Information. Unfortunately, one of the speakers, leeann wheeler, could not to get here because of the air Traffic Control issues of yesterday. Et, from bowling green, university, who is a friend is going to channel leeann wheeler. Very grateful he is something for us. Subbing for us. I will quickly introduce the speakers. Then, they will each give small talks. Then im going to do a short, and then we will open it up to conversations. A phd fromler holds minnesota. Her first book was against of sanity, reform, and the politics of womanhood in america. More recently she published how sex became a civil liberty, which followed several pathbreaking articles on the same subject. Us holds a phd from uc berkeley and a jd from stanford. She teaches at Buffalo Law School and is the author of three books in cultural legal history. The laws of image, a very fine book on exactly on our theme, newsworthy, on the Supreme Court and privacy, and movie crazy, an earlier work on films which also intersect with questions of privacy. A phd in princeton is professor of history and director of the american studies program. , atverlap on that question vanderbilt. Her first book, the average american, was and remains a much celebrated work. She is completing a cultural history of modern privacy. Thank you. Andy, thank you. Andy leeann. This is actually my great privilege to be leeann today. She is such a wonderful scholar and colleague. I have no objection to anyones sex life as long as they dont practice it in the street and frighten the horses. So said mrs. Patrick campbell, a british stage actress commenting flirtationsdes with men in the 1890s. What he actually said may have what she actually said may have been a variation on this version, but her point was clear. Ones sex life should not concern the public, unless carried on in public. 20th century americans have not been so concerned about scaring horses, but they still access obsess over what sexual behavior should be confined to the private sphere and which could safely appear in public. My last book aimed to explain how sexual material and behavior became constitutionalized as Civil Liberties. I very quickly became a mashed enmeshed in questions of sexual privacy. I found that even though as many 20th century americans challenge the victorian separate spheres that have drawn strict and ultimately unsustainable boundaries between public and private, they continued to wrestle with questions about sexual privacy. Should sexual privacy be available only to married couples, or also enjoyed by individuals . Must sexual privacy reside only in the home or might it extend to a rented public gymnasium . Onto a city sidewalk . How about the workplace . And what is sexual privacy anyway . Can sexual privacy include a right not to be confronted with sexual expression . So far, my research on privacy has focused on activists in the American Civil Liberties union, the aclu, and Advocacy Organization founded in 1920 by former antiwar progressives turned Greenwich Village civil libertarians. Aclu Founders First floated a notion of sexual privacy when defending nudists in the 1930s. They argued that a new your law criminalizing mixed sex family nudity invaded the privacy of the home. An invasion by the state that merry risk in text defined for the aclu, resented quote as a wife and mother of two children. These arguments would not gain approval among lower courts until the 1950s. And a handful of cases that began to introduce the notion that a right to privacy might include mixed sex nudity. Behavior that many associated with sexuality. It was birth control, of course that brought in the u. S. Supreme , courts. The court found in griswold , 1965, annecticut right to marital sexual privacy in the constitution. A few years later it extended that privacy right to singles in eisenstadt versus baird 1972. And in roe v. Wade, 1973, 2 that to a pregnant womans limited right to obtain an abortion. These stories are well known. What i have found interesting are the ways that even as a constitutional right to sexual privacy was developed around issues of womens reproductive rights in the 1960s and 70s, many people were expressing a decline in their experience of sexual privacy. Frank trivets, an Award Winning journalist published in 1970 article on this issue in the popular magazine, look. Whats happening to sexual privacy, he asked. Is it dying, he wondered, in a world where quote, public sex pops up everywhere. Cricket was far from alone in suggesting that public sex could violate sexual privacy. In the 1960s and 1970s, many individual citizens, and even for a time some aclu leaders tried to establish a version of , sexual the that would recognize unwanted exposure to sexual expression, whether in public or private lives in violation of sexual privacy. Junk mail raised these issues in the 1960s and 1970s. Debates involved a wide range of people including individual mail recipients, aclu attorneys, politicians, decency activist, Newspaper Publishers and advertisers. Direct mail advertising had taken off in the postwar era. In the early 1960s, publisher Ralph Ginsberg used it to reach millions of potential subscribers to eros, a new magazine devoted to love and sex. 10,000 people who received ginsbergs circular responded angrily. Meanwhile in 1966, the post office received 200,000 complaints from postal patrons who objected to finding unsolicited sexual material in their mailboxes, even on the floors of their entryways. Postal officials testify before congress to demand a law that would allow individuals to refuse mail from any concern that had sent sexual material in the past. The counsel for the post office pointed out that when sexual displays are quote, thrust up upon us, our privacy is invaded, and the patron must have the quote, right to secure to privacy of his home, end quote. People could not receive without their consent graphic as for strippers schoolbook, men only, scanty panties, and the vibrofinger. Without the proposed law, postal patrons cannot maintain their privacy. Aclu attorneys fought back, arguing that the proposed law would violate the First Amendment. The right of privacy may be one of the most precious rights of man, they conceded, but it must nevertheless yield when it comes in conflict with the paramount right of freedom of speech. In the end, the aclu lost. Patrons who demanded privacy through protection from unsolicited sexual mailings, won. Congress passed a number of protective laws, and in 1970 the u. S. Supreme court upheld many office row and the post v. Postwin rowan office 1970. In millers right to communicate, the court declared, most quotes, stop at the mailbox of an unreceptive addressee, in order to protect the privacy of homes. The home was one thing, but what about sexual expression thrust an unwilling individuals in public spaces . In redrop v. New york 1967, the court overturned the conviction of a new york city newsstand clerk prosecuted under state law for selling sexually explicit books, but suggested it might have upheld a more narrowly drawn statute designed to protect children or prevent an assault upon individual privacy. One that made it quote, impossible for an unwilling individual to avoid exposure. Then, in stanley v. Georgia, 1969, the court endorsed the individuals right to read or observe what he pleases in the privacy of his own home. Together, redrop and stanley charted a new task for privacy as a Civil Liberties that could draw constitutional boundaries for percent to law. In the wake of these decisions, aclu attorneys began to grapple with the issue of what they called thrusting. They rely heavily on thomas emerson, a leading First Amendment scholar who helped craft the aclus privacy argument in griswold. Emerson advocated laws against thrusting, arguing that they would protect the public and captivate audiences from exposure to uninvited sexual messages and material. Unwanted sexual Communication Functions like action than speech, he insisted, because of the shock effect it was capable of producing. Others supported laws against thrusting as protections for children, or as necessary, to preserve or restore a public sphere free of sexual images. Their opponents insisted that there is no right of privacy for people in the public arena, and that antithrusting laws violate the First Amendment. But 1970, the aclu vote boarded voted by a razor thin margin to accept narrowly drawn laws that would prohibit the thrusting of hardcore pornography on unwilling audience. Meanwhile, in 1970, the president s commission on obscenity and pornography can he johnson,under lyndon issued its report. Like the aclu, it recommended the elimination of most of obscenity laws except those that protected , children and prevented quote, assaults upon individual privacy by offensive public displays. The commission was, widely and roundly denounced by the senate and senator who called for commission and by the new president richard nixon, who condemned the report as quote morally bankrupt. Of course, even as the nations political leaders demanded ongoing and increased restrictions on sexually explicit material, journalists and consumers moved the culture in the opposite direction. The former by receiving xrated movies in mainstream newspapers in the latter by patronizing them in droves. Thus, the golden age of pornography arrived in the middle of an electoral turn toward the right. In this context, the aclu reconsidered its policy on thrusting. National board member and First Amendment scholar franklin haman ridiculed the concept of thrusting. Individuals had the right to no right to privacy from sexual speech. Privacy will be added really safeguarded he insisted, as long we protect our right to escape from one another after the first exposures unwelcome communication. Others continue to argue that obscenity in Public Places is like a physical assault on a captive audience. But they were now on the losing side. At least until now and for seeable future, the notion of thrusting as an impermissible display of sexually explicit material to an unwilling audience would never again inform aclu policy. It appeared only a few times and a handful of lower court cases in the late 1970s and early 1980s. But like samantha, i have found that by the 1970s, freedom of the press had practically eclipsed privacy. Even so, the law continues to even so, the law continues to this day to empower postal patrons to put a stop to sexually oriented advertising. The survival and endurance of these postal laws seems directly related to their emergence out of the demands of patrons. Those ordinary citizens, whose experiences of embassy are so privacy are so difficult to recover. By comparison, the notion of thrusting had a short shelflife, less than a decade. Still com, public life remains governed by rules about sexual to ways. What they are as far from clear. The extremes to which they might go remains equally unclear. We can safely say about protecting about protecting the sensibilities of horses. What law keeps xrated magazines from appearing in supermarket checkout lines . Today, it is zoning laws aimed mainly at protecting property values, Sexual Harassment laws designed to prevent sex discrimination, and range of laws that attempt to protect children from exposure to sexual material, and the mysterious Community Standards that remain at the core of obscenity law. But i would suggest that our public life has become one shaped less bylaws than by less by laws than by corporate assessments of and efforts to shape consumer pallets. How, i wonder, do these efforts related to the privacy experiences of ordinary citizens . And finally, what does it mean to turn what are the risks and benefits of turning a public sphere over to corporate assessments of public taste . [applause] ok. Just about one year ago in an invasion of privacy case that made headlines, the wrestler hulk hogan won 140 million against the gossip website gawker for publishing a sex tape without his consent. The massive judgment stirred and heated National Discussion around the right to privacy and freedom of the press. To many, it seemed intuitively right that hogan win the lost. The lawsuit. It was an explicit video, anyone would be horrified and humiliated by such intimate exposure. On the other hand, this was true , and doesnt the First Amendment protects truthful truthful speech . I was fascinated by this issue, this tension between privacy and freedom. In two recent books, ive have written about how americans in the past entry have struggled to balance these values. The story about how privacy made a start in american law, but receded in the face of the increasing priority that courts began to place on the freedom of the press and what has been described as the publics right to know. By the 1970s, freedom of the press had practically eclipsed privacy, which is why the hogan verdict was surprising and could eventually signal new directions in the law. I want to tell you a little bit about this history. Unlike the legal actions for libel, which deals with false facts, the legal actions or invasion of privacy deals with true but embarrassing personal facts. This came into being in the late 1800s in response to the rise of the mass media. The mass circulation got the columns and printed photographs, which were meant to threaten a persons ability to control his public image and his right to be let alone. In 1890, two lawyers in a famous harvard law review old proposed legal action that would allow people to sue the press for publishing true, but embarrassing and intimate facts or images and to recover damages for emotional distress. Framed as a right of dignity, a right that was generally not protected under american law at the time, this right to privacy was controversial. It resonated deeply with a public that had become and served with a threat to the individual posed by unwanted exposure to the public gaze. Within a few decades, this right to privacy would be recognized in most states. So, even though protections for freedom of speech werent as extensive back then as they are today, they were nonetheless constitutional problems with privacy laws that would allow people to sue the press just because they found materials invasive or offensive. If the right to privacy were not limited in some way, a politician upset with the press coverage of a scandal might be able to successfully sue for an invasion of privacy, and it would have a Chilling Effect on the press. So, to protect the press, courts adopted a privilege for publishing matters of Public Interest or concern. Sometimes they were described as newsworthy material. Matters of Public Interest were defined as topics that served the Public Interest in the sense of the common good. Fallacious gossip, although interesting, was not a legitimate matter of Public Interest. A news story about a politicians s sex life could be a legitimate matter of public hist if it shed light personal traits could be a matter of Public Interest if it shed light on his fitness for office. A story about his sex life would not be a privileged edge public and the public courts said they had no need a right to know such intimate personal details. By the 1950s, it began to o steadily broadened, tracking the rise of more speech protected First Amendment jurisprudence of the courts. Some courts were deferring to the media on the newsworthiness question. There is a shift from a normative question of matters of Public Interest. A matter of Public Interest was what the public should be interested in. A matter of Public Interest is what the public was interested in. Something appeared in a publication that claimed to be a news outlet, it was, by definition, newsworthy. The press published only what the public was interested in and willing to pay for. And it wasnt the business of the court to be passing judgment on public cases. A too narrow view of newsworthiness would infringe on what was being described as the right of the public to be informed. To have the information it needed to engage in public discussion of affairs, which was described as the foundation of participatory democracy. This more expansive view of newsworthiness rent outcomes led to that some critics outcomes that some critics thought is just thought of as disturbing. There is interest in celebrities public lives. Courts, even ordinary citizens they were involved in newsworthy events. The sued for invasion of privacy. Lawsuits failed on the grounds that victims became a part of the newsworthy event, unwillingly, and lost the right to privacy. Metal courts were willing to go but, not all courts were willing to go so far. As somebody put it, some revelations might be so intimate and unwarranted as to outrage the communities notions of decency. In cases where womens modesty was compromised, courts often permitted recovery for invasion of privacy. When a newspaper published a picture of a woman whose skirt had blown over her head. , as now, the privacy norms were tendered. Gendered. The conflict between privacy and freedom of the press intensified after the Second World War for several reasons. A competition for audiences, not only among print publishers, but also radio and tv broadcasters, led to increasingly sensational and invasive material. More generally, the public was becoming conscious of privacy in all of its meanings and senses. Privacy emerged as a major issue of public concern after the war. I think there was a panic around privacy, brought on largely by the advent of new technologies. Not unlike todays privacy panic. So, privacy was besieged not only by the media, but by governments, employers, researchers, advertisers, marketers, and pollsters, armed with new communication, data processing, and surveillance technologies, including the first primitive computers. So, in this environment, courts began to create and expand extend protections for privacy in a var