“The law professor Amy Gajda writes about the tug of war between the right to know and the right to be let alone.
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SEEK AND HIDE
The Tangled History of the Right to Privacy
By Amy Gajda
376 pages. Viking. $30.
In her wry and fascinating new book, “Seek and Hide,” Amy Gajda traces the history of the right to privacy and its (understandably fraught) relationship in the United States with the First Amendment. English common law includes the concept of “truthful libel” — the notion that anything harmful to a person’s reputation, even if factually accurate, could be treated as a punishable offense.
“Truthful libel” may sound like a contradiction in terms, but it arose out of a recognition that being ridiculed for something real could in some ways feel more ruinous than being mocked for something bogus — that, as Gajda puts it, “the emotional damage and desire for physical revenge would be even more profound to the outed individual than had falsity been published.”
Emotions and feelings come up a lot in “Seek and Hide” — something I wasn’t expecting from a book that does serious work as a history of ideas, too. Gajda, who was a journalist before becoming a law professor, is a nimble storyteller; even if some of her conclusions are bound to be contentious, she’s an insightful guide to a rich and textured history that gets easily caricatured, especially when a culture war is raging. One might think that the Founders, writing under pseudonyms and spreading gossip in order to lay low their political rivals, didn’t give much thought to “emotional damage,” but Gajda suggests otherwise. Ben Franklin observed that “every Person has little Secrets and Privacies that are not proper to be expos’d even to the nearest friend.”
As it happens, a number of people in Gajda’s book can seem like free speech absolutists in one context and zealous advocates for privacy rights in another. Justice Louis Brandeis was known as a staunch defender of the First Amendment, but before joining the Supreme Court he was also the co-author of the landmark article “The Right to Privacy” (not to mention a vigilant protector of his own personal affairs). Upton Sinclair, whose book about the Chicago meatpacking industry turned stomachs and changed policy, blanched at all the newfound attention from sensationalist papers clamoring to know about his marital difficulties and what he ate for breakfast (a cup of water and six prunes).
Another memorable about-face took place more than a century before, when Alexander Hamilton pseudonymously taunted Thomas Jefferson for having a sexual relationship with an enslaved woman named Sally Hemings. In 1786, Jefferson had declared that the country’s “liberty depends on the freedom of the press, and that cannot be limited without being lost.” By 1803 he was musing to the governor of Pennsylvania that “a few prosecutions” of journalism’s “most eminent offenders” would “place the whole band more on their guard.”
This tension would persist over the years, a tug of war between “the right to know” on one side and “the right to be let alone” on the other. Even though the word “privacy” itself doesn’t appear in the Constitution, the Supreme Court has nevertheless found that protections for it are implied. Gajda shows that the courts’ emphasis on a free press or on privacy rights has changed over time, reflecting transformations in journalism — from 19th-century penny presses to 20th-century muckraking to the emergence of digital platforms in the 21st.
Transformations in cultural attitudes and prejudices have had an effect, too. What’s considered stigmatizing in one era can lose its stigma in another. Gajda gives the example of outing someone who is gay. It used to be that some courts had decided that reporting such information about someone who didn’t want it to be revealed was “highly offensive,” and therefore an affront to people’s “right to keep certain things quiet, to define themselves for themselves against the interests of others.” But as social norms have grown “more inclusive,” Gajda writes, “more modern courts have decided that to reveal someone’s sexual orientation is not highly offensive at all and therefore not an invasion of privacy.”
At a social level, this sounds like a salutary development — more inclusivity, more tolerance — but Gajda says that when courts have ruled this way, it hasn’t always seemed so progressive to individuals who felt abandoned by the law. In 1984, an appellate court ruled that the disabled U.S. Marine who saved President Gerald Ford from a would-be assassin had no right to privacy when a gossip column outed him as gay; publication of the Marine’s sexual orientation against his wishes helped “dispel the false public opinion that gays were timid, weak and unheroic,” the court wrote.
It didn’t matter to the court that the Marine was subsequently deserted by his family, and that he gave a “broken, anguished speech” insisting that he should be the one to decide whether to share details about his private life, Gajda writes, adding mordantly: “The right of the people to know that men who are gay can be brave too was more important.”
Just because Gajda acknowledges the personal damage wrought by such decisions doesn’t mean that she comes down categorically on the side of Team Privacy; the issues are too complicated, the history too circuitous. After all, privacy claims have often been deployed to protect the powerful from public scrutiny. She cites the clubbiness between journalists and politicians in the pre-Watergate era, which afforded politicians a level of privacy that, as public servants, they simply weren’t entitled to. #MeToo behavior that would now get reported as news was long elided as “gossip” in a “gentleman’s agreement,” she writes, “because it was a gentleman’s game.”
Gajda says that she used to be uncomfortable with the idea that courts could balance protections for an individual’s dignity and liberty with protections for a free press and free speech; as a journalist, she was worried that an overzealous judiciary might curtail the reporting of real news that powerful interests were keen to keep secret. Now she seems to see things differently, placing what seems to me a surprising amount of faith in the judicial branch and even Facebook’s Oversight Board, of all things, to generate norms that balance speech with privacy and “unite the world as one.”
Really? This strikes me as the kind of wistful generalization that’s otherwise absent from this smart and empathetic book. Nobody comes out looking pure in “Seek and Hide,” but everyone comes out looking human.“