He authored overturning roe v. Wade. Was really writing this book for those people. I was also writing the book because i am intrigued with the right to privacy over time, and how it began very early in the United States all the way through today and one of the most important articles itn titles of right to privacy, which was in 1890 and how that essay informs the way we think about privacy so it is tangled in the book and it is there and in a strong sense. Before we learn about the history, there are a couple of percolating Current Events i wanted to get with you about with you off the bat and this is the drop opinion week of roe v. Wade. There are several different questions attached to it within the purview of what you are writing about. The roe v. Wade decision is based on the right to privacy. We know it is not in the constitution so how early on did our founders think about that concept of privacy . You are right that in the fact that there is no right to privacy in the sense of autonomy and the way the government can come in and tell us what we cannot can and cannot do with personal decisions and that is different from the type of privacy i am writing about. The type i write about is the ability to keep certain information to ourselves, even if we do not want them to and in this week opinion, Justice Alito suggested that there is a divergence that there is very difference different types of privacies. That is improper in the United States that we dont use privacy in the constitution and that is why there is such confusion about. The type of privacy i am talking about, which is the right to keep private information to ourselves, the right to keep people from revealing information about ourselves, started very early in the United States. Even before the First Amendment was ratified, there was a suggestion by legislators that sometimes, politicians might do wrong and they used the phrase male conduct so sometimes, politicians might engage in male conduct is it the public business to know about this male conduct . The meaning of that term back then was having affairs outside of marriage. There was this suggestion that instances of male conduct should be kept private and it was not the publics business to know and that was before the First Amendment was ratified so when we think about privacy in that sense, what information we all have the right to to keep private, certainly not politicians and them their male conduct but what information that we have the right to keep private, that has been around for a long time before the First Amendment was ratified. Your book is rife with examples on a time in information was where information was leaked by the media. Have you done any thing about the decision by publishers to drip published his opinion and what the repercussions are for the journalists involved or the publications . That is a great question and these questions are whether criminal laws come into play but regards to tort laws, and whether or not the publication political could be liable for a violation of privacy, is no and the reason why, and even though Justice Alito wanted to keep this information private, it suggests the law suggests that if something is news versus newsworthy, publications have the right to publish it and certainly, this draft opinion is decidedly important and i doubt very much Justice Alito would bring any raisi claim against politico but if he did, he would lose because there is news value in the opinion and it tells us that the state of roe v. Wade in just a few weeks and there is news value bear and no court would decide there is any invasion of privacy on those facts. We learned a lot about publishing in the digital age through your book and elon musk is declaring that he is going to make it an open forum. What do you think about when you see the commentary about what he might do to twitter . One of the worries is that any sort of open for more anyone could say whatever they like is that courts will come down harder on media. When i say media, i mean journalism to social media including twitter and facebook. What has happened in the past is that when media has published something private or when media defames or when there are social media posts that defame individuals, courts will feel more strongly about changing the law to make it more responsive to plaintiffs. My worry is that if musk opens twitter onto any sort of post, what will happen is that twitter itself will be harmed, as will all media that see i court that up by courts fed up. I would encourage readers to look in time further than i will start because there are Great Stories but i want to start with the two men that offered a piece , which is sanborn and Louis Brandeis. Sanborn and Louis Brandeis. Sam warren and Louis Brandeis. Who is sam warren . He went to Harvard Law School work where he met Louis Brandeis and he went to practice in boston. They had a law firm together and warren was a great interest in media two media and the reason why he was in such great interest. Louis brandeis was not famous even in boston at the time but sam warren was in the reason why was because he was from a rich family. The warrants warrens i did a paper mill and they were meaty you heirs and them media millionaires they were millionaires and the media was interested in them. Sanborn married the states the secretary of state part of our starter and there were headlines across the states daughter and their headlines across the state. Newspapers of the day were interested in who he was and what parties he was having and what he was building and what paintings he purchased and there was a lot of gossip in the paper in the time about the warrens. Sam warren became good friends with president cleveland and president cleveland had an has his own interest in cn hatred of media and because he had president cleveland married a young woman who was his adopted daughter. What had happened was, her father had died and her father was clevelands law partner and he took care of her after the death. When she turned 18 and he was nearing 50, they started to date and she became misses Grover Cleveland mrs. Grover cleveland. President cleveland despise media and bake for privacy in his personal affairs babied for privacy in his personal affairs. He did not like media and he had a awful lot to hide, not only in regards to the relationship with this what was his adopted daughter but the fact that he had a child, and the allegations were before he was married to anyone. There was a great deal of gossip swirling about him. He despite despised media and he had a lawyer in sam warren who could write about the importance of the right to privacy and how it is important to all of us, including politicians and that was not made in this right that was made in this right to privacy essay. You spoke about cleveland who broke down in spirit peers tears. This essay seems to be a seminal point to the book. What has its legacy been . Amy very often, courts and changemakers generally will refer to this 1890 article as starting the right to privacy in the United States and it is not really true. It was around more than a century before before and a lot of people believe that it was this thing that started privacy and you see it referred to in the cases of all sorts of privacy from the type of privacy i write about to interests in autonomy, to search and seizure cases and any privacy rights including access in privacy information, would refer to this large article. It remains this critically important piece a lot of people understand gov. Whitmer susan what happened to sam warren . Amy Louis Brandeis became a very famous lawyer in the United States even before he joined the corp and he was the peoples lawyer and his star was rising. Sam warren, meantime, was involved in the paper mill. He had law practice and demand and ran his fathers paper mill and some people suggest that his brother suggested that he had taken more money than he was due and his brother bought a claim in court and that lawsuit was covered in media of the day, primarily in boston, and sam warren, many people say, because he was deeply concerned about the family revelations that might come out in media in 1810, he sadly committed suicide. These headlines were being reported and he killed himself, conceivably over worries about what might come out in media. Susan i wanted to have you tell one other story briefly because one of the through points in care book is that power often once to hide but they have resources free courses. Recourses. In the case of president cleveland, you are right that he weaponized privacy laws. Prof. Gajda melvin chase was an important figure in journalism in washington dc and he was called a bulldog. He was a black journalist and his newspaper was published to all, accredited by all, and he began an investigation into a cleveland appointee. Grover cleveland did not like chase and believed that this investigation was wrong and when chase reported that the cleveland appointee had in effect sexually harassed women in the office, cleveland had chase arrested. And one of the arguments there was a privacy like argument, that if chase believed there was wrongdoing in the office, chase that chase should have gone to cleveland himself, and not have reported it in his newspaper, that the important thing was to reach Grover Cleveland, who could have then fired the appointee. A jury hears this argument and a jury believes it. So a jury says they agree that chase went overboard by reporting it to the newspaper, he shouldnt have done it, even if true. So chase goes to jail for three months, hopes Grover Cleveland will set him free, and of course , cleveland, who just despises media, refuses to and says in effect that chase will teach all journalists a lesson that they cannot report everything they want to without facing some sort of repressions. So that is the suggestion of privacy as a weapon. It was not our business, the argument went, that it was not that the man had sexually harassed women in the office, that only the president had the right to know that information and that it was proved by the fact that chase went to jail and cleveland went on to retire in princeton and live a fine life with his young wife. Susan you paint the picture of a pendulum swinging back and forth throughout history with an emphasis on the right to privacy and the First Amendment right to publish. We went through the three point of the powerful having more secrets to hide. Some other important points, technology frequently made people more concerned about privacy rights throughout history as illustration, photographs, telegraphs during the civil war and on and on. As technology advanced, more publication, more concern. So i want to fast forward to the 20th century and talk about what happened to speech during world war i in this country. What was the attitude about people, with all the concerns about infiltration, nonloyalists in the United States, what was happening in the legal sphere regarding privacy versus the right to publish . Prof. Gajda so, in this tort sense, what had happened was , there was, back in the early 1900s, one of the very first cases involving privacy looked to images of people using advertising. So when warren and brandeis wrote the right to privacy, it focus on media and medias revelation of information. The first cases that were decided had to do with the use of images of people in advertising. And then very slowly, throughout the early 1900s, the idea that we have the right to protect our private information grew in court. And back then, they were certainly reflected in case law , and otherwise, from this idea that we should all keep our mouth shut, that there is the potential to reveal certain information that should not get out to the people who should not hear it. So, those governmental interests often times inform how we think about privacy in a legal sense. Susan after world war i was over, Louis Brandeispa justice on the Supreme Court and joins Oliver Wendell holmes. The two of them together are First Amendment legends and legends as you describe them and looks to throughout the rest of history as offering some of the most memorable phrases about the First Amendment, cannot shout fire to a crowded theater. That phrase came from those justices. But you say it is very easy to pluck certain phrases out of their opinions and credit them with First Amendment absolutism, but that is not really the case. That it is actually more nuanced. What should we know about their views of privacy versus the right to publish . Prof. Gajda they very much embraced privacy in their personal lives and also in case also embraced it within case law. As one example, when the court decided that certain letters should be accessible by government investigators, both holmes and brandeis disagreed and wrote a pretty impassioned decision or opinion suggesting that privacy was much more important. So you see them as embracing First Amendment rights, including a marketplace of ideas concept, and yet recognizing that privacy interests are very special interests and that they that a willynilly publisher would not be allowed to rent a stall in holmes marketplace of ideas. The language sounds broad but if you go back and take a look at what they were about as individuals and the opinions they wrote, dissenting and otherwise, that embraced privacy, it is very clear they were not First Amendment absolutists. Susan from a Lasting Legacy perspective, what have they left in the legal system that is the most enduring . Prof. Gajda i think that holmes and the marketplace of ideas concept is critically important. Also if you think about Louis Brandeis and his impassioned plea for privacy and a criminal privacy in a criminal sense, so he did not believe the government should be able to wiretap phone lines for an example to listen in on private conversations. He believed a warrant was necessary first. The majority of the Supreme Court said, no warrant is necessary. Police dont need a warrant and they can just tap into the lines. He wrote beautiful language making a plea for privacy and suggesting that police should need a warrant and that these are private moments that police might listen in on and that a warrant was appropriate in such cases and that is the way the law is today. Police do need a warrant today. So we think about those lasting legacies, that is certainly one that i think brandeis would want to be remembered for. Susan society is changing and you write about how journalism is changing and becoming a profession. How did that change the equation as professionalism seeped more and more into journalism . Prof. Gajda my theory is that and it continues through today, as journalism back in the day , we had pulitzer and hearst and those sorts of publishers who often times published with very little regard for any sort of privacy interests. So courts began to embrace the idea of privacy and suggesting that publishers would be liable for publishing truthful information, if that information was not newsworthy. So, for one example, there was a journalist who took a picture of conjoined twins and published the image. Very early on, there was privacy in that image and the courts found that journalist would be liable for taking that picture and publishing it as he did. You get this sense of courts being very disruptive so distrustful of journalism. And sucking second guessing the justice system. In the 1920s, a uniform code of ethics across the United States began and newspaper editors got together and decided there would be one code of ethics for all journalists. That code of ethics included privacy provisions. The suggestion that some information was too private to be reported and that all journalists should respect that sort of privacy. So as journalism began becoming began to become more ethical and pulitzer and hearst papers toned down in response to ethics concerns, courts became less comfortable secondguessing news decisions by journalists. They began to trust journalists. So my argument is that at that point and certainly in the decades later, you had courts backing off and effectively saying, who are we to secondguess what ethics trained journalists have decided is newsworthy . So it started a golden era for journalism, that in the 1890s, no one wanted to be a journalist and that would be a distasteful profession, certainly for the elite. And then by the 1930s, mickey mouse started his own newspaper. There is a bk for kids suggesting as much, that if mickey mouse could be a journalist, certainly all might want to be journalists because they are so ethics abiding and made good ethical decisions. So you see that reflected in the courts decisions of the day, suggesting that journalists had the right to report the news and courts were not comfortable secondguessing the decisions. Susan how long did that golden age of journalism last . Prof. Gajda i would say it really began crumbling in the age of reality television. When news and entertainment merged, arguably. I dont really buy that whole idea necessarily, but people have suggested certain programs were not really news, they were entertainment and you see that pushback in those decisions early on, in the late 1980s and certainly by the early 1990s, this dish taste in the mouth of on what they consider journalism. They called it media but by calling it media, they then could hamper what we consider journalism as well. Susan people that see polling today about Public Attitudes towards the press will be surprised that postwatergate, 72 of the public believed in and trusted the media. And the publics right to know was championed during that time. That is the pendulum swinging the other direction. During this period of time, there is a story in your book about a documentary film made that took 25 years of litigation to be shown. It was done by frederick reisman. What is important about this story, in your telling . Prof. Gajda its an example of a journalist going into a prison for the mentally ill and recording the abuse of prisoners there. So we would think that sort of truth should be celebrated, we should all be able to see what the government is doing to people in prison, especially those, but including the mentally ill. I do not know why Frederick Wiseman was allowed in the prison. He puts together this documentary showing the abuse of prisoners and premieres it at a Film Festival in new york. Almost immediately, it was shut down by the government. The government argued there is the right to privacy, ultimately this was the governments argument, that the inmates in the documentary have a right to privacy and if they did not sign waivers, and some of them didnt, that the government needed to come in and protect the privacy of the inmates. So if you look at it in a legal sense, and in the way i looked at it as a journalist, it is decidedly newsworthy. Its true and shows the way the government is mistreating people and yet, courts were convinced by the government itself argued that the privacy of those people trumped our Public Interest in their treatment. It suggested the courts for more it convinced and suggested the courts for more than two decades and yet a lot of people do not know about this documentary. They do not know about the suppression of truth, and it is decidedly troubling and it is of interest to me, and maybe it is because by the time it was released to everyone, people in certain areas could see it. People in psychology, lawyers could see it, but not the general public. So by the time it was released to the public, maybe it was old news. But it is very unusual because in law schools today, we do not discuss titicut follies that much but i think it is critically important to privacy, and how privacy can be used as a weapon to prevent the revelation of truth. Susan we have a short clip of it. 1967 and yet the public cannot see it until 1991. Lets watch. You are telling me that if i should go back, i would be back here. Obviously you know something i do not know. I have to leave you. [crosstalk] which is nothing is dangerous. It is merely the dilemma of your mother and father. Susan that is an exchange about a patient and doctor talking about his care. Just an example of what the public would have learned about life in that society. We have lots of history to cover and only 25 minutes to go so i am going to fastforward. 1991 was the dawn of the internet age. How did the internet change the equation on these issues you write about . Prof. Gajda one way is thinking back to ethics and how courts embrace this idea of journalistic ethics and trusted journalism more. Anyone can publish anything on the internet. Through social media and otherwise, publishing in an instant to the world as is possible. Many publishers are not ethical, as we all know. Here i am thinking about websites including revenge porn websites, including social media posts that might invade privacy or be defamatory. Because of reality television, courts were already questioning media and whether there might be some rollback of rights, despite the First Amendment. Then suddenly, the internet happens. Everyone can be a publisher. So as you can imagine, the worry that courts had about invasions of privacy and defamation and how they were much more interested suddenly in not giving media the amount of leeway they had back when 70 of the public trusted journalists. Susan congress got into the act in 1997 with a Major Overhaul of telecommunications. It was signed by president bill clinton. There was a provision in the act called section 230 championed by a democrat and republican. Ron wyden and chris cox. What was there in tension with section 230 intention with section 230 and what were the consequences . Prof. Gajda this is at the dawn of the internet, even during floor discussion about the provision there was the suggestion legislators did not really understand what the internet was. In 1996, there was the suggestion in newspapers, newspapers would define the internet because people did not understand what it was. It was this giant file cabinet accessible to all of us was the way news stories described it. What happened in court was one of these websites had published a defamatory piece on a Bulletin Board. Some member of the public had published a defamatory statement on a Bulletin Board run by a prodigy. The person who was defamed sued the Internet Service provider. So in effect, the website owner. A court found all potential liability there. So congress, in believing the growth of the internet was critically important to the nations economy, decided to protect websites like prodigy that ran Bulletin Boards. So the idea was by enacting a law that protected the websites, websites would be able to go in and edit Information Published by others, remove Information Published by others without being liable for defamatory or privacy invading information. The idea behind section 230 was to grow the internet and the nations economy and protect the ose entities online that might otherwise be liable for defamation or invasion of privacy under existing law. So it changes the way we treat electronic publishers. Section 230 suggests, or mandates, that, if there is a publisher that accepts information from others, people out there who publish information to the website, the website will not be liable for it. It means that is why reddit exists today and comment on newspaper websites online exist. They would not exist because they would be liable for privacy invading information posted by anyone. Facebook would be liable for defamatory and privacy invading comments. So it protects those sorts of websites from leaving up information that is damaging to individuals. Susan the clip i have here, called the tale of two president s. It is clintons signing the legislation in 1996 and trump, very unhappy with section 230, 30 years later. President clinton today laws catch up with the future. We will help create an open marketplace for competition and innovation can move as quick as light. [applause] trump currently social media giants receive an unprecedented liability shield based on the. Based on the theory that they are a neutral platform, which they are not. My executive order calls for deregulations under section 230 under the commit medications decency act Communications Decency act to make that social Media Companies that engage in censoring will not be able to keep their liability shield. Susan what happened to section 230 over 30 years . Prof. Gajda people began to realize that it was perhaps too protective of certain websites and i will exclude former President Trump from the discussion for the moment. It is interesting that president clinton suggests that the open marketplace of ideas would thrive on the internet under section 230. Certainly, that is true, but again, thinking back to the holmes marketplace of ideas, maybe there should be some sort of protection for privacy on the internet as well. And the reason why i say that is because of this protection, certain websites began, including revenge porn websites. Those websites would literally say, get revenge on your ex. Send in nude photographs of them to humiliate them. Under section 230, those sorts of websites thrive. They would not be liable because they were the passive websites and the people posting the images would conceivably be liable, but the website would not be, under section 230. So you get a lot of people today suggesting section 230 needs to change. And former President Trump s interest is very much in suggesting that section 230 is too protective of twitters choices to remove certain tweets and otherwise that he believes censor one particular group. But on the other side of the aisle and in the republican party, there are calls to limit section 230 as being too protective of certain websites i am talking about. So again, it is the suggestion that section 230 has been taken advantage of by certain publishers and that now maybe we need to rethink it and the level rethink section 230s level of protection, at the very least, or do away with it completely. Susan one last story from 2016, wrestler hulk hogan taking media taking the publisher gawker to court over privacy issues. Why dont we have you tell the story . Prof. Gajda i have been teaching privacy for more than 20 years and i started almost at the time at section 230, a few years after that, and i have been telling my students that someday a website was going to publish a sex tape featuring a celebrity and it would create a clash of the right to privacy versus the freedom of the press, freedom of expression. So one of my students sent me an email saying, you might be interested in the fact that the gawker website just published a sex tape featuring hulk hogan. I immediately went to the website and part of my job is to understand what is going on the internet and watch things on the internet. So i clicked on the link and watched hulk hogan nude having sex with a woman on a bed with full sound, audio and video of him fully nude. Hogan after that brought a claim for the right to privacy against gawker and argued that even though it is truthful, his level of privacy would trump the rights of right of gawker to publish that truth. A jury agreed with him and i think a lot of people in the u. S. Were shocked at that because we understand so much about freedom of the press and truth and how truth will protect us and yet, this was an instance of someones privacy becoming more important, a jury decided, than the publics right to know. This is something that has been part of law since the beginning of the United States but , suddenly, came on full force when gawker published the sex tape and brought it to court. Susan here is a clip with the outcome of that case. This morning, a victory for hulk hogans invasion of privacy battle against gawker. The jury sided with the former wrestler on all counts, awarding him 115 million, fighting against gawker, the founder and editor in chief for posting a secretly recorded tape of hogan having sex. [indiscernible] susan how does that case change the gawker case change the landscape for publishing on the internet . Prof. Gajda it continues to have repercussions today. What has happened even beyond publishing on the internet was is that number one, may be individuals who publish generally understand that some information can be offlimits. But second, and i think more importantly to journalism, is that when this decision came down, plaintiff attorneys across the u. S. Suddenly recognized that there will be times when they can win invasion of privacy cases against media and journalism. So i think that case emboldened plaintiffs attorneys to bring claims they probably never would have in the past. To give you one quick example, there was an nfl Football Player was injured in a fireworks accident and his finger needed to be amputated. Espn tweeted out that information, but also included that nfl players medical chart. The nfl player brought an invasion of privacy claim against espn and a court decided the nfl player had a privacy claim, even though there was news in the event itself and the rotation itself, amputation itself, the medical chart was the players personal information and should not have been published. A jury decided as much. So that shows you how the hogan case opens the door to an increasing number of these sorts of cases. You see even more cases today, almost 10 years later. Susan for the most part we have talked about aspects of the media, but as we come to to get today, it is not just what is published on websites like facebook and tiktok and instagram. It is data. It is everywhere in society and our cell phone tracking our every move and transactions with credit cards. All being swept up into big data and 80 of the public today says they are concerned about privacy. At the same time, many people are publishing every aspect of their lives online one way or the other. So where does the backandforth pendulum of concerns about privacy versus publishing and availability to the public of personal information stand . Prof. Gajda right now, courts are anxious to find privacy in data bits. I think what is happening is that people do not understand the level of information that companies can access about them and use in some way by selling like selling to other companies or otherwise and the more we can get that information out, the less likely people will share online. In the meantime, u. S. Judges you have judges that do understand and judges are finding privacy in data more often. What comes to mind is a court that recently suggested that individuals, if they share information on the internet and they expect it to only reach their friends and family, there can still be privacy in that information. Thats extraordinary. Fewer than 10 years ago there was a suggestion that when we share information on the internet, it is Public Information but courts are pulling back on that now and saying, if we intended it to only reach our friends and family, we will protect the information beyond that. So that is why i teach undergrad classes in media, so that we can all begin to understand the importance of keeping certain things private, not sharing them, because perhaps they can be used against us, but then also this idea, and California Law allows it now and some companies will give anyone access to this data, our ability to access the Data Companies have on us so that we can better understand how they think of us and how the data bits we enter online can become part of a compilation of who we are and how it can be used in troubling sold to insurance companies, for example, can be used in troubling ways that we never suspected. I eat my Ice Cream Cone with four scoops. An Insurance Company will want to know that information. Susan you have an interesting story in the book that you applied for your own Credit Report and background check and came up with 200 pages of data on yourself, your family, and your associates as part of your report. Amy prof. Gajda that is exactly right. Susan were you shocked . Prof. Gajda yes. I live a very uninteresting life, which i guess i am glad for now. And yet there were 200 pages in my background check. And it included some information about my neighbors and their private information. It is deeply troubling that information is available for 150. And if you hire a private detective to do this for any reason, thats a lot of data you can get on someone else. In addition, this access to data allowed me to find out that amazon knows that i own a bulldog. So that is one data point that amazon knows about me. And there is a lot in addition out there that other companies have gathered. Susan but this is not information you chose the public. It is being swept up by your daily life. You compare the u. S. To europe frequently throughout the book. Europe past the has the gdpr. , which is the right to be forgotten with information on the internet. Do you anticipate there will be a debate at the National Level here about similar legislation . Prof. Gajda yes. If you speak with privacy officers in Big Companies today, many of them will suggest that it is just a matter of time before we have gdprlike provisions here. One of the reasons why is it is very difficult and very cumbersome for them to carve out this exception for the United States. In the meantime, congress is not really taking action, but state legislatures are. So you see gdprlike interest in legislation today, biometric privacy, even privacy in the way we walk. Some state legislatures have suggested a real push toward privacy. You see the same thing in courts. As i suggested, it is a real embrace of things like home addresses. The Supreme Court despite the leaked opinion in privacy for in regard to privacy for roe v. Wade, have said the privacy interest in home addresses, and because of doxxing today, the revelation of peoples home addresses and the suggestion that other people should go there and protest or worse, that there are privacy interests in home addresses. So you see a real push toward privacy in that sense as well. Susan the book is called seek and hide the tangled history of the right to privacy. Amy joins us from Tulane University where she is a legal scholar and expert and First Amendment law. Thank you so much for being with us. Prof. Gajda thank you. It has been a delight. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] all q a programs are available on our website or on podcast on the cspan now app. Cspan is your unfiltered view of government. We are funded by these Television Companies and more, including charter communications. 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