





































Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

The Right to Privacy: The Need For an Ever-Evolving Legal Movement
 Gianna Bruno29

Louis Brandeis and Samuel Warren wrote “The Right to Privacy” in 
response to the rise of the newspaper and its threat to the public’s privacy 
during the late 19th century. They critiqued the laws of the time because 
they saw a change in the world that was not being accounted for in existing 
legislation. Today, new technology is changing the world at an exponential 
rate and the public’s privacy is once again at risk. The laws have fallen 
behind the technology and there needs to be a call to update the current 
privacy laws. 

Introduction
Diaries can be locked away and letters can be hidden. However, 

there is a lack of control over our digital footprint in which our thoughts can 
easily be viewed and shared in a matter of seconds without our consent. In 
the late 19th and early 20th centuries, the only lines of long-distance 
communication included phone calls and written letters. For disseminating 
information to significantly larger groups, there were newspapers. That said,
it could take weeks to spread information nationally or even internationally, 
whereas today, cellphones, computers, and social media have added 
hundreds of new platforms and applications that distribute information to 
millions of people in a matter of seconds. It has never been easier to 
disseminate both accurate and inaccurate information to large audiences, 
resulting in the rise in exposés and the growth of ‘cancel culture.’ Louis 
Brandeis and his law partner, Samuel Warren, set the groundwork for 
improving privacy laws, especially concerning privacy from the media, but 
nearly a century later and in the new age of (social) media, those ideas are 
not being applied in the same way as they were during Brandeis’ lifetime.30 
The Right to Privacy legal movement should be re-evaluated in light of 
social media and the use of exposés which cultivate cancel culture. 

Background

29  Brandeis University Undergraduate, Class of 2023.
30 Erwin Chemerinsky, "Rediscovering Brandeis's Right to Privacy," 644.

25



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

The Right to Privacy
Brandeis and Warren’s “The Right to Privacy” was published in the 

Harvard Law Review in 1890. They were inspired to write the article 
because of the new technology of the time, such as cameras, and the intense 
pressure of the press. Concerned by these developments, they wanted  to 
take a deeper look into how those factors affected the Commonwealth.31 
Brandeis began the article by stating, “That the individual shall have full 
protection in person and in property is a principle as old as the common law;
but it has been found necessary from time to time to define the exact nature 
and extent of such protection,” which immediately acknowledges the 
necessity for redefining laws as technology progresses.32 Brandeis explained
that during the early development of common law, most rules centered 
around the notion of the “right to life,” which then only referred to the 
preservation and protection of physical life. Over time, the term “right to 
life” has been extended to include the protection of one's physical, spiritual, 
and intellectual property. Brandeis published the article as a way to 
influence the continuation of this trend through the creation of new 
protections for privacy, stating,33 

The principle which protects personal writings and any other 
productions of the intellect or of the emotions, is the right to privacy,
and the law has no new principle to formulate when it extends this 
protection to the personal appearance, sayings, acts, and to personal 
relation, domestic or otherwise.34

Brandeis acknowledged the need to “update” laws to encompass the new 
threats to one's privacy. He articulated the importance of not only bodily and
material protection, but also protection over one's identity and personal 
work.

Examples  
Brandeis sought to protect one's personal life and work from the 

public view. The rise of photography and printed media posed a major threat

31 Cayce Myers. “Warren, Samuel & Louis Brandeis. The Right to Privacy, 4 Harv. L. Rev.
193 (1890).” 520.
32 Louis D. Brandeis, and Samuel D.Warren. "The Right to Privacy." 193.
33 Myers, 519.
34 Brandeis, 213. 

26



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

to the general public's privacy. Since there were no formal doctrines 
protecting personal privacy, it was technically not against the law to take 
photos of someone and their property or personal documents and share them
without permission. Brandeis even went so far as to assert under his 
proposed privacy rules that even if photos or documents rightfully came into
the possession of someone else other than the original owner, the secondary 
individual still could not and should not share them. This would be 
especially true if there was an intent to devastate one’s reputation. For 
example, Brandeis explained that if “a man records in a letter to his son, or 
in his diary, that he did not dine with his wife on a certain day,” then neither 
the son who received the letter, nor a person who may receive his diary, 
should share anything about those documents without penalty.35 

Modern Day Application
“The Right to Privacy” greatly influenced understandings of privacy 

as a barrier between the government and its citizens through a new 
interpretation of the 4th Amendment, as well as between citizens themselves
as through the Privacy Act of 1974 and its subsequent overviews.36 Brandeis
called for a constant update to privacy rules due to an ever modernizing 
press and its  new capabilities. Since privacy rules are updated largely 
following the development of new technology, the approaches will always 
be a step behind any potential new dangers to privacy. Brandeis used the 
example of the man writing a letter to his son and how his son should not be 
able to share that letter to the public; the modern day equivalent to letters are
emails and, by extension, text messages. Following the example, it should 
then not be legal to share responses to personal emails and text messages 
publicly without prior permission from the respondent. However, there is 
very public proof of messages being shared in this way, specifically through 
exposé videos on Youtube. 

Cancel Culture
The Origin of Cancelling   

The concept of cancel culture has played a variety of roles in modern
society. The term “cancelled” or “to be cancelled” has recently appeared in 

35 Brandeis, 201.
36 Pam Dixon and Robert Gellman. “Online Privacy : A Reference Handbook.” 
128.;“Overview of the PRIVACY Act: 2020 Edition.” The United States Department of 
Justice. https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-
third-parties.

27



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

right-wing political rhetoric, as early as 2016, as a way to claim that 
conservatives’ competitors silenced counter-perspectives in important 
debates. The term was used to denote the danger of moving away from true 
academic debate and towards an emotion-based discussion of particular 
topics. Over time, the term morphed from opinion-oriented cancelling into 
cancelling people, and now in 2021, this has come to mean more specifically
cancelling celebrities.37 

Cancelling Celebrities
Certain celebrities live very public lives and, in order to maintain 

their image, share their lives and their thoughts with their millions of 
followers across all social media outlets. Images, captions, newsletters, or 
anything else those celebrities have shared is “liked,” retweeted, and 
reposted by various other accounts in a matter of a few seconds. Even if 
later in the day the celebrity decides to delete what they had posted, the 
digital print will still exist because followers had the chance to save the post 
to their own devices to keep their own copy. Celebrities who are “cancelled''
end up chastised on social media, losing potentially thousands of followers, 
and possibly even brand deals because followers do not want to be 
associated with the celebrity or their remarks. Cancelling a celebrity is 
essentially attempting to revoke their celebrity status and influence. 
Cancelling does not happen randomly, as it is a reaction to something the 
celebrity has done, such as “morally offensive words and deeds, racism and 
ethnocentrism, anti-Semitism and Islamophobia, sexual harassment and 
abuse, misogyny and agism, and homophobia and transphobia.”38 In 2020, 
Harry Potter author, J. K. Rowling came under fire after publicly making 
transphobic comments. Patrons on social media, specifically on Twitter, 
berated Rowling and called for her to issue an immediate apology. Social 
media “allow[s] marginalized groups to engage in networked framing, a 
process by which collective experiences of an offending party’s (or their 
proxies) unjust behavior is discussed, morally evaluated, and prescribed a 
remedy (...) through the collective reasoning of culturally aligned online 
crowds.”39 Celebrities like Rowling who have large followings tend to lose a
large amount of popularity but usually do not suffer large scale 

37 Pippa Norris. “Cancel Culture: Myth or Reality?” 
38 Norris, “Cancel Culture: Myth or Reality?”
39 Meredith D. Clark. “Drag Them: A Brief Etymology of so-Called ‘Cancel Culture.’” 90.

28



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

consequences because of the strength of their already well established social
base.40 

#JamesCharlesIsOverParty
While A-list celebrities do not typically lose their careers over 

potentially morally compromising behaviour, micro-celebrities, such as 
YouTubers, who may have a large but niche following, could lose 
everything overnight. Micro-celebrities do not have the luxury of a stable 
following as social trends, and hence their own relevance, are always 
fluctuating. In order to stay in the public sphere, micro-celebrities constantly
need to ride the current trends, but also need to get involved in drama and 
cancel culture in order to keep people talking about them.41 In 2019, 
YouTubers Tati Westbrook, James Charles, and Jeffree Star were all 
involved in a scandal that was later titled Dramageddon 2.0. In short, during 
Coachella, James Charles brokered a deal with a brand that was in direct 
competition with his friend, Westbrook. Distraught, Westbrook released a 
series of Instagram videos and a Youtube video, which have all since been 
deleted.  The first one regarded Charles’ disloyalty, but later posts built on 
her momentum to claim that he had been exhibiting sexual predatory 
behavior. Star, who had no connection to either at the time, tweeted his 
support in Westbrook’s favor while further disparaging Charles’ name.  
Between Westbrook’s videos and Star’s support, Charles was officially 
“cancelled” on social media and lost nearly 3 million followers because of 
the scandal, which greatly affected the possible revenue he could receive 
from his content.42   

Critique
Charles’ Response

Less than a month after Charles’ acceptance of the brand deal, he 
released a video entitled No More Lies, in which he apologized to 
Westbrook for taking the controversial brand deal, but he also asserted his 

40 Norris, “Cancel Culture: Myth or Reality?” 
41 Tenbarge, Kat. “One Year after the Beauty Youtuber WAR Burned Their Community to
the Ground, New Battle Lines Have Been Drawn between the Growing Stars That Started It
All.” https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-
2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-
teenager-was-a-danger-to-society-4.
42 Tenbarge, “One Year after the Beauty Youtuber WAR Burned Their Community to the 
Ground, New Battle Lines Have Been Drawn between the Growing Stars That Started It 
All.” 

29



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

innocence against the allegations of Westbrook and Star. Up until that point,
the allegations made against Charles were either verbal or written digitally, 
and were in the nature of a “He Said, She Said” situation, with no physical 
proof either way. In Charles’ video, he went line by line through each 
allegation and tried to clear his name by showing timestamps of messages as
well as messages he sent and received. Some messages he showed were just 
his messages along with the recipient’s messages, but he also showed 
screenshots of just the recipient’s messages, which is essentially the exact 
scenario Brandeis warned against with his example of the man and the letter 
to his son.43

Brandeis’ Response
The events of Dramageddon 2.0 were not an isolated situation. The 

act of sharing personal messages on social media has been normalized, not 
just in regard to proving ones' innocence or guilt, but increasingly also for 
amusement.44 Regardless of their use, Brandeis’ arguments assert that the 
sharing of the recipients’ messages is a violation of their privacy. He wrote, 
“The Right to property in its widest sense, includ[es] all possessions.”45 Just 
as the son could not share what his father wrote in a letter addressed to him, 
people should not be able to share messages that are not their own with 
others regardless of intention.  Unfortunately, they continue to do so.

Conclusion
The possibilities for interpersonal communication have grown 

exponentially since Brandeis’ time. New technology and social media has 
made sending, sharing, and receiving information easier and faster than 
ever. Since privacy laws continue to fall behind the new technology, private 
messages are being shared without permission which is harmful because, as 
seen on YouTube, it is being used for the exploitation of people for exposés.
Brandeis called for a constant update to privacy laws to bridge the gap 
between the laws and the technology of the time so as to preserve the 
privacy of personal messages and conversations.

43 James Charles, No More Lies. https://youtu.be/uFvtCUzfyL4. 
44 Michelle Rennex, Joseph Earp, Merryana Salem, and Edwina Storie. “Teens Are 
Sharing Their Most Hilariously Awkward Texts in This New Tiktok Trend.” 
https://junkee.com/awkward-texts-tiktok/232099. 
45 Brandeis, 211. 

30



Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

Works Cited  
Brandeis, Louis D., and Samuel D. Warren. "The Right to Privacy." 
Harvard Law Review 4. no. 5. (1890): 193;201;213.

Charles, James. No More Lies. (YouTube, 2019). 
https://youtu.be/uFvtCUzfyL4.

Chemerinsky, Erwin. "Rediscovering Brandeis's Right to Privacy." Brandeis
Law Journal 45. no. 4. (2007): 644.  

Clark, Meredith. “Drag Them: A Brief Etymology of so-Called ‘Cancel 
Culture.’” Communication and the Public 5. no. 3–4. (September 2020): 90.

Dixon, Pam, and Robert Gellman. Online Privacy : A Reference Handbook. 
(Santa Barbara: ABC-CLIO, LLC, 2011). 128.

Myers, Cayce. “Warren, Samuel & Louis Brandeis. The Right to Privacy, 4 
Harv. L. Rev. 193 (1890).” Communication law and policy 25. no. 4. 
(2020): 519-520. 

Norris, Pippa. “Cancel Culture: Myth or Reality?” Political Studies. (August
2021).

“Overview of the PRIVACY Act: 2020 Edition.” The United States 
Department of Justice. February 16, 2021. 
https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/
disclosures-third-parties.

Rennex, Michelle, Joseph Earp, Merryana Salem, and Edwina Storie. 
“Teens Are Sharing Their Most Hilariously Awkward Texts in This New 
Tiktok Trend.” (Junkee, November 26, 2019). https://junkee.com/awkward-
texts-tiktok/232099.

Tenbarge, Kat. “One Year after the Beauty Youtuber War Burned Their 
Community to the Ground, New Battle Lines Have Been Drawn between the
Growing Stars That Started It All.” Insider. (Insider, May 20, 2020). https://
www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-

31

https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties
https://www.justice.gov/opcl/overview-privacy-act-1974-2020-edition/disclosures-third-parties
https://youtu.be/uFvtCUzfyL4
https://junkee.com/awkward-texts-tiktok/232099
https://junkee.com/awkward-texts-tiktok/232099
https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4
https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4


Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

2020-5#  thats  -when-star-leveled-his-own-accusations-against-charles-  
including-that-the-teenager-was-a-danger-to-society-4.

32

https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4
https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4
https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4
https://www.insider.com/jeffree-star-james-charles-dramageddon-2-tati-westbrook-2020-5#thats-when-star-leveled-his-own-accusations-against-charles-including-that-the-teenager-was-a-danger-to-society-4

