Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser
![handle is hein.journals/nylr39 and id is 974 raw text is: PRIVACY AS AN ASPECT OF HUMAN DIGNITY:
AN ANSWER TO DEAN PROSSER
EDWARD J. BLOUSTEIN
I
INTRODUCTION
THREE-QUARTERS of a century have passed since Warren
and Brandeis published their germinal article, The Right
of Privacy.' In this period many hundreds of cases, ostensibly
founded upon the right to privacy, have been decided,2 a number
of statutes expressly embodying it have been enacted,3 and a
sizeable scholarly literature has been devoted to it.4 Remarkably
enough, however, there remains to this day considerable con-
fusion concerning the nature of the interest which the right to
privacy is designed to protect. The confusion is such that in
1956 a distinguished federal judge characterized the state of the
law of privacy by likening it to a haystack in a hurricane.'
And, in 1960, the dean of tort scholars wrote a comprehensive
article on the subject which, in effect, repudiates Warren and
Brandeis by suggesting that privacy is not an independent value
at all but rather a composite of the interests in reputation,
emotional tranquility and intangible property.0
Edward J. Bloustein is Professor of Law at New York University School of
Law.
This article was prepared for the Special Committee on Science and Law of
the Association of the Bar of the City of New York and an early version of the
paper was delivered at the Committee's Conference on the Impact of Technological
Advances on the Law of Privacy held at Sterling Forest, New York in May 1964.
Although the author is indebted to the members of the Committee, especially its
Chairman, Oscar Ruebhausen, its Secretary, Bevis Longstreth, and its Research
Director, Allan Westin, for many valuable suggestions, the views expressed are
the author's and not those of the Committee on Science and Law.
1. Warren & Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890)
[hereinafter cited as Warren & Brandeis].
2. See, e.g., Annot., 138 A.L.R. 22 (1942); Annot., 168 A.L.R. 446 (1947);
Annot., 14 A.L.R.2d 750 (1950).
3. N.Y. Civ. Rights Law §§ 50-51; Okla. Stat. Ann. tit. 30, §§ 839.40
(1951); Utah Code Ann. §§ 76-4-7, 76-4-9 (1953); Va. Code Ann. § 8-650 (1950).
4. E.g., Feinberg, Recent Developments in the Law of Privacy, 48 Colum. L.
Rev. 713 (1948); Green, Right of Privacy, 27 Ill. L. Rev. 237 (1932); Lisle, Right
of Privacy (A Contra View), 19 Ky. LJ. 137 (1931); Nizer, Right of Privacy: A
Half Century's Developments, 39 Mich. L. Rev. 526 (1941); O'Brien, The Right of
Privacy, 2 Colum. L. Rev. 437 (1902); Winfield, Privacy, 47 L.Q. Rev. 23 (1931);
Yankwich, Right of Privacy: Its Development, Scope and Limitations, 27 Notro
Dame Law. 499 (1992).
5. Ettore v. Philco Television Broadcasting Co., 229 F.2d 481 (3d Cir. 1956)
(Biggs, CJ.).
6. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960) [hereinafter cited as Prosser,
Privacy].
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Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser
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