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
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In its decision, the court cited Dumas’ “right to privacy” which superseded the photographer’s property rights, even though Dumas had explicitly sold him those rights.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.
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.