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

It would seem that a pair of tights and a snap camera started it all.

Thats because the scandalous leg gear and the troubling new technology got a mention in the fourth paragraph of an 1890 law review article by the attorneys Louis Brandeis and Sam Warren, one that many say marked the start of the legal right to privacy in the United States. The law partners wrote that a theatrical performance that same year had sparked a somewhat notorious case.

The story goes that Marion Manola, singer-actress and star of Broadways Castles in the Air, wore gray silk tights as a provocative part of her art. Tights back then set tongues wagging: they had a sensual cling at a time when women wore thick dresses that plunged to the ground and sashayed around there so that no one much knew what shoes looked like either. Tights on a stage actress allowed men to see the curve of her hips to her toes.

Such distraction was not universal, however, and Manolas silken legs failed to move the days theater critics. Castles in the Air is a perfect abyss of weariness was The Evening Worlds assessment. The New York Times called it an apparent failure. But Manolas trim and attractive figure kept audiences coming nevertheless. The theater manager, recognizing even meatier marketing potential, wished to capture an image of Manola in her ensemble. She is my chief soprano was his public explanation.

Newspaper headlines from Friday, June 13, 1890, made clear that Manola absolutely, positively refused. New York: she wont be taken in tights . Chicago: will not be photographed in tights . In Boston, the Globe put it patronizingly: miss manola in distress: will resign rather than be photographed in her tights . Live performance was one thing, but still photography seemed an invasion entirely different.

Then came trouble, just as any careful reader would have expected. Quite literally the next evening, as Manola ran toward the open arms of a costar in the second act, a flash of light and a puff of smoke erupted from the Broadway Theatres balcony. The manager had placed a snap camera in an upper box! A photographer had captured Manola and the not too slender, not too plump, graceful, and shapely contents of the darker gray tights!

News coverage of the outrage appeared at about the speed of the snap flash. The million and a half people in New York are not bothering themselves about the silver bill, the federal election law, or the other issues which interest the country at large, The Atlanta Constitution reported. The New Yorkers have nothing in view but Miss Manolas tights, and just at present they are discussing nothing else.

Women rallied to Manolas cause, crediting her for standing firm against a clear male desire to exploit a womans choice; the entire sympathy of all of her sex and of the best part of the community stood with the actress. Some men, on the other hand, struggled to understand why this particular photo was such a big deal. Theyd seen Manolas silky legs before, not only on Broadway, but on cabinet cards published when shed starred in the risqu Boccaccio. Her tunic back then sported a tantalizing fringe that covered her pelvic region just so, with tight light tights doing the rest of the work.

Well never know what Manolas legs looked like during her Castles in the Air performance, however. A judge immediately sided with the actress, her sex, and the communitys best and ordered that the manager never, ever develop the photo, let alone publish it. And the story might have ended there.

But the idea of that personal invasion fit perfectly into a narrative building in the mind of the attorney Sam Warren back in Boston. Warren saw a different sort of marketing potential in Manolas legs; the viral tale could help support his call for what he called a newfangled right to privacy. This was solid proof that cameras could (and people would) capture embarrassing images from real life far beyond the woodblock portraits that already tormented the rich and powerful so. Heck, the so-called snap or detective camera was even marketed in such a privacy-invading way: ads promised that it could record the countenance and pose of an unsuspecting victim who would be unaware until it was too late. Mrs. Grover Cleveland, a friend of Warrens, had it particularly bad: she was haunted by amateurs , headlines read, the dozens of hopeful photographers who waited for a glimpse of the First Lady. Some of their cameras were shaped like purses. Others looked so much like handguns that police could have shot to kill a paparazzo and nobody would have questioned it even for a second. The autograph-seeking fans who similarly frenzied around the French actress Sarah Bernhardt to invade her privacy during her U.S. tour in the 1880s? They now had a weapon much mightier than the pen.

Today, the 1890 plea The Right to Privacy, written by Warren and his law partner the future Supreme Court justice Brandeis, is used to support legal protection not only for the haunted and the hunted, but also to justify protection for everything from sexual intimacies and private scandals to police eavesdropping and computer data. Judges routinely laud the reasoning and quote the language of The Right to Privacy in publication casesas well as in cases involving presidential privilege, civil rights, drug testing, freedom of information, and many others. The 1890 article, those judges say, is seminal and brilliant and famous and historic and a landmark and the foundation for nearly every single privacy-related right that we have in modern times.

But heres the thing: the right to privacy as a legal concept has always existed in some sense in U.S. law, ever since the very first long-form newspaper reported titillating scandal in 1690 and was immediately shut down. Warren and Brandeis helped things along to be sure, but privacy, the notion that certain private information is sacred and ought to be protected not just from government but from everyone, causes of action called truthful libel or even ridicule, already had a fairly firm foundation by 1890, and it grew from there. Its just that nobodys heard much about it, for reasons that probably have more to do with our focus on press freedom than anything else.