The Social Foundations of Privacy: Community and Self in the Common Law Tort

Abstract

In this Article Professor Post argues that the common law tort of invasion of privacy safeguards social norms, which he calls "rules of civility," that in significant measure constitute both individual and community identity. The tort is predicated upon the assumption that personality, as well as human dignity, are injured by the violation of these norms. Civility rules also create a "ritual idiom" that allows individuals to recognize and differentiate between respect and intimacy; fluency in this idiom enables individuals to become autonomous persons. In protecting civility rules, however, the law must transform social norms into workable legal doctrine, and it must determine the nature of the community whose norms it will preserve. Civility rules that control the dissemination of information conflict with the prerequisites of the "public," which is a social formation created when persons, otherwise unrelated, are united by access to common social stimuli. Within the "public," communication is driven by a logic of accountability that is largely indifferent to norms of civility. The values of privacy, and the identity of persons and communities predicated upon those values, are thus endangered by the vast contemporary expansion of the public created by the mass media.