How the first mass-market camera led to the right to privacy and ‘Roe V. Wade’
One of America’s foremost legal ideas has a fascinating backstory
In the summer of 1899, the cosmopolitan elite descended on the sunny shores of Newport, Rhode Island, to socialize among their kind. They passed their days in clubhouses and on yachts, enjoying friendly competitions on putting greens and tennis courts. But this season their insouciance was intruded upon by modernity — they now found themselves spied upon by a new class of gossip-mongers, including the “sleuthhound reporter” and the “Kodak fiend.”
The moniker signified a new and irksome kind of rascal, who, thanks to the development of affordable and portable cameras, could record your existence with the click of a button. And they were everywhere, from taking snapshots at William Astor’s funeral to gawking at the scene of an accident.
Even President Theodore Roosevelt had his fill. Coming out of church during his first week in office, a 15-year-old boy began to snap his picture on the streets of Washington. Roosevelt ordered a nearby policeman to block the line of sight before he wagged his finger at the boy and gave him a stern lecture. “You ought to be ashamed of yourself!” said the president. “Trying to take a man’s picture as he leaves a house of worship. It is a disgrace!”
The camera fiend harmed even the average citizen. In his 1894 poem, Joel Benton warns of the new menace: “Oh, de kodak fiend, he’s sly an’ mean, / An’ you can’t go out near his machine.” Four years earlier, the Hawaiian Gazette ran a piece of advice so one might protect herself from the country’s multiplying thieves of privacy:
Have you seen the Kodak fiend? Well, he has seen you. He caught your expression yesterday while you were in recently talking at the Post Office. He has taken you at a disadvantage and transfixed your uncouth position and passed it on to be laughed at by friend and foe alike. His click is heard on every hand. He is merciless and omnipresent and has as little conscience and respect for proprieties as the veriest hoodlum. … The moral of it all is this: keep cool, stand erect, and wear a kindly face. You will be a better man, and live longer, and make others happier thus, whether the Kodak fiend snaps or passes you by.
The “Kodak fiend” got that name, of course, from Eastman Kodak, the company whose cameras made photography affordable to the amateur. This phenomenon was only accelerated by the release of their Kodak Brownie, a prism-shaped camera with a price tag of $1—cheap enough to be marketed to the masses.
A few shrewd observers began to realize that the threat to privacy posed by popular photography was no longer a matter to be a matter left to personal conduct. In a seminal 1890 article published in the Harvard Law Review under the name “The Right to Privacy,” Samuel D. Warren and Louis Brandeis (a lawyer at the time, Brandeis would become a Supreme Court justice in 1916) argued that the law needed to catch up with changes in culture, economics, and technology.
They set out on their review spurred principally by a disgust for the society gossip of newspapers, the kind that spied upon the blue bloods at their coastal New England luncheons. “Instantaneous photographs and newspaper enterprise,” they wrote, “have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”
The pair examined how law and legal precedent might already protect a citizen’s “right to be let alone.” In particular, they focused on ownership of one’s own image and the law’s capacity to “protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.”
Roscoe Pound, dean of Harvard Law School for 20 years, said the article was responsible for “nothing less than adding a chapter to our law.”
Soon enough, these issues found their way to an actual courthouse. In 1902, a woman named Abigail M. Roberson sued the Rochester Folding Box Company for appropriating her likeness on 25,000 lithographs advertising the company’s flour. Her lawyers invoked the Warren and Brandeis article to bolster their case, but the court determined New York state laws made no explicit protection of a person’s likeness. The plaintiff was given nothing.
Yet thanks to ensuing public outrage, New York passed sections 50 and 51 in its Civil Rights Law, asserting that the right to privacy includes control over the use of one’s likeness, and that not even “an impertinent person with a camera” may take that away. Lawyer Melville Nimmer—who called the Brandeis-Warren arguments “perhaps the most famous and certainly the most influential law review article ever written”—credited “The Right to Privacy” with compelling 14 additional courts to recognize common law right of privacy in their states.
In 1928, privacy protections were bolstered even further, again thanks to Louis Brandeis, now sitting on the Supreme Court. In Olmsted v. United States, Brandeis wrote an influential dissent arguing evidence obtained by wiretap violated the Fourth and Fifth Amendments and their preservation of “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” In 1967, through the case Katz v. United States, the Court belatedly agreed with him, and overturned the ruling.
Though it may be in the area of reproductive rights that the right to privacy has been most deftly employed. In 1965 the Supreme Court heard Griswold v Connecticut, which concerned Planned Parenthood employees who were arrested and fined for violating Connecticut’s Comstock-era laws forbidding contraception. The Court invoked the Fourteenth Amendment to argue it would trespass against marital privacy to prohibit a couple from using contraception (a later case applied such protections to unmarried couples).
The Griswold case and its ruling on privacy rights paved the way for Roe v. Wade in 1972, and Lawrence v. Texas in 2003, the latter striking down Texas’s anti-sodomy laws.
From discontent over gossip columns and photography came a liberal interpretation of the Constitution’s privacy protections. These provided not only a bulwark against unlawful search and seizure, but granted control over the use of our likeness, made us secure in our private communications, and blocked the law from meddling too much in the body and in the bedroom. Yet today only a naive person might expect immunity from spying eyes on her texts, her emails, her purchases, and her likeness as she shops the pharmacy or walks the city street. We live more in the open than ever, engaged in a ever-complicated relationship with that essential democratic ideal: the right to be let alone.
