In 1948, the District of Columbia,
in an arrangement with Muzak, the company that sells background music for
stores and hotel lobbies, began piping radio broadcasts into the city's
trolleys and buses. The broadcasts were mostly music, with some commercials and
announcements, and were not loud enough to prevent riders from talking to one
another. On the other hand, riders could not not hear them. Complaints were
received, and a survey was duly commissioned. The survey found that ninety-two
per cent of bus and trolley riders did not have a problem with the broadcasts.
So they continued.
Two customers, however, chose to
take a stand. They were Franklin Pollak and Guy Martin, and they happened to be
lawyers. These gentlemen sued the city. Being compelled to listen to a radio
program not of their choosing on a public bus, they maintained, represented an
unlawful deprivation of liberty under the Constitution. The case made it all
the way to the United States Supreme Court.
The Court handed down its decision
in 1952. A bus, it said, is not like a home. It is a public space, and in a
public space the public interest prevails. As long as the city government has
the comfort, safety, and convenience of its riders at heart, it can run its
transportation system anyway it wants. Pollak and Martin had no more right to
demand quiet on the bus than they had to tell the driver where to stop.
The vote was 7-1. One Justice,
Felix Frankfurter, recused himself. Frankfurter explained that his own aversion
to Muzak was so visceral-"my feelings are so strongly engaged as a
victim," he wrote-that he was incapable of attaining the degree of
disinterestedness necessary to render a judgment. (This posture is pretty much
Felix Frankfurter in a nutshell.)
The lone dissenter was William O.
Douglas. Douglas was a judicial renegade, with little concern for precedent.
"We write," he began his dissent, "on a clean slate."
Finding no rule, he provided one. Freedom was the issue, he explained, and
"the beginning of all freedom" is "the right to be let
alone"-that is, the right to privacy. To Douglas, more was at stake than annoying
background music. Forcing people to listen to the radio, he said, is a step on
the road to totalitarianism. If you can tell people what to listen to, you can
tell people what to think. "The right of privacy," Douglas concluded,
"is a powerful deterrent to anyone who would control men's minds."
Douglas
did not coin the phrase "the right to be let alone." It appears in
one of the most famous law-review articles ever written, "The Right to
Privacy," by Samuel Warren and Louis Brandeis, published in the Harvard
Law Review in 1890. (Warren and Brandeis took it from an 1879 treatise on tort
law.) And "The Right to Privacy" is where Sarah Igo begins "The Known Citizen" (Harvard), her mighty effort to tell the story of modern
America as a story of anxieties about privacy
Igo's first book, "The
Averaged American," was a well-received study of how twentieth-century
social researchers created the idea of a "mass public." Her new
effort has to be mighty because, as she admits at the start, privacy is a
protean concept-"elastic" is the term she uses-and, once you start
looking for it, it pops up almost everywhere. Every new technological, legal,
and cultural development seems to have prompted someone to worry about the
imminent death of privacy. In the nineteenth century, people were shocked by
the introduction of postcards, which invited strangers to read your mail. Mail
was supposed to be private.
The
Muzak case is not in Igo's book, but plenty else is. She takes on telegraphy,
telephony, instantaneous photography (snapshots), dactyloscopy
(fingerprinting), Social Security numbers, suburbanization, the Minnesota
Multiphasic Personality Inventory, Fourth Amendment jurisprudence, abortion
rights, gay liberation, human subject research, the Family Educational Rights
and Privacy Act, "60 Minutes," Betty Ford, the 1973 PBS documentary
"An American Family," the Starr Report, the memoir craze, blogging,
and social media. Igo is an intelligent interpreter of the facts, and her
intelligence frequently leads her to the conclusion that "privacy"
lacks any stable significance. Privacy is associated with liberty, but it is
also associated with privilege (private roads and private sales), with
confidentiality (private conversations), with nonconformity and dissent, with
shame and embarrassment, with the deviant and the taboo (Igo does not go
there), and with subterfuge and concealment.
Sometimes,
as in Douglas’s dissent, privacy functions as a kind of default right when an
injury has been inflicted and no other right seems to suit the case. Douglas
got a second crack at applying his theory of privacy as a constitutional right
in 1965, in the case of Griswold v. Connecticut. At issue was a Connecticut law
that made the use of contraception a crime. “Specific guarantees in the Bill of
Rights,” Douglas wrote for the Court, “have penumbras, formed by emanations
from those guarantees that help give them life and substance.” The right to
privacy was formed out of such emanations.
What
places contraception beyond the state’s police powers – its right to pass laws
to protect the health and welfare of its citizens? The answer, Douglas said, is
something that predates the Constitution: the institution of marriage. “Marriage
is a coming together for better or for worse, hopefully enduring, and intimate
to the degree of being sacred,” he wrote. It is beyond politics and even beyond
law. (Douglas, incidentally, was married four times.) Eight years later,
Griswold was a key precedent in another case about reproductive rights, Roe v.
Wade. “The right to privacy,” the Court said in that case, “is broad enough to
encompass a woman’s decision whether or not to terminate her pregnancy.”
Excerpt from “Nowhere to Hide – Why Do We Care About Privacy” by Louis Menand, The New Yorker, June 19, 2018.
