29 September 2012


'The Sidis Case and the origins of modern privacy law' by Samantha Barbas in Columbia Journal of Law & the Arts (forthcoming) notes that
In the years before World War I, William James Sidis was widely regarded as the most impressive child prodigy the world had ever seen. Sidis attended Harvard at age, ten spoke several languages, and was a mathematical genius. Between 1910 and 1920, he was an international celebrity, publicized in media around the world and renowned for his intellectual feats. Headlines pronounced him a “boy wonder.” 
Yet as an adult, Sidis’s life took a different turn. He neglected his mathematical talents and entirely retreated from public life. By the age of twenty, Sidis had become a recluse.  At 39, he was an adding-machine operator living alone in a shabby Boston rooming house. Sidis was awkward and unkempt. He devoted his free time to collecting streetcar transfers and trivia about an obscure Native American tribe. The New Yorker tracked him down in his apartment, interviewed him, and wrote a story about his “prodigious failure” in the magazine in 1937. The piece described his personal eccentricities in vivid detail. Humiliated and outraged, Sidis sued under the tort of invasion of privacy by public disclosure of private facts - the original Warren and Brandeis conception of the “right to privacy,” which permits damages to be awarded for the dignitary harms caused by the publication of true but embarrassing private information. Sidis lost; according to the Court, he had no right to conceal his private life from a public that was curious about him. “Regrettably or not,” wrote the Second Circuit Court of Appeals in a groundbreaking opinion that celebrated freedom of the press over privacy, “the misfortunes and frailties of neighbors and ‘public figures’” were subjects of interest to the public, “[a]nd when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.” 
The American press, it has been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure, is very weak. The media in the U.S. have a degree of latitude to report on intimate matters, without the threat of legal liability, that would be unimaginable in many other countries. In England, model Naomi Campbell won damages against a magazine when it published the details of her treatment for drug addiction. Princess Caroline of Monaco obtained a judgment from the European Court of Human Rights preventing the German press from publishing paparazzi photos of her. In the U.S., by contrast, public figures have been held to have almost no legal right to privacy. Courts have considered almost anything that takes place in a public place, or that could be said to shed light on an issue of public curiosity or significance, to be exempt from liability for invasion of privacy. The personal details and photographs of a rape victim, images of the extrication of a woman from a crashed car and a photograph of a soccer player with his genitalia exposed are among the intimacies that have been held to be newsworthy “matters of public interest” and thus nonactionable under privacy law. The failure of American law to protect personal life from unwanted publicity has been poorly explained. The standard reason given for the weakness of American privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But freedom of the press alone cannot explain why the right to publish has been interpreted as a right to print truly intimate matters or the right to thrust people into the spotlight against their will. Especially during a time of heightened concerns with privacy and Internet overexposure, we need a better explanation as to why the law has struck the balance between media exposure and privacy in the way that it has. One answer, this Article argues, can be found in the case of William James Sidis. 
The 1940 case Sidis v. F.R. Publishing, one of the best-known privacy cases in U.S. history, represents a foundational moment in the development of American privacy law. Sidis established the normative and doctrinal bases for the tort law of privacy as it currently exists. Sidis was the first case since the origin of the privacy tort in the 1890s to address the conflict between the right to privacy and freedom of the press and to come out on the side of free expression. In a conclusion that became the guiding principle of modern privacy doctrine, the Second Circuit held that the loss of Sidis’s privacy was an inevitable sacrifice to be made for The New Yorker’s right to publish freely and the public’s “right to know”—its right to access a broad range of information, a domain of knowledge nearly as expansive as its curiosities. In an insight that is now unexceptional but that was forward-looking at the time, the Sidis Court suggested that the ability to obtain facts of all kinds through the mass media, from serious news to even gossip and trivia, is the right and prerogative of a democratic people. 
The Sidis case represented a bridge between earlier, nineteenth century views and modern, twentieth century perspectives on the legitimacy and constitutionality of legal restrictions on publishing private information. The Court’s subordination of Sidis’s privacy to freedom of the press revealed the influence of a nascent civil libertarian First Amendment jurisprudence in the 1930s and 1940s, as well as an emerging social philosophy in that era- now common to the discourse on democracy and mass communications - that access to the “news,” broadly defined, is a prerequisite to social and political participation in a democratic society. In its suggestion that the public’s right to learn about the private life of the former genius was more valuable than his right to be let alone, and in its celebration of the free flow of facts, no matter how trivial or banal, the Second Circuit articulated what have, over time, become the ground rules for the modern information society. 
The story of the Sidis case has something to tell us not only about the development of privacy law but also about the culture of privacy, the public attitudes and sensibilities that have framed and shaped the law of privacy. It has often been said that Americans - exhibitionists to the core - do not really want privacy and are indifferent about having their secrets revealed. We are voyeurs who are happy to peer into others’ personal lives and care little about the privacy rights of others. The public reaction to the Sidis decision belies this conclusion. Despite enthusiasm for the kind of gossip and human interest journalism purveyed by The New Yorker, the outcome in Sidis was attacked by the public. Critics argued that The New Yorker and the courts had deprived Sidis of core personal rights - his right to control his public identity, his right to seek anonymity and his right to be forgotten. The public response to Sidis thus illustrates not so much public distaste for privacy, but rather confusion and tension - we want our gossip and our privacy too.