirmation hearings of Supreme Court Justice Clarence Thomas was one that might have been entitled “Up with Privacy, Down with Property.”

In a dramatic moment during this homily, Biden fashioned his arms into a scale to demonstrate how “traditionally” the courts have assigned tremendous value to privacy rights and a much lesser value to property rights.

Biden pointed to a 1977 Supreme Court decision, Moore v. City of East Cleveland, Ohio, as an excellent example of how the right to privacy protects precious and fundamental freedoms of Americans. In contrast, he invoked the works of professors Richard Epstein and Stephen Macedo as representative of a dangerous intellectual extreme that seeks to gain increased protection for that most dubious of asserted rights, the right to property. Biden’s goal, apparently, was to invite the Supreme Court nominee to join him on the record in glorifying privacy rights and denigrating property rights.

Perhaps the reason Biden failed is that privacy and property rights are intimately linked. Moreover, the integrity of privacy rights depends largely upon the protection of private property rights.


Meaning and Origins of the “Right to Privacy”

The “right to privacy” has meant different things to different people and different things in different times. Scholar W. A. Parent considers the following to be the most common views of what the right entails: (1) the right to be left alone, (2) the right to exercise autonomy or control over significant personal matters, and (3) the right to limit access to the self.[1]

Given the variety of beliefs regarding the content of privacy rights, and the absence of an explicit reference to privacy in the federal constitution and in most state constitutions, it is no surprise that courts interested in protecting privacy have protected an array of interests in its name. For instance, the U.S. Supreme Court has within the scope of privacy protected child rearing and education, contraception, and abortion. It has also considered the issues of peddlers going onto private property and disturbing homeowners, and loud trucks running through residential neighborhoods to involve privacy interests.

The concept of privacy and limited privacy rights was recognized in ancient Athens. Indeed, the language, law, and writings of the period reveal that privacy and property in Athenian society were interconnected, and recognized as such.[2]

While Athenian law respected a form of privacy, Plato believed that privacy could not serve a constructive social or psychological purpose, and argued for the eradication of the private realm. He believed that wiping out private property would contribute significantly to the elimination of all that is private, including thoughts, emotions, desires, judgments, and decisions.

Plato’s vision was never realized in Athens, nor was it influential in English and American jurisprudence, which continued in the Athenian vein to recognize and develop privacy rights in connection with property rights. In 18th-century England, the early parameters of what was to become the right to privacy were set in cases dealing with unconventional property claims. In Pope v. Curl (1741), a bookseller named Curl obtained and published, without consent of the authors, personal letters written to and by well-known literary figures, including Alexander Pope and Jonathan Swift. Pope sued Curl, seeking to have the book containing the letters removed from the market, and Curl enjoined from similar actions in the future. The Lord Chancellor upheld the privacy of Pope’s letters on the grounds that the writer of a letter has a property right in his words.


Extending Property Rights Protection

In the 1820 case of Yovatt v. Winyard, the court extended property rights protections to cover personal secrets. In that case, Winyard, a journeyman assistant, left the employ of Yovatt, a veterinarian, to start a competing business. Winyard used secret medicines in his new practice, providing clients with printed instructions on how to use them. Yovatt sued, alleging that Winyard had obtained the formulas for the medicines as well as the instructions for their use from him by surreptitious and clandestine means. Particularly, Yovatt believed Winyard had copied the information out of his personal book. The Lord Chancellor ruled in Yovatt’s favor on the grounds that there had been a breach of trust and confidence, and ordered Winyard to stop using the formulas and instructions.

Yovatt brings to light the interesting and important fact that “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’ were all wrapped together, in Yovatt’s time, under the principle of ‘property.’”[3] It was only later that these concepts were separated.

A third case that contributed to the development of privacy rights was Prince Albert v. Strange and Others, decided in 1849. The case was famous because the plaintiff was the husband of Queen Victoria, and the queen herself was an aggrieved party in the suit. In dispute was the right of printer William Strange to sell reproductions of etchings that he had catalogued and printed without the consent of their creators, Queen Victoria and Prince Albert.

While the right to privacy was not explicitly recognized at the time, Victoria and Albert argued their case in terms of their right to keep private art they had created for their personal enjoyment. Realizing that the court would protect a property interest, but not an independent privacy interest, Strange’s lawyer sought to capitalize on the distinction. He observed, “It has been argued that privacy is the essence of property, and that the deprivation of privacy would make it, in fact, cease to be property.” He concluded that “the notion of privacy is altogether distinct from that of property.” The court did not accept his argument. Ruling in favor of Victoria and Albert, the Vice Chancellor wrote: “Every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public or commit them only to the sight of his friends. In that state the manuscript is, in every sense, his peculiar property; and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation of his property.”

According to one commentator, the most significant aspect of this case and its underlying philosophy is that it rested on a right of privacy, which the court considered a type of property right.[4] In fact, it appears that until 1890, no English court recognized the right to privacy independent of property rights.[5]

Across the Atlantic, the right to privacy was developing in a similar fashion, as an outgrowth of property rights. The Third, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution all protected people and their property against government intrusions. In protecting property, these Amendments also protected privacy. “The legal maxim and popular proverb that ‘a man’s house is his castle’ had wide application in the nineteenth century.” Civil and criminal penalties threatened anyone who dared invade the sanctity of the home, or disturb the quiet possession of the householder.

The Fourth Amendment’s prohibition of unreasonable search and seizure, as well as the law of trespass, were viewed by courts as safeguards of a homeowner’s privacy. Damages in trespass even included compensation for “invasion of privacy.” The first United States Supreme Court decision interpreting the Fourth Amendment recognized an “indefeasible right of personal security, personal liberty and private property” against “all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life.”[6]


Contemporary Views of Privacy and Property

A critical event occurred in 1890, dramatically altering the course of the development of the right to privacy, and giving birth to the current philosophical dichotomy between privacy and property rights. That year, the Harvard Law Review published an article by Samuel Warren and Louis Brandeis titled “The Right to Privacy.” In that article, the authors argued that many decisions granting relief on the grounds of invasion of property, such as defamation, breach of confidence, or breach of implied contract, were really based on a broader principle—the right to privacy. Although they acknowledged that privacy was already protected within the ambit of property rights, they argued the right to privacy ought to be recognized and protected separately.

Warren and Brandeis believed that as society became more civilized and technology advanced, rights also should evolve to protect new threats to human dignity and emotions, and to preserve propriety and decency.[7] The article began the process of divorcing privacy from its historical and intellectual partner, property rights.

The result of this divorce has been a confused understanding of the origin of the right of privacy, as illustrated by the seminal Supreme Court decision in the area. In Griswold v. State of Connecticut, the Supreme Court construed the right to privacy as a “penumbra” formed by “emanations” from the First, Fourth, Fifth, and Ninth Amendments, but did not link privacy explicitly to property rights. Similarly, in decisions ranging from abortion to criminal search and seizure cases, the Court has loosened privacy protections from their property rights moorings. In the process, it has muddled the parameters of the right and allowed critics to argue that the right to privacy does not exist in the Constitution.[8]

Ironically, the false dichotomy between property and privacy rights—and the need to join the two concepts together again—is perhaps best illustrated by the case of Moore v. City of East Cleveland.[9] Moore involved the criminal prosecution of an elderly black woman who, by having two of her grandchildren (who were cousins) living with her, violated a local zoning ordinance limiting occupancy of residential dwellings to members of a single “nuclear” family.

A divided Court struck down the ordinance as unconstitutional. The plurality considered the ordinance a violation of the right to privacy, as protected by the Due Process Clause of the Fourteenth Amendment, noting that the Court has “long recognized that freedom of personal choice in matters of marriage and family life” is constitutionally protected.

Where Moore becomes interesting, however, is in the concurring opinion of Justice John Paul Stevens, who provided the swing vote in the 5-4 decision. Justice Stevens viewed the “critical question” as “whether East Cleveland’s housing ordinance is a permissible restriction on [Mrs. Moore's] right to use her own property as she sees fit.” Stevens observed, “Long before the original States adopted the Constitution, the common law protected an owner’s right to decide how best to use his own property.” In Stevens’s view, the application of the ordinance constituted a “taking” without due process or just compensation, in violation of the Fifth Amendment.

The Moore case illustrates the interconnectedness between privacy and property rights. Given the same set of facts, four members of the Court believed privacy rights were jeopardized, while another believed property rights were threatened. Ultimately, the two segments came together to protect the rights at stake.

Since 1977 and the Moore decision, the composition of the Court has changed, and a majority now exists that does not view favorably rights that are not explicitly defined in the Constitution. Those like Senator Biden who do not understand the nexus between property and privacy rights may unwittingly be creating the groundwork for the Court to diminish protection for privacy. The most enduring protection for both rights is to view each as indispensable to the other.

When asked about the Moore case, Justice Thomas replied that he agreed with the decision, and noted that his own family living arrangements as a boy in rural Georgia would have been unlawful under the East Cleveland ordinance. Thomas’s personal experiences, growing up in an era of state-enforced segregation, likely gave him a keen appreciation for both property and privacy rights and for the consequences of denying such rights.

Out of the strange ritual that brought together the ideas of Clarence Thomas, Joseph Biden, Stephen Macedo, and Richard Epstein, among others, an important, although perhaps overshadowed issue emerged—what will be the destiny of privacy and property rights in the decades ahead? Interestingly, the answer may depend on whether the connection between privacy and property rights is rediscovered and acknowledged to be essential to our precious liberties.

1.   W. A. Parent, “Privacy, Morality, and the Law,” Philosophy and Public Affairs, vol- 12, no. 4 (Princeton, N J-: princeton University Press, 1983), pp. 269-88.

2.   See Barrington Moore, Jr., Privacy: Studies in Social and Cultural History (Armonk, N.Y.: M. E. Sharpe, 1984), pp. 82, 108, and 124.

3.   Morris L. Ernst and Alan U. Schwartz, privacy: The Right to Be Let Alone (New York: Macmillan, 1962), pp. 6-12.

4.   Ibid., pp. 14-22.

5.   “The Right to Privacy in Nineteenth Century America,” Harvard Law Review, vol. 94 (1981), p. 1892.

6.   Ibid., pp. 1894-1895, 1898.

7.   Samuel Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review, vol. 4 (1890), p. 191.

8.   381 U.S. 617 (1965).

9.   431 U.S. 494 (1977).