42 N.Y.U. L. Rev. 34 (1967)
The Concept of Privacy

handle is hein.journals/nylr42 and id is 64 raw text is: THE CONCEPT OF PRIVACY
HYMAN GROSS*
With the Supreme Court's recent decision in Griswold v. Con-
necticut, the scope of the legal protection of privacy has achieved
new significance. Mr. Gross contends that there is a conceptual
muddle surrounding the legal right of privacy, and that develop-
ment of a legally protected interest in privacy requires recognition
of the particular condition of human life that is sought to be pro-
tected. To facilitate such conceptual clarification, he attempts
to distinguish privacy from other conditions of human life by iso-
lating its unique characteristics. Mr. Gross regards the Griswold
case as unsatisfactory, reasoning that although the case was os-
tensibly based upon privacy, the decision was in fact reached by
punning on the concept of privacy. He also concludes that in their
articles on that subject Dean Prosser has failed to recognize, and
Professor Bloustein to identify satisfactorily, the nature of privacy.
C ONCERN about privacy is concern about conditions of life,
and it is so in the law as it is elsewhere. Unfortunately, fail-
ings in our use of language sometimes tend to distract or frustrate
this concern, and we are forced to pursue detours of analysis in
order to make legal argument on the subject sound. The predica-
ment seems the sort for which we might invoke Professor H. L. A.
Hart's observation that in law as elsewhere, we can know and
yet not understand.1 Without difficulty we regularly recognize
those situations in which a violation of privacy is threatened or
accomplished, yet stumble when trying to make clear what pri-
vacy is. In such a quandary we feel that we know how to use a
word but have difficulty setting straight those (including our-
selves) who misuse it. As a result, our ability to articulate and
apply principles of legal protection diminishes, for we become
uncertain about precisely what it is that compels us toward pro-
tective measures and wherein it differs from what has already
been recognized or refused recognition under established legal
theory.
To make good the claim that privacy is indeed noticed and
protected, a preliminary indication of the range of legal protec-
tion is in order. A synoptic view discloses at one end privacy of
personality: First the very attributes by which a person is recog-
nized-name, likeness, perhaps voice; then the intimate facts of
one's life. At the other end, in the direction of less immediately
personal matters, one finds protection of confidential information
-income tax information, census information, financial affairs,
and the like. In between is legal protection for spoken communi-
*Teaching Fellow, New York University School of Law.
1 Hart, Definition and Theory in Jurisprudence 3 (1953).

Imaged with the Permission of N.Y.U. Law Review

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