“Seek and Hide” grapples with the complexity of privacy rights

The tangled history of the right to privacy
By Amy Gajda
376 pages. Viking. $30.

In her ironic and fascinating new book, “Seek and Hide,” Amy Gajda traces the history of the right to privacy and its (understandably strained) relationship in the United States with the First Amendment. English common law includes the concept of “truthful libel” – the notion that anything which damages a person’s reputation, even if factually correct, can be treated as a punishable offence.

“Truthful defamation” may seem like a contradiction in terms, but it stems from the recognition that being ridiculed for something real could in some ways To feel more ruinous than making fun of something false – that, as Gajda puts it, “the emotional damage and desire for physical revenge would be even deeper for the unmasked individual than if the falsehood had been published”.

Emotions and feelings recur often in “Seek and Hide” – something I didn’t expect from a book that also does serious work as a history of ideas. Gajda, who was a journalist before becoming a law professor, is an agile storyteller; although some of its conclusions are bound to be controversial, it is an insightful guide to a rich and textured history that is easily caricatured, especially when a culture war is raging. You would think that the Founders, writing under pseudonyms and spreading gossip in order to bring down their political rivals, didn’t give much thought to “emotional damage”, but Gajda suggests otherwise. Ben Franklin observed that “every person has little secrets and secrets which it is not proper to expose even to the closest friend”.

It turns out that a number of people in Gajda’s book may appear to be free speech absolutists in one context and zealous privacy advocates in another. Justice Louis Brandeis was known as a staunch defender of the First Amendment, but before joining the Supreme Court he was also the co-author of the landmark article “The Right to Privacy” (not to mention a vigilant protector of his own personal affairs). Upton Sinclair, whose book on Chicago’s meat industry turned stomachs and changed politics, paled at all the new attention from sensationalist newspapers clamoring to know about his marital troubles and what he ate for breakfast. lunch (a cup of water and six prunes).

Another memorable about-face took place more than a century before, when Alexander Hamilton taunted under an alias Thomas Jefferson for having sex with a slave girl named Sally Hemings. In 1786, Jefferson had declared that “the freedom of the country depends on the freedom of the press, and this cannot be limited without being lost”. In 1803 he mused to the Governor of Pennsylvania that “a few prosecutions” of the “most eminent offenders” of journalism “would put the whole gang more on their guard.”

Credit…Tracie Morris Schaefer

This tension will persist over the years, a tussle between “the right to know” on one side and “the right to be left alone” on the other. Even though the word “privacy” itself does not appear in the Constitution, the Supreme Court has nevertheless found that protections for it are implicit. Gajda shows that the courts’ emphasis on a free press or the right to privacy has changed over time, reflecting the transformations of journalism – from the penny presses of the 19th century to the muckraking of the 20th century to the Emergence of Digital Platforms in the 21st.

Shifts in cultural attitudes and prejudices have also had an effect. What is considered stigmatizing at one time may lose its stigma at another. Gajda gives the example of someone who is gay. Previously, some courts had ruled that reporting such information about someone who did not want it revealed was “very offensive”, and therefore an affront to “people’s right to keep certain things quiet, to define themselves against the interests of others.” But as social norms have become “more inclusive,” writes Gajda, “more modern courts have ruled that revealing someone’s sexual orientation is not at all offensive and therefore do not an invasion of privacy.

On a social level, it looks like a healthy development – more inclusiveness, more tolerance – but Gajda says that when the courts ruled this way, it didn’t always seem so progressive to people who felt abandoned by society. law. In 1984, an appeals court ruled that the disabled U.S. Marine who saved President Gerald Ford from a would-be assassin had no right to privacy when a gossip column came out as gay; The publication of the Marine’s sexual orientation against his will helped “dispel the false public opinion that homosexuals were shy, weak and unheroic,” the court wrote.

It didn’t matter in court that the Marine was later abandoned by his family and gave a ‘broken and anguished speech’ insisting he should be the one to decide whether or not to share details about his private life. , writes Gajda, adding bitingly: “The right of the people to know that homosexual men can also be courageous was more important.

Just because Gajda acknowledges the personal harm caused by such decisions does not mean that she is emphatically siding with Team Privacy; the problems are too complicated, the story too twisted. After all, claims of confidentiality have often been deployed to shield the powerful from public scrutiny. She cites the clubbiness between journalists and politicians in the pre-Watergate era, which afforded politicians a level of privacy to which, as public servants, they were simply not entitled. The #MeToo behavior that would now be reported as the news has long been called “gossip” in a “gentleman’s agreement”, she writes, “because it was a gentleman’s game”.

Gajda says she used to be uncomfortable with the idea that courts could balance the protections of an individual’s dignity and liberty with the protections of freedom of the press and freedom of speech ; as a journalist, she feared that an overzealous judicial system would limit the dissemination of real information that powerful interests were keen to keep secret. Now she seems to see things differently, placing what seems to me surprising trust in the judiciary, and even Facebook’s supervisory board, to generate standards that balance speech with privacy and “unite the world as one.” only”.

Really? It strikes me as the kind of wistful generalization that is otherwise absent from this intelligent and empathetic book. No one comes out pure in “Seek and Hide”, but everyone comes out human.

Sharon D. Cole