92 Mark Washofsky

interests described in his four torts, all of which existed in the law before Warren and Brandeis penned their essay. To expand that right— one“to which there has always been much sentimental devotion in our land”- beyond its real limits is to invite judicial abuse, including“a power of censorship over what the public may be permitted to read, extending very much beyond that which they have always had under the law of defamation.” Thus, concluded Prosser,“it is high time that we realize what we are doing, and give some consideration to the question of where, if anywhere, we are to call a halt” to this expansion.” The legal scholar Harry Kalven launched a similar attack: the“privacy” tort is hopelessly vague and petty, containing little that is not or could not be accommodated in other, pre-existing causes of action.” This line of argument persuaded the House of Lords that the Warren­

Brandeis“right to privacy,” a“high-level generalization” of

dubious utility, cannot be said to exist in the common law.” Outside the circles of professional jurisprudence, the philosopher Judith Jarvis Thomson made much the same point. The right to privacy, she claimed, is a“derivative” one, in that every right we can locate in the“cluster” of privacy rights already exists under some other rubric. Thus, we can explain why it is that we enjoy each of these rights“without ever once mentioning the right to privacy.”

Others have responded to these criticisms, defending either the Warren and Brandeis article or the concept of privacy as a distinct legal right. Against Prosser, Edward Bloustein argued that privacy is indeed a separate concept, founded upon the principle of human dignity. The Warren-Brandeis concept of the inviolate personality “posits the individual's independence, dignity and integrity; it defines man's essence as a unique and self-determining being. It is because our Western ethico-religious tradition posits such dignity and independence of will in the individual that the common law secures to a man‘literary and artistic property’- the right to determine‘to what extent his thoughts, sentiments, emotions shall be communicated to others.””' This notion unifies all the cases grouped under the privacy rubric, making clear that their common