12 Harv. C.R.-C.L. L. Rev. 233 (1977)
Redefining Privacy

handle is hein.journals/hcrcl12 and id is 241 raw text is: Harvard Civil Rights-Civil Liberties Law Review
Volume 12, Number 2                                                      Spring, 1977
REDEFINING PRIVACY*
Tom Gerety**
Before I built a wall I'd ask to know
What I was walling in or walling out...
Robert Frost, Mending Wall
Privacy is a legal wall badly in need of mending. It was thrown up in
great haste, from a miscellany of legal rock and stone, on two occasions
and so in two parts: the first was the great Warren and Brandeis article of
1890 on the right to privacy at common law;' the second was the
Griswold decision2 in 1965 on the same (or a corresponding)3 right in
constitutional law. Plainly the latter was built upon the former, if of
different stones and by different masons - but not altogether different,
for the Brandeis dissent in Olmstead v. United States,4 speaking of the
most comprehensive of rights, and the right most valued by civilized
men,5 stands all but midway in time and conception between the two
occasions.
*I want to thank Thomas I. Emerson for his help with the early drafts of this article and
also Trudi Kiebala for her extensive research assistance.
**B.A. 1969, M.Phil. 1974, J.D. and Ph.D. 1976, Yale University. Fellow, Center
for the Study of Ethics in the Professions, and Assistant Professor, Chicago-Kent College
of Law, Illinois Institute of Technology.
Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
2 Griswold v. Connecticut, 381 U.S. 479 (1965).
3 In just what sense the tort law right of privacy corresponds to the constitutional right
is a question almost entirely neglected in discussions (and decisions) on privacy. Reviewing
the federal constitutional usage up to and including Griswold, Prosser remarked upon an
aspect of this ambiguity: The Court never has made any attempt to define this right [to
privacy guaranteed by the Constitution], or to indicate its limitations, if any; and nothing in
the decisions has referred to tort liability. They suggested none the less that the Constitu-
tional right, thus declared to exist, must have some application to tort liability; and that the
decisions in four states denying any recognition of the right are to be overruled, as well as
the limitation to commercial appropriation contained in the statutes of four other jurisdic-
tions. W. PROSSER, HANDBOOK OF THE LAW OF TORTS 816-17 (1971). Few besides
Prosser have even recognized this difficulty. Some have recognized implicitly that at least
as to remedies there are significant distinctions between constitutional, statutory, and com-
mon law rights to privacy. See, e.g., A. WESTIN, PRIVACY AND FREEDOM 384-99 (1967);
T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 547-48 (1970).
4 277 U.S. 438 (1928).
5 Id. at 478.

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