The Right to Privacy. "I think, however, that the true distinction to be observed is between private and public characters. "The moment one voluntarily places himself be fore the public, either in accepting public office or in becoming a candidate for office, or as an artist or literary man, — he surrenders his right to pri vacy pro tanto, and obviously cannot complain of any fair or reasonable description or portraiture of himself. "It has not been shown that Mrs. Schuyler ever came within the category of what might be denom inated public characters. She was undoubtedly a woman of rare gifts and of a broad and philan thropic nature; but these she exercised as a private citizen, in an unobtrusive way. "There is no refutation of the status given her by the complaint, which alleges that ' she was in no sense either a public character or even a per son generally known either in the community in which she lived or throughout the United States, but that her life was pre-eminently the life of a private citizen; that she was a woman of great refinement and cultivation; that notoriety in any form was both extremely distasteful to her and wholly repugnant to her character and disposition, and that throughout her life she neither sought nor desired it in any way.' "Such a person thus described does not lose her character as a private citizen merely because she engaged in private works of philanthropy. "It is sometimes difficult to determine in indi vidual cases when one ceases to be a private, and becomes a public character. This, however, does not destroy the value of the distinction, nor the grounds upon which it can be supported. It is equally difficult to apply to individual cases the principle of the reasonableness or unreasonableness of certain acts. As stated, therefore, it not having been shown that Mrs. Schuyler was a public char acter, her relatives have a right to intervene. "It is true that there is no reported decision which goes to this extent in maintaining the right of privacy; and in that respect this is a novel case. But the gradual extension of the law in the direction of affording the most complete redress for injury to individual rights, makes this an easy step from reported decisions much similar in principle. "In a recent article of the ' Harvard Law Re view' (Dec. 1890, vol. iv. no. 5), entitled 'The Right to Privacy,' we find an able summary of the 68
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extension and development of the law of individual rights, which well deserves and will repay the pe rusal of every lawyer. Among other things it says : "'This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the ad vance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. '"Thoughts, emotions, and sensations demanded legal recognition; and the beautiful capacity for growth which characterizes the common law, en abled the judges to afford the requisite protection without the interposition of the legislature. "' Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the " right to be let alone." Instantaneous photographs and newspaper enterprise have invaded the sacred pre cincts of private and domestic life; and numerous mechanical devices threaten to make good the pre diction that "what is whispered in the closet shall be proclaimed from the house-top." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.' — Scribner's Magazine, July, 1890: 'The Rights of the Citizen to his Reputation,' by E. L. Godkin, Esq., pp. 65-67. "Marion Manola vs. Stevens and Myers, de cided by this court in June, 1890. involved the consideration of the right to circulate portraits. "The plaintiff alleged that while playing in the Broadway Theatre, in a role which required her appearance in tights, she was, by means of a flash light, photographed surreptitiously and with out her consent from one of the boxes of the theatre. "It is true there was no opposition to the pre liminary injunction being made permanent; but this court issued one to restrain any use being made of the pictures so taken. "Pollard vs. Photographic Co., already referred to, is another instance where an injunction was issued against the unauthorized exhibition or sale of photographs or other likenesses of private persons.
