'About Ned' by Charles E. Colman in (2016) 129
Harvard Law Review 128-152
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In this essay, I explore the possibility that the storied article "The Right to Privacy," 4 Harv. L. Rev. 193 (1890), might have come into existence in part because of lead author Sam Warren's powerful drive to protect his younger siblings -- and, in particular, his gay brother Ned. For reasons both obvious and less intuitive, Sam might have viewed the article as a promising vehicle for shielding Ned and the rest of the Warren family from potentially devastating journalistic and public scrutiny of Ned's sexuality.
Viewed in this light, the article acquires a special resonance in this, its one hundred twenty-fifth anniversary. Rhetoric central to the piece can be traced, link by link, case by case, to Supreme Court decisions that collectively established a multifaceted constitutional right to personal autonomy. The article can arguably be understood as a catalyst for the series of events culminating in the Supreme Court's 2015 recognition, in Obergefell v. Hodges, of a constitutional right to same-sex marriage.
If "The Right to Privacy" is indeed about Ned, even in part, then what originated as an effort to protect one gay man might, quite remarkably, be a 125-year-old precursor of the Court's decision securing the protection of a fundamental right for gay people throughout the nation.
Colman notes
Because The Right to Privacy has loomed so large in the American legal consciousness for so long (and, no doubt, because it has been invoked in Supreme Court decisions on some of the most controversial issues of the past century), many scholars have displayed curiosity about the article’s backstory. Legal historian Stuart Banner summarizes the bulk of such scholarly musings thusly: “The traditional explanation of the origin of ‘The Right to Privacy’ emphasizes Warren’s irritation with sensationalist press coverage of his daughter’s wedding.” As Banner notes, this conventional account must be apocryphal, given that Warren’s daughter was only six years old when her father took the lead on the 1890 article.
Despite the chronological impossibility of this story, scholars echoed it for decades (likely due, in part, to its appearance in another influential law review article on privacy, written by Dean William Prosser in 1960). Recently, however, more probing explanations of the article’s origin have begun to appear. Several scholars, for example, have explored the role of newly affordable and portable photographic technology in the years leading up to the article’s publication.
Even so, “what truly provoked Warren, who is thought to be the moving force behind the article, has remained a mystery.” This statement by law and journalism scholar Amy Gajda in 2008 remains accurate today, despite Gajda’scareful survey of “news coverage that might explain the authors’ personal stake in the legal crusade they launched.” Gajda, for her part, concluded that “Samuel D. Warren bristled at the way the press reported on [the prominent political family into which he married] and that such coverage motivated the article.” Yet one cannot help but feel that important pieces of the puzzle
are still missing.
While no single account can ever tell “the whole story,” there is an intriguing perspective on The Right to Privacy that has not yet been explored — even as it has practically begged for attention. Resisting the urge to speculate on the reasons for the scholarly literature’s silence on the particular narrative offered here,I proceed to weave an “origin story” of The Right to Privacy of special resonance for me, in this personal, cultural, and jurisprudential moment.
