Louis Brandeis defended "the right to be let alone"

Person: Louis Brandeis
Lived: 1856–1941
Field: Law
From: American

The story

In 1890 Louis Brandeis and his law partner Samuel Warren published an article in the Harvard Law Review, 'The Right to Privacy', arguing that people had a right 'to be let alone' that the law should protect, particularly against intrusive newspapers and new snapshot cameras. State courts and legislatures soon drew on it. Nearly four decades later, as a justice of the Supreme Court, Brandeis had the chance to apply the idea to the Constitution itself.

Olmstead v. United States (1928) involved a large Seattle bootlegging operation during Prohibition, whose leaders were convicted with evidence from federal agents who had wiretapped their telephone conversations without a warrant. By five votes to four, the Court held that wiretapping did not violate the Fourth Amendment's ban on unreasonable searches.

Brandeis dissented. He argued that the makers of the Constitution had sought to protect Americans in their beliefs, thoughts, emotions and sensations, and had conferred against the government 'the right to be let alone', which he called the most comprehensive of rights and the right most valued by civilised people. To protect it, he wrote, every unjustifiable government intrusion on individual privacy, whatever the means, must count as a violation of the Fourth Amendment. He called wiretapping a 'dirty business'.

His view slowly won over the Court. Justice Felix Frankfurter later described the Fourth Amendment as protecting the right to be let alone, and Justice William O. Douglas admitted he had been wrong to tolerate wiretapping, saying of Brandeis's dissent that he could not improve on it. In 1967, a quarter-century after Brandeis's death, the Court overturned Olmstead in Katz v. United States, extending Fourth Amendment protection to any place where a person has a reasonable expectation of privacy.

Brandeis's dissent became one of the foundations of the constitutional right to privacy in American law. The Katz test that grew from it is still used today as courts decide how privacy rules apply to telephones, computers and digital data.

Why it matters

Brandeis's dissent helped establish that Americans' private conversations are protected by the Constitution, a principle that shapes privacy law in the age of electronic surveillance.

About Louis Brandeis

“The People’s Lawyer” who became the first Jewish Supreme Court justice in 1916, wrote classic defences of free speech and privacy, and led American Zionism.

Read the full profile

Louis Brandeis

1856–1941 · Law

View profile →