Seek and Hide: The Tangled History of the Right to Privacy

by Amy Gajda

Overview

NEW YORK TIMES TOP 100 NOTABLE BOOKS OF 2022

“Gajda’s chronicle reveals an enduring tension between principles of free speech and respect for individuals’ private lives. …just the sort of road map we could use right now.”—The Atlantic

“Wry and fascinating…Gajda is a nimble storyteller [and] an insightful guide to a rich and textured history that gets easily caricatured, especially when a culture war is raging.”—The New York Times

An urgent book for today's privacy wars, and essential reading on how the courts have—for centuries—often protected privileged men's rights at the cost of everyone else's.

Should everyone have privacy in their personal lives? Can privacy exist in a public place? Is there a right to be left alone even in the United States? You may be startled to realize that the original framers were sensitive to the importance of   privacy interests relating to sexuality and intimate life, but mostly just for powerful and privileged (and usually white) men. 

 
The battle between an individual’s right to privacy and the public’s right to know has been fought for centuries. The founders demanded privacy for all the wrong press-quashing reasons. Supreme Court jus­tice Louis Brandeis famously promoted First Amend­ment freedoms but argued strongly for privacy too; and presidents from Thomas Jefferson through Don­ald Trump confidently hid behind privacy despite intense public interest in their lives.  
 
Today privacy seems simultaneously under siege and surging. And that’s doubly dangerous, as legal expert Amy Gajda argues. Too little privacy leaves ordinary people vulnerable to those who deal in and publish soul-crushing secrets. Too much means the famous and infamous can cloak themselves in secrecy and dodge accountability. Seek and Hide carries us from the very start, when privacy concepts first entered American law and society, to now, when the law al­lows a Silicon Valley titan to destroy a media site like Gawker out of spite. Muckraker Upton Sinclair, like Nellie Bly before him, pushed the envelope of privacy and propriety and then became a privacy advocate when journalists used the same techniques against him.  By the early 2000s we were on our way to today’s full-blown crisis in the digital age, worrying that smartphones, webcams, basement publishers, and the forever internet had erased the right to privacy completely. 

Product Details

ISBN-13:	9781984880741
Publisher:	Penguin Publishing Group
Publication date:	04/12/2022
Pages:	400
Sales rank:	1,038,266
Product dimensions:	6.00(w) x 9.10(h) x 1.50(d)

About the Author

Amy Gajda is the Class of 1937 Professor of Law at Tulane Law School, a former jour­nalist, and one of the country’s top experts on privacy and the media. She was an award-winning legal commentator on Illinois public radio stations and has written for The New York Times and Slate and provided expert commentary for The New Yorker, The Guardian, Newsweek, the Los Angeles Times, the Associated Press, as well as C-SPAN, CBS Mornings, and many more. She lives in New Orleans.

Table of Contents

Introduction ix

A Quick Primer on Law, Procedure, and Precedent xv

Part I The Rise of Privacy

1 Brandeis's Secret 3

2 Hamilton, Jefferson, and the Greatest Evil 12

3 Love and Pictures 29

4 The Warrens Make the Paper 38

5 Who Was Kate Nash? 52

6 "The Right to Privacy" 67

7 The Right to Know 80

Coda Part I The Death of Sam Warren 92

Part II The Rise of the Media

8 A Different Kind of Fire 101

9 The Law Won 114

10 Holmes and Brandeis and the (Regulated) Marketplace of Ideas 131

11 Be Decent 144

12 Pandora's Box, the Source of Every Evil 157

13 Bodies and Breathing Space 169

14 Real Chutzpah, Real Housewives 191

Coda Part II It Does Not Follow 201

Part III Watch Out!

15 Miss Vermont, Judge Mikva, and the Wrestler 213

16 Girls Gone Wild (Privacy in Public) 225

17 Kate Nash Redux (Privacy in Data) 231

18 The Right to Be Forgotten (Privacy in the Past) 242

19 A President and His Tax Returns (Privacy in Politics) 251

Epilogue: Dignity and Liberty 263

Acknowledgments 277

Notes 279

Bibliography 341

Index 359

Editorial Reviews

01/24/2022

This probing legal history documents the antagonism in American jurisprudence between freedom of the press and the right to keep information private. Journalist and Tulane law professor Gajda (The First Amendment Bubble) surveys landmarks in the parsing of First Amendment and privacy rights by the courts, which long held that journalists could be sued or jailed for reporting private information, including government malfeasance. (One editor was prosecuted by the Grover Cleveland administration for reporting on illegal fundraising and sexual harassment by a federal official.) The 20th century brought enormous expansion of the media’s right to divulge everything from Vietnam War documents to an individual’s sexual orientation, but anxiety about new surveillance technologies has recently sparked legal backlashes against revenge porn, doxing, and other privacy violations. Gajda gives full due to each side, showing how the right to be free from public scrutiny in intimate matters is as fundamental to liberty as press freedom, but can also shield the wrongdoing of the powerful. She also sets her analysis within a lively history of scandalmongering, including Thomas Jefferson and Alexander Hamilton’s attempts to use the press to accuse each other of sexual improprieties. This nuanced and entertaining study offers crucial perspective on the “tension between the right to privacy and the right to know the truth.” Agent: Carolyn Savarese, Kneerim & Williams. (Apr.)

Publishers Weekly

02/04/2022

With this stimulating, thoughtful work Gajda (Tulane Law Sch.; The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press) argues that though the privilege of the press to print newsworthy information is a cornerstone of free speech, it has historically been tempered by privacy concerns. She opens with a quick primer on United States law for unfamiliar readers, then explores prominent court cases, dating back to the founding of the United States, that touch on privacy and the press. A common theme throughout is the balance between prominent individuals who want to protect their privacy preserved and the right of the public to be informed. Additionally, Gajda interrogates how evolving technologies influence popular perceptions of privacy. A large portion of the work centers on the seminal article "The Right to Privacy" (1890), written by Sam Warren and Louis Brandeis for the Harvard Law Review, on which many legal opinions are based. Further developments in journalism are also examined, including the development of an industry-wide code of ethics. Finally, Gajda considers modern privacy issues such as the "right to be forgotten," data collection, political figures, and surveillance. VERDICT A fascinating and thought-provoking analysis of the history of privacy issues that will be accessible to a general audience.—Rebekah Kati

Library Journal

2022-01-25
The right to privacy is not a given, as this complicated legal history makes clear.

As law professor Gajda writes, there has been tension between the right to privacy and the right of the free press to publish news since the Colonial era. Nonetheless, the modern period of privacy law begins, by her account, with a specific incident in the late 19th century when a risqué dancer contested the publication of a photograph of her onstage act. The event coincided with the publication of an article by future Supreme Court Justice Louis Brandeis, whose firm did so brisk a business in privacy-related lawsuits that he felt comfortable turning down one such action by none other than Mark Twain. “The U.S. Supreme Court has never decided precisely when the right to privacy trumps a freedom to publish a truth,” writes Gajda. Instead, the court has referred the matter to the states, which has resulted in a patchwork of laws that serve to highlight the tension even further: “Society needs [privacy], the law is there on which to build, and the only question is, which way do we as a society want to go, especially when the right to privacy is so often pitted against that other critical right, the freedom of expression?” Just as with the Supreme Court, American society seems torn, and the legal pendulum swings, sometimes weighing heavily in favor of the press (as with, for instance, the publication of the Pentagon Papers) and sometimes siding, by omission or commission, with those who claim the right to privacy—Donald Trump and his taxes, to name just one of the author’s examples. Clearly, she concludes, the matter is legislative as much as judicial, such that Congress must weigh in on what constitutes, as one Supreme Court decision framed it, “a subject of legitimate news interest.”

Educative reading for lawyers, journalists, and others who must balance the right to make known with the right to conceal.

Kirkus Reviews

Wry and fascinating…Gajda is a nimble storyteller [and] an insightful guide to a rich and textured history that gets easily caricatured, especially when a culture war is raging.”—The New York Times

“Gajda’s chronicle reveals an enduring tension between principles of free speech and respect for individuals’ private lives. But it also throws into sharp relief how much the context for that debate has changed in the past several decades…just the sort of road map we could use right now.”—The Atlantic

"Fascinating and thought-provoking analysis."— Library Journal

“This brilliant and thought-provoking book shows how America’s well-known emphasis on freedom of the press has long been balanced by a deep legal tradition that protects an individual’s right to privacy. With fascinat­ing case studies, Amy Gajda shows how battles over the right to privacy are nothing new, but they are particularly relevant in this era of digital media and social networks.”—WALTER ISAACSON, author of Steve Jobs
 
“The history of privacy is much more than a matter for the courts: it is, as Amy Gajda shows, an unsettling, emotionally wrought factor in American life that never goes away. These days, when news organizations can, under the First Amendment, pursue rumors and squeeze personal information from public figures, freedom of the press and personal dignity clash. With an abundance of sharply drawn examples, Gajda shines a needed spotlight on an uneasy inheritance. A tangled history, indeed.”—NANCY ISENBERG, author of White Trash
 
“For anyone who mistakenly believes that the debate about press freedom and privacy is a twenty-first-century problem, Amy Gajda’s Seek and Hide is a reminder that ‘gotcha’ journalism, political sex scandals, and hand-wringing over new technologies date back to the Founding Era. In this gorgeously written, rollicking account of a very complicated, very Ameri­can history of the smackdown between privacy versus the right to know, Gajda offers indispensable and timely context for contemporary debates about the boundaries of both. Ultimately Seek and Hide also serves as a bracing reminder that the laws of privacy and politics are often shaped by self-interested parties with the most to gain and the most to hide.”—DAHLIA LITHWICK, senior legal correspondent, Slate
 
“An engrossing and essential account of the origins of our present dilemma.”—JILL LEPORE, author of These Truths
 
“A magnificent book that shows us that the tension between the right to privacy and freedom of expres­sion is as old as this country yet as recent as social media and doorbell cameras. At a time when we all must be concerned about what it all means for each of us, Amy Gajda has written the definitive book about privacy and the right to know.”—ERWIN CHEMERINSKY, dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

From the Publisher