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48 Calif. L. Rev. 383 (1960)

handle is hein.journals/calr48 and id is 407 raw text is: California Law Review
VOL. 48                        AUGUST 1960                            No. 3
William L. Prosser*
N THE YEAR 1890 Mrs. Samuel D. Warren, a young matron of Boston,
which is a large city in Massachusetts, held at her home a series of
social entertainments on an elaborate scale. She was the daughter of Sen-
ator Bayard of Delaware, and her husband was a wealthy young paper
manufacturer, who only the year before had given up the practice of law
to devote himself to an inherited business. Socially Mrs. Warren was among
the 6lite; and the newspapers of Boston, and in particular the Saturday
Evening Gazette, which specialized in blue blood items, covered her
parties in highly personal and embarrassing detail. It was the era of yel-
low journalism, when the press had begun to resort to excesses in the way
of prying that have become more or less commonplace today;' and Boston
was perhaps, of all of the cities in the country, the one in which a lady and
a gentleman kept their names and their personal affairs out of the papers.
The matter came to a head when the newspapers had a field day on the
occasion of the wedding of a daughter, and Mr. Warren became annoyed
It was an annoyance for which the press, the advertisers and the entertain-
ment industry of America were to pay dearly over the next seventy years.
Mr. Warren turned to his recent law partner, Louis D. Brandeis, who
was destined not to be unknown to history. The result was a noted article,
The Right to Privacy,3 in the Harvard Law Review, upon which the two
men collaborated. It has come to be regarded as the outstanding example
of the influence of legal periodicals upon the American law. In the Harvard
* Dean, University of California School of Law, Berkeley.
The press is overstepping in every direction the obvious bounds of propriety and of
decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade,
which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of
sexual relations are spread broadcast in the columns of the daily papers. To occupy the indo-
lent, column upon column is filled with idle gossip, which can only be procured by intrusion
upon the domestic circle. The intensity and complexity of life, attendant upon advancing civil-
ization, have rendered necessary some retreat from the world, and man, under the refining influ-
ence of culture, has become more sensitive to publicity, so that solitude and privacy have
become more essential to the individual; but modem enterprise and invention have, through
invasions upon his privacy, subjected him to mental pain and distress, far greater than could
be inflicted by mere bodily injury. Warren and Brandeis, The Right to Privacy, 4 HAv. L.
REv. 193, 196 (1890).
2 MAsoN, BRADErs, A FREE MAN's Lim 70 (1946).
3 4 HAv. L. REv. 193 (1890).

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