Alexandre Dumas pere
I promised in the previous post to follow with two examples of the fascinating differences in American and European law (not to mention culture) when it comes to privacy and its component values, such as liberty, dignity, and honor.
Of the many cases in James Q Whitman’s excellent research into those two traditions, these two caught my attention:
- The 1867 case of Alexandre Dumas pere, which expresses perfectly the French (and thus continental European) philosophy on the matter of privacy, and
- the case of Oliver Sipple, a gay man who saved President Gerald Ford’s life in an assassination attempt in 1976, which expresses the American philosophy
1) Dumas
Alexandre Dumas père was the author of The Count of Monte Cristo and The Three Musketeers and other books. In his sixties, he had a steamy affair (as one did) with an actress and horsewoman from Texas who was almost half his age and (in)famous for mounting stages scantily clad by the standards of the time.
Dumas and his lover posed for several risqué photos. Nobody on Facebook today would bat an eyelid, but the babe was in her underwear, and even the old man was in states of relative undress. Dumas sold the rights to those photos to the photographer, as he later admitted in court. The photographer then published some of these photos.
Dumas, probably thinking of his musketeers who would have demanded a duel on the spot, sued. And — this is the interesting bit — the French courts sided with him.
In its decision, the court cited Dumas’ “right to privacy” which superseded the photographer’s property rights, even though Dumas had explicitly sold him those rights. Dumas, Whitman quotes the court as opining, had
forgotten to take care for his dignity, and [publication of the photos sufficed to] remind him that private life must be walled off in the interest of individuals, and often in the interest of good morals as well.
So there we have it: The French legal culture, following its ancient traditions, saw:
- the honor of a high-status individual as the highest value at stake,
- the “media” as the primary threat,
- and commercial transactions in the marketplace as a vulgar aspect of liberty inferior to the dignity of the people involved.
2) Sipple
In 1975, President Gerald Ford came out of the St. Francis Hotel in San Francisco. A crowd had formed, and a woman, for whatever reasons, raised a gun to shoot the president. Oliver Sipple, a US Marine and Vietnam veteran, saw this and tackled the woman, so that the shot missed the president.
So he became a “hero“.
America’s press declared him so, and followed up with its usual fare, digging up every morsel of Sipple’s private life for the public. This was unfortunate, because Sipple was gay and, although he was living out of the closet in San Francisco, his family in the Midwest had no idea. Sipple wanted his homosexuality kept out of the papers and sued.
By now it should be clear how a continental European court would have ruled. But the American court gave priority to freedom of the press and of speech. Sipple eventually committed suicide.
So (referring back to the previous post) there again we have it: The American legal culture, following its ancient traditions, regarded:
- liberty, defined as freedom from state tyranny as opposed to public humiliation, as the highest value,
- an individual’s home as the only locus legitimately walled off from the public, and
- public spaces and activities (such as San Francisco’s gay scene, or even the venue of an assassination attempt) as fair game.
Hannibal and Me: life lessons from history 
“…….liberty, defined as freedom from state tyranny………”
It is the supreme paradox that a nation which has always boasted of its democracy, with a government of the people, by the people, and for the people, should throughout its history, including today, have such a visceral distrust, nay hate, of its government.
I don’t see much of a paradox here. The entire U.S. system of government is premised upon distrust of government, hence all those built-in checks and balances. Plus freedom of the press, so as to keep a watchful eye on the three branches.
Even paranoids have enemies….
In the case of Dumas, I think the court was wrong (if it had happened in the US) because he had wexplicitly relinquished his rights to the images. The court, in his case, effectively gave him a Mulligan.
In Sipple’s case, the court may have been in the legal right but the press was ethically wrong to print the information with callous disregard for Sipple’s desires. So far as I can tell from your description, he granted no permission for his private life to be revealed. Perhaps that is a result of an arrogance that has grown out of an explicit right (Freedom of the Press) and one that the courts have been unwilling to challenge as they have the Right to bear Arms and freedom of Speech and Assembly.
Can one really relinquish a right? I cannot sell myself into slavery under law; clearly, a court should free me if I were to do so, even if I were to have entered into a private contract.
Generally speaking, there are a couple of ways to waive a right to something like control over an image or similar. One is called a release and it is usually a form which the person waiving the right signs, acknowledging said waiver. One can also waive a right by orally granting it in front of a witness.
People in the public eye have usually been seen as having waived that right simply by being a public figure. It’s quite complicated. A lot depends upon what right is being waived and the circumstances of the waiver.
Let me also explain that I am not a lawyer so my counsel on this is suspect. But I spent a good part of my life around lawyers since my mother was a legal secretary. If you want specifics, I would suggest contacting an attorney.
I cannot sell myself into slavery under law
Yes you can. You can join the military. You must volunteer in, but you can’t volunteer out.
Good analogy. Some might say you do this (sell yourself into slavery) with any job but I’d say it required a contract, as does the military, with terms and conditions of servitude spelled out.
Great job, Edward and Douglas.
By reductio ad absurdum, you’ve got to the nut of the issue.
Was I wrong to encourage the news editors back in the 90’s (when I was teaching journalism) to pursue the death of a popular teacher who had died of a drug overdose?
His parents were devastated; they wanted other devoted students to remember him for his life, not his death.
I told the students to pursue the truth. They did and published a story after the chemical tests came out. Faculty was enraged. Where was my judgement? Didn’t I care? they raged. I wondered about my intentions.
After reading this sad story about Sipple, I now wonder about my decision to send the reporters toward the truth.
Very different from the Sipple case. With Sipple, the fact of his sexual orientation was not relevant to the story; a hero is a hero, his deed stands for itself. He was no less, nor no more, a hero because he was gay. In the teacher’s case, his death was due to the drug overdose. His lifestyle choice was the story.
You should not feel guilty at all.
Very interesting case. As you might imagine, this is not easy for me.
As I journalist, I harbor instincts that say “always get the best story”.
As a Mensch, I harbor instincts that say “give people their dignity.”
I vote for dignity now and wish we hadn’t investigated and printed that story.
Interesting. I couldn’t comment without seeing the story. But we face this sort of decision all the time, so don’t beat yourself up.
Reading about their teacher’s drug overdose may have shocked his students and kept a few of them from trying drugs in the first place, thereby not only preserving their dignity but perhaps even saving their lives.
Perhaps the most momentous confrontation between the Old World and New involving privacy, dignity, and liberty was Benjamin Franklin’s appearance before the Privy Council on Jan. 11, 1774.
Dr. Franklin stood accused of a breach of privacy in that he had acted as a conduit for private letters written by the Governor of Massachusetts. In these letters, which had been secretly passed to Franklin, the Massachusetts Governor called for “an abridgement of what are called English liberties.” The letters ultimately found their way into the American press and, in the ensuing uproar, the Governor had to be removed.
The King’s solicitor-general addressed the Privy Council concerning the Franklin’s forwarding the letters, while Franklin, officially a colonial representative, stood quietly nearby, neatly attired in a suit of brown Manchester velvet:
“Private correspondence has hitherto been held sacred, in times of the greatest party rage, not only in politics but religion. He has forfeited all the respect of societies and of men. Into what companies will he hereafter go with an unembarrassed face, or the honest intrepidity of virtue ? Men will watch him with a jealous eye; they will hide their papers from him, and lock up their escruloires. He will henceforth esteem it a libel to be called a man of letters.”
This assault on Franklin’s dignity escalated over the course of an hour in a packed chamber amid general hilarity. Franklin continued standing, but said nothing.
It ensued that Franklin was dismissed from his position as deputy postmaster general, returned to Philadelphia, persuaded the Pennsylvania delegation to support independence, edited the words “self-evident” into the opening of the Declaration of Independence, and soon made his way to France as America’s ambassador.
On hearing the news of Franklin’s arrival in France in December of 1776 a former British prime minister commented:
“In regard to this event I cannot refrain from paying my tribute of admiration to the vigour, magnanimity and determined resolution of the Old Man. The horrid scene at a Privy Council is in my memory, though perhaps not in his. It may not excite his conduct. It certainly deters him not.— He boldly ventures to cross the Atlantic in an American little frigate, and risks the dangers of being taken, and being once more brought before an implacable tribunal. The sight of Banquo’s ghost could not more offend the eyes of Macbeth, than the knowledge of this old man being at Versailles, should affect the minds of those who were principals in that horrid scene. Depend upon it he will plead forcibly.”
Franklin never again wore that suit of brown Manchester velvet.
Never, that is, until the day he was to sign the very treaty with France that his enemies so feared. With this new alliance came victory and independence.
The issue of the privacy of “The Hutchinson Letters” is debated to this day.
What a great example. (And what a wonderful word, “escruloires”! I wonder what it means.)
I’ll have to look into the background of this story. It’s great because it illustrates the same dilemma that, say, Cheri above has faced. Private letters (emails, texts, etc) SHOULD be private, but what if there is a larger public interest (liberty, in this case) at stake?
BTW, what did the suit of brown Manchester velvet have to do with this? Did Franklin have such bad associations with it that he could bear wearing it anymore?
One account of why Franklin wore the Manchester suit to the treaty-signing derives from Joseph Priestley, who said that when Franklin appeared before the Privy Council:
“he was dressed in a suit of Manchester velvet; and Silas Dean told me, that when they met at Paris to sign the treaty between France and America, he purposely put on that suit.”
— Priestley’s Works, xxv. 395.
http://olldownload.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=652&chapter=62134&layout=html&Itemid=27
Usually, Franlklin is quoted as having said he wore the suit “to give a little revenge.”
Escritoire from Wikipedia:
An escritoire or secretary desk comes in various styles. One version is a small, portable writing desk with a sloping front door, hinged at the bottom edge, that can be opened downwards to provide a writing surface. It is usually larger than a lap desk. The interior may contain small drawers designed to hold the traditional ink pot, sand container, blotter and writing feathers or pens. This type of antique appeared in the 16th century in Europe and was produced in large quantities in France in the 18th century. Modern reproductions are sometimes made of this compact desk form. A taller version is a combination bureau/bookcase with a writing surface created by a hinged drop-down front.
http://en.m.wikipedia.org/wiki?search=Escritoire
I have and use two such desks today. One goes with me in the car on the road.
Jim M – in other words, this was an early case fundamentally close to the issue of government wiretapping. Good to know that we’re not the only generation struggling with that problem!
Thanks, Andreas, for welcoming me after my last comment.
Oliver Sipple’s story highlights one of the most brutal advantages of the American system. A society in which any malcontent or profiteer can find advantage in making information public will eventually be forced to confront all its demons.
As tragic as Sipple’s story is, it was an important moment for the gay community in America. It forced American to recognise that a gay man was capable of an iconic act of patriotic self-sacrifice.
Social change comes slowly, of course, and no one incident can change a nation. Still, it’s a firm belief of mine that the things than change us most are things we don’t even expect to happen. Without public disclosure of Sipple’s homosexuality, America might have changed even more slowly. His sacrifice and the revelation of his homosexuality led to a public triumph as much as to a private tragedy.
As tragic as Sipple’s story is, it was an important moment for the gay community in America. It forced American to recognise that a gay man was capable of an iconic act of patriotic self-sacrifice.
That would apply only if you are willing to accept that a gay man who murders someone is also, therefore, representative of what gay men are capable of. If you want the positive, you must also accept the negative.
His sexual orientation had nothing to do with what deed he performed. In fact, we should be ignoring such things (as well as skin color, ethnicity, and religion) when writing about some event which has nothing whatsoever to do with it.
I have really enjoyed, and thought quite a bit about the points you’ve raised in these two postings about privacy issues in the U.S. and European courts and cultures. In fact, I’ve found them very helpful in a discussion with someone about privacy and the Internet, and with another person when discussing property rights.
Great to know, zeusiswatching, and I’m thrilled. Thanks for letting me know.
The following quote is from
“Why no one cares about privacy anymore”
(the article touches on Facebook, Google, and Google’s Buzz):
http://news.cnet.com/8301-13578_3-20000336-38.html
“The truth about privacy is counter-intuitive: less of it can lead to a more virtuous society. Markets function more efficiently when it’s cheap to identify and deliver the right product to the right person at the right time. Behavioral targeting allows you to see relevant, interesting Web ads instead of irrelevant, annoying ones. The ability to identify customers unlikely to pay their bills lets stores offer better deals to those people who will.
“Anyone who’s spent a moment reading comments on blogs or news articles knows that encouraging participants to keep their identities private generates vitriol or worse. Thoughtful discussions tend to arise when identities are public. Without that, as Adam Smith wrote about an anonymous man in a large city in The Wealth of Nations, he is likely to ‘abandon himself to every low profligacy and vice’.”
That’s quite a profound tangent.
But I wonder whether it might not get into a different subtlety: the issue of anonymity and pseudonymity and identity.
When we’re identifying ourselves on the internet (with our real names or pseudonyms), conversations do indeed improve, because our normal etiquette applies again. When we remain anonymous, we forget ourselves and the conversations deteriorates.
However, using our real identity is not the same as surrendering our privacy. I use my name here and still retain control over what I make known about myself, which is (biographically speaking) very little.
Yes, how does one engage in a meaningful discussion with someone identified only as anonymous?
It would be like kissing someone in a mask.