The Right to Privacy (article)

"The Right to Privacy" (4 Harvard L.R. 193 (Dec. 15, 1890)) is a law review article written by Samuel Warren and Louis Brandeis, and published in the 1890 Harvard Law Review. It is "one of the most influential essays in the history of American law" and is widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a "right to be let alone".

Although credited to both Louis Brandeis and Samuel Warren, the article was apparently written primarily by Brandeis, on a suggestion of Warren based on his "deep-seated abhorrence of the invasions of social privacy."William Prosser, in writing his own influential article on the privacy torts in American law, attributed the specific incident to an intrusion by journalists on a society wedding, but in truth it was inspired by more general coverage of intimate personal lives in society columns of newspapers.

"The Right to Privacy" is brief by modern law review standards, comprising only 7222 words, excluding citations.

Warren and Brandeis begin their article by introducing the fundamental principle that "the individual shall have full protection in person and in property.” They acknowledge that this is a fluid principle that has been reconfigured over the centuries as a result of political, social, and economic change.

The first three paragraphs of the essay describe the development of the common law with regard to life and property. Originally, the common law "right to life” only provided a remedy for physical interference with life and property. But later, the scope of the "right to life” expanded to recognize the "legal value of sensations.” For example, the action of battery—a protection against actual bodily injury—gave rise to the action of assault—fear of actual bodily injury. Similarly, the concept of property expanded from protecting only tangible property to intangible property.

Beginning with the fourth paragraph, Warren and Brandeis explain the desirability and necessity that the common law adapt to recent inventions and business methods—namely, the advent of instantaneous photography and the widespread circulation of newspapers, both of which have contributed to the invasion of an individual’s privacy. Warren and Brandeis take this opportunity to excoriate the practices of journalists of their time, particularly aiming at society gossip pages:

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