86 Mark Washofsky

have made that argument regarding the common law. For this reason. an examination of the arguments of those jurists, as well as of the arguments of their opponents, offers a useful comparison to the writings of the halakhists. To what extent has either group succeeded in demonstrating the substantive existence of a right— or concept, or value— called“privacy,” despite the absence of that concept in their own legal sources?

a. American Law.

The American discussion began in earnest in 1890, with the publication of what has been called the most influential law review article in history.” In their essay,'® Samuel Warren and Louis Brandeis either invented the common-law right to privacy'’ or (according to the more moderate view) influenced the development of that law in an extraordinary way.'® Warren , a member of Boston ’s high society“Brahmin” elite, and Brandeis , the future leader of American Zionism and U.S. Supreme Court justice, were law partners in Boston at the time. The genesis of the article, according to legend, lay in Warren 's discomfort over newspaper gossip concerning his social life. Whether or not this is entirely true," the authors were clearly exercised over the abuses stemming from the yellow journalism of the day.

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.”

Included in this catalogue of evils was. the“unauthorized circulation of portraits” and pictures of individuals for commercial