ABSTRACT
Professor Kalven's attack on the Warren-Brandeis tort is compounded of gentle but debunking aspersions and astute, thoughtful, but essentially erroneous legal analysis. Professor Harry Kalven suggests that many courts and commentators alike have responded indiscriminately to the claimed tortious wrong described by Warren and Brandeis, as if what was really at issue was the deprivation of the more fundamental constitutional right to privacy. The final point that Kalven makes against the Warren-Brandeis tort is surely the most significant of all. It is a measure of his perceptiveness and scholarship that he anticipated a constitutional infirmity in the tort, which the Supreme Court recognized a year after he wrote. In due process terms of reference, that state privacy law takes into account the purpose of the privacy-invading publication, the interval of time between incidents of personal life described and publication, the falsity of the publication, and the actual or constructive malice of the publisher would all seem to be highly relevant.
