They did not identify a new tort, but rather a new right that ought to be protected by tort law. That new right in turn was derived from an old right, perhaps a natural right, namely the right to be let alone. In light f these origins, it would have been surprising if the tort protection given to privacy remained confined within the narrow bounds f public disclosure. The very theory f torts upon which privacy was based implied its fluidity.
I have sought in the preceding sections to show how Warren and Brandeis viewed tort law as the law defining and protecting rights, and how this view was at odds with other conceptions f tort law that emerged at the end f the nineteenth century and eventually prevailed. Holmes's defendant-based instrumentalist vision provided the conceptual foundation f tort law well into the twentieth century. Strict liability largely gave way to negligence, even in such bastions f rights-based thinking as property. The common law, and most particularly the law f torts, became the domain f reasonableness rather than rights. Intentional torts, once the focus f torts, receded to near irrelevance. Indeed, despite occasional manifestations f life, intentional torts have remained in a formal structure much like the writ system from which they are descended.
This in essence has been the fate f privacy. Promulgated as part f a jurisprudence f rights, with strong natural law overtones, the privacy tort had no intellectual place in modern tort law. Rights now belong to the language f public law discourse rather than private law discourse. Prosser's 1960 article stands as the modern source f the privacy tort. Prosser's analysis is a return to the essentials f the writ system that continue to characterize the law f intentional torts. Each tort is identified with the interest it seeks to protect, the elements f a cause f action, and the defenses available. While there may be common principles, these play little role in adjudication.
But thinking about invasion f privacy as just one more intentional tort dooms most f it in the face f constitutional challenges. Where the tort cause f action is perceived to conflict with the freedom f speech or press, courts in effect weigh the constitutional right against the mere tort claim for damages or injunctive relief. Put in these terms, it is a balance that indeed seems skewed, and one wonders whether the tort can survive at all.2
The new right quickly captured the interest f the legal press, which for the most part responded favorably. The Harvard Law Review in particular kept tabs on what it apparently regarded as its progeny. In a note published in March f 1894, the Harvard Law Review criticized the English court's decision in Monson v. Tussaud for treating as a libel case one that really involved the right f privacy. That case appeared to be the impetus for an article in The Green Bag. This article lavished praise on Warren and Brandeis's article, and the authors unequivocally concluded "we can feel no doubt as to the recognition f the right [to privacy] itself."
The leading early criticism f Warren and Brandei