The Death of the Public Disclosure Tort: A Historical Perspective

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of “matter concerning the private life of another” would be highly offensive to a reasonable person and the matter is not “of legitimate concern to the public,” or newsworthy. However, because courts generally consider virtually everything that appears in the news media to be newsworthy, the public disclosure of private facts tort is generally regarded as dead. But why did newsworthiness, in the words of Harry Kalven, Jr., become “so overpowering as to virtually swallow the tort”? The scholarly literature has been largely silent on this question. This article traces the “death” of the right to privacy against the press to two broad cultural shifts in the period between 1920 and 1940. One was a cultural devaluation of privacy, in the sense of concealing one’s private self from public view. By the 1930s, a certain degree of public self-exposure was not only considered desirable but inevitable. The other change was an expansion of the definition of “the news” to encompass a wide variety of information, including private facts, and a reassessment of the significance of the news media to modern social life. Drawing on an emerging discourse theory of the news, one that saw the purpose of the news media as fostering public discussion and “making people talk,” courts affirmed the social value of media gossip, folding it into a broad new definition of newsworthiness that extended to the far reaches of popular publishing. These developments created the modern American culture of self-exposure, in which the media’s desire to reveal private lives is rivaled by our penchant for self-publicity