The Property Rights Origins of Privacy Rights; M. Chlopecki

In a dramatic moment during this homily,Biden fashioned his arms into a scaleto demonstrate how "traditionally" the courts have assigned tremen dous value to privacy rights and a much lesser val ue to property rights. Biden pointed to a 1977 Supreme Court deci sion, Moorev. City of EastCleveland,Ohio,as an excellent example of how the right to privacy pro tects precious and fundamental freedoms of Americans. In contrast, he invoked the works of Professors Richard Epstein and Stephen Macedo as representative of a dangerous intellectual extreme that seeks to gain increased protection for that mO,st dubious of asserted rights, the right to property. Biden's goal, apparently, was to invite the Supreme Court nominee to join him on the record in glorifying privacy rights and deni grating property rights. Perhaps the reason Biden failed is that privacy and property rights are intimately linked. More over, the integrity of privacy rights depends largely upon the protection of private property rights.

Mary Chlopecki is a graduate of the School of Law at George Mason University, and is co-author with Clint Bolick of Grass Roots Tyranny and the Limits of Feder alism (Cato Institute). Meaningand Originsof the "Rightto Privacy" ' . The "right to privacy" has meant different things to different people and different things in different times. Scholar W. A. Parent considers the following to be the most common views of what the right entails: 1) the right to be left alone, 2) the right to exercise autonomy or control over signifi cant personal matters, and 3) the right to limit access to the self.! Given the variety of beliefs regarding the con tent of privacy rights, and the absence of an explicit reference to privacy in the Federal and in most state constitutions, it is no surprise that courts interested in protecting privacy have protected an array of interests in its name. For instance, the U.S.

Supreme Court has within the scope of privacy protected child rearing and education, contracep tion, and abortion. It has also considered the issues of peddlers going onto private property and dis turbing homeowners, and loud trucks running through residential neighborhoods to involve pri vacy interests. The concept of privacy and limited privacy rights was recognized in ancient Athens. Indeed, the language, law,and writingsof the period reveal that privacy and property in Athenian society were interconnected, and recognized as such.2 While Athenian law respected a form of pri vacy, Plato believed that privacy could not serve a constructive social or psychological purpose, and argued for the eradication of the private realm. He believed that wiping out private prop306 erty would contribute significantly to the elimina tion of all that is private, including thoughts, emo tions, desires, judgments, and decisions.

Plato's vision was never realized in Athens, nor was it influential in English and American jurisprudence, which continued in the Athenian vein to recognize and develop privacy rights in connection with property rights. In 18th-century England, the early parameters of what was to become the right to privacy were set in cases deal ing with unconventional property claims. In Pope v. Curl (1741), a bookseller named Curl obtained and published, without consent of the authors, personal letters written to and by well known literary figures, including Alexander Pope and Jonathan Swift. Pope sued Curl, seeking to have the book containing the letters removed from the market and Curl enjoined from similar actions in the future. The Lord Chancellor upheld the privacy of Pope's letters on the grounds that the writer of a letter has a property right in his words. ExtendingPropertyRights Protection In the 1820case of Yovalt v. Winyard, the court extended property rights protections to cover personal secrets. In that case, Winyard, a journey man assistant, left the employ of Yovatt, a veteri narian, to start a competing business. Winyard used secret medicines in his new practice, provid ing clients with printed instructions on how to use them. Yovatt sued, alleging that Winyard had obtained the formulas for the medicines as well as the instructions for their use from him by surrep titious and clandestine means. Particularly, Yovatt believed Winyard had copied the informa tion out of his personal book. The Lord Chancel lor ruled in Yovatt's favor on the grounds that there had been a breach of trust and confidence, and ordered Winyard to stop using the formulas and instructions.

Yovatt brings to light the interesting and impor tant fact that "what we now call 'unfair competi tion' and 'plagiarism' and 'privacy' were all wrapped together, in Yovatt'stime, under the prin ciple of 'property."'3 It was only later that these concepts were separated. A third case that contributed to the develop ment of privacy rights was Prince Albert v. Strange 307 and Others, decided in 1849.The case was famous because the plaintiff was the husband of Queen Victoria, and the Queen herself was an aggrieved party in the suit. In dispute was the right of printer William Strange to sell reproductions of etchings that he had catalogued and printed without the consent of their creators, Queen Victoria and Prince Albert. While the right to privacy was not explicitly recognized at the time, Victoria and Albert argued their case in terms of their right to keep private art they had created for their personal enjoyment. Realizing that the court would pro tect a property interest, but not an independent privacy interest, Strange's lawyer sought to capi talize on the distinction. He observed, "It ha~ been argued that privacy is the essence of prop erty, and that the deprivation of privacy would make it, in fact, cease to be property." He con cluded that "the notion of privacy is altogether distinct from that of property." The court did not accept his argument. Ruling in favor of Victoria and Albert, the Vice Chancellor wrote: "Every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public or commit them only to the sight of his friends. In that state the manuscript is, in every sense, his peculiar proper ty; and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation of his property."

According to one commentator, the most signif icant aspect of this case and its underlying philos ophy is that it rested on a right of privacy,whichthe court considered a type of property right.4 In fact, it appears that until 1890,no English court recog nized the right to privacy independent of property rights.S Across the Atlantic, the right to privacy was developing in a similar fashion, as an outgrowth of property rights. The Third, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution all protected people and their prop erty against government intrusions. In protecting property, these Amendments also protected priva cy. "The legal maxim and popular proverb that 'a man's house is his castle' had wide application in the nineteenth century." Civil and criminal penal ties threatened anyone who dared invade the sanc tity of the home, or disturb the quiet possession of the householder.

308 THE FREEMAN • AUGUST 1992 The Fourth Amendment's prohibition of unrea sonable search and seizure, as well as the law of trespass, were viewed by courts as safeguards of a homeowner's privacy. Damages in trespass even included compensation for "invasion of privacy." The first United States Supreme Court decision interpreting the Fourth Amendment recognized an "indefeasible right of personal security, person alliberty and private property" against "all inva sions on the part of the government and its employees of the sanctity of a man's home and the privacies of life."6 ContemporaryViewsof Privacyand Property A critical event occurred in 1890, dramatically altering the course of the development of the right to privacy, and giving birth to the current philo sophical dichotomy between privacy and property rights. That year, the Harvard Law Review pub lished an article by Samuel Warren and Louis Brandeis entitled "The Right to Privacy." In that article, the authors argued that many decisions granting relief on the grounds of invasion of prop erty, such as defamation, breach of confidence, or breach of implied contract, were really based on a broader principle-the right to privacy. Although they acknowledged that privacy was already pro tected within the ambit of property rights, they argued the right to privacy ought to be recognized and protected separately.

Warren and Brandeis believed that as society became more civilized and technology advanced, rights also should evolve to protect new threats to human dignity and emotions, and to preserve propriety and decency.7 The article began the pro cess of divorcing privacy from its historical and intellectual partner, property rights. The result of this divorce has been a confused understanding of the origin of the right of privacy, as illustrated by the seminal Supreme Court deci sion in the area. In Griswold v. State of Connecti cut, the Supreme Court construed the right to pri vacy as a "penumbra" formed by "emanations" from the First, Fourth, Fifth, and Ninth Amend ments, but did not link privacy explicitly to prop erty rights. Similarly, in decisions ranging from abortion to criminal search and seizure cases, the Court has loosened privacy protections from their property rights moorings. In the process, it has muddled the parameters of the right and allowed critics to argue that the right to privacy does not exist in the Constitution. 8 Ironically, the false dichotomy between proper ty and privacy rights-and the need to join the two concepts together again-is perhaps best illustrat ed by the case of Moore v. City of East Cleveland.9 Moore involved the criminal prosecution of an elderly black woman who, by having two of her grandchildren (who were cousins) living with her, violated a local zoning ordinance limiting occu pancy of residential dwellings to members of a sin gle "nuclear" family.

A divided Court struck down the ordinance as unconstitutional. The plurality considered the ordinance a violation of the right to privacy, as protected by the Due Process Clause of the Four teenth Amendment, noting that the Court has "long recognized that freedom of personal choice in matters of marriage and family life" is constitu tionally protected. Where Moore becomes interesting, however, is in the concurring opinion of Justice John Paul Stevens, who provided the swing vote in the 5-4 decision. Justice Stevens viewed the "critical ques tion," as "whether East Cleveland's housing ordi nance is a permissible restriction on [Mrs. Moore's] right to use her own property as she sees fit." Stevens observed, "Long before the original States adopted the Constitution, the common law pro tected an owner's right to decide how best to use his own property." In Stevens's view, the applica tion of the ordinance constituted a "taking" with out due process or just compensation, in violation of the Fifth Amendment.

The Moore case illustrates the interconnected ness between privacy and property rights. Given the same set of facts, four members of the Court believed privacy rights were jeopardized, while another believed property rights were threatened. Ultimately, the two segments came together to protect the rights at stake. Since 1977 and the Moore decision, the com position of the Court has changed, and a majority now exists that does not view favorably rights that are not explicitly defined in the Constitu tion. Those like Senator Biden who do not understand the nexus between property and pri vacy rights may unwittingly be creating the groundwork for the Court to diminish protection for privacy. The most enduring protection for THE PROPERTY RIGHTS ORIGINS OF PRIVACY RIGHTS 309 both rights is to view each as indispensable to the other. When asked about the Moore case, Judge Thomas replied that he agreed with the decision, and noted that his own family living arrange ments as a boy in rural Georgia would have been unlawful under the East Cleveland ordinance.

Thomas's personal experiences, growing up in an era of state-enforced segregation, likely gave him a keen appreciation for both property and priva cy rights and for the consequences of denying such rights. Out of the strange ritual that brought together the ideas of Clarence Thomas, Joseph Biden, Stephen Macedo, and Richard Epstein, among others, an important, although perhaps overshad owed issue emerged-what will be the destiny of privacy and property rights in the decades ahead? Interestingly, the answer may depend on whether the connection between privacy and property rights is rediscovered and acknowledged to be essential to our precious liberties. 0 1. W. A. Parent, "Privacy,Morality,and the Law," Philosophy and PublicAffairs,vol. 12, no. 4 (Princeton,N.J.:Princeton Univer sityPress,1983),pp. 269-88. 2. See Barrington Moore, Jr., Privacy:Studiesin Socialand Cul tural History(Armonk, N.Y.: M. E. Sharpe, 1984),pp. 82, 108, and 124.

3. Morris L. Ernst and Alan U. Schwartz,Privacy:The Rightto Be Let Alone (NewYork: Macmillan,1962),pp. 6-12. 4. Ibid., pp.14-22. 5. "The Right to Privacyin Nineteenth Century America," Har vard Law Review,vol. 94 (1981),p.1892. 6. Ibid., pp. 1894-1895,1898. 7. Samuel Warren and Louis Brandeis, "The Right to Privacy," HarvardLaw Review,vol. 4 (1890),p. 191. 8.381 U.s. 617 (1965). 9.431 U.S. 494 (1977).