ABSTRACT
The increased scholarship on privacy, sparked by the increased risks caused by online communications, has resulted in a greater familiarity with Warren and Lois Brandeis’ influential 1890 journal article “The Right to Privacy.” With rhetorical flourish, Warren and Brandeis argued in favour of the development of a tort to protect privacy in the US, focusing mainly on the domestic home. They were scathing about encroachments by the press into the domestic sphere. They also outlined a variety of cases that could serve as precedents in favour of the establishment of such a privacy tort. However, there are a line of relevant legal cases that they omitted: cases that stressed the importance of domestic privacy as a reason to ignore white, upper class husbands’ domestic violence. In this chapter, I consider the gender, race and class issues of the nineteenth-century USA to contextualise Warren and Brandeis’ “Whig history” and their perspective on privacy.
