We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others.
The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution of an area of law that I describe as the tort law of personal image. By the 1950s, a body of tort law – principally the privacy, publicity, and emotional distress torts, and a modernized defamation tort – had developed to protect a right to control one’s image and to be compensated for emotional and dignitary harms caused by interference with one’s public image. This law of image produced the phenomenon of the personal image lawsuit, in which individuals sued to vindicate or redress their images. The rise of personal image litigation over the course of the 20th century was driven by Americans’ increasing sense of protectiveness and possessiveness towards their public images and reputations.
This article offers an overview of the development of the image torts and personal image litigation in the United States. It offers a novel, alternative account of the history of tort law by linking it to developments in American culture. It explains how the law became a stage for, and participant in, the modern preoccupation with personal image, and how legal models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.Barbas states that
This article offers a broad overview of the development of the modern “image torts” and the phenomenon of personal image litigation. An intertwined history of the law, culture, and the self, it explores how the law became a stage for, and participant in, the modern preoccupation with personal image, and how tort law’s models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self-presentation.
Throughout the article, I refer to the concept of image – public image or personal image. Although the term “reputation” is familiar in the law, it is inadequate to describe the nature of the interests at stake in many legal disputes over invasion of privacy, unwanted publicity, and defamation. Reputation, a mode of social evaluation historically associated with stable and enduring communities, is based on appraisals and judgments accrued over time. Image, by contrast, is the representation of self that one constructs and presents in a world defined by mobility and relatively transient social relations: the fleeting contacts of the city, the momentary connections of the world wide web. When a person is depicted in the media in an embarrassing manner, she may be worried about her reputation among her peers, but she is also likely concerned with her image: the undesirable impression she has made on a mass audience, albeit faceless and unknown to her. She may resent not only that she has been portrayed negatively, but even more, the fact that she has lost control of her public image. The mass media have been regarded as one of the primary threats to personal image in modern times, and this article focuses on cases brought against media defendants. In these cases, the principle that one has a right to control one’s own image -- to be the primary author of one’s image -- was written, albeit with qualifications, into tort law.
The story of the modern tort law of image begins in the late 1800s, when new technologies of visual representation and the fragmented and unstable nature of interpersonal relations in the city generated new anxieties around image, identity, and self-presentation in public. In an environment characterized by fleeting encounters with strangers, where the mass media was beginning to assume a central place in social life, appearances, first impressions and images became matters of great individual and collective significance. It was in this milieu that courts and legal theorists began to discuss the possibility of a legal right to privacy. Although the right to privacy is often described as a “right to be let alone,” privacy was primarily understood, in the legal and popular discourse of the time, as a right to control one’s public image and to be compensated for the dignitary harms caused by unwanted and undesirable publicity. As Part One explains, the privacy tort was the legal manifestation of a nascent appearance-conscious, image-conscious culture.
The further development of the visual mass media, the rise of a consumer culture in the early 20th century, and the transitory nature of modern social relations heightened the cultural emphasis on personal image and the act of image-making. As individuals were unmoored from social institutions that had traditionally anchored personal identity, they conceived of themselves increasingly in terms of images and manufactured appearances. One’s identity came to be seen as congruent with the impressions and images one projected to the world, and the ability to control these surface representations regarded as essential to personal autonomy and self-definition. The 1930s and 40s saw the doctrinal expansion of the image torts and the rise of the personal image lawsuit -- a legal action, typically for invasion of privacy or defamation, often brought against the mass media. The harm alleged was that one’s feelings and dignity were injured when the media interfered with her perceived right to fashion her own public persona. As Part Two explains, by the 1950s, tort law had come to be regarded by many as a tool in the all-important project of image management.
Part Three describes the flourishing of the image society in the latter twentieth century, and the near-obsession with personal image that has been a defining feature of the recent American social experience. It tracks the rise of what of sociologists and critics have described an “other-directed” self – a modal personality type, ubiquitous in the affluent culture of postwar America, that was consumed with personal image and the act of constructing a pleasing public facade. In a highly individualistic society, one influenced by the ideals of psychotherapy and consumerism, the ability to freely shape one’s own public persona, to “express oneself” through one’s public appearance, and to maximize one’s success by transforming one’s image were bound up with prevailing ideals of self-fulfillment, self-enhancement, and freedom of choice. Personal image litigation increased in the last quarter of the twentieth century, as did the variety of legal pathways available to vindicate harms to one’s image, including a family of privacy torts, a “right of publicity,” and an independent tort action for emotional distress. The deeper Americans’ investment in their images, and the greater the perceived threats to personal image, the more instinctive the resort to the law to protect them. Freedom of speech notwithstanding, we remain committed to the idea that interference with one’s public image can, under many circumstances, violate important rights of personhood.
In describing this body of law as image torts, I do not want to suggest that the parties who made use of them were concerned only with their images. Many of the kinds of mass media misrepresentations that we will see produced feelings of shock, hurt and outrage that can be rightly understood as more than merely an interest in how one appeared to others. Yet in many cases, it is clear that what drove these feelings of personal insult and violation was a sense of image-consciousness. Defamations, embarrassing publications of private facts, and false representations before the public can and often do produce serious emotional and psychic injuries; they do so, in part, because we have put so much weight on our public images and freighted them with intense personal meaning and import.
I realize that some may take issue with my characterization of American law as especially solicitous of personal image. As many have pointed out, American privacy and defamation laws, limited by the First Amendment, do not protect the right to one’s image as extensively as in other parts of the world, particularly continental Europe. It is true that image laws in the United States have been substantially constrained by freedom of speech. These limitations represent another dimension, perhaps the flip side, of modern image consciousness. In a culture where images have been the currency of social exchange, where politics and social life have been mediated by images, the ability to freely disseminate images of individuals and public affairs has been linked to the “free and robust” public discussion said to be at the core of the First Amendment’s domain. The ideal of modern expressive freedom has cut both ways: it is the prerogative to express oneself through one’s image, and at the same time, the freedom to image others. The history of American image law is thus a saga of simultaneous expansion and contraction – the greater recognition of personal image rights and at the same time, their restriction. Much of the legal scholarship in this area has focused on the latter. This piece investigates the expansionary trend and suggests why we have a law of image in the first place.