Over one hundred years ago, Samuel Warren and Louis Brandeis wrote, "Of the desirability-indeed of the necessity-of some protection [of the right of privacy], there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency." This observation rings even more true today than it did when it was made in 1890. In the past hundred years, members of the media have drastically revised the unwritten rules regarding what topics are fair game. While media outlets uniformly declined to publish photographs of Franklin Delano Roosevelt in a wheelchair while he was president, the press today rarely exercises any similar kind of restraint when reporting on the private lives of presidents or even ordinary citizens. One would imagine that Bill Clinton would have been thrilled if the modern White House Press Corps had been willing to broker such a gentleman's agreement with regard to the publication of pictures or information that shed light on the intimate details of his personal life. As the Supreme Court of California recently observed, "While even in their day Brandeis and Warren complained that 'the details of sexual relations are spread broadcast [sic] in the columns of the daily papers,' today's public discourse is particularly notable for its detailed and graphic discussion of intimate personal and family matters." Further, the media's technological capacity to invade the private sphere and to subsequently broadcast private facts quickly to a national and even global audience is unprecedented. Today's press is more than willing to use this power to transgress a previously off limits zone of privacy.
First Amendment Protection for the Publication of Private Information,
60 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol60/iss1/6