The Right to Privacy in the United States

[10] Cooley on Torts, 2d ed., p. 29.

[11] 8 Amer. Law Reg. N.S. 1 (1869); 12 Wash. Law Rep. 353 (1884); 24 Sol. J. & Rep. 4 (1879).

[12] Scribner’s Magazine, July, 1890. “The Rights of the Citizen: to His Reputation,” by E. L. Godkin, Esq. pp. 65, 67.

[13] Marion Manola v. Stevens & Myers, N.Y.Supreme Court, New York Times of June 15, 18, 21, 1890. There, the complainant alleged that, while she was playing in the Broadway Theatre, in a role which required her appearance in tights, she was, by means of a flashlight, photographed surreptitiously and without her consent, from one of the boxes, by defendant Stevens, the manager of the “Castle in the Air” company, and defendant Myers, a photographer, and prayed that the defendants might be restrained from making use of the photograph taken. A preliminary injunction issued ex parte, and a time was set for argument of the motion that the injunction should be made permanent, but no one then appeared in opposition.

[14] Though the legal value of “feelings” is now generally recognized, distinctions have been drawn between the several classes of cases in which compensation may or may not be recovered. Thus, the fright occasioned by an assault constitutes a cause of action, but fright occasioned by negligence does not. So fright coupled with bodily injury affords a foundation for enhanced damages; but, ordinarily, fright unattended by bodily injury cannot be relied upon as an element of damages, even where a valid cause of action exists, as in trespass quare clausum fregit. Wyman v. Leavitt, 71 Me. 227; Canning v. Williamstown, 1 Cush. 451. The allowance of damages for injury to the parents’ feelings, in case of seduction, abduction of a child (Stowe v. Heywood, 7 All. 118), or removal of the corpse of child from a burial-ground (Meagher v. Driscoll, 99 Mass. 281), are said to be exceptions to a general rule. On the other hand, injury to feelings is a recognized element of damages in actions of slander and libel, and of malicious prosecution. These distinctions between the cases, where injury to feelings does and where it does not constitute a cause of action or legal element of damages, are not logical, but doubtless serve well as practical rules. It will, it is believed, be found, upon examination of the authorities, that wherever substantial mental suffering would be the natural and probable result of the act, there compensation for injury to feelings has been allowed, and that where no mental suffering would ordinarily result, or if resulting, would naturally be but trifling, and, being unaccompanied by visible signs of injury, would afford a wide scope for imaginative ills, there damages have been disallowed. The decisions on this subject illustrate well the subjection in our law of logic to common-sense.

[15] “Injuria, in the narrower sense, is every intentional and illegal violation of honour, i.e., the whole personality of another.” “Now an outrage is committed not only when a man shall be struck with the fist, say, or with a club, or even flogged, but also if abusive language has been used to one.” Salkowski, Roman Law, p. 668 and p. 669, n. 2.

[16] “It is certain every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends.” Yates, J., in Millar v. Taylor, 4 Burr. 2303, 2379 (1769).

[17] Nichols v. Pitman, 26 Ch. D. 374 (1884).

[18] Lee v. Simpson, 3 C.B. 871, 881; Daly v. Palmer, 6 Blatchf. 256.

[19] Turner v. Robinson, 10 Ir. Ch. 121; S. C. ib. 510.

[20] Drone on Copyright, 102.

[21] “Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. Those with whom our common law originated had not probably among their many merits that of being patrons of letters; but they knew the duty and necessity of protecting property, and with that general object laid down rules providently expansive — rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce.
“The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man’s understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be ‘For the encouragement of learning,’ and using the words ‘taken the liberty,’ in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer’s consent.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 695 (1849).

[22] “The question, however, does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that whether interesting or dull, light or heavy, salable or unsalable, they shall not, without his consent, be published.” Knight Bruce, V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 694.

[23] Duke of Queensbury v. Shebbeare, 2 Eden 329 (1758); Bartlett v. Crittenden, 5 McLean 32, 41 (1849).