Modernism and the Law by Robert Spoo

Author:Robert Spoo
Language: eng
Format: epub
Publisher: Bloomsbury UK

4

Privacy, Publicity, Defamation, and Blackmail

By the late nineteenth century, the conditions of modernity had made privacy a preoccupation, a sacred space of selfhood that, as its moral and monetary value grew, attracted the coercions of blackmailers and the assaults of tabloid journalism and instant photography. Blackmailers illegally promised to conceal injurious truths; libel and slander doctrines legally redressed injurious falsehoods. Reputation could thus be preserved through costly back-alley agreements or rehabilitated in expensive courtroom proceedings. Privacy laws as we know them today were still largely notional constructs, urged as remedies for outrageously invaded personal space; much later, publicity rights, breaking from the husk of privacy, would permit the monetizing of disseminated personality (Bartholomew). These forces and intuitions converged in the divided modern self that looks to the law to uphold its ambitious regimen: its domain of secrecy, its policy of selective disclosure, its carefully managed reputation.

This chapter explores what might be called the reputational cluster: the modern expectation that the law will guarantee a person’s domestic privacy and intimate secrets, her freedom from false imputations, and her exclusive right to exploit her name and likeness. Legal protections for these features of private and public life were incomplete and in disarray in the transatlantic setting of the late nineteenth and early twentieth centuries. The absence of strong privacy laws in what Henry James called “this age of advertisement and newspaperism” (Notebooks 148) led legal scholars to propose new common-law theories and compelled James himself to engage in anxious forms of self-help. On the one hand, he took pains to ensure his own privacy by destroying materials that might fall into biographers’ hands; on the other, he made the crisis of authorial privacy a motif of his later fiction.

Blackmail—another extralegal mechanism—offered privacy for purchase or lease. Arthur Conan Doyle’s story, “The Adventure of Charles Augustus Milverton” (1904), portrays the terrors of extortion but also suggests the strange proximity between privacy and publicity at the turn of the century. Incipient celebrity culture, presciently glimpsed in Conan Doyle’s tale of professional blackmail, fostered a paradox of privacy that led Judge Richard Posner to observe, “Very few people want to be let alone. They want to manipulate the world around them by selective disclosure of facts about themselves” (“Right” 400). Victims paid blackmailers to assist them with their fictions of self.

Defamation

The law of defamation protects personal reputation by combating harmful falsehoods. A civil action for libel or slander imposes liability for a false communication, published or publicly spoken, that injures another’s reputation or good name (Black’s 417). This theory of tort holds that a distortion of the truth, not the truth itself, may cause reputational harm. By contrast, criminal libel prosecutions—rare today but familiar enough in Britain in the late nineteenth and early twentieth centuries—targeted the publication of scandalous or embarrassing truths no less than of falsehoods, on the theory that even true statements could disturb the public peace (Latham 75–6). The law of criminal libel sought to substitute controlled courtroom battle for the brawling and feuding that often broke out over exposed secrets or wounded honor.

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