Barbas: The Laws of Image

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S AMANTHABARBAS*
eliveinanimagesociety.Sincetheturnofthetwentiethcentury, ifnotearlier,Americanshavebeenawashinaseaofimagesin advertisements, in newspapers and magazines, on billboards, andthroughoutthevisuallandscape.Wearehighlyattunedtolooks,first impressions, and surface appearances, and perhaps no image is more seductivetousthanourownpersonalimage.In1962,theculturalhistorian DanielBoorstinobservedthatwhenpeopletalkedaboutthemselves,they talked about their images.1 If the flourishing industries of image managementfashion, cosmetics, selfhelpare any indication, we are indeeddeeplyconcernedwithourlooks,reputations,andtheimpressions thatwemake.Foroverahundredyears,socialrelationsandconceptionsof personal identity have revolved around the creation, projection, and manipulationofimages.2 Theriseoftheimagesocietyhasbeenafamiliarsubjectofcommentary in the fields of social and cultural history,3 yet its legal implications have
*AssociateProfessorofLaw,SUNYBuffaloLawSchool;J.D.StanfordLawSchool,Ph.D., History,UniversityofCalifornia,Berkeley. See generally DANIEL J. BOORSTIN, THE IMAGE: A GUIDE TO PSEUDOEVENTS IN AMERICA (1961).
2 1
SusanSontaghaswrittenthat: [A] society becomes modern when one of its chief activities is producing and consuming images, when images have extraordinary powers to determine our demands upon reality and are themselves covetedsubstitutesforfirsthandexperienceandbecomeindispensableto thehealthoftheeconomy,thestabilityofthepolity,andthepursuitof privatehappiness.
SUSANSONTAG,ONPHOTOGRAPHY153(2dprtg.1977).
3 See generally, e.g., BOORSTIN, supra note 1; STUART EWEN, ALL CONSUMING IMAGES: THE POLITICS OF STYLE IN CONTEMPORARY CULTURE 11415, 14445 (1988); STUART EWEN & ELIZABETH EWEN, CHANNELS OF DESIRE: MASS IMAGES AND THE SHAPING OF AMERICAN
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notbeenexploredorunderstood.Thisisunfortunate,asthelawhasbeen foundational to the image society; legal doctrines and institutions facilitatedthecultureofimagesandwereinturnalteredandshapedbyit. Inwhatfollows,Iwillcontemplateonelegalconsequenceoftheadventof theimagesociety:theevolutionofanareaoflawthatIdescribeasthetort law of personal image. By the 1950s, a body of tort lawprincipally the privacy, defamation, publicity, and emotional distress torts4had developed to protect a right to control ones own image, and to be compensatedforemotionalanddignitaryharmscausedbyegregiousand unwarrantedinterferencewithonesselfpresentationandpublicidentity.5 Thelawofimagegaverisetothephenomenonofthepersonalimagelawsuit, inwhichindividualssuedtovindicateorredresstheirimagerights.Bythe postwar era, such lawsuits had become an established feature of the sociolegal landscape, occupying not only a prominent place on court docketsbutalsointhepopularimagination.Thegrowthinpersonalimage litigation over the course of the twentieth century was driven by Americans increasing sense of entitlement to their personal images. A confluence of social forces led individuals to cultivate a sense of possessiveness and protectiveness towards their images, which was legitimatedandenhancedbythelaw. ThisArticleoffersabroadoverviewofthedevelopmentofthemodern image torts and the phenomenon of personal image litigation. An intertwined history of the law, culture, and the self, this Article explores
CONSCIOUSNESS 75, 108, 214(2ded.1992);CHRISTOPHER LASCH, THE CULTUREOF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS 7475, 102 (1979); JACKSON LEARS, FABLESOFABUNDANCE:ACULTURALHISTORYOFADVERTISINGINAMERICA(1994);seealso PETERSTEARNS,AMERICANCOOL:CONSTRUCTINGATWENTIETHCENTURYEMOTIONALSTYLE, 1619,25657(1994).
4 The legal action for defamation is not a modern tort, but as this Article suggests, the twentieth century version of the tort is significantly different from what preceded it. Defamation law has come to protect not only reputation but personal image and ones feelingsaboutonesimage.
In describing these as image torts rather than personality torts, as they are traditionally categorized, this Article offers a reclassification and reconceptualization of this area of tort law that suggests an alternative view of the protected interests at stake. For classifications of the defamation and privacy law as protecting rights of personality, see generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 19798, 20507, 21011 (1890); Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An AnswertoDeanProsser,39N.Y.U. L. REV.962,96364,97071,974,984,991(1964);LeonGreen, Relational Interests, 29 ILL. L. REV. 460, 46163, 465, 467 (1934); Roscoe Pound, Interests of Personality, 28 HARV. L. REV. 343, 36364 (1915); Paul M. Schwartz & KarlNikolaus Peifer, Prossers Privacy and the German Right of Personality: Are Four Privacy Torts Better than One UnitaryConcept?,98CALIF.L.REV.1925,194346(2010).
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how the law became a stage for, and participant in, the modern preoccupation with personal image, and how tort laws models of personhood and identity in turn transformed understandings of the self. Through legal claims for libel, invasions of privacy, and other assaults to the image, the law was brought, both practically and imaginatively, into popular fantasies and struggles over personal identity and self presentation. ThroughouttheArticle,Irefertotheconceptofimagepublicimageor personal image. Although the term reputation is familiar in the law, it is inadequate to describe the nature of the interests at stake in many legal disputes over invasion of privacy, unwanted publicity, and defamation. Reputation,amodeofsocialevaluationhistoricallyassociatedwithstable andenduringcommunities,isbasedonappraisalsandjudgmentsaccrued over time.6 Image, by contrast, is the representation of self that one constructs and presents in a world defined by mobility and relatively transient social relations: the fleeting contacts of the city, the momentary connections of the world wide web. When a person is depicted in the media in an embarrassing manner, that individual may be worried about his or her reputation among his or her peers, but is also likely concerned with image: the undesirable impression he or she has made on a mass audience,albeitfacelessandunknowntothatperson.Onemayresentnot only that one has been portrayed negatively, but even more, the fact that one has lost control of ones public image. The mass media has been regardedasoneoftheprimarythreatstopersonalimageinmoderntimes, and this Article focuses on cases brought against media defendants. In thesecases,theprinciplethatonehasarighttocontrolonesownimage to be the primary author of ones imagewas written, albeit with qualifications,intotortlaw. The story of the modern tort law of image begins in the late 1800s, when new technologies of visual representation and the fragmented and unstable nature of interpersonal relations in the city generated new
See,e.g.,RobertZinkoetal.,TowardaTheoryofReputationinOrganizations,in26RESEARCH PERSONNEL AND HUMAN RESOURCES MANAGEMENT 163, 165 (Joseph J. Martocchio ed., 2007). Reputation is a perceptual identity formed from the collective perceptions of others, which is reflective of the complex combination of salient personal characteristics and accomplishments,demonstratedbehavior,andintendedimagespresentedoversomeperiod of time as observed directly and/or reported from secondary sources, which reduces ambiguity about expected future behavior. Id. For other definitions of reputation, particularly as they bear on defamation law, see Robert C. Post, The Social Foundations of DefamationLaw:ReputationandtheConstitution,74CALIF. L. REV.691,693715(1986);DavidS. Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law, 45 HARV.C.R.C.L.L.REV.261,26772(2010).
IN
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anxieties around image, identity, and selfpresentation in public. In an environment characterized by fleeting encounters with strangers, where the mass media was beginning to assume a central place in social life, appearances, first impressions, and images became matters of great individualandcollectivesignificance.Itwasinthismilieuthatcourtsand legal theorists began to discuss the possibility of a legal right to privacy. Althoughtherighttoprivacyisoftendescribedasarighttobeletalone, privacy was primarily understood, in the legal and popular discourse of thetime,asarighttocontrolonespublicimageandtobecompensatedfor the dignitary harms caused by unwanted and undesirable publicity. As PartOneexplains,theprivacytortwasthelegalmanifestationofanascent appearanceconscious,imageconsciousculture. The further development of the visual mass media, the rise of a consumercultureintheearlytwentiethcentury,andthetransitorynature of modern social relations heightened the cultural emphasis on personal image and the act of imagemaking. As individuals were unmoored from social institutions that had traditionally anchored personal identity, they conceivedofthemselvesincreasinglyintermsofimagesandmanufactured appearances. Ones identity came to be seen as congruent with the impressions and images one projected to the world, and the ability to controlthesesurfacerepresentationswasregardedasessentialtopersonal autonomy and selfdefinition. The 1930s and 1940s saw the doctrinal expansionoftheimagetortsandtheriseofthepersonalimagelawsuita legalaction,typicallyforinvasionofprivacyordefamation,oftenbrought against the mass media. The harm alleged was that ones feelings and dignitywereinjuredwhenthemediainterferedwithhisorherperceived right to fashion his or her own public persona. As Part Two explains, by the 1950s, tort law had come to be regarded by many as a tool in the all importantprojectofimagemanagement. Part Three describes the flourishing of the image society in the latter twentieth century, and the nearobsession with personal image that has become a defining feature of the recent American social experience. It trackstheriseofwhatsociologistsandcriticshavedescribedasanother directedselfamodalpersonalitytype,ubiquitousintheaffluentculture ofpostwarAmerica,thatwasconsumedwithpersonalimageandtheactof constructing a pleasing public facade. In a highly individualistic society, influencedbytheidealsofpsychotherapyandconsumerism,theabilityto freelyshapeonesownpublicpersona,toexpressoneselfthroughones public appearance, and to maximize ones success by transforming ones image was bound up with prevailing ideals of selffulfillment, self enhancement,andfreedomofchoice.Personalimagelitigationincreasedin the last quarter of the twentieth century, as did the variety of legal pathways available to vindicate harms to ones image, including a family
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ofprivacytorts,arightofpublicity,andanindependenttort actionfor emotionaldistress.ThedeeperAmericansinvestmentintheirimages,and thegreatertheperceivedthreatstopersonalimage,themoreinstinctivethe resort to the law to protect them. Freedom of speech notwithstanding, Americans remain committed to the idea that interference with ones public image can, under many circumstances, violate important rights of personhood. Indescribingthisbodyoflawasimagetorts,Idonotwanttosuggest that the parties who made use of them were concerned only with their images.Manyofthekindsofmassmediamisrepresentationsthatwewill see produced feelings of shock, hurt, and outrage that can be rightly understoodasmorethanmerelyaninterestinhowoneappearedtoothers. Yet in many cases, it is clear that what drove these feelings of personal insult and violation was a sense of imageconsciousness. Defamations, embarrassingpublicationsofprivatefacts,andfalserepresentationsbefore the public can and often do produce serious emotional and psychic injuries;theydoso,inpart,becausewehaveputsomuchweightonour public images and freighted them with intense personal meaning and import. I realize that some may take issue with my characterization of American law as especially solicitous of personal image. As many have pointed out, American privacy and defamation laws, limited by the First Amendment, do not protect the right to ones image as extensively as in other parts of the world, particularly continental Europe.7 It is true that image laws in the United States have been substantially constrained by freedomofspeech.Theselimitationsrepresentanotherdimension,perhaps the flip side, of modern image consciousness. In a culture where images have been the currency of social exchange, where politics and social life havebeenmediatedbyimages,theabilitytofreelydisseminateimagesof individuals and public affairs has been linked to the free and robust publicdiscussionsaidtobeatthecoreoftheFirstAmendmentsdomain. The ideal of modern expressive freedom has cut both ways: it is the prerogativetoexpressoneselfthroughonesimage,andatthesametime, thefreedomtoimageothers.ThehistoryofAmericanimagelawisthusa saga of simultaneous expansion and contractionthe greater recognition ofpersonalimagerightsandatthesametime,theirrestriction.Muchofthe
7
See, e.g., ROBIN D. BARNES, OUTRAGEOUS INVASIONS: CELEBRITIES PRIVATE LIVES, MEDIA,
AND THE LAW 15961, 185, 213 (2010); Kenneth J. Keith, Privacy and Constitutions, in NEW
DIMENSIONS IN PRIVACY LAW: INTERNATIONAL AND COMPARATIVE PERSPECTIVES 229, 23942 (Andrew T. Kenyon & Megan Richardson eds., 2006); James Q. Whitman, The Two Western CulturesofPrivacy:DignityVersusLiberty,113YALEL.J.1151,116471(2004).
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legal scholarship in this area has focused on the latter.8 This piece investigates the expansionary trend and suggests why we have a law of imageinthefirstplace. I. PersonalImageandtheLaw,18801920
The tort law of image traces its origins to the drama, tension, and uncertaintyofsocialrelationsinAmericancitiesofthelate1800s.Itwasin this milieu of intensifying concerns with image and selfpresentation in public that the privacy tort was conceived and took root. In its broadest terms, the right to privacy was described as the right to control ones public image, to exhibit [oneself] to the public at all proper times, in all properplaces,andinapropermanner.9Publicimagewasbecomingnot onlyanincreasingpreoccupationofAmericansofallbackgrounds,butalso legalized,inthesensethatpeoplecametoregardtheirpublicappearances andreputationsaspropersubjectsforlegalinvolvementandintervention, ratherthansimplemattersofsocialcontestationandnegotiation. A. ImageConsciousness As a result of industrialization and immigration, the major American cities grew exponentially during the midtolate nineteenth century. In 1840, about eleven percent of the population lived in towns and cities of more than 2,500 inhabitants; by 1860 that had jumped to nearly twenty percent. Between 1860 and 1910, Americas urban population increased sevenfold.10 Freed from their backgrounds and the weight of custom and tradition,newcomerstothecityfacedtheprospectofconstructingentirely newlives,socialidentities,andreputations. Theopportunitytotransformonesfatebyrecreatingonesreputation wasoftendescribedasthemarrowofthefabledAmericandream:theideal
8
See,e.g.,NORMAN L. ROSENBERG, PROTECTING THE BEST MEN: AN INTERPRETIVE HISTORY
OFTHE LAWOF LIBEL 23545 (1986); PeterL.Felcher&EdwardL.Rubin,Privacy,Publicity,and
thePortrayalofRealPeopleintheMedia,88YALEL.J.1577,157778(1979);HarryKalven,Jr.,The NewYorkTimesCase:ANoteontheCentralMeaningoftheFirstAmendment,1964SUP.CT.REV. 191,21921(1964);RobertC.Post,TheSocialFoundationsofDefamationLaw:Reputationandthe Constitution,74CALIF. L. REV.691,69596(1986);RodneyA.Smolla,EmotionalDistressandthe FirstAmendment:AnAnalysisofHustlerv.Falwell,20ARIZ. ST. L. J.423,42527(1988);Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light That Failed, 64 N.Y.U. L. REV. 364, 36970 (1989) [hereinafter Zimmerman, False Light Invasion of Privacy]; Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeiss Privacy Tort, 68 CORNELLL.REV.291,29394(1983)[hereinafterZimmerman,Requiem].
9
Pavesichv.NewEng.LifeIns.Co.,50S.E.68,70(Ga.1905).
JOHN F. KASSON, RUDENESS & CIVILITY: MANNERS IN NINETEENTHCENTURY URBAN AMERICA72(1995).
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ofselftransformationandselfdeterminationthathadbeenheldoutsince the Nations founding as its particular merit and virtue. In a democratic society, where rank and status were fluid, flexible, and changeable, the ability to chart ones own course in life by fashioning a favorable reputation was regarded, at least in theory, as every persons birthright.11 As Robert Post observed, one of the enduring faiths of modern market societieshasbeenthebeliefthatoneiscapableofmakingandremakinghis reputation; that one always retains the capacity to work toward the production of a new reputation.12 The idealized selfmade man achieved success by cultivating a reputation for honesty and trustworthiness, and the reward was the confidence of potential business relationsandtherespectofonespeers.13 Reputationwashistoricallyunderstoodasapersonalassetachievedor accrued over time, slowly built up by integrity, honorable conduct, and rightliving.14Itwasaformofsocialappraisalparticularlysuitedtostable and enduring communities where individuals were in repeated and continuous contact.15 As a New York appeals court explained in 1845 in Cooper v. Greely & McElrath, [r]eputation is the estimate in which an individualisheldbypublicfameintheplaceheisknown.16Onecannot have a reputation where one is unknown. In cities of recent transplants where social life consisted of frequent interaction with strangers, first impressions, perhaps even more than reputations, were becoming an importantfoundationofsocialevaluationandjudgment.AshistorianJohn Kasson has written, in the pluralistic world of the nineteenthcentury commercial metropolis, the immediate impressions people made upon eachotherwerecomingtobeseenastheverybasisofsocialexistence.17 From these transitory and unstable urban social relations emerged a newkindofselfconsciousnessandaheightenedsensitivitytoonesimage beforethepublic.18Therewasincreasedattentiontothepresentationofself
11 See LAWRENCE M. FRIEDMAN, GUARDING LIFES DARK SECRETS: LEGAL AND SOCIAL CONTROLSOVERREPUTATION,PROPERTY,ANDPRIVACY24,27(2007). 12 13 14
Post,supranote8,at69596. SeegenerallyJOHNG.CAWELTI,APOSTLESOFTHESELFMADEMAN11821(1965).
VanVechtenVeeder,TheHistoryandTheoryoftheLawofDefamation,4COLUM.L.REV.33, 33(1904).
15 SeeDavidA.Anderson,Reputation,Compensation,andProof,25WM. & MARY L. REV.747, 766 (1983) (Public image bears little relation to the interests envisioned by the courts when defamation law was evolving. In that era, reputation represented the esteem of a person earned,throughthedailyconductofhisaffairs,intheeyesofthosewhoknewhim....). 16 17 18
Cooperv.Greeley&McElrath,1Denio347,365(1845). SeeKASSON,supranote10,at11215. Imageisdistinctfromreputationandalsofromhonor,asystemofsocialstratificationin
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in everyday life, and a more urgent selfscrutiny that fed upon uncertaintiesofstatus,ofbelonging,oflivinguptoambiguousstandards of social conduct in an environment in which all claims of rank were subject to challenge.19 Popular advice literature encouraged readers to createfavorableimagesandimpressionsthatcouldbeconveyedtoothers through quick and insignificant contact.20 One was to adopt an external perspectiveononesselftoconsideratalltimeshowonemightappearin the eyes of strangersmonitoring and manipulating dress, gait, speech, and gestures with great care in order to impress ones peers and achieve socialadvancement.21 The development and widespread use of new visual technologies enhanced attentiveness to personal image and selfpresentation in public. The period between 1885 and 1910 has been described by historians as a visual revolution. According to historian Neil Harris, the generation of Americans living in this period went through an experience of visual reorientationthathadfewearlierprecedents.22Billboards,firstusedinthe mid1800s, came to scatter the urban environment.23 The development of chromolithographyandhalftoneprintingledtotheproliferationofvisual imagesinthepress.24PortraitandKodakphotographycameintowideuse, and Americans became familiar with the experience of posing for photos and seeing themselves in terms of the visual impressions they made on others.25 Bythelatenineteenthcentury,middleandupperclassurbandwellers were encouraged to cultivate an attitude towards their bodies,
traditional societies that is dependent on the existence of fixed classes and rigid social hierarchies.Onthemeaningofhonor,seePost,supranote8,at725;FRIEDMAN,supranote11, at41;BERTRAM WYATTBROWN, SOUTHERN HONOR: ETHICSAND BEHAVIORINTHE OLD SOUTH 1415(1982).
19 KASSON,supranote10,at11415. 20 21
Seeid.at14346.
See KAREN HALTTUNEN, CONFIDENCE MEN AND PAINTED WOMEN: A STUDY OF MIDDLE CLASSCULTUREINAMERICA,18301870,at93(1982). NEIL HARRIS, CULTURAL EXCURSIONS: MARKETING APPETITES AND CULTURAL TASTES IN MODERNAMERICA307(1990).
23 24 22
Seeid.at41920n.16.
See Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights,81CALIF.L.REV.125,15758(1993).
25 On the history of photography in the United States in the nineteenth century, see generally ALAN TRACHTENBERG, READING AMERICAN PHOTOGRAPHS: IMAGES AS HISTORY, MATHEW BRADY TO WALKER EVANS, at xiii(1990);seealsoRobertE.Mensel,KodakersLyingin Wait: Amateur Photography and the Right of Privacy in New York, 18851915, 43 AM. Q. 24, 28 (1991)(describingtherisingpopularityofKodakcamerasandamateurphotography).
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appearances, and feelings that was strategic and instrumental.26 As historian Charles Ponce de Leon wrote, the residents of cities in the UnitedStates... had concluded that everyone employed frontswhen in public, [and] that all selfpresentation was, to one degree or another... artificial.27 The potentially deceptive nature of selfpresentation was the subjectofgreatanxiety,andtoassuagethesefears,socialperformancewas often rationalized in terms of moral objectives. The goal of the idealized socialperformancewasnottomislead,itwassaid,butrathertoexternalize personal qualities sincerely heldindustry, frugality, selfdiscipline, and deferredgratificationprizedvaluesinanindustrializingeconomy.28The virtuous person who carefully cultivated good character, and who displayeditinhisappearanceandconduct,wasnotpresentingafalsefront but merely displaying his true inner nature.29 This character ideal was gendered:specialburdenswereplacedonwomen,whoweretoconveythe signsofsexualvirtuethroughtheirdress,speech,andexpressions.30 The demands of the genteel performance were exacting. They requiredcloseattentionnotonlytooneslooksandconduct,butalsotothe intricaciesofcontextandsetting.31Beingsociallyskilledmeantcalibrating onesbehaviortomeetthedemandsofdifferentaudiencesandsituations. Suitable conduct before ones family was inappropriate before houseguests, and behavior suitable for ones parlor was not to be shared with strangers.32 One of the most grievous social gaffes was to present oneself out of context, in a manner unsuited to a given social environment.33 In these rituals of public performance, privacy assumed particularimportance.
See generally KASSON, supra note 10, at 4344, 121, 12325, 148 (discussing nineteenth century advice books and etiquette literature on topics such as appearance and feelings); HALTUNNEN, supra note 21, at 42. Though these exacting and selfconscious standards of decorum are most often associated with the middle and upper classes, historical evidence suggests that Americans of all classes, particularly the aspiring middle class, followed this ethicofintenseselfmonitoringandpoliteselfrestraint.SeeT.J. JACKSON LEARS, NO PLACEOF GRACE: ANTIMODERNISMANDTHE TRANSFORMATIONOF AMERICAN CULTURE, 18801920, at 56 57(1994). 27 CHARLES L. PONCE DE LEON, SELFEXPOSURE: HUMANINTEREST JOURNALISM AND THE EMERGENCEOFCELEBRITYINAMERICA,18901940,at29(2002). See WARREN I. SUSMAN, CULTURE AS HISTORY: THE TRANSFORMATION OF AMERICAN SOCIETYINTHETWENTIETHCENTURY27374(1984).
29 The outward display of inward virtue was seen as an integral part of character itself.HALTTUNEN,supranote21,at43. 30 31 32 33 28 26
SeeKASSON,supranote10,at12832. Seeid. Seeid. Seeid.at93.
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B. TheOriginsoftheRighttoPrivacy Bythe1880s,popular,scholarly,andlegalliteraturebegantodiscussa righttoprivacy.Inthelatenineteenthcentury,theconceptofprivacy was,asitremains,ladenwithanarrayofmeaningsandconnotations,but it was particularly bound up with the culture of the image and the intensifyingdemandsofselfpresentationinpublic.Atthetimeitmadeits debutinAmericanlaw,therighttoprivacywaslargelyunderstoodasa right to protect ones public image by concealing embarrassing, personal, or private matters from public view.34 The private domain swept broadly. It encompassed not only ones home and family life, but also matters pertaining to ones body, physical functions, and emotions.35 The dignified person was respectably modest and pained and distressed by anything resembling publicity of his or her personal affairs.36 A sure mark of good breeding, one advice manual summarized, was the suppressioninpublicofanyundueemotion,suchasanger,mortification, [or]laughter.37 The popular press, with its ability to expose individuals and their personal affairs to a mass audience in ways that were undignified and humiliating,wascomingtobedescribedastheprimarythreattoprivacyin contemporarysociallife.38Thepennypressofthe1830sand40s,andits successor, the sensationalistic yellow press of the late nineteenth century, developedthegenreofhumaninterestjournalism,whichfocusedontrue
See generally, e.g., Warren & Brandeis, supra note 5 (discussing the development of the righttoprivacyinthelegalworldandtheimportanceofmaintainingonesreputationwithin the community); E.L. Godkin, The Rights of the Citizen: To His Own Reputation, SCRIBNERS MAG.,July1890,at58(discussingtheimportanceofamansreputationand theprotection thereoftothewellbeingofsocietyandtheindividual). Nineteenthcentury society perceived a strict division between public and private spheres of life. The sanctity of the private household was regarded as a refuge from the worldoftheaggressivemarketplace;inthehome,onecouldcultivatecloserelationshipsand express intense and spontaneous feelings proscribed in the formal, judgmental realm of the public. This segmentation of society was mirrored by a segmentation of self. There was a publicselfandaprivateself,eachattunedtothedemandsofitsrespectivesphere.Onlyinthe privatespherecouldoneletdownonesguardanddisplayonesemotionsandtrueself.See HALTTUNEN,supranote21,at104;KASSON,supranote10,at11517;seealsoERVING GOFFMAN, THEPRESENTATIONOFSELFINEVERYDAYLIFE6,242(1959). The Right of Privacy, N.Y. TIMES, July 3, 1902, available at http://query.nytimes.com/ mem/archivefree/pdf?res=9EOOE3D71E3BEE33A2575OCOA9619C946397D6CF.
37 38 36 35 34
KASSON,supranote10,at148.
SeeHAZELDICKENGARCIA,JOURNALISTICSTANDARDSINNINETEENTHCENTURYAMERICA 20001(1989).
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stories and private lives.39 The penny papers initiated society and gossip columns, which allowed readers to peer in on private houses... banquets, balls, [and] teas.40 The mid1800s saw the beginning of the widespread use of the personal interview in reporting on public figures, interviews that were said to enable readers to get behind the veil with whicheveryoneattemptstoconcealhisinnermostthoughtsandfeelings.41 Bytheendofthecentury,mostpapersrangossipcolumnsonpoliticians, businessmen,societyleaders,andactorsthatofferedreadersaglimpseof their privatelivesandanappraisal of the subjects intimate personality and habits.42 This focus on the private and the personal helped make popular journalism a mass fascination and pastime.43 There was great public curiosity not only about the rich and famous but also the private livesofordinarypeople.44Publisherscateredtothisinterestbyexcavating anddisplayingthepersonalaffairsofaveragecitizens.45Thefrontpagesof the papers featured divorce cases, stories of secret affairs, crimes of passion, and the stories of men and women lost in the shuffle of daily life.46 With its promise to go behind the scenes to allow readers to see
See id. at 6465. The nineteenthcentury popular press methodically invaded the privatesphere,writeshistorianGuntherBarth,andinsodoing,steadilybroadenedpeoples ideaofwhatwasnews.GUNTHERBARTH,CITYPEOPLE:THERISEOFMODERNCITYCULTUREIN NINETEENTHCENTURYAMERICA72(1980).
40 GeorgeT.Rider,ThePretensionsofJournalism,135N. AM. REV.471,479(1882).In1861, theNewYorkHeraldcommittedajournalisticfirstwhenitassignedareportertowriteabout President Lincolns family and home life. JANNA MALAMUD SMITH, PRIVATE MATTERS: IN DEFENSEOFTHEPERSONALLIFE186(1997). 41 PONCEDE LEON,supranote27,at5758(quotingWILLARD GROSVENOR BLEYER, HOWTO WRITESPECIALFEATUREARTICLES43(1920))(internalquotationmarksomitted). 42 FRED INGLIS, A SHORT HISTORY OF CELEBRITY 12325 (2010). Publisher Joseph Pulitzer told his writers in the 1880s, Please impress on the men who write our interviews with prominent men the importance of giving a striking, vivid pen sketch of the subject; also a vividpictureofthedomesticenvironment,hiswife,hischildren,hisanimalpets,etc.Id.at 125(quotingDONSEITZ,JOSEPHPULITZER:HISLIFEANDLETTERS622(1924)). 43 ThisisonewaythatAmericanpublishingwasdifferentfromitsEuropeancounterparts, whichtendedtofocusontheprivatelivesofelites.Whilethepointofthecontinentalscandal sheets was to take down the wealthy and powerful by exposing their private misdeeds and hypocrisies, the focus in the American press on average citizens private lives and public selveswasintendedtoaidreadersintheconstructionofanAmericanidentity.SeeBARTH, supranote39,at10608. 39
Between1870and1900,thereadershipofdailyurbannewspapersincreased400%.Amy Henderson, From Barnum to Bling Bling: The Changing Face of Celebrity Culture, 7 THE HEDGEHOGREV.37,40(2005).
45 46
44
SeeBARTH,supranote39,at106. Id.at65,105.
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whether individuals were the same in private life as in public, mass journalismplayedtothepublicsinterestintheinstabilityandmalleability of social identity and the constructed nature of public images. The more thatpersonalidentitywasseenintermsofthepresentationoffacadesand fronts, the greater the publics interest in deconstructing other peoples fronts.47Thepopularmediabecame,ineffect,anindustryofcounterimage. Itwasinthismilieuofintensifyingconcernswithimage,andthreatsto public image, that the foundations of the modern tort law of image were established.Theopeningchapterinthisstoryinvolvedtheeffortofcourts andlegalscholarsinthelatenineteenthcenturytotheorizeandimplement a legally enforceable right to privacy. In an 1880 essay, critic and New YorkPosteditorE.L.Godkincalledforarevisionoflibellawtoprotectthe rightofeverymantokeephisaffairstohimself,andtodecideforhimself to what extent they shall be the subject of public observation and discussion.48 In an article in Scribners magazine ten years later, he advocated a right to privacy, distinct from libel, which he described as theindividualsrighttodecid[e]howmuchorhowlittlethecommunity shallseeofhim,orknowofhim.49Therighttoprivacywastherightto decidehowmuchknowledgeof...personalthoughtandfeeling,andhow much knowledge... of his tastes, and habits, of his own private doings andaffairs...thepublicatlargeshallhave.50This wasasmuchoneof [ones]naturalrightsas[ones]righttodecidehowheshalleatanddrink, whatheshallwear,andinwhatmannerheshallpasshisleisurehours.51 Godkins piece inspired Samuel Warren and Louis Brandeis to write, the famous article The Right to Privacy, the 1890 Harvard Law Review
47 Thepublicsfascinationwiththepotentialinstabilityofappearancesfoundexpressionin the art, literature, and popular culture of the time. Stories about confidence men, undercover detectives, and others who dealt in disguises revealed the ways that social appearanceswerepotentiallysubjecttomanipulation.Stuntreportersbecamefamousforthe guises they took on to do undercover journalism, and the newspapers were filled with the detailsofmaskedballs,costumeparties,andotherplaysonidentity.SeeBARTH,supranote39, at74,107;KASSON,supranote10,at10409.
E.L.Godkin,LibelandItsLegalRemedy,THE ATLANTIC MONTHLY,Dec.1880,at729,736. Godkin was a noted popularizer of legal ideas and an advocate, well ahead of his time, for legal protection of emotions, privacy, and personal image. See generally WILLIAM M. ARMSTRONG,E.L.GODKIN:ABIOGRAPHY89101(1978).
49 50 51
48
Godkin,supranote34,at65. Id.
Id.AccordingtoGodkin,curiosityinitsmodernform,publishedgossip,wasthechief enemyofprivacyinmodernlife.ROCHELLEGURSTEIN,THEREPEALOFRETICENCE: AHISTORY OF AMERICAS CULTURAL AND LEGAL STRUGGLES OVER FREE SPEECH, OBSCENITY, SEXUAL LIBERATION,ANDMODERNART57(1998)(quotingGodkin,supranote34,at66).
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piecethatiscreditedwithoriginatingthelegalrighttoprivacy.52Anattack on the popular press, the article decried gossip columns and information about personal affairs spread broadcast in the columns of the daily papers.53 Warren and Brandeis accused the press of invading privacy when it displayed a persons emotions and idiosyncrasiespeculiarities ofmannerandpersonbeforeapublicaudience.54Newspapersinvaded privacy by publishing a persons photograph without consent, even if it wastakeninapublicplace,55andwhentheypublicized,withoutconsent, ones participation in social events, such as weddings or dinner parties.56 Thepictureofawomanasshewalkeddownthestreettechnicallywasnot private, nor was the fact of her attendance at a ball or a banquet. Nonetheless, such disclosures were said to invade privacy because, in depicting the subject before an unwanted mass audience, they interfered with her prerogative to present herself in an appropriate and desirable mannerandcontext.Therighttoprivacywasboththerighttokeepones private affairs out of the public eye, and more broadly, to prevent egregious and unwarranted interference with ones public image. The Georgia Supreme Court described it fifteen years later as the right to exhibit[oneself]tothepublicatallpropertimes,inallproperplaces,and inapropermanner.57 Thearticleproposedacauseofactionthatwouldallowthevictimsof invasionsofprivacytosueintortandrecoverdamagesfordignitaryand emotional injuries. The thrust of the legal argument was that a right to privacyasarighttocontrolonesimagealreadyexistedinthecommon law. The existing legal protection of artistic expression demonstrated that [t]he common law secures to each individual the right of determining, ordinarily,towhatextenthisthoughts,sentiments,andemotionsshallbe communicatedtoothers.58Thepresshadnomorerighttointerferewitha persons public image without consent than it did to misappropriate a
SeeWarren&Brandeis,supranote5,at195,217(citingandreferringtoGodkinsarticle approvingly).
53 54 55 52
Id.at196. Id.at215.
See id. at 195 & n.7 (discussing Manola v. Stevens & Myers (N.Y. Sup. Ct. 1890) (unpublishedopinion)).
56 SeeDonR.Pember&DwightL.Teeter,Jr.,PrivacyandthePressSinceTime,Inc.v.Hill, 50 WASH. L. REV. 57, 60, 69 (1974). The catalyst for the article was Warrens outrage that a Bostonnewspaperpublishedanaccountofhisnieceswedding.Id.at69;seealsoAmyGajda, What if Samuel D. Warren Hadnt Married a Senators Daughter?: Uncovering the Press Coverage ThatLedtoTheRighttoPrivacy,2008MICH.ST.L.REV.35,5557(2008). 57 58
Pavesichv.NewEnglandLifeIns.Co.,50S.E.68,70(Ga.1905). Warren&Brandeis,supranote5,at198.
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painting,lithograph,orotherartisticimage.59Undertheproposedprivacy tort,damagescouldberecoveredforinjurytofeelings.60Thisproposition wasnovelandcontestedatthetime;thecommonlawdidnotrecognize the interest in ones peace of mind as deserving of general and independentlegalprotection,andcompensationforemotionalharmswas usually parasitic upon a cause of action for the violation of some other recognizedlegalright.61 Libel law, which imposed liability for defamatory falsehoods, protectedadifferentinterestfromtherighttoprivacyinonesreputation, the esteem in which one was held by others.62 According to Warren and Brandeis, the right to privacy, by contrast, proscribed embarrassing but truthful information and implicated an interest that was personal and spiritual.63 It did not protect ones standing before others so much as a persons feelings about his or her public image, and capacity to independently determine that image. Warren and Brandeis wrote that liabilityshouldnotbehadforeveryinterferencewithselfpresentation;the law of privacy was not to be a remedy for backfence gossip or trivial slights. Only material that was distributed to a wide public audience, publishedsolelyforthepurposeofamusementorcuriosity,andthatwas flagrant in its disregard of standards of social decency would be actionableundertheprivacytort.64 As protection for freedom of the press, Warren and Brandeis envisioned a privilege for matters of public interest, which exempted from liability the publication of private information justified by an overridingpublicneed.Theprivilegewasnarrowandtobelimitedonlyto certainpublicationsinvolvingpublicfigures,suchasthediscussionofthe personal qualities of a public official that bore on his or her fitness for
59 60 61
Seeid.at206. Seeid.at219.
CalvertMagruder,MentalandEmotionalDisturbanceintheLawofTorts,49HARV. L. REV. 1033,1035,1048(1936)(citingBeaulieuv.GreatN.Ry.,114N.W.353,353(Minn.1907)).

62 Warren&Brandeis,supranote5,at197.Inthehistoryofdefamationlaw,reputationhad beenregardedashavingmaterialvalueandasaformofproperty.Post,supranote8,at696. RobertPosthasobservedthattheconceptofreputationaspropertywassodeeplyentrenched that a prominent nineteenth century writer could conclude that in defamation law, the protectionistothepropertyandpecuniarylosstotheplaintiffisthegistoftheactionfor slander or libel. Id. (quoting JOHN TOWNSHEND, A TREATISE ON THE WRONGS CALLED SLANDERAND LIBEL10809(3ded.1877));seealsoRandallP.Bezanson,TheLibelTortToday,45 WASH.&LEEL.REV.535,538(1988). 63 Warren&Brandeis,supranote5,at197([T]hewrongsandcorrelativerightsrecognized bythelawoflibelandslanderareintheirnaturematerialratherthanspiritual.).
64
Seeid.at216.
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office.65Atatimewhenthereigningjudicialpositiononfreespeechwasfar more deferential towards stateimposed restrictions on speech and publishing than in the post1930s, civil libertarian era, jurists and legal scholars generally agreed that the privacy tort, with this narrow public interest exception, did not encroach on the constitutional freedoms of speechandpress.66 WarrenandBrandeisdescribedtheprerogativetoestablishandcontrol onesownpublicimagewithoutinterferencefromaprying,sensationalistic press as essential to personal dignity. The concept of dignity, a key culturaltraitofthenorthernstates67inthistime,heldthatintheory,every person had intrinsic value and an equivalent right to self determination.68 Warren and Brandeis wrote that every person has a privacyrightwhatsoever[]theirpositionorstation.69Thisargumentwas bolstered by Continental Europes development of legal protections for privacy and personal image as dignitary rights.70 In the midnineteenth century,Germanyhaddevelopedarighttoprivacyunderstoodasaright to ones image, as part of a broader body of personality rights.71 The German right to privacy rested on the principle that each person had a unique soul or essence, and the ability to freely express ones inner self
65 See id. at 215 (noting that when an individual subjects himself or herself to public scrutinybyrunningforpublicoffice,mattersordinarilyprivatemaythenbecomelegitimate publicinterestsandthereforepublishablebythepress). 66 In the words of the Virginia Law Register, freedom of the press was not intended to conferalicense,withoutanylimitation,tooverridetherightsofothers,includingtheright tobeletalone.TheRighttoPrivacy,12VA. L.REG.91,92(1906);Pavesichv.NewEngland LifeIns.Co.,50S.E.68,7071(Ga.1905). 67 68
FRIEDMAN,supranote11,at41.
Id.;seealsoEDWARD L. AYERS, VENGEANCEAND JUSTICE: CRIMEAND PUNISHMENTINTHE 19THCENTURYAMERICANSOUTH19(1984).Legalenforcementoftherighttoprivacywould operateasapracticalmeansbywhichanindividualcouldexercisehisorherinherentright of individual selfdetermination. Dorothy J. Glancy, The Invention of the Right to Privacy, 21 ARIZ.L.REV.1,24(1979).
69 70
Warren&Brandeis,supranote5,at195.
By the 1870s, France had developed a right to ones image, which forbade the publicationinperiodicalsofanythingrelatingtoamansprivatelifewhichwasnotbeforethe courtsinacriminalproceeding.Therighttoonesimagewasanimportantaspectoftheright to privacy in France, and it was mobilized by aristocrats and other high status persons seekingtokeeptheirfamilyandpersonalaffairsfrompublicview.SeeElbridgeL.Adams,The RightofPrivacy,andItsRelationtotheLawofLibel,39AM.L.REV.37,52(1905);seealsoJamesQ. Whitman,TheTwoWesternCulturesofPrivacy:DignityVersusLiberty,113YALE L.J. 1151,1178 (2004) (describing how facts published by the press concerning an individuals private life becamesubjecttocriminalcharges).
71
Whitman,supranote70,at1180,1189.
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through ones appearance and public image was fundamental to self realization.72 Similar strains of expressive individualism had been present intheUnitedStatesinthenineteenthcenturyRomantictradition,andthe righttoprivacyreflectedtheirinfluence.73 Warren and Brandeis characterized privacys domain as the emotions andthespirit;privacywasthefreedomtoexpressonesselfasonewished, a self that was immanent in ones appearance.74 Yet the right to privacy, especially as it came to be understood by the public, had a more earthly, strategic, and instrumental aspect. Particularly in the late nineteenth century, a time of aggressive Gilded Age individualism, success was understood as a function of individual will, initiative, and effort.75 This included creating and putting forth the best possible personal image, whether deceptive or authentic.76 Public misrepresentation undermined ones perceived rightin a nation of opportunity and mobilityto determinehisownfateandmaximizehisfortunesbyperfectinghisimage beforeothers.Thesuccessoftherighttoprivacy,bothasapopularconcept and as a matter of formal law, was rooted in practical and material concernswithimageinAmericansociallifeandpopularculture.77 C. LitigatingtheImage Following the publication of the highly influential Warren and Brandeisarticle,aseriesofcaseswerebroughtinstatecourtsoveralleged invasionsofprivacy.Inmanyofthecases,theaggrievedindividualdid notallegethatanintimateorprivatematterhadbeenexposedtopublic view,butratherthattheindividualhadbeendepictedinapublicationin
72
Id.at118081,118889. On expressive individualism in nineteenth century America, see ROBERT BELLAH ET SeegenerallyWarren&Brandeis,supranote5,at19798.
73
AL.,HABITSOFTHEHEART:INDIVIDUALISMANDCOMMITMENTINAMERICANLIFE3233(1985).
74 75
See generally CAWELTI, supra note 13, at 13947, 152 (noting that during the nineteenth century, success was often defined by wealth, which anyone was said to be capable of achieving if they worked hard enough). For a discussion on utilitarian individualism that has long defined the American dreamthe idea that one can achieve social and material successlargelybyonesowninitiative,seeBELLAH,supranote73,at33. AsJohnCaweltihasobserved,[b]ytheendofthenineteenthcentury,selfhelpbooks were dominated by [an] ethos of salesmanship and boosterism that linked success to a positivepublicimage.LASCH,supranote3,at58(quotingCAWELTI,supranote13,at183).
77 SeeGlancy,supranote68,at7(notingpopularsupportinthelatenineteenthcenturyfor a right to privacy): see also Benjamin E. Bratman, Brandeis and Warrens The Right to Privacy andtheBirthoftheRighttoPrivacy,69TENN. L. REV.623,650(2002)(Itseemsbeyonddispute thatatthedawnofthetwentiethcentury,theAmericanlegalcommunityandthelaypublic zealouslysupportedtheenactmentoflegalprotectionfortheirprivacy.). 76
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an undesirable or misleading context that contradicted the way he or she wanted to be known to others.78 This injury to the ability to control ones public image, and to ones feelings about ones image, was said to be a violationoftherighttoprivacy. In these privacy cases, and also libel cases from this period, we can detecttheoriginsofapossessivenesstowardsonesimageanentitlement to ones imagethat would intensify over subsequent decades. Social elites,aswellaspoliticians,actors,andotherpublicfigureswhodepended on public favor for their livelihoods, had long been concerned with their images and reputations.79 Yet the majority of reported privacy and libel claimsinthelatenineteenthandearlytwentiethcenturywerebroughtnot by public figures but by private citizens. Ordinary men and women seemed to think that their public images and appearances were valuable matters worth protecting, and that interference with their ability to construct a desirable public image warranted legal redress. The legal recognitionandembraceofthisattentivenesstoimage,albeithesitantand tentative,markedaturningpointinthehistoryofthelawandthemodern socialhistoryoftheself. Many of the early privacy cases were brought over the unauthorized use of portraits and other visual depictions of individuals in advertisements.80Inthelatenineteenthcentury,newprintingtechnologies permitted advertising, once exclusively wordbased, to become image based,and[a]dvertiserswentonabingeofimageappropriation,looking for visual impressions to create favorable associations for[] their products.81 Advertisers often purchased portraits from photography studios for use in ads, typically without the consent of the photographic subjects;82 by 1900, there was a large market in such images.83 A
78 See,e.g.,Pavesichv.NewEnglandLifeIns.Co.,50S.E.68,68(Ga.1905);FosterMilburn Co.v.Chinn,120S.W.364,365(Ky.1909);Robersonv.RochesterFoldingBoxCo.,64N.E.442, 450(N.Y.1902);Marksv.Jaffa,26N.Y.S.908,909(N.Y.Sup.Ct.1893). 79 See LAWRENCE M. FRIEDMAN, GUARDING LIFES DARK SECRETS: LEGAL AND SOCIAL CONTROLS OVER REPUTATION, PROPRIETY, AND PRIVACY 8 (2007) (describing elites concerns withthelegalprotectionoftheirreputations);seealsoLawrenceM.Friedman,NameRobbers: Privacy,Blackmail,andAssortedMattersinLegalHistory,30HOFSTRAL.REV.1093,1124(2002).
See, e.g., Pavesich, 50 S.E. at 6871, 7981; Kunz v. Allen, 172 P. 532, 53233 (Kan. 1918); FosterMilburnCo.,120S.W.at36566;Atkinsonv.JohnE.Doherty&Co.,80N.W.285,28586, 289(Mich.1889);Mundenv.Harris,134S.W.1076,107779(Mo.Ct.App.1911);Roberson,64 N.E.at44243,447.
81 82
80
Madow,supranote24,at157(emphasisomitted).
For a discussion of the haphazard way that newspapers of the time handled photographs,seeHenryB.Brown,TheLibertyofthePress,34AM. L. REV.321,327(1900)(An enterprising editor never allows the trivial fact that he has no photograph of a particular individual to prevent his publishing one. With hundreds of pictures in his collection, why
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photograph of ones face was considered particularly intimatea window of sincere sentiment, and for that reason, to be especially private.84 The unauthorized advertising use of ones portrait was thus considered to be an egregious invasion of privacy, as it put the most intimate expression of the self into a cheap and undignified context.85 It associated a person with what was considered to be the immoral taint of commercialism and created the false impression that one endorsed a particularproduct.86 In several cases around the turn of the century, courts recognized unauthorizedusesofpersonalportraitsinadvertisingasadignitaryharm redressableunderarightofprivacy.The1905Georgiacase,Pavesichv.New EnglandLifeInsuranceCo.,thefirstinwhichastaterecognizedthecommon law privacy tort, involved a photographic portrait of an artist that had appeared without his consent in an insurance companys advertisement that was published in the Atlanta Constitution.87 The Georgia Supreme Courtheldthattheartisthadacauseofactionforinvasionofprivacy.Such unwanted,undesirablepublicitydeprivedtheartistofhisabilitytocontrol the terms of his public personato display himself to the public as he wished and to withdraw from the public... as [he] may see fit.88 This
shouldhenottakehischoice,sincenotoneinathousandwilleverdetectthefraud?). See Mensel, supra note 25, at 32. Photographic portraits were even sold from vending machines and given away free in cigarette packs. Id. A late nineteenth century paper noted thatjunk shops peddled thesecond handstock ofthecheapest ...photograph parlors... pictures of bridal couples in full regalia . . . unhappy looking family groups. Id. Hundreds were sold to collectors for as cheap as a penny a piece. Id.; see also Kunz v. Bosselman, 115 N.Y.S. 650, 651 (N.Y. App. Div. 1909) (describing the activities of a photographic peddler in thisperiod).
84 Mensel, supra note 25, at 3031. As an 1869 article on photographs and the law of evidenceexplained,unlikewrittenmaterial,photographswerenotinterpretationsbutliteral depictions of reality; they were natural and spoke the truth without flattery or detraction. JohnA.Jameson,TheLegalRelationsofPhotographs,17AM.L.REG.1,7(1869). 85 SeeMensel,supranote25,at32([M]anypeoplefeltaprofoundsenseofexposureand violationuponbeingphotographed,oruponfindingtheirphotographsdisplayedandsoldin photoshops,orusedinadvertisements,withouttheirconsent.). 86 See HARRIS, supra note 22, at 308 (noting that photography was tied closely to commercialization....Thetaintofmoneymakingandprofitableexploitationattacheditself tothisiconographicrevolution.);Rhodesv.Sperry&HutchinsonCo.,104N.Y.S.1102,1102 03(N.Y.App.Div.1907). 87 Pavesichv.NewEnglandLifeIns.Co.,50S.E.68,6869,7981(Ga.1905)(notingthatthe text of the ad made it appear, falsely, that he had consented to the publication and was endorsingthecompanyslifeinsurance). 83
Id.at70.Hisimage,indeliblyimprintedinthepagesofthenewspaper,couldappearin disreputable placessaloons, brothels, and the walls of private dwellingswhere he himselfwouldneverchoosetoappear.Id.at80.
88
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injury represented an assault not only to his dignity but also to his liberty.89 On this same theory, a young boys parents sued a jewelry company in 1908 over emotional injuries caused by the unauthorized use of his picture in an advertisement. The court held that he had a cause of actionforinvasionofprivacy.90 dditionally, Kansas highest court held A thatawomanhadavalidclaimforinvasionofprivacywhenadrygoods store took a film of her which it used without her consent in a newsreel advertisement.91 In a famous New Yorkcasefrom1902, awoman alleged invasion of privacy when her portrait was used in an advertisement for flour,allegingthatthedisplayofherpictureindisreputableplacessuchas stores,warehouses,[and]saloonsledtogreathumiliationandemotional distress.92Noneoftheseplaintiffssuedoverlostprofits;itwasconsidered undignified to attempt to make money off of ones image, and commodification of name and likeness had not advanced sufficiently at theturnofthecenturyforjudgestoconceiveofthepersonaasathing.93 Rather than economic injury, these claimants argued that advertisers had deprivedthemofadignitaryinterestinautonomousselfpresentation. By1910,severalstatesrecognizedarighttoprivacyatcommonlaw or by statute.94 New Yorks highest court refused to acknowledge the privacytort,claimingthatwithoutafoundationinapropertyright,there wasnolegalbasisforarighttoprivacyandthatthecommonlawdidnot provide redress for independent harm to feelings.95 In response, in 1903, theNewYorklegislatureenactedaprivacystatutethatpermitteddamages andinjunctivereliefforthedignitaryandemotionalinjuriescausedbythe unauthorized use of ones image in a commercial context.96 The Supreme
89 90 91
Id.at80. Mundenv.Harris,134S.W.1076,1077,1079(Mo.Ct.App.1911).
Kunzv.Allen,172P.532,532(Kan.1918).Theplaintiffclaimedthatshehadbecomethe laughingstockandcommontalkofthepeople,sinceherpeersfalselyassumedthatshewas adisreputablecommercialmodelandhadbeenpaidtoposeforthead.Id.

92 93
Robersonv.RochesterFoldingBoxCo.,64N.E.442,442(N.Y.1902).
See George M. Armstrong, Jr., The Reification of Celebrity: Persona as Property, 51 LA. L. REV.443,455(1991).
94 At common law: Pavesich v. New England Life Ins. Co., 50 S.E. 68, 71 (Ga. 1905); Pritchettv.Bd.ofCommrs,85N.E.32,35(Ind.App.1908);FosterMilburnCo.v.Chinn,120 S.W. 364, 366 (Ky. 1909); Itzkovitch v. Whitaker, 39 So. 499, 500 (La. 1905); Vanderbilt v. Mitchell,67A.97,100(N.J.1907).Bystatute: ActofApril6,1903,ch.132,2,1903N.Y.Laws 308, 308 (codified at N.Y. CIV. RIGHTS LAW 5051 (McKinney 1992)) (preventing the unauthorizeduseofthenameorpictureofanypersonforthepurposesoftrade);ActofSept. 1,1909,ch.61,3,1909UtahLaws83,83(prohibitingtheunauthorizeduseofcertainnames orpictures);ActofMar.7,1904,ch.66,2,1904Va.Acts111,112(1904). 95 96
Roberson,64N.E.at443,445,447. SeeActofApril6,1903,2,1903N.Y.Laws308,308. Becausetheinterestprotectedwas
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Court of Michigan refused to acknowledge the privacy tort because of its potential implications for freedom of the press.97 Where a cause of action for invasion of privacy was approved, it was understood largely in the spirit of Warren and Brandeis. The right to privacy was not only about concealingtheprivate,butconsistedofabroaderrighttoselectiveandself controlled publicity. It was the right to choose whether one would be publicizedandhowtherighttopassthroughthisworld,if[onechose], without having his picture published, his business enterprises discussed... or his eccentricities commented upon either in handbills, circulars,catalogues,periodicals[,]ornewspapers.98Itwastheprerogative to live a life of privacy as to certain matters and of publicity as to others.99 To paraphrase one modern privacy scholar, privacy was a legal principleofpublicidentitymaintenance.100 D. LibelandtheLawofImage Given the concerns with invasions of privacy committed by the press, there were surprisingly few cases in this period brought over newspapergossipand the publication of private facts. One reason may havebeentheseriousnessoftheinjurythepublicationofhighlypersonal information may have been so humiliating that victims were reluctant to bring a lawsuit and draw further attention to the embarrassing matter. Anotherreasonmayhavebeentheavailabilityofthelibeltortasameans ofredressforgossipandotherundesirablepublicity. The law of libel and slanderwritten and spoken defamation, respectivelywas an elaborate system of complex doctrines that dated backtotheearliesthistoryofthecommonlaw.101Inthewordsofan1890 treatise, a defamatory statement expose[d] [a person] to hatred [or]
onesrighttokeeponesidentityoutsideofacommercialsetting,anactionableinjurycould occurevenifthedepictionwassympatheticorflattering.SeeAlmindv.SeaBeachRy.Co.,141 N.Y.S. 842, 84243 (N.Y. App. Div. 1913). In Almind, a New York appeals court upheld an injunctionagainstarailwaycompanythathadmadeashortinstructionalfilmaboutrailroad safetyandusedashortfilmclipoftheplaintiffgettingoutofarailcar.Thescenewasinno wayhumiliatingorembarrassing.Thecourtnonethelessheld thatthewomansprivacyhad beeninvadedbecausethefilmwasforadvertisingpurposes.Id.at843.
97 98 99
Atkinsonv.JohnE.Doherty&Co.,80N.W.285,287,289(Mich.1899). ElbridgeL.Adams,TheLawofPrivacy,174N.AM.REV.361,361(1902). Pavesich,50S.E.at70.
SeeJonathanKahn,PrivacyasaLegalPrincipleofIdentityMaintenance,33SETON HALL L. REV.371,393(2003). Onthehistoryofdefamation,seeBezanson,supranote62,at53639;Post,supranote8, at693707;WilliamL.Prosser,LibelPerQuod,46VA.L.REV.839,84042(1960);StanleyIngber, Defamation:AConflictBetweenReasonandDecency,65VA.L.REV.785,796801(1979).

101
100
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contempt...injure[d]himinhisprofessionortrade,[and]cause[d]himto beshunned...byhisneighbours.102Theessenceoftheharmwastheloss ofonesgoodnameinthecommunity.103Privacylawlookedinward,toa personsemotions;defamationlawlookedoutward,tothequalityofones social relations.104 Before 1964, the plaintiff in a libel suit needed only to present the derogatory statement and prove that the defendant was responsible for publishing the statement to others, not that the statement was false. The defendant could avoid liability by proving that the statementwastrue.105 Althoughthedefamationtortatthistimewasfreeofrigidandstrictly circumscribedsocialclassdistinctions,and...availabletoremedyinjuries to a wide range of reputational interests,106 for much of the nineteenth century, libel plaintiffs had generally been from the privileged classes.107 The typical libel case had involved a publicfigure plaintiff, usually a politician or other highstatus person, suing the press over political criticism or accusations of immoral conduct.108 There was nonetheless somethingofareluctancetosueoverinjuriouswords;asE.L.Godkinhad noted in 1880, particularly in the South, there was a strong feeling that there [was]... somethingunmanly ordiscreditablein seeking redressfor libelinthecourts,insteadofchallengingtheoffendertosinglecombat.109
102 103
W.BLAKEODGERS,ADIGESTOFTHELAWOFLIBELANDSLANDER19(2ded.1887).
I will focus on libel law and written publications because they were more likely than spokencommunicationtobeinvolvedinthecreationofapublicimageinthesenseIhave described itthe impressions one made before a public audience. Libels had traditionally been considered to be more dangerous than slander because of the wide circulation and permanencyofwrittencommunication.Ingber,supranote101,at797.
104 Reputation was a relational interest. See Leon Green, Relational Interests, 29 ILL. L. REV.460,46263(1934).SeealsoBezanson,supranote62,at539.
In the words of William Prosser, Out of a tender regard for reputations, the law presumesinthefirstinstancethatalldefamationisfalseandthedefendanthastheburdenof pleadingandprovingitstruth.WILLIAML.PROSSER,THELAWOFTORTS798(4thed.1971).Cf. N.Y.Timesv.Sullivan,376U.S.254,283(1964).
106 107
105
SeeBezanson,supranote62,at539.
SeegenerallyROSENBERG,supranote8(discussinglibelsuitspursuedbythepoliticalelite inthenineteenthcentury). DavidRiesman,DemocracyandDefamation:ControlofGroupLibel,42COLUM.L.REV.727, 73445 (1942) (noting that the roots of libel law emanate from a legal attempt to protect the rulingclassfromscornandcriticism).
109 E.L.Godkin,LibelandItsLegalRemedy,46ATLANTIC MONTHLY729,731(1880);seealso RODNEY A. SMOLLA, SUINGTHE PRESS17(1987)(quotingFirstAmendmentscholarZechariah Chafee that: [A] libeled American prefers to vindicate his reputation by steadily pushing forwardhiscareer,notbyhiringalawyertotalkinacourtroom.).Ondueling,seeWarrenF. Schwartzetal.,TheDuel:CanTheseGentlemenbeActingEfficiently?,13J. LEGAL STUD.321,325 108
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By the end of the century, this reticence appears to have waned. Popular journalism,withitsfocusonpersonalitiesandprivatelives,anditsefforts to lure readers through gossip, sensationalism, and true stories, led to dramatic depictions, portrayals, and accusations that injured the vanity andsensibilitiesofthosecaughtinitspathandproducedlegalresponses.110 With frequency, apparent zeal, and perhaps even skill, Americans were mobilizingthelawtodealwiththemassmediaanditsperceivedassaults topersonalimage.111 Though libel cases in this period were often brought around serious charges,suchasallegationsofadulteryordishonestyinbusiness,112many involved publications that were more likely to cause embarrassment or hurtfeelingsratherthanseriousreputationalinjuries.Manyallegedlibels, in other words, involved material that was not clearly false or defamatoryinmanycasesnotevenunflatteringbut,likemanyclaimed invasionsofprivacy,contradictedthewayplaintiffswantedtobeknown tothepublic.Ina1904case,aformerOxfordprofessorbroughtsuitwhen anarticleinaNewYorknewspaperallegedthathewasunemployedand too educated to make a living.113 In Corr v. Sun Printing & Publishing, the NewYorkSunpublishedastoryaboutafemalerobberysuspectandnamed her as a thirtyfive year old teacher, Kittie Carr. Kate Corr, a twentysix year old teacher, sued the paper, claiming that the publication damaged her reputation, as Kate and Kittie are nearly the same name and their surnamesweresimilar.114Thecourtrejectedtheclaim.115Thepiecehadnot defamed her; the only thing it did was raise the anxieties of an image conscious woman who feared, probably unreasonably, that others impressionsofherhadbeentarnished.Manylibelcases,likeprivacycases, involvedthepublicationofphotographsincontextsthatwereundesirable
(1984) (noting the sociology of the duel and that many duels arose out of cases of libel or slander).Theduelofferedanalternativeprivatemeansofcontrollingconductthatcouldbe sanctionedbyinvokinglegalremedies.Id.
110 SeeROSENBERG,supranote8,at187.InthewordsofhistorianNormanRosenberg,the colorfulcontentof[nineteenthcentury]popularjournalismcreatedmorethanthechancefor greaternumbersoflibelsuits;italsoproducednewtypesofdefamationcases.Id. 111 Inthelastthreedecadesofthenineteenthcentury,libelsuitsagainstthepressbecame more common, and some newspapers were beginning to hire inhouse lawyers to provide prepublicationadviceonpotentiallegalproblems.Id.at197. 112 113 114 115
Bezanson,supranote62,at538. Martinv.PressPublgCo.,87N.Y.S.859,860(N.Y.App.Div.1904). Corrv.SunPrinting&PublgAssn.,69N.E.288,28889(N.Y.1904).
Id. at 289 (holding that the publication was not defamatory because it could not be construedasbeingofandconcerningtheplaintiff).
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to the subject, although nondefamatory and often nondisparaging.116 In Knickerbocker v. Press Publishing, an eighteenyearold woman unsuccessfullysuedoverthenewspaperpublicationofaphotographofher taken when she was a baby, claiming it to be libelous because it was embarrassing.117 Avalidclaimforlibelwouldexistonlyifsuchdepictionsconveyeda falseimpressionandweredamagingtoonesstandingamongonespeers. Statements or portrayals that were merely unflattering, misleading, or offensive solely to the subject of publicity were not deemed actionable.118 Thelibeltortdidnotpermitdamagestobeawardedforemotionalharms in the absence of injury to reputation; it was not a balm for wounded feelings.Damagesforemotionalinjuriescouldbeawardedincaseswhere adefamatorypublicationwasprovenbasedonthetheorythathurtfeelings inevitably accompanied a loss of reputation.119 Legal critics of the time argued that given the potential severity of the harms, defamation law should compensate emotional injuries inflicted by unflattering depictions
116 In one noted case in this genre, a woman sued a newspaper for libel and invasion of privacywhenitpublishedaphotoofheralongsideastoryaboutherfathersinvolvementina real estate fraud. Hillman v. Star Publg Co., 117 P. 594, 595 (Wash. 1911). See also Wilbur Larremore, The Law of Privacy, 12 COLUM. L. REV. 693, 700 (1912). A common variety of this allegedlibelbyassociationinvolvedmislabeledphotographs.Thecarelessnesswithwhich turnofthe century newspapers handled photographs led to several cases in which pictures wereerroneouslycaptionedwithanotherpersonsname.Inacasefrom1908,Ballv.Evening American Publishing Co., a woman sued a Chicago newspaper for libel when it published a photographofherwithastorythatsuggestedshehadcommittedsuicide.86N.E.1097,1098 (Ill. 1908). See also Wandt v. Hearsts Chi. Am., 109 N.W. 70, 70 (Wis. 1906) (action for libel afteranewspapermistakenlypublishedaphoto oftheplaintiffunderthe headlineSuicide GirlLaidtoRest). 117 118
Knickerbockerv.PressPublgCo.,127N.Y.S.969,96970,972(N.Y.App.Div.1911).
In1909,amansuedadrygoodscompanyforlibelwhenitusedaphotoofhimseated inacarinanadvertisementforcoats.Heallegedthatthead,whichhehadnotposedforor endorsed,madehimthesubjectofpublicmockeryandinjuredhisdignityandreputation.The courtheldthathehadnotmadeoutalibelclaim.Althoughhemayhavebeenpresentedina waythatwasembarrassingtohim,itdidnotrisetothelevelofbeingdefamatory.Henryv. Cherry&Webb,73A.97,9899(R.I.1909).

119 Damagesforemotionalinjurycouldbeawardedaspartofgeneraldamagesincasesof libelperse,wherethelibelwasapparentonitsface.Inslandercases,andincasesoflibelper quod, where the libel must be demonstrated by extrinsic facts, damages for emotional harm couldnotbeawardedwithoutproofofeconomicloss.SeeGertzv.RobertWelchInc.,418U.S. 323,34950(1974);RandallBezanson&BrianC.Murchison,TheThreeVoicesofLibel,47WASH. & LEE L. REV. 213, 217 (1990); T. Michael Mather, Experience with Gertz Actual Injury in DefamationCases,38BAYLOR L. REV.917,920(1986);WilliamL.Prosser,LibelPerQuod,46VA. L.REV.839,840,844(1960).
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inthemedia,evenintheabsenceofharmtoreputation.120Anauthorinthe American Law Register wrote that embarrassing photographs depicting the subject in a ridiculous light should be actionable as libels, even if such photosdidnotconveyanimpressionthatwasfalseordefamatory.121John HenryWigmoreadvocatedacauseofactionthatwouldpermitindividuals tobecompensatedfordignitaryharmscausedbycertainclassesoffalseor misrepresentativestatements,eveniftheydidnotfallwithintheaccepted definition of defamation.122 Elbridge Adams criticized the fact that, under existing libel doctrine, unwanted publicity that did not injure reputation couldnotberemediedunderthelaw,nomatterhowdistressedthesubject was by it.123 Early twentiethcentury courts were generally unwilling to alterlibeldoctrineinthisway.Fiftyyearslater,however,libellawsscope hadexpandedtocoverabroadrangeofinjuriestotheimage:injuriesthat were not only external and objectiveto ones reputation and standing beforethepublicbutalsointernalandsubjectivetoonesfeelingsabout onespublicimage. II. TheImageSociety,19201950 Theimagesocietymaturedintheperiodbetween1920and1950,and the law was intertwined with it and shaped by it. This era saw an increasingculturalfocusonpersonalimage,thegrowthofthemassmedia, a profusion of images in the visual environment, and new industries of imagemanagement.124Thesedevelopmentscontributedtotheexpansionof imagelawtoprotectabroaderrangeofperceivedthreatstotheimageand totheriseofthepersonalimagelawsuit.Inaseriesofcasesinvolvingfalse, embarrassing,andunfavorabledepictionsinthemedia,courtsaffirmedthe prevailingpopularbeliefthatindividualshadalegalentitlementtocontrol their selfpresentation before the publicone that could, under many circumstances, override public rights to a free press and freedom of expression.
120 JohnH.Wigmore,TheRightAgainstFalseAttributionofBelieforUtterance,4KY. L.J.May 1916,at1,3,8(1916)(Therighttoprivacyisreallyarighttobeprotectedagainstacertain kind of injury to feelings. . . . [D]efamation . . . loss of repute and patronage among other persons,doesnotherereachtheessenceofthewrong.). 121 122
JohnA.Jameson,TheLegalRelationsofPhotographs,17AM.L.REG.1,8(1869).
Wigmore, supra note 120, at 8. See also Harvey L. Zuckman, Invasion of PrivacySome CommunicativeTortsWhoseTimeHasGone,47WASH.&LEEL.REV.253,25556(1990).
123 ElbridgeL.Adams,TheRightofPrivacy,anditsRelationtotheLawofLibel,39AM.L.REG. 37,50,55(1905). 124
LASCH,supranote3,at9093.
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A. AnEscalatingCycleofSelfConsciousness Inthefirstthirdofthetwentiethcentury,ashistorianJacksonLearshas observed, personal identity became much more problematic than earlier generations had imagined, and concerns with the presentation of self in thepublicreachednewlevelsofintensity.125Thisescalatingcycleofself consciousness can be attributed in significant part to the preoccupations and pressures of a massconsumer society. By the 1920s, the producer economy of the nineteenth centuryin which creative, psychic, and productive energy were directed towards the production of goodshad been supplanted by a consumer society where the focus was on the acquisition of goods.126 Advertising encouraged people to define their identities in terms of their possessions and purchases, and shopping was transformedfromafunctionalactivityintoaformofleisureandasourceof meaningandpleasure.127Thisshiftfromproductiontoconsumptionledto thegrowthofthesalesandserviceindustriesandtheriseofawhitecollar work force. Critics feared that the selfmade man, pioneering his way to prosperity on the frontier or in the freewheeling urban marketplace, had become extinct in a world of large corporations managed by faceless bureaucracies.128 Theseshiftsineconomicorganizationandthenatureofworkcalledfor the cultivation of personal qualities that were different from the real or imagined virtues of the selfdisciplined Victorian entrepreneur.129 Bureaucratic jobs removed more and more individuals from direct involvement in the production process and demanded involvement with people rather than things.130 Advancement no longer required displaying personal attributes associated with productivity, industry, and self restraint,butratherknowinghowtopersuadeandcharm.Toafargreater extent than the earlier ideal of selfpresentation, which involved to some degreetheexternalizationofinnermoraltraits,131thenewmodelwasmore
125 126
LEARS,supranote26,at3638.
For a discussion of the rise of consumer culture in this era, see ROLAND MARCHAND, ADVERTISING THE AMERICAN DREAM: MAKING WAY FOR MODERNITY, 19201940, at 12 (1986); EWEN, supra note 3, at 4549; THE CULTURE OF CONSUMPTION: CRITICAL ESSAYS IN AMERICAN HISTORY,18801980,at34(RichardWightmanFox&T.J.JacksonLearseds.,1983).
127 128
SeeEWEN,supranote3,at2324.
See LARY MAY, SCREENING OUT THE PAST: THE BIRTH OF MASS CULTURE AND THE MOTIONPICTUREINDUSTRY2832(1983).
129 130 131
STEARNS,supranote3,at214. Id.at21415. WARRENI.SUSMAN,CULTUREASHISTORY:THETRANSFORMATIONOFAMERICANSOCIETY
INTHETWENTIETHCENTURY27374(1984)([T]hestresswasclearlymoralandtheinterestwas
almostalwaysinsomesortofhighermorallaw.).
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frankly oriented around pleasing appearances.132 People were told that they had to sell themselves and their images to others in order to succeed,133 and were encouraged to develop a hypersensitivity to the feelingsandjudgmentsofothersasameanstopublicacceptanceandsocial mobility.134 Whilepopularadviceliteratureassertedthatpeopleshouldbenatural andexpressthemselves,atthesametime,invirtuallythesamebreath,the reader is also urged repeatedly to... eliminate the little personal whims, habit[s],[and]traitsthatmakepeopledislikeyou,accordingtohistorian Warren Susman.135 As Orison Swett Marden, the author of the advice manualMasterfulPersonality,summarizedin1921,somuchofoursuccess in life depends upon what others think of us.136 Dale Carnegies 1936 bestseller How to Win Friends and Influence People reinforced the idea that thekeytosuccesswastomanipulateonesimageinordertoimpressand manipulate others.137 The notion that social advancement and career successcouldbeachievedthroughsuperficialalterationsofonesconduct and appearance was not merely the claim of advertisers and selfhelp gurus. Employers were paying increasing attention to the looks and personalities of potential employees when making hiring decisions, particularlyintheburgeoningserviceprofessions.138 This project of meticulous image management was driven by new industries of image. This period saw an explosion of visually illustrated print media and new technologies for capturing and reproducing images onamassscale,includingmotionpictures.Radio,movies,andprintmedia achieved nationwide audiences and became the common denominator of American culture.139 The emerging beauty, cosmetics, and massproduced fashionindustriesheightenedtheaveragewomansattentiontohervisual image and offered new possibilities for transforming it. Makeup and
SeeROBERT E. PARK, ERNEST W. BURGESS & RODERICK D. MCKENZIE, THE CITY 40(1925) (observingthattheindividualsstatusisdeterminedtoaconsiderabledegree...byfashion andfrontandtheartoflifeislargelyreducedtoskatingonthinsurfacesandascrupulous studyofstyleandmanners).
133 LEARS, supra note 26, at 37 (In the interdependent urban marketplace, the . . . self becameacommoditylikeanyother,tobeassembledandmanipulatedforprivategain.). 134 135 136 137 138 132
STEARNS,supranote3,at21617. SUSMAN,supranote131,at278. ORISONSWETTMARDEN,MASTERFULPERSONALITY71(1921). SeegenerallyDALECARNEGIE,HOWTOWINFRIENDSANDINFLUENCEPEOPLE(1937).
See KATHY PEISS, HOPE IN A JAR: THE MAKING OF AMERICAS BEAUTY CULTURE 19294 (1998).
139 LYNGORMAN&DAVIDMCLEAN,MEDIAANDSOCIETYINTOTHETWENTYFIRSTCENTURY: AHISTORICALINTRODUCTION2425(2ded.2009).
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clothing manufacturers encouraged women to change their styles to achieve popularity and meet the social demands of the moment.140 Advertising had become a persistent feature of everyday life,141 and the mission of the ad agency was to create discomforts and dissatisfactions withonesappearanceandimagethatcouldonlybeassuagedthroughthe purchase of goods. Beginning in the 1920s, the women in ads were constantly observing themselves, ever selfcritical ... a noticeable proportionofmagazineadsdirectedatwomendepictedthemlookinginto mirrors,accordingtohistorianStuartEwen.142Eachportionofthebody was to be viewed critically, as a potential bauble in a successful assemblage.143 Through the careful use of products, one could create a newimageandabrandnewself.144Itwasinthisperiodthattheconceptof themakeoverenteredpopularculture.145 Theearlytwentiethcenturysawtheriseofanationalcelebrityculture that revolved around entertainment stars, particularly film actors. The actor, for whom taking off and putting on guises was an art and a profession, became an object of immense interest and fascination, and a kindofmodelselfinanageofimageconsciousness.Typicallyofhumble origin, the wouldbe celebrity transformed her self, her status, and her fortunes in life by changing her image.146 The emergence of this success narrativethat one might rise in status solely by developing a pleasing imagemarked a new chapter in the American ragstoriches story. Stars understood the relationship between image and success, and their life stories were object lessons in the importance of appearances and first impressions. The public followed with rapt attention the attempts of
140 See generally PEISS, supra note 138. The increasing presence of mirrors in homes and bathrooms encouraged people to constantly scrutinize their own visages. See MARK PENDERGRAST,MIRRORMIRROR:AHISTORYOFTHEHUMANLOVEAFFAIRWITHREFLECTION247, 249,254,25960(2003). 141 142 143
LEARS,supranote3,at196. LASCH,supranote3,at92. STUART EWEN, CAPTAINS OF CONSCIOUSNESS: ADVERTISING AND THE SOCIAL ROOTS OF
THE CONSUMER CULTURE47(2001);seealsoROLAND MARCHAND,ADVERTISINGTHE AMERICAN
DREAM: MAKING WAYFOR MODERNITY, 19201940, at185(1986) (describingwomenspostures asdecorationsintheoveralladvertisement).

144 A booklet from the 1920s advertising beauty aids depicted on its cover the slogan, YourMasterpiece,Yourself.ELIZABETHARDEN,INC.,YOURMASTERPIECEYOURSELF:HOWTO CULTIVATEBEAUTYANDCHARM(1929). 145 146
EWEN,supranote3,at4546.
In the Hollywood myth that had become central to the national folklore, the aspiring actressperfectedherappearance,changedhername,alteredhervoice,andwassubsequently discovered and vaunted to stardom. See SAMANTHA BARBAS, MOVIE CRAZY: FANS, STARS ANDTHECULTOFCELEBRITY5983(2001).
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celebrities to invent and reinvent themselves and to perfect their public images,alongwiththeeffortsofanorganizedandaggressiveindustryof counterimagestabloids, gossip columns, and scandal sheetsto deconstruct star identities by committing invasions of privacy.147 The celebritys engagement in an information game in Erving Goffmans words,a potentially infinite cycle of concealment, discovery, false revelation,anddiscovery,wassaidtorepresentthestruggle,writlarge, thateverypersonwouldwageinherowneffortstocreateandperfecther publicpersona.148 In this era we can see the beginnings of a consciousness of self construction,tousesociologistKennethGergensterm,inwhichtheidea of a stable self weakened and gave way to strategic manipulation. The individualincreasinglyanddistressinglyfoundhimselfplayingdifferent rolestoachievesocialgains.149Bythe1920s,theideaofadiscontinuous self was beginning to be discussed.150 In his Principles of Psychology, William James wrote that a man has as many social selves as there are individuals who recognize him and carry an image of him in their mind.151Evenifmanyoftheseimpressionsoverlapped,hehasasmany differentsocialselvesastherearedistinctgroupsofpersonsaboutwhose opinionhecares.152SocialpsychologistCharlesHortonCooleycoinedthe conceptofthelookingglassselfthenotionthattheselfistheproduct ofaninteractionbetweenhowoneseesoneselfandhowothersseehimor her.Throughinteractionwithothers,throughourconsciousnessofothers reactions to us, we develop a sense of who we are.153 The notion that identity is a social construction assembled out of the various impressions one makes on others would become a major theme in twentiethcentury
147 On the proliferation of gossip columns, see generally SAMANTHA BARBAS, THE FIRST LADYOFHOLLYWOOD:ABIOGRAPHYOFLOUELLAPARSONS97,180,205(2005). 148 GOFFMAN, supra note 35, at 13. Though far removed from the high stakes world of celebrity glamour, average Americans, with their own minor dramas of concealment and exposure, found in these star stories not only great fascination but instructive value. Sociologicalandanecdotalevidencesuggeststhatfansusedthesestoriesofidentitycreation, destruction,andrecoveryasguidanceintheirownindividualprojectsoffashioningapositive imageandreputation.SeeBARBAS,supranote146,at17677;seealsoROBERT S. LYND & HELEN MERRELL LYND, MIDDLETOWN: A STUDY IN MODERN AMERICAN CULTURE 139, 146 (1927) (discussingtheinfluenceofthemoviesonyouthinthe1920s). 149 KENNETH J. GERGEN, THE SATURATED SELF: DILEMMAS OF IDENTITY IN CONTEMPORARY LIFE147(1991). 150 151 152
LEARS,supranote26,at36. WILLIAMJAMES,THEPRINCIPLESOFPSYCHOLOGY294(H.Holt&Co.eds.,1890). LEARS,supranote3,at37.
153 SeeCHARLESHORTONCOOLEY,HUMANNATUREANDTHESOCIALORDER18384(1902).
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sociologyandsocialpsychology.154 Thisfragmentationoftheselfandthesuperficialanddiscontinuous nature of personal identity should not be overstated. Enduring communities, familial bonds, and religious institutions continued to provide strong foundations of identity for many individuals. Particularly in traditional communities, where personal relationships were reliable, continuous, and facetoface, a firm sense of identity was broadly supported.155 Most Americans undoubtedly conceived of themselves as morethanmerelyassemblagesofsocialfacadesandstageeffects.156The uprootedandtransientnatureofanincreasinglymobileurbansociety,and the imperatives and faiths of modern consumer culture, nonetheless encouraged people to view themselves less in terms of enduring relationships,stablequalities,andmoralvisions,andmoreintermsofthe various images one strategically created, manipulated, and projected to others.Theselfwascomingtoberegardedasmoremalleableandunstable, andmorethoroughlyamatterofindividualcontrolanddesignthaninthe past. By the end of the first half of the twentieth century, the project of constructingandpresentingapublicimageandidentityhadbecomemore complex, burdensome, and fraught with anxieties than in any previous generation. The upshot of these developments was not only an increased consciousness of image, but also a feeling of entitlement to ones image. Themorethatadesirableimagecametoberegardedasessentialtosocial status and advancement, and the more ones appearance before others cametobeseenascoextensivewithonesidentity,thedeeperthesenseofa righttocontrolandmanageonespublicimage.Inaculturewhereimage was freighted with possibility and meaning, and regarded as inextricably intertwined with ones self and public persona, depriving a person of controloverherpublicimagewasunderstoodasanindignitythatcouldbe potentiallysevere. B. TheTortLawofImageandthePersonalImageLawsuit Between1920and1950,existingareasoftortlawexpanded,andnew torts were created to protect personal image and the perceived right to controlonesimage.Inthisperiod,amajorityofstatesrecognizedthetort right to privacy, understood as a right to avoid undesirable and unwarrantedpublicity.157Atthesametime,courtsstretchedthelimitsof
154 155 156 157
LEARS,supranote26,at35. GERGEN,supranote149,at147. Cf.LEARS,supranote26,at37. SeeSidisv.FRPublgCorp.,34F.Supp.19,2021(S.D.N.Y.1938).
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defamation doctrine to provide redress to plaintiffs who had experienced emotional distress when presented before the public in an upsetting or unfavorablemanner,eventhoughnotinjurioustoonesreputation.Anew tort action compensated individuals for emotional distress caused by interferencewiththeirimagesthatwassevereandintentionallyinflicted.A right of publicity was created to protect the right to control the commercial exploitation of ones image and to reap the profits from such exploitation. Thisexpansionofimagelawwasbothacauseandconsequenceofan increasingnumberofimagebasedlawsuits.Thegrowthofthemassmedia, and popular journalisms insatiable hunger for personal images and stories,producedpredictablecasualties:embarrassingrepresentations,hurt feelings, and tarnished reputations. As victims of unfavorable media depictions resorted to the law to vindicate their public images and their feelings about their images, the personal image lawsuit became a phenomenonofAmericanlegalculture. 1. Privacy
By 1940, at least fifteen states recognized a tort right to privacy.158 As lawyer Louis Nizer observed that year, in recent years the courts which haverecognizedtherightofprivacyforthefirsttimehavenotfeltobliged toindulgeinlengthyapologia.Thisisthefinalstageintheacceptanceof anynewlegaldoctrine.159Courtsconcernedwiththeproliferationofmass media and its potentially damaging effects on dignity and reputation cautiously look[ed] for ways to give individuals more legal control over public presentations of their lives, according to legal scholar Diane Zimmerman.160 While they may not have intended to fashion a body of privacy law, the absence of alternative routes to compensate victims of mediamisrepresentationledthemtoexpandanddeveloptheprivacytort. Comparedtotheearlierperiod,therewerefewerinvasionofprivacy cases brought over the unauthorized use of portraits in advertisements. Advertisers were now employing professional models rather than purchasingimagesontheopenmarket,andwiththeculturesembraceof celebrityandconsumerism,itwasnolongershamefulbutacceptableand perhaps even prestigious to have ones image used in a commercial
Louis Nizer, The Right of Privacy: A Half Centurys Developments, 39 MICH. L. REV. 526, 536(1940).
159 160 158
Id.
Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light That Failed, 64 N.Y.U.L.REV.364,37778(1989).
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context.161 A reflection of the news and entertainment medias relentless focusonpersonalitiesandprivatelives,therealactioninprivacylitigation in this period instead involved photographs and personal information in various news and feature publications.162 In several cases, the media was alleged to have invaded privacy by publishing especially personal or private material, such as information about a medical condition or depictions of a persons body in a state of illness.163 Suits involving such intimate matters were generally successful.164 In Barber v. Time, the Missouri Supreme Court held that a woman had a cause of action for invasionofprivacywhenTimemagazinepublishedaphotographofherin a hospital room receiving treatment.165 Courts also held that legally cognizable invasions of privacy had occurred when the news media publishedthedetailsofhorrificaccidentsandcrimes.166 The majority of privacy cases did not involve items that were particularly personal, however, but rather situations where an individual had been presented to the public in a way that she found humiliating, misrepresentative, or otherwise objectionable. In some cases, the challengeddepictionwasnotevenunflattering;itsimplycontradictedthe waytheplaintiffwantedtobeknowntoothers.167Noexposureofprivate
161 162
SeeArmstrong,supranote93,at459;Madow,supranote24,at157.
William L. Prosser, Privacy, 48 CALIF. L. REV. 383, 41215 (1960). Not all privacy cases involvedpublications.Courtswerealsodevelopingatortrightofprivacyagainstunwanted intrusions into ones personal physical space. This included a right to be free from intrusionssuchaseavesdroppingandwiretapping.Seeid.at38992;LeonGreen,TheRight ofPrivacy,27ILL.L.REV.237,253(1937).
163 See generally Samantha Barbas, The Death of the Public Disclosure Tort: A Historical Perspective, 22 YALE J.L. & HUMAN. 171, 18289 (2010). Compared to the Victorian era, the domainoftheprivatehaddiminished.Onceseenasofflimitstopublicview,theselective displayofonesfeelingsanddesireswasnowencouragedandvalidated.Id.Therewasalsoa more relaxed attitude towards the public discussion of romantic matters and family affairs. There were still, of course, aspects of life that were generally regarded as too intimate for publicdisplayinparticular,bodilyandsexualmatters.Id. 164 Griffinv.Med.Socy,11N.Y.S.2d109,10910(N.Y.Sup.Ct.1939);Feeneyv.Young,181 N.Y.S.481,48283(N.Y.Sup.Ct.1920). 165 166
Barberv.Time,159S.W.2d291,29596(Mo.1942).
Levertonv.CurtisPublgCo.,192F.2d974,978(3dCir.1951);Mauv.RioGrandeOil, Inc.,28F.Supp. 845,84547(N.D.Cal.1939).ButseeMetterv.L.A.Examr,95P.2d491,496 (Cal.Dist.Ct.App.1937)(holdingthatawomanspublicsuicidewaivedanyexistingrightto privacy); Jones v. Herald Post Co., 18 S.W.2d 972, 973 (Ky. Ct. App. 1929) (holding that the photographandstatementofawomantakenduringapublicincidentdidnotinvadeherright toprivacy).
167 See Prosser, supra note 162, at 398400 (providing examples of situations that Prosser woulddescribeasfalselightprivacy).
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life had occurred. In these cases, the law of privacy had nothing to do with privacy but was instead about protecting individuals from unflattering associations and uncomfortable publicity.168 Under this view, the right of privacy was a right not to have ones identity depicted in a manner that clashed with ones own selfimage, under circumstances whicharecomplimentaryaswellasthosewhicharecritical.169 The1947caseCasonv.Baskin170isillustrative.Casoninvolvedaprivacy claim brought against the popular author Marjorie Kinnan Rawlings by a womanwhowastheinspirationforacharacterinherbookCrossCreek.171 TheportrayalofCasonwasonthewholefavorable,althoughinonepartof the book Rawlings described her as an ageless spinster resembling an angry and efficient canary and noted that she used profanity.172 The plaintiff, who sought damages of $100,000, did not claim that these comments were false, only that they intruded upon her privacy disturbed and destroyed her peace of mind and outrage[d] the finer sentimentsofhernaturebypresentingherbeforeamassaudienceina way that she found unfavorable.173 The Florida Supreme Court believed thattheauthorhadportrayedCason,onthewhole,asafineandattractive personality174butheldnonethelessthatthewomanstatedavalidprivacy claim.Itsuggestedthatherprivacyhadbeeninvadedbecauseherpersonal qualities,thoughhardlyconcealedorprivate,wereoffereduptoamass publicinawayshehadneverintendedordesired.175 A similar claim was made in Molony v. Boy Comics, involving an assistant pharmacists mate in the Coast Guard whose activities saving individuals from a plane crash were depicted in comic book style.176 The comic heroicized him. The plaintiff nonetheless alleged that the portrayal contained minor inaccuracies and depicted him as somewhat more effeminatethanhewouldhaveliked.Assuch,itcontradictedhisownself image, injured his sensibilities, and invaded his privacy.177 In Binns v. Vitagraph, a radio operator involved in a shipwreck successfully sued for
168 169 170 171 172 173 174 175
Id.at398401. Hullv.CurtisPublgCo.,125A.2d644,650(Pa.1956). 20So.2d243,24445(Fla.1944),secondappeal,30So.2d635(Fla.1947). Id. Cason,20So.2dat245. Id. Id.at247.
Becausethedepictionwasbenign,thecourtawardedonlynominaldamages.Cason,30 So. 2d at 640. For an interesting account of this case, see generally PATRICIA NASSIF ACTON, INVASIONOFPRIVACY:THECROSSCREEKTRIALOFMARJORIEKINNANRAWLINGS(1988).
176 177
Molonyv.BoyComicsPublishers,Inc.,98N.Y.S.2d119,121(N.Y.App.Div.1950). Seeid.at119.
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invasionofprivacyoveradepictionofhiminashortmovie,eventhough thefilmflatteredhimandmadehimouttobetheherooftheevent.178 Several privacy cases involved individuals who appeared in public places and whose pictures were taken and subsequently displayed in a newspaperorfilm.Embarrassedtohavebeenpublicized,orbecausetheir photos were presented in what they considered a disagreeable context, theybroughtclaimsforinvasionofprivacy.Blumenthalv.PictureClassics involved a woman, a bread vendor on the street, who was filmed and depictedinanewsreelinamannersheclaimedwashumiliating.Thecourt agreedthatanactionableinvasionofprivacyhadoccurred,eventhough the woman had been out in public.179 In 1937, a woman claimed that unauthorized newsreel footage taken of her in an exercise course for overweight women was an invasion of privacy because the footage was unauthorized and embarrassing.180 In Gill v. Hearst Publishing, a married couple that had been photographed embracing at an outdoor farmers market,andwhosepicturehadbeenusedtoillustrateanarticleinHarpers Bazaar magazine about how the world could not revolve without love, brought a lawsuit against the magazine alleging that the picture invaded theirprivacybecauseitwasuncomplimentary.181 Anothertwistonthisgenreinvolvedpeoplesattemptstouseprivacy lawtoconcealtheirpasts.Theplaintiffinthe1931caseMelvinv.Reid182was aformerprostitutewhohadbeentriedformurderandacquitted,butwho had been rehabilitated, married, and achieved a place in respectable society.183 A movie was produced basedon the story of her life using her true maiden name. She alleged that the presentation of facts about her earlierdaysofillrepute,muchofitamatterofpublicrecord,tarnishedthe upstanding new image she had worked hard to create and was thus an invasion of privacy. The California Court of Appeals agreed.184 In 1949, a professional boxer who had retired from the ring to pursue a life of anonymity sued NBC over a radio broadcast in which Groucho Marx discussedhisboxingcareer.Theformerboxerarguedthatthisinterference with his present public imageeffectively,an image of no imagewas
178 Binns v. Vitagraph Co. of Am., 103 N.E. 1108, 111011 (N.Y. 1913) (holding that the depictionoftheshipwreck,becauseitwassemifictional,wasforthepurposeoftradeand thereforeactionableundertheNewYorkprivacystatute). 179 180 181 182 183 184
Blumenthalv.PictureClassics,Inc.,257N.Y.S.800,801(N.Y.App.Div.1932). SeeSweenekv.PatheNews,Inc.,16F.Supp.746,74748(E.D.N.Y.1936). Gillv.HearstPublgCo.,253P.2d441,442(Cal.1953)(enbanc). 397P.91(Cal.Dist.Ct.App.1931). Id.at91.
Seeid.at94.Melvinv.ReidwasthefirstcaseinwhichCaliforniarecognizedarightto privacyunderitsstateconstitution.Id.at9394.
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anunwarrantedinvasionofprivacy.185 The judicial response to these undesirable representation cases was mixed. In a few reported cases in the 1930s and 1940s, courts noted the privacy torts potentially chilling effect on publishing and suggested that such limitations on publication were an unconstitutional violation of freedom of the press. These courts fashioned a broad newsworthiness privilege that exempted from liability a wide range of publications on publicofficialsandpublicaffairs,onthetheorythatarightofprivacythat covered news items and articles of general public interest, educational andinformativeincharacterimplicatedtherightsofafreepress.186This privilege for matters of public interest or newsworthy material had been presaged in The Right to Privacy, although the modern version extended far beyond what had been envisioned by Warren and Brandeis. Underthemostexpansivereadingoftheprivilegeofferedbyafewcourts in the 1930s and 1940s, only depictions of matters of public interest that were truly offensivethat caused severe mental suffering, shame, or humiliationtoapersonofordinarysensibilitieswouldbeactionableas invasionsofprivacy.187Inafamous1940case,theSecondCircuitusedthis rationale to reject liability for a newsworthy publication that was embarrassingbutoffensiveonlytothehypersensitivesubject.188 Many of the undesirable representation suits were nonetheless successful.Courtspermittedacauseofactionforinvasionofprivacybased onpublicitythathadnotrevealedmaterialthatwasprivate,butthatwas undesirabletothesubjectofpublicity,evenifnotobjectivelyembarrassing oroffensive.189InStricklerv.NationalBroadcastingCo.,apilotinanairplane
185 See Cohen v. Marx, 211 P.2d 320, 321 (Cal. Dist. Ct. App. 1949) (explaining that the boxerhadpermanentlywaivedhisrighttoprivacyandcouldnotathiswillandwhimdraw himselflikeasnailintohisshellandholdothersliableforcommentingupontheactswhich hadtakenplacewhenhehadvoluntarilyexposedhimselftothepubliceye). 186 187
E.g.,Lahiriv.DailyMirror,Inc.,295N.Y.S.382,388(N.Y.Sup.Ct.1937).
See, e.g., Cason v. Baskin, 20 So. 2d. 243, 249 (Fla. 1944) (en banc) (quoting R.T. Kimbrough, Annotation, Right ofPrivacy, 138 A.L.R. 22, 25(1942));accordSidis v.FRPublg Corp., 113 F.2d 806, 809 (2d Cir. 1940). A cause of action for invasion of privacy may be warrantedwhenrevelations[were]sointimate andso unwarrantedinviewof thevictims positionastooutragethecommunitysnotionsofdecency.Id.FloridaandNewYorkdidnot have an offensiveness standard. Melville B. Nimmer, The Right of Publicity, 19 LAW & CONTEMP. PROBS. 203, 207 (1954) (discussing the lack of an offensiveness standard in these states).
188 Sidis, 113 F.2d at 807, 809; accord Berg v. Minneapolis Star & Tribune Co., 79 F. Supp. 957,962(D.Minn.1948).
See, e.g., Leverton v. Curtis Publg Co., 192 F.2d 974, 978 (3d Cir. 1951); Martin v. JohnsonPublgCo.,157N.Y.S.2d409,41011(N.Y.Sup.Ct.1956);Metzgerv.DellPublgCo., 136 N.Y.S.2d 888, 89091 (N.Y. Sup. Ct. 1955); Valerni v. Hearst Mags. Inc., 99 N.Y.S.2d 866,
189
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emergency was depicted in a dramatized television reenactment of the event.Heallegedthattheportrayal,whichinaccuratelyshowedhimoutof uniform,praying,andsmokingcigarettes,placedhiminafalseposition and caused him humiliation and suffering.190 A federal district court in California held that he had a cause of action for invasion of privacy.191 In the 1948 case Peay v. Curtis, a taxicab driver brought suit for invasion of privacy over a publication in the Saturday Evening Post that featured her picture alongside an article that was critical of cab drivers and accused them of cheating, but did not explicitly name or refer to her.192 The court determined that the depiction was an actionable invasion of privacy. It reached the astonishingly broad conclusion that the unauthorized publicationofapersonsphotographwasaviolationofhisorherprivacy right, even if the person was in a public place and was not a public figure.193 When the press engaged in undue and undesirable publicity, such as is involved in the circulation of [ones] likeness without [ones] permission,itabuseditsfreedom.194 It is hard not to regard such claims as petty. There is no evidence, however, that they were insincere or duplicitous. The men and women presentedinaninaccurate,andperhapsevenridiculousmannerinvarious newsreels, comic strips, and articles may well have been deeply hurt and perhaps even horrified. This sense of outrage, if it did exist, is also a testament to the image consciousness of the time. It is only in a culture where individuals feel an entitlement to their images that such representations, even if objectively benign, will be experienced as serious injuriestoonesdignityandfeelings. 2. TheLawofFeelings
Theflourishingoftortprivacyinthisperiodwasaproductnotonlyof the culture of images but also a culture of feeling. As discussed, the foundational assumption of the privacy tortthat injuries to ones image
86667(N.Y.Sup.Ct.1949);Hinishv.Meier&Frank,Co.,113P.2d438(Or.1941).
190 191
Stricklerv.NatlBroad.Co.,167F.Supp.68,69(S.D.Cal.1958).
Id.at71;accordSinclairv.PostalTel.&CableCo.,72N.Y.S.2d841,842(N.Y.Sup.Ct. 1935)(illustratingacaseinvolvingadoctoredphotographappearinginanadvertisementthat falselyshowedanactorwritingatelegramtohisfansannouncingthedebutofhisfilm).The SinclairCourtheldthattheportrayalputhiminanundignifiedlightandwasanactionable assaulttotheactorsprivacy,dignity,andcivilrights.Id.

192 193 194
SeePeayv.CurtisPublgCo.,78F.Supp.305,30607(D.D.C.1948). Id.at309.
Id.InBarberv.TimeInc.,thecourtnotedthatdamagesforinvasionofprivacywouldbe warrantedbecausethepresshadoversteppeditsconstitutionalrightsandoverlook[ed]its obligationstoothers.159S.W.2d291,295(Mo.1942).
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and ones feelings about ones image were worthy of redress and compensationhad been novel and largely disfavored at the time of Warren and Brandeis. The common law had traditionally resisted compensationforemotionalinjuriesunconnectedtotheviolationofother established rights; courts cited difficulties of proof, the possibility of spurious or insincere claims, and the potential unleashing of a flood of litigation.195 The condition of ones feelings and ones psyche was coming to be regarded as not merely a minor, intangible interest but as having significant,measurablebehavioralandevenphysicalconsequences.Atthe time,thismayhavebeenthemostconvincingaspectoftheargumentfora law of feelingsthe perceived connection between emotional and bodily harm.A1922writerintheMichiganLawReview,notingthediscoveriesof medical men and psychologists... about emotion and its effect on the human body, observed that emotion as a purely mental thing does not exist.196 As Pound had written, ones feelings and relationships were as muchapartof[ones]personashisbody.197 This recognition of both the independent significance of the emotions and the mindbody connection gave rise to another branch of the law of image,thefreestandingtortofintentionalinflictionofemotionaldistress.198 By1936,thetortsscholarCalvertMagrudercouldassertthat[n]olongeris itevenapproximatelytruethatthelawdoesnotpretendtoredressmental pain and anguish when the unlawful act complained of causes that alone.199 The 1934 Restatement of Torts had taken the position that there wasnorecoveryforemotionalinjuryevenwhenintentionallyinflicted;by 1948, it reversed its position and stated that one could recover for such injuries.200 The emotional distress tort had obvious overlaps with the privacy tort; claims for invasion of ones privacy interests were often broughtundertheemotionaldistresstort,andtheprivacytortprotected,in
195 SeeRobertL.Rabin,EmotionalDistressinTortLaw:ThemesofConstraint,44WAKEFOREST L.REV.1197,1198(2009). 196 HerbertF.Goodrich,EmotionalDisturbanceasLegalDamage,20MICH. L. REV.497,497, 501(1922).
Reed v. Real Detective Pub. Co., 162 P.2d 133, 139 (Ariz. 1945) ([T]he mind of an individual, his feelings and mental processes, are as much a part of his person as his observablephysicalmembers.Aninjury,therefore,whichaffectsthesensibilitiesisequallyan injurytothepersonasaninjurytothebodywouldbe.).
198 SeeMagruder,supranote61,at1058;WilliamL.Prosser,IntentionalInflictionofMental Suffering:ANewTort,37MICH.L.REV.874,874(1939). 199 200
197
Magruder,supranote61,at1067.
Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 COLUM. L. REV. 42, 43 (1982).
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its own right, as William Prosser observed in 1935, the right to be free fromtheintentionalinflictionofmentalsuffering.201 The intentional infliction of emotional distress tort was recognized in caseswheredefendantshadputplaintiffsinfearoftheirsafetyoranother persons safety, such as when a plaintiff witnessed a defendants willful attackonathirdperson.202Caseshadalsobeenbroughtoversevereverbal assaults, such as threats of arrest or bodily injury, or acts that led to extreme embarrassment, as when a person was made a victim of a humiliating practical joke carried out before the public.203 In a few cases, plaintiffsbroughtemotionaldistressclaimsagainstnewspapersforfalsely reporting a family members death. In 1921, a woman sued a newspaper that mistakenly published her sons photo when reporting the death of anotherpersonhavingthesamename.204Theessenceoftheharminthese caseswasakintoshockorfright.205 Emotional distress claims would eventually be brought over publicationsallegedtobeharmfultoonesimage.Inmanysuchcases,the publicationwasneitherfalsenorinvasiveofprivacy,yetplaintiffsclaimed tobemortifiedandoutragedbecausetheyhadbeenhumiliatedandtheir appearance before others severely tarnished. These sorts of claims were largelyaphenomenonofthepostWorldWarIIeraandwillbediscussed later. Their origins can be traced to the first half of the century and the cultures heightened appreciation of both outward appearances and the innerlife:images,feelings,andtheperceivedintimaterelationbetweenthe two. 3. LibelLawintheAgeofImage
The same influences that led to the expansion of privacy law also contributed to the transformation of the law and culture of libel. A byproductoftheproliferationofthemassmedia,libellitigationincreased substantially in the early twentieth century, as an array of claimants, rangingfrompoliticalofficialstotheproverbialmanonthestreet,brought claims against the press.206 The risk of multiple libel suits had come to be
201 Prosser, supra note 198, at 884 (internal citation omitted); see also John W. Wade, Tort LiabilityforAbusiveandInsultingLanguage,4VAND. L. REV.63,74(1951)(notingthatprivacy interestsmaybeinvadedinanumberofdifferentways,mostcommonlybywaysthatinduce emotionaldistress). 202 203 204 205
Magruder,supranote61,at104243. SeeProsser,supranote198,at881. Herrickv.EveningExpress,113A.16,16(Me.1921).
SeeRobertE.Drechsel,NegligentInflictionofEmotionalDistress:NewTortProblemforthe MassMedia,12PEPP.L.REV.889,900(1985).
206
The case reports are replete with suits involving ordinary men and women and
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regarded as the inevitable price of running a publishing enterprise, and publishers began to invest in defensive measures such as libel insurance, prepublication review, and the retention of libel lawyers.207 Fueling publishers fears of large, adverse judgments were not only the zeal with which libel claims were often pursued, but courts apparent sympathies towardsplaintiffs.Duringtheinterwarperiod,courtswereexpandingthe definition of a defamatory publication and the concept of reputational harms. Historically, to be libeled was to have ones character or morals attacked,208 or to otherwise be subjected to scorn... hatred... [or] contemptinawaythatseriouslyimpairedthewayothersviewedhimor her and were likely to treat him or her.209 A publication may be unpleasant...;itmaysubjecthimto...banterfromthosewhoknewhim orknewofhim,eventotheextentofaffectinghisfeelings,butthisinitself isnotenough,notedaNewYorkappealscourtin1912,rejectingaclaim thatafalsereportoftheplaintiffsdeathwaslibelous.210Yetbythe1930s, courts were beginning to expand the concept of reputational injury to includesituationswhereastatementdidnotcastaspersionsonapersons character or lower his standing before others, but that nonetheless subjected him to shame and mental distress.211 In 1935, Magruder noted
unflattering and allegedly defamatory depictions in gossip columns, humaninterest stories, andotherpopularmediagenres.See,e.g.,Hunnerv.EveningAm.PublgCo.,175Ill.App.Ct. 416, 418 (1912) (alleging that the defendant had published an errant accusation that the plaintiff had committed adultery); Thayer v. Worcester Post Co., 187 N.E. 292, 292 (Mass. 1933) (libel suit brought by a woman plaintiff in regard to pictures published during her divorce proceedings); Walker v. BeeNews Publg Co., 240 N.W. 579, 57980 (Neb. 1932) (involving litigation over a newspaper mistakenly identifying the plaintiff as the host of a wrestling match at his farm); Foray v. Hearst Corp., 91 N.Y.S.2d 116, 11819 (N.Y. Sup. Ct. 1949)(amodelslitigationregardingthemistakenpublicationofanarticleasserting,interalia, thatshewasmarried);Brownv.ParamountPublixCorp.,270N.Y.S.544,546(N.Y.App.Div. 1934) (a defamation suit alleging that the plaintiff was wrongfully represented in a talking motion picture); Knickerbocker v. Press Publg Co., 127 N.Y.S. 969, 96970 (N.Y. App. Div. 1911)(ayoungwomansclaimoflibelagainstaNewYorkCitynewspaper);OLearyv.Hearst Magazines, Inc., 4 N.Y.S.2d 79, 81 (N.Y. Sup. Ct. 1937), affd, 5 N.Y.S.2d 538 (N.Y. App. Div. 1938),affd,19N.E.2d917(N.Y.1939)(adefamationsuitallegingthatafictionalcharacterwas basedontheplaintiff);Dinkelspielv.N.Y.EveningJournalPublgCo.,85N.Y.S.570,571(N.Y. Sup.Ct.1903)(alibelactionregardingthepublicationofamanstestimonyduringadivorce proceeding).
207 208 209 210 211
SeeFrankThayer,TheChangingLibelScene,1943WIS.L.REV.331,33334(1943). SeeBezanson,supranote62,at538&n.15. Cohenv.N.Y.TimesCo.,138N.Y.S.206,209(N.Y.App.Div.1912). Id.at210.
SeeJohnWade, DefamationandtheRightofPrivacy,15VAND. L. REV. 1093,1094(1962) (internalcitationomitted).
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libel cases where plaintiffs had won compensation not for an invasion of onesinterestinreputationbutforthesenseofoutrageandchagrinthat the defendant should have made an attack upon his reputation.212 Libel lawwasturningitsfocusfromexternal,interpersonalrelationsinwardto therealmofonesselfperceptionandfeelingsaboutonespublicimage. Thus,in1926,acourtheldthatawomanhadacauseofactionforlibel whenanewspaperarticlesaidthatshehadbeenservedwithprocesswhile sitting in a bathtuban accusation that did not impute immoral character or likely damage her reputation, but nonetheless embarrassed her.213 In the 1930 case of Zbyszko v. New York American, Inc., a New York appeals court held that a newspaper article about evolution featuring the name and picture of the plaintiff, a wrestler, right beside the words the Wrestler,NotFundamentallyDifferentfromtheGorillainPhysiquewas potentiallylibelous.214Thedepictionwasnotfalse,anditprobablydidnot injurethewrestlersprofessionalrepute,althoughitwasdistressingtohim. Van Wiginton v. Pulitzer was a case of mistaken identities in which a newspaper published the plaintiffs picture alongside a story about a young girl who had tried to save her father from the gallows. Damages wereallowedforlibelalthoughthepublicationwaslargelyfavorableand imputed nothing disparaging to her character.215 As the Massachusetts Supreme Judicial Court noted in 1940, libel law had become a potential vehicletoreachcertainindecentviolationsofprivacy.216Inotherwords, plaintiffs complaining about unfavorable and upsetting portrayals that beforewouldnothavebeenconsidereddefamatorycouldnowfindredress notonlyinthelawofprivacybutalsopotentiallythroughacauseofaction forlibel. ThekeycaseinthistrendwasthefamousSecondCircuitcaseBurtonv. CrowellPublishingCo.,from1936,forwhichJudgeLearnedHandwrotethe opinion.217 The defendant, the Camel cigarette company, published a photographoftheplaintiff,afamousjockey,inridingcostumeholdingin front of him a saddle and girth. The picture was an advertising endorsementforwhichthejockeyhadbeenpaidandhadwillinglyposed. Theplaintiffallegedthatthewaythepicturewasshotmadeitappearthat theobjectshewasholdingwereinfacthisgenitaliaandthathewasguilty
212 213 214 215 216 217
Magruder,supranote61,at1055. Snyderv.N.Y.PressCo.,121N.Y.S.944,946(N.Y.App.Div.1910). Zbyszkov.N.Y.Am.,Inc.,239N.Y.S.411,412(N.Y.App.Div.1930). SeeVanWigintonv.PulitzerPublgCo.,218F.795,795,797(8thCir.1914). Themov.NewEng.NewspaperPublgCo.,27N.E.2d753,754(Mass.1940). 82F.2d154,154(2dCir.1936).
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of indecent exposure.218 The Second Circuit overturned the lower court and held that the plaintiff had a cause of action for libel because the publication embarrassed him and made him the subject of more than trivialridicule.219 As the Harvard Law Review observed, Burton v. Crowell was the first majordecisionthatheldthatunintentionallycausingwidespreadridicule oftheplaintiffwasperselibelous.220Manylegalcriticsobservednotonly what they saw as the hypersensitivity of the plaintiff, but the absence of anyrealharmtohisreputation.Asonewritercommented,therealinjury wastotheplaintiffsfeelings,onaccountofthemortificationhesuffered and irritation, perhaps, at the goodnatured joshing of his friends. The laughterathisexpensewasnotonaccountofanythinginthepublication tending to lower him in the esteem of others.221 The decision extended thelawoflibeltoanothersituationwheretheplaintiffsreputationisnot impairedintheslightest.222 Burtonwaswidelyacknowledgedbutnotbroadlyadoptedatthetime. Themajoritypositionremainedthattheinjurytofeelingswhichthelaw of defamation recognizes is not the suffering from the making of the charge, but is the suffering which is caused by other peoples conduct towards him in consequence of it.223 The decision nonetheless heralded the movement in the postwar era towards the extension of libel beyond the protection of reputation, in the sense of the opinions of others, to a broaderprotectionagainstemotionallyembarrassingsituations.224Bythe mid1950s, courts were extending defamation law to cover situations in whichtherewaslittleifanyinjurytoonesstandingbeforeothersandwere
218 219 220
Id.;Magruder,supranote61,at1056. Burton,82F.2dat156.
RecentCases,LibelandSlanderLiabilityforPublishingPhotographWhichCreatedOptical IllusionConcerningPlaintiff,49HARV.L.REV.826,841(1936).
221 222
Id. A comment in the Mississippi Law Journal noted that a claim for violation of the rightofprivacy,insofarasitaffordedlegalprotectionofthesensibilities,wouldhavebeen more consistent with the true nature of [the] plaintiffs injury, although a privacy claim probably would not have been successful since the plaintiff gave his consent to be photographed. Nugent Shands, LibelOptical IllusionPrima Facie Actionable, 9 MISS. L.J. 250, 251(1937).
223 Kellyv.Loews,Inc.,76F.Supp.473,488(D.Mass.1948)(internalquotationomitted). As the Missouri Supreme Court had explained, holding that a newspaper column calling a lawenforcementofficercrude,belligerent,[and]unfairwasnotdefamatorymerelybecause itsubjectedhimtoridicule;acommunicationisnotdefamatorysolelybecauseitmayexpose oneto...jestsorinjuredpersonalfeelings.Cootsv.Payton,280S.W.2d47,51,54(Mo.1955). 224
Shands,supranote222,at251.
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compensating plaintiffs solely for emotional distress.225 They were particularlylikelytodosoinjurisdictionswheretheprivacyandemotional distress torts were not recognized.226 Defamation and privacy had so overlapped,legalcommentatorsobserved,thatthemajorityofdefamation actions could be brought for invasion of the right of privacy, and vice versa.227 No longer was it entirely true that [t]he fundamental difference between a right to privacy and... freedom from defamation is that the former directly concerns ones own peace of mind, while the latter concernsprimarilyonesreputation.228Inprovidingcompensationforthe plaintiffssubjectivedistressoveranunwantedandunfavorableportrayal, regardlessofitseffectonthirdparties,thetortactionsforlibelandprivacy wereconverging.229 4. TheRightofPublicity
The 1940s and 1950s saw the beginnings of another innovation in the tort law of image, one that was entirely novel and that would eventually occupy a significant role in the body of American image rights. This was the right of publicity, an offshoot of tort privacy, which extended the right to control ones image to include the right to reap profits from the commercial exploitation of ones imageones photograph, likeness, or other recognizable aspects of ones persona or identity. Unlike the other imagetorts,theprotectedinterestwaspecuniaryratherthandignitary.Its recognitionwasanaptreflectionofthenewdirectionsthatmodernimage consciousnesswastaking.Bythemidtwentiethcentury,bothpopularand judicial sentiment supported the idea of legal compensationfor the many different kinds of harmto ones feelings, dignity, and pocketbookthat couldbecausedbylossofcontroloveronesimage.230 At the turn of the century, the idea of a legally protected right to
225 226 227
DevelopmentsintheLawDefamation,69HARV.L.REV.875,88081(1956). Seeid.at881.
Prosser,supranote162,at401;Wade,supranote211,at1121([T]heactionforinvasion oftherightofprivacymaycometosupplanttheactionfordefamation.);HarryKalven,Jr., Privacy in Tort LawWere Warren and Brandeis Wrong?, 31 LAW & CONTEMP. PROBS. 326, 332 (1966);RobertH.Powsner,LibelinLimbo:AnotherConquestfortheRightofPrivacy?,30L.A. B. BULL.365,366(1955)(Anordinaryandtraditionaltypeoflibeloccurs,buttheplaintiffsues forinvasionofprivacyinstead.).
228 229
Themov.NewEng.NewspaperPublgCo.,27N.E.2d753,755(Mass.1940).
Prosser,supranote162,at401;Wade,supranote211,at109495.ButseeDevelopmentsin theLawDefamation,supranote225,at881. See generally Nimmer, supra note 187, at 21823 (identifying examples of courts awarding compensation for a violation of ones interest in the commercial value of ones publicimage).
230
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commercially exploit ones name and likeness was disfavored. It went againsttheprevailingviewofonesimage,particularlyonesphotographic image,asanexpressionoftheinnersoulorpersonalitythatshouldnot be commodified.231 Thirty or forty years later, the public was no longer uncomfortablewiththeideaofprofitingfromtheirimagesandidentities. Movie stars were licensing their names to advertisers, and licensing companies had been created to market the names and images of celebrities.232Inacelebrityculture,wherefameandpublicexposurewere regarded as the pinnacle of success, selling ones image for profit was no longerviewedasquasiillicit.233Theabilitytocommerciallyexploitones personawasasignthatonehadmadeit. ThelawnonethelessretainedtheVictoriananticommodificationethos formanyyearsafterthepublichadabandonedit.Inthe1920sand1930s, lacking avenues of legal recourse outside the context of a breach of contract, celebrities seeking compensation for the unauthorized commercial appropriation of their names and likenesses brought cases under the right of privacy claiming dignitary harms, even though their true interests may have been pecuniary.234 These attempts were generally unsuccessful.Courtsreasonedthatbecauseselfexposurewasthebasisof celebrity,starscouldnotclaimtobeoffendedbyadditionalpublicity.They had, in effect, waived their right to privacy.235 The New York privacy
Armstrong, Jr., supra note 93, at 45456; Jonathan Kahn, Bringing Dignity Back to Light, PublicityRightsandtheEclipseoftheTortofAppropriationofIdentity,17CARDOZOARTS&ENT.L. J. 213, 216 (noting the [a]nxiety about the dangers of commodifying private life). In a few cases brought under the auspices of the right to privacy in the early twentieth century, courtsheldthat plaintiffscouldrecovertheeconomicvalueoftheirimageswhen theywere exploitedforadvertisinguse.In1906,aNewJerseycourtexplaineditsdecisiontoenjointhe unauthorizeduseofThomasEdisonsnameandpictureinanadvertisementonthebasisthat onesfaceandthepeculiarcastofonesfeatureshadpecuniaryvalue...[that]belongsto its owner rather than to the person seeking to make unauthorized use of it. See Edison v. EdisonPolyformMfg.Co.,67A.392,394(N.J.Ch.1907);seealsoMundenv.Harris,134S.W. 1076, 108081 (Mo. Ct. App. 1911); Corliss v. E.W. Walker Co., 64 F. 280, 282 (C.C.D. Mass. 1894)([A]privateindividualhasarighttobeprotectedintherepresentationofhisportrait inanyform;...this[was]apropertyaswellasapersonalright.);Warren&Brandeis,supra note5,at19596.
232 233 234 235 231
Madow,supranote24,at166. Armstrong,Jr.,supranote93,at459. Madow,supranote24,at16667;seealsoNimmer,supranote187,at20304.
Nimmer, supra note 187, at 20304. In Martin v. F.I.Y. Theatre Co., the plaintiff was a respected film actress whose picture had been displayed in advertising in front of a local burlesquehousewithoutherconsent.Thecourtsustainedthemotiontodismiss,notingthat anypersonfollowingthetheatricalbusinessforalifesworkhasnosuchrightorprivacy. Martinv.F.I.Y.TheatreCo.,1OhioSupp.19,22(CuyahogaCnty.Ct.Com.Pl.1938)(noting that the right of privacy does not exist under any theory where the person has become
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statute offered protection against unauthorized commercial uses of the persona,butdamageswereawardedfordignitaryharm,notlostprofits.If the plaintiff could not show a use of the image that was offensive, that caused hurt feelings, he would not succeed in recovering any compensation.236 Yet, as celebrity culture became deeply entrenched, and as both celebrities and noncelebrities brought suit alleging economic loss from unauthorized uses of their names and pictures, courts began to acknowledge more frankly the commercial value of image.237 They nonetheless continued to reject the idea of making the persona into a commodity.238 It was not until the 1950s that a federal appeals court explicitlyrecognizedtherightofapersontoprotectthepublicityvalueof hispersona.In1953,theSecondCircuitnotedinHaelanLaboratories,Inc.v. ToppsChewingGum,Inc.,thatinadditiontoarightofprivacy,apersonhas a right of publicity in his or her photograph, [f]or it is common knowledgethatmanyprominentpersons...farfromhavingtheirfeelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements.239 By the mid1950s, Melville Nimmer observed, the
prominent,notorious,orwellknownsothatbyhisveryvocationorconducthehasdedicated his life to some continued contact with the public and thereby has waived his right to privacy,andfurtherobservingthat[p]ersonswhoexposethemselvestopublicviewforhire cannotexpecttohavethesameprivacyasthemeek,ploddingstayathomecitizen.);seealso OBrienv.PabstSalesCo.,124F.2d167,169(5thCir.1941);RESTATEMENT (FIRST)OF TORTS 867ch.42cmt.c(1939).
236 See, e.g., Fisher v. Murray M. Rosenberg, Inc., 175 Misc. 370, 371 (N.Y. Sup. Ct. 1940) (awarding compensatory damages for only hurt feelings for the unauthorized use of a professionaldancersphotographinashoeadvertisement);seealsoMillerv.MadisonSquare Garden,Corp.,176Misc.714,716(N.Y.Sup.Ct.1941). 237 SeeContlOpticalCo.v.Reed,86N.E.2d306,309(Ind.App.1949)(Modernmethods ofadvertisingandpublicityhaveaccentuatedsuchneedtotheextentthatnow,ineverystate thatrecognizesthedoctrine,theunauthorizeduseofphotographsofapersonforcommercial purposes,asageneralrule,isheldtobeaninvasionofhisrightofprivacy.(internalcitation omitted)); Nimmer, supra note 187, at 21922 (citing cases where a right of publicity was recognizedbutwasnotthegroundsonwhichthedecisionwasbased);seealsoUproarCo.v. Natl Broad. Co., 8 F. Supp. 358, 361 (D. Mass. 1934); Pallas v. CrowleyMilner & Co., 54 N.W.2d 595, 597 (Mich. 1952) (noting plaintiffs property right in the appearance of her face and features); Madison Square Garden Corp. v. Universal Pictures Co., 7 N.Y.S.2d 845, 851 (N.Y.App.Div.1938). 238 See, e.g., Hanna Mfg. Co. v. Hillerich & Bradsby Co., 78 F.2d. 763, 766 (5th Cir. 1935) (Fameisnotmerchandise.);seealsoMadow,supranote24,at17071.
HaelanLabs.,Inc.v.ToppsChewingGum,Inc.,202F.2d866,868(2dCir.1953);seealso HaroldR.Gordon,RightofPropertyinName,Likeness,PersonalityandHistory,55NW.U.L.REV. 553,570(1960).
239
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rightofeachpersontocontrolandprofitfromthepublicityvaluesofhis orherpersonahademergedasalegallycognizableright.240Therightof publicity was sometimes described as a property right, but more commonlyasanaspectofthetortrighttoprivacy.241 With the recognition of the right of publicity, the foundations of the moderntortlawofimagehadbeenestablished.Theyrestedonwhatcould bedescribedasafrankacceptanceofthesignificanceofimagetopersonal identity, commercial and social relations, and public life. Gone was the fiction that privacy was primarily about protecting a right to be let alone, or that plaintiffs brought libel claims primarily to vindicate their good names in the community, or that the principal reaction to having ones image used without consent was embarrassment and shame. What plaintiffs seemed to want, and were in many cases getting, was a broad righttocontrolonesimage,toconstructandexploitithoweveronechose. 5. TheLawsofImageandCounterimage
In the period between the two world wars, courts were beginning to develop andimplement civil libertarian theories of the First Amendment. In so doing, they rejected an earlier, statedeferential jurisprudence of freedomofspeechandpressthathadupheldlimitationsonexpressionin the interest of maintaining public order and stateimposed moral standards.242Thisliberalizationoffreespeechlawledtoadiscussionofthe potentialconflictbetweentheFirstAmendmentandimagetorts.243 Wehaveseenthisdialogueinthecontextoftheprivacytort,whichled courtstofashionabroadnewsworthinessorpublicinterestprivilege. Inlibellaw,aconditionalprivilegeoffaircommentonmattersofpublic interestandgeneralconcernwassimilarlybeingusedtolimitjudgments against the press for defamatory publications involving public figures.244 Theprivilege,eventuallyconstitutionalizedinNewYorkTimesv.Sullivanin
240 241
Nimmer,supranote187,at204,216.
In 1960, William Prosser described this as the appropriation tort, a proprietary interestintheexclusiveuseoftheplaintiffsnameandlikenessasanaspectofhisidentity. SeeProsser,supranote162,at389,406;seealsoMarkBartholomew,ARightisBorn:Celebrity, Property,andPostmodernLawmaking,44CONN. L. REV.301,31314(2011)(notingtheconfusion of courts, postHaelan, as to whether the right of publicity was a tort right or a property right).
242 SeeSTEPHEN M. FELDMAN,FREE EXPRESSION AND DEMOCRACY IN AMERICA: A HISTORY 22223(2008);seealsoDavidM.Rabban,TheFirstAmendmentinItsForgottenYears,90YALEL.J. 514,52325(1981). 243 244
See,e.g.,FairCommentandtheRightofFreeSpeech,2BILLRTS.REV.302,30203(1942).
See John Hallen, Fair Comment, 8 TEX. L. REV. 41, 41 (1929); see also David Riesman, DemocracyandDefamation:FairGameandFairCommentII,42COLUM.L.REV.1282,1288(1942).
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1964,245 prohibited a public official from recovering damages for defamatorystatementsabouthispublicactivitiesunlessthestatementwas made with reckless disregard of the truth. The privilege covered publications about the conduct and characteristics of public officials that were related to their public duties, although courts sometimes extended itmuch as they did privacys newsworthiness privilegeto cover gossip and human interest publications that discussed items of mere public curiosity if they could be construed as matters of public concern.246 Theimagesocietywaspushingthelawintwodirections.Inaculture where personal identities and social relationships were bound up with images and representations, the right to control ones public persona which included a right to be free from false, damaging, or otherwise unauthorized associationswas being described as essential to self definition, selfdetermination, and the integrity of ones personality.247 Libel and privacy law took cognizance of this interest. At the same time, when media images had become central to politics and social life, courts recognized the right of publishers and the public to make and circulate representations of individuals, both public figures and private citizens alike. This freedom to image was being described as the essence of constitutionalfreedomofspeech. In a series of cases in the 1930s and 1940s, the Supreme Court suggestedthatitwouldviewstateactionsrestrictingorburdeningspeech with heightened scrutiny because of the significance of free expression to the democratic process.248 Because free expression was considered the matrix, the indispensable condition, of nearly every... form of freedom,249 freedom of speech occupied a preferred position in the schemeofconstitutionalliberties,andstateactionsrestrictingspeechcould not stand unless justified by a compelling government interest beyond mere disagreement with the views espoused.250 With the exception of material that posed a clear and present danger of imminent violence, prohibitions or impairments of speech on matters of public concern on the basis of disfavored content or viewpoints were presumptively
245 246 247
376U.S.254,283(1964). SeeDevelopmentsintheLawDefamation,supranote225,at92426. SeeGreen,supranote162,at240;Nizer,supranote158,at526,528. Palkov.Connecticut,302U.S.319,327(1937).
248 FELDMAN,supranote242,at35051. 249 250
On the preferred position theory of the Court in this era, see FELDMAN, supra note 242,at37071.
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unconstitutional.251 Freedom of the press meant not only liberty to publish, but also the right of the public to have access to a broad range of information about publiceventsandcivicaffairs.TheCourtrecognizedthesignificanceofthe massmediaradio,film,andmassmarketprintpublicationsasconduits forthedisseminationofinformationtothepublic.252Thepeoplesabilityto acquirenewsandinformationthroughthemediaofmasscommunications was being described as the basis of civic discourse, public discussion, andparticipatorydemocracy.253Lawsthatcensoredorlimitedpublications for no reason other than disagreement or displeasure with their content interfered with the publics right to make independent decisions about culturalandmediaconsumptionandtoestablishitsownsocialandmoral standardsandwereanunconstitutionalcensorshipofthepress.254 Thus,whilerecognizingtheimportanceoftheindividualscontrolover his or her public image, courts and commentators noted the critical democratic significance of the freedom to depict, discuss, and criticize people and public affairs. Explicitly and implicitly, the legal community acknowledged that First Amendment rights and the image torts were in tension.255 The response of the courts was at once to expand privacy and libelto enlarge the understanding of cognizable harms, of what was private or defamatoryand at the same time to limit the scope of thoseformsofactionthroughvariousdefensesandprivileges.Theperiods immediatelybeforeandaftertheSecondWorldWarweresignificantinthe developmentofbothFirstAmendmentlawandimagerights;thetensions
251 252
SeeThornhillv.Alabama,310U.S.88,10405(1940).
See, e.g., Associated Press v. United States, 326 U.S. 1, 20 (1945); Natl Broad. Co. v. UnitedStates,319U.S.190,198(1943)(describingthesignificanceofchainbroadcastingon the radio in disseminating information to largeaudiences); Near v. Minnesota, 283 U.S. 697, 71620 (1931) (noting the importance of immunizing the press from previous restraints or censorship). See,e.g.,AssociatedPress,321U.S.at20([A]freepressisaconditionofafreesociety); Grosjeanv.Am.PressCo.,297U.S.233,243(1936)(Freedomofthepressgoestotheheartof the natural right of the members of an organized society, united for their common good, to impartandacquireinformationabouttheircommoninterests).
254 Hannegan v. Esquire, Inc., 327 U.S. 146, 15758 (1946) (Under our system of government there is an accommodation for the widest varieties of tastes and ideas. What is goodliterature,whathaseducationalvalue,whatisrefinedpublicinformation,...varies... from one generation to another. . . . [A] requirement that literature or art conform to some normprescribedbyanofficialsmacksofanideologyforeigntooursystem.);seealsoWinters v.NewYork,333U.S.507,510(1948). 253
See, e.g., Lahiri v. Daily Mirror, Inc., 295 N.Y.S. 382, 388 (N.Y. Sup. Ct. 1937); Nizer, supranote158,at540;R.A.S.,TheRightofPrivacy:FiftyYearsAfter,15TEMP. L. Q.148,148 (1940).ButseeDearbornPublgCo.v.Fitzgerald,271F.479,48586(N.D.Ohio1921).
255
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and ambiguities of modern expressive freedom led image law and free speechlawtoadvancesubstantiallyatthesametime. III. TheTriumphoftheImageinPostwarAmerica Indeed,itisoneofthesignificantandoftenoverlookedcontradictions inthehistoryoffreeexpressionthattheimagetortsincreasedtheirreach andscopeintheeraoftheWarrenCourtsexpansionofexpressiveliberties and New York Times v. Sullivan. In the postWorld War II era, a series of factorsnew media technologies; a broader national audience for media images; an aggressive consumer culture; a pervasive ethos of possessive individualism; and the perceived convergence of personal image and personal identitycreated an environment favorable to the further development of the law of image and what has been described as a personal image litigation explosion.256 The law of image evolved to accommodate the complex emotional, psychic, and economic dimensions of personal appearance and identity in what was being described as a cultureofsurfacesandanageofimages.257 A. TheOtherDirectedPersonality In 1950, the publication of the book The Lonely Crowd marked a milestoneinthehistoryoftheselfandtheimagesociety.SociologistDavid Riesman wrote of the rise of a new modal personality type that was emerging as an influential minority in the United States258the other directed personality.259 While the innerdirected person of the nineteenth century had been guided by an inner gyroscope of belief, tradition, and morals, the otherdirected person looked to his peers for response and guidance, or to their generalized reflection in the mass media.260 Without a stable inner core or internal direction, the other directed person continually reinvented himself or herself in an effort to please others, aspiring to social approval, psychological comfort, status, andmaterialsuccess.261 Riesmans book hit a nerve, and it sparked an outpouring of commentary and discussion. It seemed to confirm fears of a superficial
256 SMOLLA,supranote109,at16.SeegenerallyWade,supranote211,at10961100. 257 258
SeeBOORSTIN,supranote1,at18183.
David Riesman, Psychological Types and National Character: An Informal Commentary, 5 AM.Q.325,335(1953).
259 DAVID RIESMAN ET AL., THE LONELY CROWD: A STUDY OF THE CHANGING AMERICAN CHARACTER8(1961). 260 261
Riesman,supranote258,at335. Seeid.at34243.
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society, the demise of public morals, and the triumph of the ethos of celebrity, conformity, and salesmanship.262 The notion of the unstable, ungrounded,andinfinitelymalleableself,motivatedbythepursuitofpeer approvalandmaterialgain,wasechoedinanumberofotherpopularand academic works at the time. William Whyte wrote of the organization man; Erich Fromm talked about a market oriented personality; Vance Packard described a nation of status seekers; and Erving Goffman described social interaction as a series of elaborate choreographies of deception and selfinterest.263 As historian and cultural critic Daniel Boorstinwrotein1962,beforetheageofimages,itwascommontothink of a conventional person as one who strove for an ideal of decency or respectability. Now one tried to fit into the images found vividly all around him.264 [T]he language of images is everywhere. Everywhere it hasdisplacedthelanguageofideals.265 Thegrowthoftheserviceindustriesandanaggressiveconsumerethos heightened the emphasis on pleasing images and first impressions. The expansionofthewhitecollarsectorcreatedconditionsunderwhichlabor powertooktheformofpersonalityratherthanstrengthorintelligence,and the service occupations placed on their participants intense requirements for managed selfpresentationin Goffmans words, that one give a perfectly homogeneous performance at every appointed time.266 Advancementinthesocalledcorporateratracewascriticizedasbeing little more than a series of superficial postures, bluffs, and confidence games.267Theupwardlymobile...organizationman,ChristopherLasch observed, advances through the corporate ranks not by serving the
262 SeeToddGitlin,ForewardtoDAVID RIESMANETAL.,supranote259, at xi,xi.Gitlinnotes theimportanceofthebookinprovidingnamesforwhat...werenothingmorethanhunches ordiffusesentiments.Aseriousbookcomesout,crystallizesafear,aknack,orahopeintoa bigidea,asweepinginterpretationofrealitythatstrikesacollectivenerveinalargegeneral public.)Id. 263 SeegenerallyERICH FROMM, ESCAPE FROM FREEDOM 6062(1941);GOFFMAN,supranote 35,at1718;VANCE PACKARD, THE STATUS SEEKERS: AN EXPLORATION OF CLASS BEHAVIOR IN AMERICA AND THE HIDDEN BARRIERS THAT AFFECT YOU, YOUR COMMUNITY, YOUR FUTURE 5 (1959);WILLIAMH.WHYTE,JR.,THEORGANIZATIONMAN313(1956). 264 265
SeeBOORSTIN,supranote1,at192.
Id.at183(Indiscussingourselves,ourcommunities,ourcorporations,ournation,our leaders,ourselves,wetalkthelanguageofimages.).
266 267
GOFFMAN,supranote35,at56.
An article in the Saturday Evening Post in the 1940s equated corporate success with being an alibi artist. This increasingly common type of individual believed that it was cruciallyimportanttoknowtherightpeople,toimpressothers,andthatput[ting]upa good front count[ed] for more than real ability. Donald A. Laird, Are You an Alibi Artist?, SATURDAYEVENINGPOST,July10,1943,at80(alterationinoriginal).
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organization but by convincing his associates that he possesses the attributesofawinner.268 The guiding theme of modern advertising was that everyone and everything had an image that could be sold to anyone if presented convincinglyenough.AsBoorstinnoted,itwasbecomingamatteroffaith that the right image could elect a President or sell an automobile, a religion, a cigarette, or a suit of clothes.269 Politicians increasing use of advertising techniques to generate popular support led Time magazine in 1960todubthatelectioncycleTheYearoftheImage.270Whenwetalk about ourselves, Boorstin wrote, we talk about our images.271 Ads encouraged consumers to view themselves with the critical gaze of spectatorsas performer[s] under the constant scrutiny of friends and strangers272and to engage in selfappraisal and monitoring to reassure themselvesoftheircapacitytocaptivateorimpressothers.273 Nodevelopmentwasmoreresponsibleforthisapparentobjectification ofselfthantheintroductionandculturalpenetrationoftelevision.274With its ubiquitous sitcoms and reality shows, television reinforced the intertwiningofperformanceandreallife,andtheideaofpleasingpersonal imagesasasourceofsuccessandapproval.IttrainedAmericans,fromthe youngestage,tobespectatorsandconsumersofimages.Italsoentrenched thecultureandethosofcelebritymoredeeplyintothefabricofAmerican life.Inthepostwarera,celebritycultureflourished,anditspreadbeyond the realm of entertainment to virtually every other area of life, including politics,science,andacademics.275Morethanever,theessenceoffameand celebrity was style rather than substance. Whereas fame in earlier times hadbeentiedtoonesachievements,moderncelebrityrewardedthosewho projected a pleasing image and personality.276 Celebrities remained role models of selfpresentation, and celebrity images, like other fragments of popular culture, were the inspiration and raw material from which many
268 269 270
LASCH,supranote3,at61. BOORSTIN,supranote1,at183.
Seeid.at204(MoreimportantthanwhatwethinkofthePresidentialcandidateiswhat wethinkofhispublicimage.).
271 272 273 274
Seeid.at18384. LASCH,supranote3,at90. Id.at92.
See generally LYNN SPIGEL, MAKE ROOM FOR TV: TELEVISION AND THE FAMILY IDEAL IN POSTWARAMERICA(1992).
275 276
SeegenerallyBOORSTIN,supranote1.
LEO LOWENTHAL, The Triumph of Mass Idols, in LITERATURE, POPULAR CULTURE, AND SOCIETY109,11415(1961);LASCH,supranote3,at5960.
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Americansconstructedtheirownpublicidentitiesandselfperformances.277 The first art work, Norman Mailer observed, is the shaping of [ones] ownpersonality.278 B. MyImage,Myself Many of these developments should be familiar to us, with their origins in the preWorld War II period. There were, however, significant newtrendsthatheightenedtheculturesemphasisonpersonalimageand image management. The postwar era saw the rise of what has been described as a therapeutic culturethe popularization of psychology, particularly psychotherapeutic models, and psychological themes and concepts in mass culture.279 One effect of this was to enshrine an ideal of psychological perfectionism in popular thought. The basic idea was that the self was broken and needed to be reconstructed to achieve proper functioning. There was a particular obsession with diagnosis and rehabilitation, driven by the faith that psychic wholeness could be achieved.280 With this cultural sensitivity to emotions and psychic injuries, the slights and insults of everyday life were increasingly categorized as assaults to the self and the psyche that produced deep and lasting pathologies. Sociologists described an increase in the number of people whoidentifiedapsychogeniccauseforformsofpersonaldiscomfortand dissatisfaction.281 Not only were mental health and illness reconceptualized, but happiness was more frequently defined in terms of psychologicalwellbeing.282Asonehistorianwrote,therewasagrowing sense that social, economic and physical problems are rooted within the psyche, along with rising expectations accompanying the belief that authenticity, emotional fulfillment, and selfactualization are the
277 LASCH,supranote3,at91(Totheperformingself,theonlyrealityistheidentityhecan constructoutof the materialsfurnishedbyadvertisingand mass culture, themesofpopular filmandfiction,andfragmentstornfromavastrangeofculturaltraditions.). 278 RICHARD POIRIER, THE PERFORMING SELF: COMPOSITIONS AND DECOMPOSITIONS IN THE LANGUAGEOFEVERYDAYLIFE103(1992).
See, e.g., JONATHAN MICHEL METZL, PROZAC ON THE COUCH: PRESCRIBING GENDER IN AGE OF WONDER DRUGS 27578 (2003); Eli Zaretsky, Charisma or Rationalization? DomesticityandPsychoanalysisintheUnitedStatesinthe1950s,26CRITICAL INQUIRY 328,32831 (2000).
THE
280 SeeJesseBattan,TheNewNarcissismin20thCenturyAmerica:TheShadowandSubstance ofSocialChange,17J.SOC.HIS.199,207(1983). 281 282
279
Id. Id.
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preconditionsforindividualwellbeing.283 Essential to a healthy and functioning psyche, it was said, was the ability to express ones inner self in ones behavior and outward appearance. Selfexpression was the antithesis of selfrepression, which, under the influence of the counterculture, became associated with all things traditional, including the nuclear family, established religion, and the authority of the state. Hence, the relative freedom with which people aired their thoughts, feelings, and desires before others in talk shows, confessional writings, and in everyday conversation. With sexual and familymattersnolongerconsideredexclusivelyprivateandofflimitsto public discussion, and emotional life freighted with new importance and meaning, we became a tell all society.284 By the 1970s, the ability to express oneself, free from the repressive constraints of traditional moralism, had come to be associated with the ideals of freedom and personalchoice.285 Atsomelevel,thisselfexpressionidealmightappeartobearejection of the formalities of selfpresentation, selfmonitoring, and self manipulation that were central to the cultures of celebrity and consumption,andthedemandsofmodernbureaucracies,withtheircallfor a standardized self and managed emotions. Yet, it would also in many waysplacegreaterdemandsonselfpresentation.Theessenceofexpressive freedom was selfdetermination and the prerogative to shape ones own public identity. It was not to abandon control over selfpresentation, but rather to exert it, fully, freely and without hindrance. While the counterculture of this time may have widened the range of socially acceptable appearances and identities, the ideal of the expressive self nonetheless prized image management and the freedom to script ones ownpublicperformance.Despitetherhetoricofpersonalliberationandan ethosofletitallhangout,thereiseveryindicationthatAmericanshave become steadily more attentive to, and possessive of, their public images andappearances. America had become a republic of choice, to use Lawrence Friedmansterm,onewherefreedommeantbeingleftalonebyothers, not having other peoples values, ideas, or styles of life forced upon one, beingfreeofarbitraryauthorityinwork,family,andpoliticallife.286The prerogative to be oneself, [and] to choose oneself, was placed in a
283 284 285
Id. LASCH,supranote3,at1617.
HOWARD BRICK, AGE OF CONTRADICTION: AMERICAN THOUGHT AND CULTURE IN THE 1960S,at69(1998).
286
SeeBELLAHETAL.,supranote73,at23.
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specialandprivilegedposition.287Freedomofchoiceencompassedaright tofreelyselectonesactivities,beliefs,andveryidentityfromavarietyof competing possibilities and options.288 The belief in the malleability of identitybecamemorepervasiveanddeeplyrootedastheerosionofstrong interpersonal ties and social commitments hastened the decentering and destabilizationoftheself.Anincreasinglymobilepopulation,broadaccess todifferingideasandworldviews,awiderrangeofpersonalrelationships, and the decline of religious authority created the conditions where personalidentitycouldbeseenasfluidandsubjecttoendlessredesign.289 AssociologistKennethGergenobserved,[a]sthecastofsignificantothers inoneslifebecomesincreasinglydispersedandvariegated,andascultural authoritieslosetheircredibility,confidencefadesinthetraditionalconcept of a bounded, integral self.290 The widespread discussion of an identity crisis besieging modern Americans beginning in the 1960s revealed the prevailingbeliefthatpersonalidentitywasunstable,shifting,elusive,and problematicsomething that must be constantly created and recreated, manipulatedandrevised.291Bythelattertwentiethcentury,themodalself, accordingtosociologistsandcritics,hadbecomeapastichepersonality, asocialchameleon,constantlyborrowingbitsandpiecesofidentityfrom whatever sources [were] available and constructing them as useful or desirableinagivensituation.292Therelativelycoherentandunifiedsense of self that once existed gave way to manifold and competing potentials.293 As the self came to be seen in terms of impressions and images, as a collection of roles and performances, constructed and reconstructed in multiple contexts,294 attacks on ones ability to create his or her desired
287 LAWRENCE FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY, AND CULTURE 3 (1990). 288 289
Seeid.at96,184.
SeeKennethJ.Gergen,TheSelfintheAgeofInformation,23WASH.Q.201,201,204(2000). Inasocietywhereweengageinawiderangeofrelationshipsinnumerousandcontrasting sites, and the composition of the workplace is . . . in continuous flux, where markers of identity, from religious and political affiliation to sexual orientation, are seen as changeable andamatterofpersonalchoice,wehavebecomeproteanbeing[s]capableofmovingfacilely acrossaseaofcomplexconditions.Id.at20708.
290 291
Id.at206. SeeJames A.Dyal,ImagesintheLonelyCrowd:AwarenessofSelf,31VITAL SPEECHES OF GERGEN,supranote149,at150.
THEDAY729,73034(1965).
292 293
Id.at80.Inapostmodernworld,onesidentityiscontinuouslyemergent,reformed, andredirectedasonemovesthroughtheseaofeverchangingrelationships.Id.at139.
294 Theideaofperformingasocialrolehadbecomesecondnatureandanintegralpartof our personality. GOFFMAN, supra note 35, at 1920 (quoting ROBERT EZRA PARK, RACE AND
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publicimagewereregardedasassaultstopersonalautonomyandpsychic integrity.Andinaworldoftelevision,tabloidjournalism,andaprofusion of pictures in the visual environment, threats to personal image were everywhere.Popularjournalism,seekingtowhetthedulledappetitesofan increasingly jaded and desensitized public, embarked on more sensationalistic and extreme depictions of individuals that were embarrassing and highly personal.295 As in the past, this included portrayals not only of celebrities and public figures but ordinary people unwittinglycaughtinthemediaspotlight.296Themoreintensethepublics hunger for images and information about people, and the more sophisticated and complex the machineries of imagemaking, the more profound the possibilities for the tarnishing and fatal destabilization of onespublicpersona. C. TheAttackonImageandtheLegalCounterattack Between the time William Prosser wrote his first torts treatise in the 1940s and the 1970s, the number of privacy cases escalated... even beyond his control.297 Reported cases involving defamation, invasion of privacy, or emotional distress increased threefold in the 1970s,298 despite the increasing free speech limitations on those torts.299 Driven by their devotiontopersonalimageandseriousnessabouttheinnerself,300inthe wordsoflibelscholarRodneySmolla,thosewhofeltthattheirreputations hadbeenassaultedortheirprivacyinvadedbythemediaappearedtobe resorting increasingly tolitigation,301 andtort law stretch[ed]outward to encompassnewlegalshelterformentalandemotionalcalm.302 1. Privacy
Sensitivity to emotional and psychological injuries and a sense of

CULTURE24950(1950)).
295 Forstudiesofpopularsentimentagainstmediasensationalism,seeTerranceC.Mead, Suing Media for Emotional Distress: A MultiMethod Analysis of Tort Law Evolution, 23 WASHBURNL.J.24,34,60(1983). 296 SeeWILLIAM L. RIVERS & WILBUR SCHRAMM, RESPONSIBILITY IN MASS COMMUNICATION 169(1969). 297 298 299
G.EDWARDWHITE,TORTLAWINAMERICA175(2003). Mead,supranote295,at33.
See Robert D. Sack & Richard J. Tofel, First Steps Down the Road Not Taken: Emerging LimitationsonLibelDamages,90DICK. L. REV.609,621(1986);RodneyA.Smolla,LettheAuthor Beware:TheRejuvenationoftheAmericanLawofLibel,132U.PA.L.REV.1,11(1983).
300 301 302
Smolla,supranote299,at11. Id.at63. Smolla,supranote299,at20.
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rightsconsciousness led to increasing concerns with personal privacy and perceived threats to privacy.303 The concept of privacy came to be understoodasnotonlytherighttoconcealthesecretorintimate,butthe right to exercise options in private behavior without adverse consequences.304 In Griswold v. Connecticut, the Supreme Court described privacy as a right to make decisions about intimate life, free from governmental interference, and privacy as a value protected by the penumbras of various guarantees in the Bill of Rights.305 Despite increased legal and constitutional protections, privacy was regarded as being deeply imperiled by a variety of modern technologies and institutionsthemostthreateningofwhichwerethemassmediaandthe state.306 These concerns with privacy, and increasing litigation in the area of tort privacy, led William Prosser to write his famous 1960 law review article, Privacy. Prosser identified four distinct interests protected by the privacy tort, and on this basis divided the privacy tort into four separate torts. The first, [i]ntrusion upon the plaintiffs seclusion or solitude, concerned physical invasions of private space. The other three, which we have seen, implicated public image. Prosser described a [p]ublic disclosure of embarrassing private facts tort; a false light tort, which involved[p]ublicitywhichplacestheplaintiffinafalselightinthepublic eye; and an [a]ppropriation tort, which he described as a proprietary interest in the exclusive use of the plaintiffs name or likeness as an aspectofhisidentity.307 Prossersarticlehadimpact.Thescholarlyimprimaturlegitimizedthe privacy tort and hastened its recognition in a number of states. Prossers typology would lead to the establishment, in some states, of four distinct causesofactionintortunderthegeneralrubricofprivacy.308Inthe1960s twoofProssersfourbranchesdevelopedsubstantiallyappropriationand falselight.Theriseofthesetortsrevealsmuchaboutthenatureofpopular concerns with identity and image in this era, as well as the courts willingness to shape the law to accommodate the values and priorities of
303 SeegenerallyALAN F.WESTIN, PRIVACYANDFREEDOM365,36768(1970)(alsodescribing theincreasingconcernswithprivacythatgrewoutofdevelopmentsinsurveillance,science, and technology); FREDERICK S. LANE, AMERICAN PRIVACY: THE 400YEAR HISTORY OF OUR MOSTCONTESTEDRIGHT5657(2009). 304 305 306 307 308
FRIEDMAN,supranote11,at181. 381U.S.479,484(1965). SeegenerallyWESTIN,supranote303,at36569. Prosser,supranote162,at389.
SeeNeilM.Richards&DanielJ.Solove,ProssersPrivacyLaw:AMixedLegacy,98CALIF. L.REV.1887,1890(2010).
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FalseLight
The most significant growth in tort privacy law came in the area that Prosser called false light privacy.309 In false light cases, one claimed an invasionofprivacywhenheorshewaspubliclypresentedinacontext thatwasfalseormisleadingandhighlyoffensive.310Thefalselightaction differedfromthepublicdisclosureofprivatefactsbranchoftheprivacy tort,inwhichthematerialpresentedwasbothhumiliatingandintimate.In afalselightcase,thefactsdisclosedneednotbesecretorprivateatall.311 Damages could be awarded for the emotional distress that came from being depicted in a manner that was embarrassing, misrepresentative, or otherwise unfavorable to the subject of the representation, even if benign orflatteringintheeyesofothers.312 The1950sand1960ssawamarkedincreaseinfalselightcases,atarate thatfaroutpacedthepublicdisclosureprivacycases.313Thefalselight routetorecoverywasdesirableforplaintiffsbecauseitdidnotrequirethat the statement be disparaging or harm ones reputation,314 and compensation for emotional harms could be awarded without proof of special damages, as was the rule in certain classes of libel cases.315 As Prosser noted, because of its broad scope, false light had no doubt... succeededinaffordinga...remedyinagoodmanyinstancesnotcovered by [defamation].316 The torts expansive reach spurred a range of image
309 Prosser, supra note 162, at 389; see generally Nathan E. Ray, Let There Be False Light: Resisting the Growing Trend Against an Important Tort, 84 MINN. L. REV. 713, 71619 (2000) (detailingtheoriginsanddevelopmentofthefalselighttort). 310 311
RESTATEMENT(SECOND)OFTORTS652E(1977).
SeeTomGerety,RedefiningPrivacy,HARV. C.R.C.L. L. REV.233,258(1977)(notingthat inmostfalselightcases,noprivatedimensionofpersonalitywasinvolved).

312 See BRUCE W. SANFORD, LIBEL AND PRIVACY 569 (2d ed. 1999) (Ostensibly, the tort purportstoallowrecoveryformisrepresentationsandinaccuraciesthatdonotrisetothelevel of libel or slander.); Prosser, supra note 162, at 398401; Zimmerman, False Light Invasion of Privacy, supra note 8, at 372 (noting the willingness of courts to grant recovery for false but franklycomplimentaryportrayals). 313 Wade,supranote201,at1095;seegenerallyZimmerman,FalseLightInvasionofPrivacy, supranote8,at366&n.10. 314 AccordingtotheRestatement(Second)ofTorts,apublicationcouldbeoffensivehighly offensivewithoutbeingdefamatory.RESTATEMENT (SECOND) OF TORTS,652E (1977).See, e.g.,GaryT.Schwartz,ExplainingandJustifyingaLimitedTortofFalseLightInvasionofPrivacy, 41 CASE W. RES. L. REV. 885, 892 (1991) (describing the focus of the tort as false statements thatarenondisparagingbutstillhighlyoffensive). 315 316
Prosser,supranote105,at840. Prosser,supranote162,at401.
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based claims from the serious to the shabby and exploitative, in the words of Harry Kalven, Jr.317 One false light plaintiff claimed that a photograph of his home published in a newspaper, accompanied by a caption referring to the home as a bit weatherworn and unkempt, depicted him in a false light and was thus an invasion of privacy.318 A stripperbroughtsuitforfalselightwhenshewasdescribedinanewspaper under the stage name Dawn Darling, rather than her real stage name, CharmingCharmaineDeAire.319Anothernotedcaseinvolvedplaintiffs, youths backpacking in Europe, who sued under false light when Time magazinedescribedthemasdisenchantedyoungnomads.320 Tobeactionable,thefalsityofafalselightrepresentationhadtobe offensive to the reasonable person.321 Offensiveness was a vague and elusive term.322 In its most expansive interpretation, an offensive publication was one that made its subject uncomfortable. In Cantrell v. Forest City Publishing, the Supreme Court upheld a jury verdict awarding damages for false light invasion of privacy fora publication that asserted that a recently widowed mother was living in poverty as a result of her husbands death ina construction accident. The portrayal wasinaccurate, and while itdid not defame her,it caused her distress by publicizing her and subjecting her to sympathy she did not want, making the family objectsofpityandridicule.323InTime,Inc.v.Hill,theCourtheldthatan inaccuratedepictionofafamilyheldhostageinitshomebyattackerscould beactionableasaninvasionofprivacy,eventhoughitportrayedthefamily inafavorableandheroicmanner.324 The false light tort was initially met with much acclaim by the courts andthelegalacademy.Manybelieveditwouldoffertheprotectionforthe imageandtheemotionsthatlibellawhadproveninadequatetoprovide.325
317 318 319 320 321 322
Kalven,supranote227,at338. Jaubertv.CrowleyPostSignal,Inc.,375So.2d1386,1387(La.1979). Cabanissv.Hipsley,151S.E.2d496,49899(Ga.Ct.App.1966). Goldmanv.Time,Inc.,336F.Supp.133,136(N.D.Cal.1971). Prosser,supranote162,at400;Schwartz,supranote314,at887,893,897n.66,900.
SeeZimmerman,FalseLightInvasionofPrivacy,supranote8,at374(notingtheinherent vaguenessoftheconcept).
323 324
Cantrellv.ForestCityPublgCo.,419U.S.245,248(1974).
Time, Inc. v. Hill, 385 U.S. 374, 377, 39798 (1967). Technically, the case was not a privacytortcase;theHillssuedundertheNewYorkprivacystatute.NewYorkprivacycase law had considered false depictions to be actionable as a form of trade publication. However,Time, Inc.v.Hillisregardedasafalselightcase,anditsholdinghas sincebeen applied to false light actions. See Zimmerman, False Light Invasion of Privacy, supra note 8 at 38388.
325
SeeZimmerman,FalseLightInvasionofPrivacy,supranote8,at366.
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Edward Bloustein believed that the development of false light, with its protection of individual dignity, may provide a valuable avenue or development for the law of defamation.326 False light privacy and defamation, predicted one writer, would converge to create a single, integratedsystemofprotectingplaintiffspeaceofmindagainstactsofthe defendantintendedtodisturbit.327Atthesametime,therewereconcerns with false lights implications for freedom of speech and press; critics attackedthevagueoffensivenessstandard,thefactthatrecoverycouldbe obtainedwithoutashowingofanyrealinjury,328andthatfalselightlacked many of the common law safeguards that had balanced defamation law withfreedomofspeech,suchasthedefenseoftruth.329Prosserfearedthat false light was swallowing up defamation at the expense of freedom of speech and press.330 If the statement is not offensive enough to the reasonable man to be defamatory, Kalven asked in 1966, how does it become offensive enough to the reasonable man to be an invasion of privacy?331 In 1967, Time, Inc. v. Hill imported the New York Times v. Sullivanactualmalicestandardtothefalselightprivacydomain,332butthe
326 327
Bloustein,supranote5,at993.
Wade, supra note 211, at 1125. Wade noted that the law of privacy . . . affords a splendidopportunityforreformofthetraditionallawregardingtheactionabilityoflanguage whichharmsanindividualspeaceofmindorhisreputation.Id.at1122.
328 SeeSchwartz,supranote314,at890;Gerety,supranote311,at259(notingthatfalselight casesoftenpresentedtrivializedandeven...extortionateclaimsforrecoveryincaseswhere littleornoharmwasdone);JamesM.Treece,CommercialExploitationofNames,Likenesses,and PersonalHistories,51TEX.L.REV.637,65859(1973). 329 Cf.PROSSER,supranote105,at814.ButseeDeckleMcLean,FalseLightPrivacy,19COMM. &L.63,75(1997). 330 See Prosser, supra note 162, at 40001 ([W]hat of the numerous restrictions and limitationswhichhavehedgeddefamationaboutformanyyears,intheinterestoffreedomof thepressandthediscouragementoftrivialandextortionateclaims?).Prosserfurtherstated:
As of yet there has been little consideration of how far the numerous restrictionsandlimitations, which have hedged defamationaboutfor so many years, in part as a matter of historical survival and in part in the interest of freedom of the press and the discouragement of trivial and extortionateclaims,canbebypassedbybringingtheotheraction. Prosser,supranote105,at81314.
331 Kalven,supranote227,at340.Thelackoflegalprofileforthetortmakesanysortof unconsentedto reference to the plaintiff look colorable, Kalven noted, observing that the greatestachievementofthetortmayhavebeenprimarilytobreednuisanceclaims.Id.at 339.
See Time, Inc. v. Hill, 385 U.S. 374, 38788 (1967). Henceforth, plaintiffs in false light casesmustshowthatthechallengedstatementwasfalseandmadewithrecklessdisregardof thetruth.Id.at388.
332
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tort remained problematic to many from a First Amendment perspective. Therewasamovementagainstfalselightbeginninginthe1980s,leadingto itsrejectioninseveralstates.333 The false light tort is nonetheless verymuch alive.334 It persists as the expressionofthedeeplyrootedbeliefthatthereissomethingobjectionable andpotentiallyinjuriousaboutbeingpublicizedinawaythatclasheswith ones own selfimage, and that all should have a right to choose those portionsofthepersonwhicharetobemadepublicasamatterofhuman dignity and independence.335 The false light tort was a necessary protectionagainstthedistortionofselfimagecausedbyaninaccurateor undesirable depiction, which impinged upon the persons individuality.336 In a false light action, the defendants falsehood brings aboutamismatchorconflictbetweentheplaintiffsactualidentityandhis identity in the minds of others, a conflict that itself can be offensive or disorienting, observed Gary Schwartz.337 By depicting a person in a way that veered sharply from her own selfimage, false light statements impugn[ed] or confound[ed] the individuals identity in society and imperiledhersenseofself.338 3. Appropriation
In the immediate postwar era courts began to recognize the appropriation branch of the privacy tort, described in some states as a right of publicity.339 As the Supreme Court defined it in Zacchini v. ScrippsHowardBroadcastingCo.,therightofpublicitywasabroadrightto
333 Ray,supranote309,at723;seeZimmerman,FalseLightInvasionofPrivacy,supranote8, at36869.
Moststatesrecognizethefalselighttort;Minnesota,Colorado,andFloridadonot.The OhioSupremeCourt,recognizingfalselightin2007,suggestedthatthetortwasessentialto protect the innocent from rampant media exploitation and misrepresentation. Welling v. Weinfeld, 866 N.E.2d 1051, 105859 (Ohio 2007). False light privacy cases increased almost fourtimesbetween1975and1981,andthefalselighttortwasmentionedincasesfortyseven times more often in the 1990s than in the 1960s. James B. Lake, Restraining False Light: Constitutional and Common Law Limits on a Troublesome Tort, 61 FED. COMM. L.J. 625, 637 (2009).
335 DanielE.Wanat,Falsehoods,TheRightofPrivacyandtheConstitutionalPrivilege:TimeInc. v.Hill,Revisited,8MEM.ST.U.L.REV.33,57(1977). 336 337
334
Id.
Schwartz, supra note 314, at 898. But see Gerety, supra note 311, at 25960 (noting that onesselfextendsintoapublicworld,andinjuriestothepublicselfshouldnotbealegally cognizableassaultupononesprivateself).
338 339
Schwartz,supranote314,at897. SeeNimmer,supranote187,at221.
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personal control over commercial... exploitation of [ones] personality.340Itwasalsodescribedasarighttocontroltheusesofones identity.341 By the 1970s, it was wellestablished that individuals, both celebritiesandnoncelebrities,hadarighttocontroltheeconomicvalueof theirimagesandtorecoverlostprofitsfromtheunauthorizedcommercial use of their images.342 The number of rightofpublicity cases brought during the 1980s tripled that of two decades earlier, and several states passedantiappropriationstatutes.343 Inmanyjurisdictions,therightofpublicitywasregardedasarightof property rather than a right of privacy, although some treated it as an aspect of privacya dignitary right with propertylike aspects.344 This hybrid basis of the right of publicity was an apt reflection of popular conceptions of personal image at the time. To lose control of ones image wasregardedasadignitaryaffront,yetwithonespublicimageseenasa consciousandselfwilledcreation,italsorepresentedthelossofsomething tangible and material. An oftcited justification for a right to recover the economicvalueofonesimagewasthatapersonhadexpendedlaborinits creation.345 While the right of publicity had been initially construed as protection for ones photograph, name, and likeness, it was expanded to cover a variety of personal attributes, such as ones voice, gestures, and manner of dress. Thus it was that Jackie Kennedy Onassis persuaded a courttoblocklookalikeimagesofherinadvertisements,theestateofElvis Presley convinced a court to ban Elvis impersonators, and Bette Midler recovered for an imitation of her voice in a commercial.346 Such was the logicoftheimageculture:anyinvocationoruseofanindividualslooksor persona, however superficial or contrived, constituted the exploitation of
340 433 U.S. 562, 569 (1977) (detailing the Ohio Supreme Courts opinion of petitioners righttopublicitywhichgavehimpersonalcontrolovercommercialdisplayandexploitation ofhispersonalityandtheexerciseofhistalents)(internalquotationsomitted). 341 SeeUhlaenderv.Henricksen,316F.Supp.1277,1282(D.Minn.1970)(notingthisrights protectionofcelebrityidentity).
SeePeterL.Felcher&EdwardL.Rubin,Privacy,Publicity,andthePortrayalofRealPeople bytheMedia,88YALEL.J.1577,1589(1979);DonR.Pember&DwightL.Teeter,Jr.,Privacyand thePressSinceTime,Inc.v.Hill,50WASH.L.REV.57,87(1974).

343 344 345
342
SeeBartholomew,supranote241,at316. Seeid.at314,317.
SeeUhlaender,316F.Supp.at1282(statingthatacelebritysidentity,embodiedinhis name,likeness,statistics,andotherpersonalcharacteristics,isthefruitofhislaborsandisa kindofproperty);Madow,supranote24,at175;Nimmer,supranote187,at216. SeeMidlerv.FordMotorCo.,849F.2d460,461,463(9thCir.1988);EstateofPresleyv. Russen, 513 F. Supp. 1339, 1348, 135455 (D.N.J. 1981); Onassis v. Christian DiorNew York, Inc.,472N.Y.S.2d254,25657,26364(N.Y.Sup.Ct.1984).
346
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onesidentity.347 Most rightofpublicity claims were brought by celebrities, whose imageshadobviousandusuallyquantifiablevalue.348Therightofpublicity wasnotlimitedtocelebrities,howeverapersonhadarightofpublicity inherimageifithadanyconceivablecommercialvalue.Bythe1970s,non celebrities increasingly brought lawsuits to recover the economic value of their images.349 As advertisers and publishers, in their quest for images, continuedtomakeuseofthefaces,figures,andfeaturesofaveragepeople, individuals of all backgrounds came to realize the profitgenerating potential of their images, however humble they might be. In 1967, a recentlyreturnedveteranwhosepicturehadbeenusedinarealestatead without his consent successfully sued to recover the commercial value of his image.350 A court held that a construction worker stated a valid claim for appropriation when footage of him installing tile was used in a televisioncommercial.351Awomanbroughtsuitforthevalueofhernude silhouette when a photographer took a picture of her when she was bathing naked in a stream with her child; the picture was subsequently usedinanad.352Withoutembarrassmentormoralhesitation,ordinarymen and women asserted that they had a right to control their images that includedextractingcommercialvaluefromthem. The First Amendment implications of the right of publicity were debated,andfreespeechlimitationswereplacedontheright,topreventit from impairing the circulation of news or information on matters of public concern.353 Within the legal academy, the labor theory of identity came under attack; scholars questioned whether a celebrity image truly reflected the effort of the star or the interpretive work of audiences who ascribedmeaningtoit.354Intherealmofpopularthought,thispostmodern
347 See, e.g., Midler, 849 F.2d at 461, 463; Estate of Presley, 513 F. Supp. at 1348, 135455; Onassis,472N.Y.S.2dat26364. 348 349
SeePember&Teeter,supranote342,at8788.
SeeCanessavJ.I.Kislak,Inc.,235A.2d62,6465(N.J.Sup.Ct.1967).TheNewJersey courtnoted,howeverlittleormuchplaintiffslikenessandnamemaybeworth,defendant, who has appropriated them for his commercial benefit, should be made to pay for what he has taken. Id. at 75; see, e.g., Cheatham v. Paisano Publns, 891 F. Supp. 381, 384 (W.D. Ky. 1995); Fanelle v. LoJack Corp., 79 F. Supp. 2d 558, 560 (E.D. Pa. 2000); Tellado v. Time Life Books,Inc.,643F.Supp.904,905(D.N.J.1986).
350 351 352 353
Canessa,235A.2dat6465,7880. Ainsworthv.CenturySupplyCo.,693N.E.2d510,51112(Ill.App.1998). SeeCohenv.HerbalConcepts,Inc.,472N.E.2d307,308(N.Y.1984).
Zacchiniv.ScrippsHowardBroad.Co.,433U.S.562,569(1977).SeegenerallyFelcher& Rubin,supranote8,at159495;Pember&Teeter,supranote342,8790.
354
SeegenerallyMadow,supranote24,at18296.
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theoryofimageappearstohavehadlittleimpact;inacultureofchoiceand individualism, it was widely believed that one was solely responsible for thecreationofonesimage,andthatoneshouldthereforecontrolalluses of it.355 Unlike the image torts that protected dignitary and emotional interests, which were plagued by ongoing doubts about spurious claims, therighttocommerciallyexploitonesimagewasvirtuallyunquestioned. Twoprivacyscholarsnotedin1974,[i]fthereisanycertaintyinanyarea ofprivacylaw,itisintheareaofappropriation.356 4. InflictionofEmotionalDistress
By the 1960s, most states recognized intentional infliction of severe emotional distress as an independent tort.357 To recover damages for intentional infliction of emotional distress, a plaintiff must prove that the defendantsconductwasextremeandoutrageous,thatthedefendantacted intentionallyor recklessly, that the defendants conduct caused emotional distress, and that the distress was severe.358 A cause of action could arise whereemotionaldisturbanceresultedfromupsettingorinsultinglanguage including threats, false statements, and language that [was] insulting, humiliating, scandalous, violent[,] or abusive.359 The emotional disturbance need not have caused a physical reaction, but it had to be serious enough to cause physical consequences, even if they did not actuallyensue.360 Plaintiffs soon began bringing emotional distress cases against the media with growing frequency, as part of a broader wave of antipress
355 SeeRobertN.Bellah,TheMeaningofReputationinAmericanSociety,74CALIF.L.REV.743, 743 (1986) (Our tendency to think of reputation in individualistic terms is rooted in our culturalemphasisontheautonomy,independence,andachievementsofindividuals.). 356 357
SeePember&Teeter,supranote342,at87.
SeeWilliamL.Prosser,InsultandOutrage,44CALIF. L. REV.40,4041(1956);Givelber, supranote200,at43;Slocumv.FoodFairStoresofFla.,Inc.,100So.2d396,397(Fla.1958).On the recognition of the tort of negligent infliction of emotional distress in this period, see Drechsel,supranote205,at890.Therecognitionofthetortinamajorityofthestates,andthe increase in claims for both intentional and negligent infliction of emotional distress can be attributed to an overall expansion of tort liability in this period. See Gary Schwartz, The BeginningandthePossibleEndoftheRiseofModernAmericanTortLaw,26GA. L. REV.601,601 (1992). It was also a function of the cultures respect for emotional wellbeing and its appreciationoftheseriousnessofemotionalinjuries,bothintheirownrightandassourcesof physicalharm.SeeRabin,supranote195,at1198.
358 359
RESTATEMENT(SECOND)OFTORTS46(1)(1965).
Robert E. Drechsel, Intentional Infliction of Emotional Distress: New Tort Liability for the MassMedia,89DICK.L.REV.339,34445(1985)(internalcitationomitted).
360
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litigation.361 In some emotional distress cases brought over upsetting publications, the alleged harm was shock or fright, as when a newspaper falselyreportedadeathorstartlingmedicaldiagnosisofwhichtheplaintiff was unaware.362 A number of emotional distress cases against the media involved imagebased harms. As with false light privacy, the plaintiff claimed to have been injured when presented before the public in a way that was humiliating, misrepresentative, or insulting. In these cases, the emotionaldistresstortwasoftenusedasagapfillerinthelawofimage, aroutetocompensationwhentherequirementsofprivacyanddefamation could not be met, or as an additional source of recovery to be combined with privacy and libel.363 The tort came of age when a panel of the U.S. Court of Appeals for the Fourth Circuit affirmed a$200,000 judgment for ReverendJerryFalwellforintentionalinflictionofemotionaldistressover the publication of an ad parody in Hustler magazine imputing to him egregioussexualconduct.ItwasultimatelyreversedbytheU.S.Supreme Court364 in a decision that applied the actual malice requirement to the emotional distress tort when it involved public officials and public figures.365 Though some of the challenged depictions could be seen as legitimately offensive, as when a newspaper falsely depicted the plaintiff asaprostitute,366otherswereunlikelytobeviewedbythepublicaseither particularly thoughtless or insensitive.367 A woman sued a paper over emotional distress when it printed a photograph that made her appear stout.368Amanbroughtanemotionaldistressclaimoverafivesecondfilm
361 SeeDrechsel,supranote359,at361;Drechsel,supranote205,at88990;seealsoJonathan L.Entin,Privacy,EmotionalDistress,andtheLimitsofLibelLawReform,38MERCER L. REV.835, 853(1987). 362 363
See,e.g.,Chuyv.Phila.EaglesFootballClub,595F.2d1265,1270(3dCir.1979). SeeBrewerv.Hillard,15S.W.3d1,8(Ky.Ct.App.1999);seealsoMead,supranote295, Smolla,supranote8,at433. Hustlerv.Falwell,485U.S.46,56(1988). See,e.g.,Parnellv.BoothNewspapers,Inc.,572F.Supp.909,912(W.D.Mich.1983). SeeDrechsel,supranote359,at356.
at55.
364 365 366 367 368
McManamonv.DailyFreeman,6MediaL.Rep.(BNA)2245,2247(N.Y.Sup.Ct.1980); see also Loft v. Fuller, 408 So. 2d 619, 620 (Fla. Dist. Ct. App. 1982) (noting that spouse of deceased airline pilot sued when book described deceased as ghost who had appeared on several airline flights); Hood v. Naeter Bros. Publg Co., 562 S.W.2d 770, 770 (Mo. Ct. App. 1978) (alleging outrageous conduct in the publishing of plaintiffs name as sole witness to a murder);Lambertv.Garlo,484N.E.2d260,262(OhioCt.App.1985)(notingacaseinwhich thefamilyofdecedentsuedanewspaperfortheirpublicationofthecoronersdescriptionof decedentasapusher);Holtzscheiterv.ThomsonNewspapers,Inc.,411S.E.2d664,665(S.C. 1991), abrogated by Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497 (S.C. 1998)
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clipthatdepictedhimandhisfemalecoworkerholdinghandsonapublic street.369Inonecase,intentionalinflictionofemotionaldistresswasalleged when a newspaper graphically described efforts to save the plaintiffs wifes life in an emergency room.370 One claim resulted from plaintiffs beingdescribedaslitigationmongeringinanewspaperarticle.371Asone legal scholar observed, many of the portrayals at issue in emotional distress cases instituted against the media were clearly not intrusive, false[,] or defamatory but were nonetheless disturbing to the specific individuals involved.372 The willingness of courts and juries to award damages insuch cases despite First Amendment limitationssuggests that the public regards such harms to ones image and ones feelings about onesimageaslegitimateandreal.373 5. Libel
Theentranceoftelevisionintothenewsandentertainmentfieldsand theriseofinvestigativeandtabloidjournalisminthe1950sand1960sledto heightenedmediasensationalism.Thisattractedaudiencesyetatthesame time produced a popular backlash.374 There was an observable animus againstthepressandawidespreadfeelingthatitwasabusingitsfreedom byinvadingprivacyandwreakinghavocwiththereputationsandimages of both public and private figures.375 One consequence was a marked
(noting that plaintiffmother brought suit against newspaper that reported her daughters deathanddescribedhowtherewasnofamilysupportforthedecedent).
369 370
DeGregoriov.CBS,Inc.,473N.Y.S.2d922,923(N.Y.Sup.Ct.1984).
Reichenbachv.CallChronicle,9MediaL.Rep.(BNA)1438,143940(Pa.Ct.Common Pleas1982).
371 372 373
Rutledgev.Phx.Newspapers,Inc.,715P.2d1243,1244(Ariz.Ct.App.1986). SeeDrechsel,supranote359,at356.
SeeRossv.Burns,612F.2d271,272(6thCir.1980)(discussingajuryawardofalarge sum for intentional infliction of emotional distress for the publication of the plaintiffs photograph in a newspaper); Falwell v. Flynt, 797 F.2d 1270, 1273, 1278 (4th Cir. 1986) (affirming a jury verdict in favor of the plaintiff on a claim of intentional infliction of emotional distress against publishers for using the plaintiffs image in an advertisement parody); Cape Publns, Inc. v. Bridges, 423 So. 2d. 426, 42628 (Fla. Dist. Ct. App. 1982) (discussingajuryawardtotheplaintiffforintentionalinflictionofemotionaldistresswherea newspaperpublishedarevealingphotographoftheplaintiffalongsideanewsstory).
374 SeegenerallyJohnMorton,FeedingReadersTabloidAppetites,16AM. JOURNALISM REV.60 (1994)(discussingthepublicsinterestinsensationalnewsstoriesandtheimpactonthenews industry).
See ROSENBERG, supra note 8, at 247; Mead, supra note 295, at 60; Ignaz Rothenberg, InvasionofPrivacyintheCodesofJournalists,NIEMAN REP.,Oct.1959,at5([P]ublicopinion,in growingdegree,angrilyreactstotheinvasionofprivacybyjournalists.).
375
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increase in libel suits and damage awards in cases against the press.376 Commentatorsobservedthevicarioussatisfactionofjuriesinhelpinga libelcaseplaintifftothepotofgoldattheendoftherainbow,particularly whenthedefendantwasamajormediaoutlet.377 To many, libel law was not enough. Critics alleged that the complexitiesoflibeldoctrine,boggeddowninthetechnicalitiesofthelegal concept of reputation, made libel inadequate to redress the potential harms to the psyche and feelings caused by media misrepresentations. In 1962, Walter Probert argued that defamation should be reconceived as a personalitytort,onethatfocusedlessoninjurytoreputationthanon harm to ones selfimage and emotions. The victims of defamatory statements sufferedeven more than injury to their relationshipshurt feelings, lowselfesteem, and psychiatric concerns.378 Such factors, he wrote, should weigh just as heavily psychologically with the decision makerasdoestheinferenceoflikelihoodofharmtoreputation.379Inthe vein of Burton v. Crowell, courts continued to expand the definition of a defamatorypublicationtoincluderepresentationsthatwerenotharmfulto onesexternalsocialrelationsbutthatwerenonethelessinjurioustoones feelings about ones image.380 In 1964, Edward Bloustein noted a recent tendencyinthelawofdefamationtogobeyondthetraditionalreaches of the protection of reputation to include the personal humiliation and degradation that came from unfavorable media depictions.381 Harry Kalven, Jr. observed that courts were assimilat[ing] defamation cases to privacy.382 The law moved even more squarely in that direction in the two decades following New York Times v. Sullivan in 1964.383 Sullivan, which grew out of reporting on the civil rights movement, expressed the countervailing movement of the image societytowards greater freedom to make and circulate images, and more expansive rights of speech and press.384 While the postwar era saw the growth of the image torts, it also
376 ROSENBERG,supranote8,at247(notingthesuddenandremarkableinflationinjury awardsinthe1950s). 377 378
Id.
WalterProbert,Defamation,ACamouflageofPsychicInterests:TheBeginningofaBehavioral Analysis,15VAND. L. REV.1173,1182(1961)(Itisanacceptablepsychologicalnotionthatthe individualsselfimageislargelyareflectionofthewayheseesothersreactingtohim.).

379 380 381 382 383 384
Id.at117678. SeeDevelopmentsintheLawofDefamation,69HARV.L.REV.875,88081(1956). Bloustein,supranote5,at993. Kalven,supranote227,at332. SeeN.Y.Timesv.Sullivan,376U.S.254,270(1964). Id.at27980.
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witnessedamovementinfavorofexpressivefreedom,bothinformallaw and in cultural attitudes more generally.385 The guiding faith of the counterculturehadbeentheimportanceoffreeexpressiontoparticipatory democracy,andSullivancelebratedthevirtuesofuninhibited,robust,and wideopenpublic discourse, including representations ofauthoritiesand public officials that were caustic and even false.386 After Sullivan, which constitutionalizedlibellaw,allpublicfigurelibelplaintiffsmustprovethat theoffendingstatementwasactuallyfalseasapreconditiontoarecovery, and that it was published with reckless disregard of the truth.387 The Supreme Court would later extend the Sullivan First Amendment requirements to libel cases involving private figure plaintiffs, who were required to show that the material was false and published at least negligently.388 Contrary to what is often assumed, Sullivan and its progeny did not dissuade libel suits and large judgments against the press.389 Cultural attitudes may have had a stronger influence on the direction of the law than formal doctrinal changes; the imageconsciousness sensibility propelled an increasing number of libel suits in the 1970s and 1980s and ostensibly greater jury sympathy towards libel plaintiffs, Sullivan notwithstanding.390ItispossiblethatSullivanwasitselfresponsibleforan increase in libel litigationanddamageawards. Public dissatisfaction with the media and the feeling that publishers were acquiring too many First Amendment freedoms may have contributed to the rise, beginning in the 1970s, of the libel megaverdict, a judgment of more than one million dollars.391 As a doctrinal matter, Sullivan intensified libel laws focus on self image and emotional harms. The common laws focus had been on reputational injuries; proof of reputational harm had been a precondition
385 386 387 388 389
Seeid.at270. Id. Id.at283. SeeGertzv.RobertWelch,Inc.,418U.S.323,350(1974).
Sack&Tofel,supranote299,at61011;Smolla,supranote299,at4, 6, 21.ButseeDavid A. Logan, Libel Law in the Trenches, 87 VA. L. REV. 503, 51011 (2001) (noting that media defendants won pretrial dismissal in nearly seventyseven percent of defamation cases between1966and1980).
390 See Smolla, supra note 299, at 2526; Henry R. Kaufman, Libel 198085: Promises and Realities,3COMM.LAW.1,1(1985). 391 SeeSmolla,supranote299,at6,21;Sack&Tofel,supranote299,at610(notingreaction againsttheoverprotectionofthemediaandmindbogglingdamageawardsinthe1980s). For a critique of excessive press freedoms and the need for restraint, see Arthur R. Miller, PressVersusPrivacy,16GONZ.L.REV.843,84950(1981).
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for recoveryfor emotional harm,although courts began to veerfrom that rule beginning in the 1930s, as discussed.392 The Sullivan line of cases moved the focus of the tort further away from the protection of the individualsreputationandmoretowardsthefalsityofthestatementand the individuals ensuing emotional distress.393 In Gertz v. Robert Welch, a caseinwhichtheCourtaddedfurtherFirstAmendmentlimitationstothe defamation action, the Court held that compensatory damages in libel casesincludingdamagesforemotionalharmcouldbeawardedwithout demonstrating any injury to reputation. The plaintiff could simply show personalhumiliation,andmentalanguishandsuffering.394 Libel law, as the other image torts, became a means to vindicate perceivedslightstoonesimageregardlessoftheactualimpactonpublic opinion. The focus of the action, in many cases, is the decline in self reputationsufferedbytheplaintiff.395Thebulkofthemoneypaidoutin damage awards in defamation suits goes to compensate for psychic injury, rather than any objectively verifiable damage to ones reputation.396 As Randall Bezanson has noted, reputation has come to mean freedom from emotional distress caused by afalse depiction,397 and harmoccursfrombeingthesubjectofafalserepresentationaboutwhich thesubjectfeelsstronglyenoughtosue.398
CONCLUSION
The rise of tort image law and litigation was not only a function of takingimagesseriously.Itwasalsoaproductofthelegalizationofimage,in the sense that Americans came to regard their public images and the construction of their images as proper matters for legal intervention and supervision. This was part of a larger movement towards the penetration of the law into virtually all areas of public and especially private life.399
392 393
Bezanson,supranote62,at545.
Id. at 53943. Bezanson went on to note that [t]he common law tort was extrinsic in natureandfocusedprincipallyonindividualreputationinthecommunity[;whereas][t]oday thetortislargelyintrinsic,withthedominantfocusonfalsityandtheindividualsresulting emotionalharm.Id.at543. Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974); Time, Inc. v. Firestone, 424 U.S. 448,460(1976);Meadsupranote295,at45&n.99.
395 Sack & Tofel, supra note 299, at 621 & n.77 (citing Pirre v. Printing Devs., Inc., 468 F. Supp.1028,1038(S.D.N.Y.1979)). 396 397 398 399 394
Smolla,supranote299,at24. Bezanson,supranote62,at555. Bezanson&Murchison,supranote119,at216. SeegenerallyLAWRENCEFRIEDMAN, TOTAL JUSTICE 37, 1121, 4647, 5253, 10711, 14752
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Overthetwentiethcentury,thelawmadeitspresenceknowninavariety of domains previously untouched by it, including the intimate, familiar, intangible,andpersonal.Domesticrelations,sexuallife,andtheproblems and complexities of the emotions and the psyche came to be viewed as legalaffairs;ratherthantraditionalsocialinstitutions,thelegalsystemwas coming to be regarded as the proper outlet for a range of personal grievances.400 By the latter part of the century, there was a tendency to understand individual problems and social troubles in terms of legal rightsandobligations,401andfewerzonesoflegalimmunityandbarriers to litigation.402 One byproduct of the legalization of everyday life, as Lawrence Friedman has written, was a general expectation of justice. [A]s an aspect of twentieth century legal culture, people have come to expectjusticeintheformofcompensationorreparationwheneverthey sufferharmorcalamitywhichisnottheirfault.403Thisexpectation,Ihave suggested,extendedtotherealmofimage. In this article I have made claims about the significance of personal image, broadly defined, in American society, and the role of images in social relations and views of the modern self. I have defined image as a representationofselfthatoverlapswithreputation,yetisdistinctfromit. Reputation is a form of social appraisal that is generally based on interpersonal contact and perceptions accrued over time; images are transient, superficial, and impressionistic. We have beenand still are concernedwithourreputations,butwehavealsolearnedtoseeourselves intermsofimages.Weareconcernednotonlywithhowweappearbefore the public, but perhaps even more, how we feel about our images, and whetherourpublicimagesmatchouridealizedselfimages. In the twentieth century, the image industries, an intense individualisminpopularthoughtandculture,theperceivedcongruenceof imageandidentity,andthreatstopersonalimagefromthemassmedialed Americanstoplaceincreasingemphasisontheirimagesandtocultivatea particular possessiveness towards them. The legal expression of this sensibility was the image torts. I have correlated imageconsciousness in modern American culture with the evolution of a series of tort actions to protecttheperceivedrighttocontrolonesimageandtothephenomenon of the personal image lawsuit. Throughout, I have tried to stress the
(1990)(discussingtheincreasinglegalregulationofpublicandprivatelife).
400 401
FRIEDMAN,supranote287,at15.
Austin Sarat, The Litigation Explosion, Access to Justice, and Court Reform: Examining the CriticalAssumptions,37RUTGERSL.REV.319,32122(1984).
402 403
FRIEDMAN,supranote287,at15. LawrenceFriedman,LitigationandItsDiscontents,40MERCERL.REV.973,977(1988).
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particularly democratic nature of American image rights. Unlike many European countries, where concerns with public image have traditionally beenapreoccupationoftheelite,Americansofallbackgroundshavelong expressed an interest in controlling their images, to which the law has responded.404 The average persons imageconsciousness may be a consequence,inpart,oftherelativelyfluidclassstructureinthiscountry; inaculturethathasheldoutthepossibilityofsocialadvancethroughself transformation, particularly through changes in external conduct and appearance,foreveryperson,regardlessofstation,personalimageisseen asreallyworthsomething. The focus of this work has been the impact of culture on formal law, but the opposite influence is also worth considering. Judicial and legislative recognition of a right to ones image likely validated such a right,notonlyasamatteroflawbutalsoasamatterofpopularfaith.In decidingwhetherornottograntrecoveryforlibelsorinvasionsofprivacy, courtsandjuriesenvisionedareasonablepersonwithrespecttoimage. This modal self was often construed as a highly imageconscious being: intentlyconcernedwithhispublicappearanceandreputationandlikelyto behurt,perhapsquiteseverely,byfalseorundesirabledepictions.Thelaw affirmed the imageconscious sensibility, and in this way helped shape individuals conceptions of personal identity and the texture of modern socialrelations. ThestoryIhavetoldisoneofsteadilyincreasinglegalprotectionsfor personal image, and at the same time, substantial resistance to that movement. The rise of the image society led to a possessiveness towards personal image and also to the liberation of imagesa proliferation of imagesinthepublicsphere.Freedomofspeechhasbeenunderstoodasthe freedomtoimagetocirculaterepresentationsofindividualsandideasthat are upsetting, shocking, controversial, and humiliating. The dominant narrativeinthelegalscholarshiphasbeenthestoryofthetriumphofthe FirstAmendmentovertherighttocontrolonesownpublicimage.405What islessoftenacknowledged,andwhatIhavetriedtoaccountfor,ishowthe reach and scope of the image torts have continued to expand despiteor perhapsevenbecauseofthosefreespeechlimitations. The digital age has initiated a new chapter in the history of personal imageandthelaw,onethatcontinuestoregistermanyofthethemesand influencesofearliertimesbutthatisalsodistinct.TheInternethasflooded theworldwithimagesandhascreatedasocialuniversestructuredaround
404 405
SeeWhitman,supranote7,at1170.
Seeid.at1209;seealsoPost,supranote8,at100102;seegenerallyZimmerman,Requiem, supranote8,at30616.
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relationships mediated by superficial impressions and contacts. Our identities are increasingly a function of the images and personae we present online. The faceless and often anonymous quality of online interaction permits us to create multiple selvesa Facebook self, a professional identity, and so onleading to further fragmentation of personal identity and social experience. As the outcry around online privacy suggests,406 we perceive a legal righta privacy rightto maintain these various digital selves, however ephemeral and superficial theymightbe.Wearenothesitanttousethewebtocreateanddisseminate images to an unprecedented mass audience, and if the steady stream of defamation and privacy lawsuits related to Internet activities are any indication, we are equally unhesitant to mobilize the law when the Internetsimagemakingpropertiesareturnedagainstus.407 What I havesaid in thisarticle has not been intended asa critique of Americans as unnecessarily sensitive, superficial, or litigious, though this maysometimesbethecase.Ihavenotmeanttotrivializeorminimizethe emotional and psychic harms that can be caused by humiliating public representations of individuals, particularly when they are circulated through the channels of mass communications. The point of this work is not to say whether imageconsciousness is good or bad. It is merely to point out that it exists, that it has been present in our legal and social traditions for quite some time now. The values of the image society have permeatedthelaw,andthereappearstobenoturningback.
Criticsandlegalscholarshavedecriedmanydatacollectionanddistributionpractices asviolationsofpersonalprivacyandtherighttoonesimage.Forexample,in2006,therewas anoutcrywhenFacebookintroducedanewsfeedserviceinwhichanindividualsFacebook activitieswerebroadcasttoallofhisorherFacebookfriends.Thiswassaidtobeaninvasion ofprivacybecausememberswantedtolimittheirpersonalinformationtoaselectedgroupof friends, and the news feed dispersed it to a larger, unwanted audience. Tracy Samantha Schmidt, Inside the Backlash Against Facebook, TIME U.S. (Sept. 6, 2006), available at http://www.time.com/time/nation/article/0,8599,1532225,00.html. Similarly, employers surveillanceofapplicantsFacebookpageswhenmakinghiringdecisionshasbeenattackedas aninvasionofprivacy;criticsarguethatoneshouldbeabletomaintainaprofessionalidentity that is distinct from ones informal social identities. Jeffrey Rosen, The Web Means the End of Forgetting, N.Y. TIMES (July 21, 2010), available at http://www.nytimes/2010/07/25/magazine/ 25privacyt2.html?pagewanted=all. For a compendium of defamation, invasion of privacy, and emotional distress cases related to internetbased activities cases, see the database maintained by the Citizen Media Law Project. See David S. Ardia, Legal Threats Database, CITIZEN MEDIA LAW PROJECT, http://www.citmedialaw.org/database(lastvisitedSept.8,2012).SeegenerallyDavidS.Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law, 45 HARV. C.R.C.L. L. REV.261,26164,267,27780,29293,30306,31718(2010)(discussingtheimpact oftheinternetondefamationlaw).
407 406

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BARBAS_FINIAL(DONOTDELETE)

See,e.g.,NORMAN L. ROSENBERG, PROTECTING THE BEST MEN: AN INTERPRETIVE HISTORY

OFTHE LAWOF LIBEL 23545 (1986); PeterL.Felcher&EdwardL.Rubin,Privacy,Publicity,and

JOHN F. KASSON, RUDENESS & CIVILITY: MANNERS IN NINETEENTHCENTURY URBAN AMERICA72(1995).

Cooperv.Greeley&McElrath,1Denio347,365(1845). SeeKASSON,supranote10,at11215. Imageisdistinctfromreputationandalsofromhonor,asystemofsocialstratificationin

SeeKASSON,supranote10,at12832. Seeid. Seeid. Seeid.at93.

CalvertMagruder,MentalandEmotionalDisturbanceintheLawofTorts,49HARV. L. REV. 1033,1035,1048(1936)(citingBeaulieuv.GreatN.Ry.,114N.W.353,353(Minn.1907)).

Kunzv.Allen,172P.532,532(Kan.1918).Theplaintiffclaimedthatshehadbecomethe laughingstockandcommontalkofthepeople,sinceherpeersfalselyassumedthatshewas adisreputablecommercialmodelandhadbeenpaidtoposeforthead.Id.

Roberson,64N.E.at443,445,447. SeeActofApril6,1903,2,1903N.Y.Laws308,308. Becausetheinterestprotectedwas

Atkinsonv.JohnE.Doherty&Co.,80N.W.285,287,289(Mich.1899). ElbridgeL.Adams,TheLawofPrivacy,174N.AM.REV.361,361(1902). Pavesich,50S.E.at70.

Bezanson,supranote62,at538. Martinv.PressPublgCo.,87N.Y.S.859,860(N.Y.App.Div.1904). Corrv.SunPrinting&PublgAssn.,69N.E.288,28889(N.Y.1904).

STEARNS,supranote3,at214. Id.at21415. WARRENI.SUSMAN,CULTUREASHISTORY:THETRANSFORMATIONOFAMERICANSOCIETY

STEARNS,supranote3,at21617. SUSMAN,supranote131,at278. ORISONSWETTMARDEN,MASTERFULPERSONALITY71(1921). SeegenerallyDALECARNEGIE,HOWTOWINFRIENDSANDINFLUENCEPEOPLE(1937).

THE CONSUMER CULTURE47(2001);seealsoROLAND MARCHAND,ADVERTISINGTHE AMERICAN

DREAM: MAKING WAYFOR MODERNITY, 19201940, at185(1986) (describingwomenspostures asdecorationsintheoveralladvertisement).

LEARS,supranote26,at36. WILLIAMJAMES,THEPRINCIPLESOFPSYCHOLOGY294(H.Holt&Co.eds.,1890). LEARS,supranote3,at37.

LEARS,supranote26,at35. GERGEN,supranote149,at147. Cf.LEARS,supranote26,at37. SeeSidisv.FRPublgCorp.,34F.Supp.19,2021(S.D.N.Y.1938).

Id.at398401. Hullv.CurtisPublgCo.,125A.2d644,650(Pa.1956). 20So.2d243,24445(Fla.1944),secondappeal,30So.2d635(Fla.1947). Id. Cason,20So.2dat245. Id. Id.at247.

Blumenthalv.PictureClassics,Inc.,257N.Y.S.800,801(N.Y.App.Div.1932). SeeSweenekv.PatheNews,Inc.,16F.Supp.746,74748(E.D.N.Y.1936). Gillv.HearstPublgCo.,253P.2d441,442(Cal.1953)(enbanc). 397P.91(Cal.Dist.Ct.App.1931). Id.at91.

Id.InBarberv.TimeInc.,thecourtnotedthatdamagesforinvasionofprivacywouldbe warrantedbecausethepresshadoversteppeditsconstitutionalrightsandoverlook[ed]its obligationstoothers.159S.W.2d291,295(Mo.1942).

Magruder,supranote61,at104243. SeeProsser,supranote198,at881. Herrickv.EveningExpress,113A.16,16(Me.1921).

SeeFrankThayer,TheChangingLibelScene,1943WIS.L.REV.331,33334(1943). SeeBezanson,supranote62,at538&n.15. Cohenv.N.Y.TimesCo.,138N.Y.S.206,209(N.Y.App.Div.1912). Id.at210.

SeeJohnWade, DefamationandtheRightofPrivacy,15VAND. L. REV. 1093,1094(1962) (internalcitationomitted).

212 213 214 215 216 217

Magruder,supranote61,at1055. Snyderv.N.Y.PressCo.,121N.Y.S.944,946(N.Y.App.Div.1910). Zbyszkov.N.Y.Am.,Inc.,239N.Y.S.411,412(N.Y.App.Div.1930). SeeVanWigintonv.PulitzerPublgCo.,218F.795,795,797(8thCir.1914). Themov.NewEng.NewspaperPublgCo.,27N.E.2d753,754(Mass.1940). 82F.2d154,154(2dCir.1936).

Madow,supranote24,at166. Armstrong,Jr.,supranote93,at459. Madow,supranote24,at16667;seealsoNimmer,supranote187,at20304.

HaelanLabs.,Inc.v.ToppsChewingGum,Inc.,202F.2d866,868(2dCir.1953);seealso HaroldR.Gordon,RightofPropertyinName,Likeness,PersonalityandHistory,55NW.U.L.REV. 553,570(1960).

245 246 247

376U.S.254,283(1964). SeeDevelopmentsintheLawDefamation,supranote225,at92426. SeeGreen,supranote162,at240;Nizer,supranote158,at526,528. Palkov.Connecticut,302U.S.319,327(1937).

248 FELDMAN,supranote242,at35051. 249 250

Seeid.at18384. LASCH,supranote3,at90. Id.at92.

Id.at206. SeeJames A.Dyal,ImagesintheLonelyCrowd:AwarenessofSelf,31VITAL SPEECHES OF GERGEN,supranote149,at150.

Sensitivity to emotional and psychological injuries and a sense of

Smolla,supranote299,at11. Id.at63. Smolla,supranote299,at20.

FRIEDMAN,supranote11,at181. 381U.S.479,484(1965). SeegenerallyWESTIN,supranote303,at36569. Prosser,supranote162,at389.

SeeTomGerety,RedefiningPrivacy,HARV. C.R.C.L. L. REV.233,258(1977)(notingthat inmostfalselightcases,noprivatedimensionofpersonalitywasinvolved).

Kalven,supranote227,at338. Jaubertv.CrowleyPostSignal,Inc.,375So.2d1386,1387(La.1979). Cabanissv.Hipsley,151S.E.2d496,49899(Ga.Ct.App.1966). Goldmanv.Time,Inc.,336F.Supp.133,136(N.D.Cal.1971). Prosser,supranote162,at400;Schwartz,supranote314,at887,893,897n.66,900.

SeePeterL.Felcher&EdwardL.Rubin,Privacy,Publicity,andthePortrayalofRealPeople bytheMedia,88YALEL.J.1577,1589(1979);DonR.Pember&DwightL.Teeter,Jr.,Privacyand thePressSinceTime,Inc.v.Hill,50WASH.L.REV.57,87(1974).

Canessa,235A.2dat6465,7880. Ainsworthv.CenturySupplyCo.,693N.E.2d510,51112(Ill.App.1998). SeeCohenv.HerbalConcepts,Inc.,472N.E.2d307,308(N.Y.1984).

WalterProbert,Defamation,ACamouflageofPsychicInterests:TheBeginningofaBehavioral Analysis,15VAND. L. REV.1173,1182(1961)(Itisanacceptablepsychologicalnotionthatthe individualsselfimageislargelyareflectionofthewayheseesothersreactingtohim.).

Id.at117678. SeeDevelopmentsintheLawofDefamation,69HARV.L.REV.875,88081(1956). Bloustein,supranote5,at993. Kalven,supranote227,at332. SeeN.Y.Timesv.Sullivan,376U.S.254,270(1964). Id.at27980.

Seeid.at270. Id. Id.at283. SeeGertzv.RobertWelch,Inc.,418U.S.323,350(1974).

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