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Vanderbilt Law Review

First Page

1295

Abstract

The Right to Privacy' and his dissent in Olmstead v. United States. In The Right to Privacy, Brandeis and Samuel Warren argued that intrusion into and public disclosure of private affairs by the press was deeply hurtful, and that the common law should be read to recognize a tort remedy for such violations. Their short article is considered by scholars to have established not just the privacy torts but the field of privacy law itself. Brandeis is also famous (though less so) for his Olmstead dissent-a document which introduced modern concepts of privacy into constitutional law, and ultimately led not only to the "reasonable expectation of privacy" test that governs Fourth Amendment law,4 but also shaped the constitutional right to privacy recognized in Griswold v. Connecticut5 and Roe v. Wade.

While sounding good in theory, the right to privacy has proven hard to apply in practice. From its earliest recognition by the common law, and particularly since the 1960s, tort privacy has conflicted with First Amendment rights of free speech and press. Over the years, the conflict between privacy and speech has generated a substantial literature. Important litigation has also examined the constitutionality of privacy rights under the First Amendment, with the First Amendment usually prevailing. An important theme running throughout these cases and commentary is that privacy and speech are in irreconcilable conflict.

The assumed conflict between privacy and speech reveals a puzzle. In addition to establishing the modern legal conception of privacy, Brandeis is also a central figure in the genesis of First Amendment law. In a series of separate opinions in free speech cases from 1919-1925, Justice Brandeis articulated a more robust notion of the First Amendment that has subsequently become the dominant one in American constitutional law.'0 Brandeis's most important contribution to this tradition is his opinion in Whitney v. California," which Vincent Blasi has called "arguably the most important essay ever written, on or off the bench, on the meaning of the First Amendment."

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