ArticlesVolume 36, No. 1 (2012)

The Sidis Case and the Origins of Modern Privacy Law

The American press, it has been said, is freer to invade personal privacy than perhaps any other in the world.  The tort law of privacy, as a shield against unwanted media exposure, is very weak.  The media in the U.S. have a degree of latitude to report on intimate matters, without the threat of legal liability, that would be unimaginable in many other countries.  In England, model Naomi Campbell won damages against a magazine when it published the details of her treatment for drug addiction.  Princess Caroline of Monaco obtained a judgment from the European Court of Human Rights preventing the German press from publishing paparazzi photos of her.  In the U.S., by contrast, public figures have been held to have almost no legal right to privacy.  Courts have considered almost anything that takes place in a public place, or that could be said to shed light on an issue of public curiosity or significance, to be exempt from liability for invasion of privacy.  The personal details and photographs of a rape victim, images of the extrication of a woman from a crashed car and a photograph of a soccer player with his genitalia exposed are among the intimacies that have been held to be newsworthy “matters of public interest” and thus nonactionable under privacy law.

The failure of American law to protect personal life from unwanted publicity has been poorly explained. The standard reason given for the weakness of American privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom.  But freedom of the press alone cannot explain why the right to publish has been interpreted as a right to print truly intimate matters or the right to thrust people into the spotlight against their will.  Especially during a time of heightened concerns with privacy and Internet overexposure, we need a better explanation as to why the law has struck the balance between media exposure and privacy in the way that it has.  One answer, this Article argues, can be found in the case of William James Sidis.