The Privacy of Death: An Emergent Jurisprudence and Legal Rebuke to Media Exploitation and a Voyeuristic Culture
![handle is hein.journals/laent26 and id is 139 raw text is: THE PRIVACY OF DEATH: AN EMERGENT
JURISPRUDENCE AND LEGAL REBUKE TO
MEDIA EXPLOITATION AND A VOYEURISTIC
CULTURE
Clay Calvert*
I. INTRODUCTION
Legal scholars are fretfully predicting the possible death of privacy-
in particular, informational privacy-in coming years.' This thesis is even
found in the subtitle of a recent book,2 and there certainly is no doubt that
privacy is increasingly sacrificed in our voyeuristic, tabloid-journalism
culture.3 While legal scholars have focused on the death of privacy, a
nascent, inchoate, and sometimes politically-charged jurisprudence has
* Associate Professor of Communications & Law, Co-Director of the Pennsylvania Center
for the First Amendment, and Interim Dean of the Schreyer Honors College at Pennsylvania State
University. Ph.D., Communication, Stanford University, 1996; J.D. (Order of the Coil),
McGeorge School of Law, University of the Pacific, 1991; B.A with Distinction,
Communication, Stanford University, 1987. Member of the State Bar of California. The author
thanks the staff of the law review for its patience during the editing process after the author
unexpectedly assumed the role of Interim Dean of the Schreyer Honors College in August 2005,
thus necessitating more time to implement revisions,
1. See A. Michael Froomkin, The Death of Privacy?, 52 STAN. L. REV. 1461, 1543 (2000)
(Given the rapid pace at which privacy-destroying technologies are being invented and
deployed, a legal response must come soon, or it will indeed be too late.); see also Shaun B.
Spencer, Reasonable Expectations and the Erosion of Privacy, 39 SAN DIEGO L. REv. 843, 845
(2002) ([I]nformational asymmetry, unequal bargaining power, and collective action problems
[constitute] phenomena [that] stack the deck against those who would preserve the private sphere,
and in favor of those who benefit from its erosion. Without some structural changes to restore the
balance, the erosion of privacy may be a foregone conclusion.).
2. SIMSON GARFINKEL, DATABASE NATION: THE DEATH OF PRIVACY IN THE 21ST
CENTURY (2001).
3. See Clay Calvert, Revisiting the Voyeurism Value in the First Amendment: From the
Sexually Sordid to the Details of Death, 27 SEATTLE U. L. REV. 721 (2004) (examining the
fundamental tension between maintaining privacy and accelerating voyeurism); see also ELLEN
ALDERMAN & CAROLINE KENNEDY, THE RIGHT TO PRIVACY xiii (1995) (stating that more and
more of our privacy is stripped away despite the complaints of many people that the press can
invade lives with impunity).](ViewImageLocal?handle=hein.journals/laent26&div=11&collection=&method=preview&ext=.png&size=3)
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The Privacy of Death: An Emergent Jurisprudence and Legal Rebuke to Media Exploitation and a Voyeuristic Culture
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