Brandeis, Privacy, and Freedom From Fear

Abstract

Samuel Warren and Louis Brandeis’s idea of the “right to be let alone” was multi-dimensional. One dimension involved the breadth of harm. Harm could occur by physical or non-physical means. Justice Brandeis elaborated on this idea in Olmstead v. United States, stating that the Fourth Amendment prohibits not only physical trespasses, but, more generally, “unjustifiable intrusions by the Government upon the privacy of the individual.” Warren and Brandeis’s “right to be let alone” also included a depth dimension: harm can be caused by incomplete actions, such as attempts or threats. They wrote that liberty once meant nothing more than “freedom from actual restraint,” and the right to life served only to “protect the subject from battery in its various forms.” But with “recognition of man’s spiritual nature, of his feelings and his intellect,” the “protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury.” While the breadth dimension of the “right to be let alone” has been recognized in constitutional law (see Katz v. United States), its depth dimension — freedom from fear — remains undeveloped. Focusing on the original meaning of the Fourth Amendment’s “to be secure” text, this article briefly explains how Warren and Brandeis’s “right to be let alone” can be more fully incorporated into Fourth Amendment doctrine.