E. L. Godkin's Criticism of the Penny Press: Antecedents to a Legal Right to Privacy

Abstract

Privacy experts often trace the right to privacy to Samuel D. Warren and Louis D. Brandeis's 1890 Harvard Law Review essay that called for judges to develop privacy law in the United States. Yet when those attorneys criticized the prying of newspaper journalists, they cited commentary by the Nation's Edwin Lawrence Godkin. Between 1880 and 1890, several periodicals published this leading nineteenth-century editor's press criticism, in which Godkin denounced the sensationalism and triviality of cheap newspapers that exposed domestic life to public scrutiny. This article argues that in his criticism can be found antecedents for American privacy law.

Notes

E. L. Godkin, “The Adulteration of News,” Nation, August 12, 1880, 107–108; E. L. Godkin, “Chairs of Journalism,” Nation, October 7, 1886, 285–286; E. L. Godkin, “Newspapers Here and Abroad,” North American Review, February 1890, 197–204; E. L. Godkin, “Cheap Newspapers,” Nation, May 1, 1890, 346; E. L. Godkin, “The Rights of the Citizen— To His Own Reputation,” Scribner's Magazine, July 1890, 66–67; E. L. Godkin, “The Right to Privacy,” Nation, December 25, 1890, 495–496.

E. L. Godkin, “Opinion-Moulding,” Nation, August 12, 1869, 126–127; E. L. Godkin, “The Law of Libel,” Nation, February 28, 1889, 173; E. L. Godkin, “Libel and Its Legal Remedy,” Atlantic Monthly, December 1880, 729–738; E. L. Godkin, “Libel and Its Legal Remedy,” Journal of Social Science 12 (December 1880): 69–83; Godkin, “The Rights of the Citizen,” 58–67.

Willard G. Bleyer, Main Currents in the History of American Journalism (Cambridge, MA: Riverside Press, 1927), 270. Bleyer wrote, “For over a generation, from 1865 until 1899, Edwin Lawrence Godkin exerted a nation-wide influence both on American public opinion and on American journalism through the medium of a weekly paper, the Nation, the circulation of which never exceeded 10,000 copies. So wide-spread an influence was possible because his readers were newspaper editors, college professors, students, and ‘intellectuals’ generally, through whom his ideas filtered down to thousands of others who never saw the Nation or even knew of its existence.”

Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (December 1890): 193–220. Legal expert William Prosser has claimed that the legal right to privacy emerged from that essay; William Prosser, “Privacy,” California Law Review 48, no. 3 (August 1960): 383–385.

William M. Armstrong, E. L. Godkin: A Biography (Albany: State University of New York Press, 1978), 9.

See, for example, “Where Books Are Made,” Current: Politics, Literature, Science and Art, January 1, 1887, 507–511.

Armstrong, E. L. Godkin, 15–62.

Hazel Dicken-Garcia, Journalistic Standards in Nineteenth-Century America (Madison: University of Wisconsin Press, 1989), 60.

James P. Wood, Magazines in the United States: Their Social and Economic Influence (New York: Ronald Press, 1949), 173.

Marion Marzolf, Civilizing Voices: American Press Criticism, 1880–1950 (White Plains, NY: Longman, 1991), 11.

George Payne, History of Journalism in the United States (New York: D. Appleton, 1920), 348; Randall S. Sumpter, “News about News: John G. Speed and the First Newspaper Content Analysis,” Journalism History 27, no. 2 (July 2001): 65.

Dicken-Garcia, Journalistic Standards in Nineteenth-Century America, 161.

Godkin, “Opinion-Moulding,” 126–127; Dicken-Garcia, Journalistic Standards in Nineteenth-Century America, 161.

Godkin, “Opinion-Moulding,” 126–127.

Ibid.

Some inexpensive papers were sold for one or two cents an issue in the 1880s. They followed a model commonly assigned to the penny press, which started selling crime news and human interest stories to sell large numbers of papers to mass audiences in the 1830s. See, for example, Andie Tucher, Froth and Scum: Truth, Beauty, Goodness, and the Ax Murder in America's First Mass Medium (Chapel Hill: University of North Carolina Press, 1994), 2–3.

Pamela Shoemaker and Stephen Reese suggest that worldviews are shaped by people's primary source of information—the mass media; Mediating the Message: Theories of Influence on Mass Media Content, 2nd. ed. (White Plains: Longman, 1996), 59.

Frank Luther Mott, A History of American Magazines, 1865–1885 (Cambridge: Harvard University Press, 1967), 22.

Edwin Lawrence Godkin, Problems of Modern Democracy: Political and Economic Essays, ed. Morton Keller (Cambridge: Belknap Press of Harvard University Press, 1966), vi–xii.

Godkin was invited to serve as a lecturer in history at Harvard University in the 1870s. Harvard started to include the Nation in its required reading for students in 1870. Armstrong, “Introduction,” E. L. Godkin: A Biography, xvii; James Ford Rhodes, Historical Essays (New York: Macmillan, 1909), 277.

Godkin, “Cheap Newspapers,” 346; Godkin, “The Law of Libel,” 173.

J. Herbert Altschull, Agents of Power: The Role of the News Media in Human Affairs (New York: Longman, 1984), 30.

Armstrong cited the World, Herald, Sun, and Tribune as the New York dailies that were “leading recipients of Godkin's scorn.” Armstrong, E. L. Godkin: A Biography, 182.

By 1880, the self-reported circulation for the Herald and Sun—100,000 or more—contrasted with the self-reported circulation for the Nation—approximately 8,000. The 1880 edition of the N.W. Ayer & Son's annual catalogue of American newspapers lists the self-reported circulation of the Herald as 100,000, the Sun as 147,444, the Tribune as 30,000, and the World as 18,000. The 1885 edition of N.W. Ayer & Son's American Newspaper Annual lists the self-reported daily circulation of the Nation as 8,565, the Sun and World as more than 100,000 each, and the Tribune as 70,000. N.W. Ayer & Son's American Newspaper Annual (Philadelphia: N.W. Ayer & Son, 1880), 52–57; N.W. Ayer & Son's American Newspaper Annual (Philadelphia: N.W. Ayer & Son, 1885), 417–419.

Bleyer, Main Currents, 154.

Ted Curtis Smythe, The Gilded Age Press, 1865–1900 (Westport, CT: Praeger, 2003), 149.

See Marzolf, Civilizing Voices, 7–8.

John F. Kasson, Rudeness & Civility: Manners in Nineteenth-Century Urban America (New York: Hill and Wang, 1990), 71–79.

Jacob A. Riis, How the Other Half Lives (New York: Penguin Books, 1997), 9–18.

For example, in 1897, the Dial, a bimonthly journal of literary criticism, lamented the new journalism that had encouraged the public to develop “so insatiate an appetite for scandalous sensations and vulgar personalities.” The column concludes, “There is no more important work to be done for our civilization to-day than that of shaming such newspapers either out of existence or into amended lives, and the responsibility for that work is shared by all alike.” “The Decay of American Journalism,” Dial 22, no. 260 (April 16, 1897): 237, 239. See also Gerald Baldasty, The Commercialization of News in the Nineteenth Century (Madison: University of Wisconsin Press, 1992); Susan Thompson, The Penny Press: The Origins of the Modern News Media, 1833–1861 (Northport, AL: Vision Press, 2004), 196–197.

Marzolf, Civilizing Voices, 11.

For example, E. L. Godkin, “Libel and Its Legal Remedy,” Atlantic Monthly, December 1880, 730–731; Godkin, “Newspapers Here and Abroad,” 197–204; Godkin, “The Rights of the Citizen,” 58–67.

The self-reported circulation of the Nation was 8,000, the circulation of Scribner's was 116,666, and the circulation of the Atlantic Monthly was 12,000 in 1880. The 1890 catalogue lists the circulation of the Nation as 8,268 and the circulation of the North American Review as 50,000. N.W. Ayer & Son's American Newspaper Annual, 1880, 304; N.W. Ayer & Son's American Newspaper Annual, 1885, 417–419; N.W. Ayer & Son's American Newspaper Annual (Philadelphia: N.W. Ayer & Son, 1890), 509–510.

Marzolf, Civilizing Voices, 2.

Ibid., 5.

Godkin, “Cheap Newspapers,” 346.

G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 2003), 3.

James H. Barron, “Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890): “Demystifying a Landmark Citation,” Suffolk University Law Review 13, no. 4 (Summer 1979): 877–881.

Warren and Brandeis, “The Right to Privacy,” 195; Godkin, “The Rights of the Citizen,” 58–67.

Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), 348.

Jeffery A. Smith, “Moral Guardians and the Origins of the Right to Privacy,” Journalism & Communication Monographs 10, no. 1 (March 2008): 90–91.

See Godkin, “Libel and Its Legal Remedy,” 729–738; Godkin, “Libel and Its Legal Remedy,” 69–83.

John Tebbel and Mary Ellen Zuckerman, The Magazine in America, 1741–1990 (New York: Oxford University Press, 1991), 7.

James D. Startt and Wm. David Sloan, Historical Methods in Mass Communication (Northport, AL: Vision Press, 2003), 163–179.

For example, Godkin, “The Law of Libel,” 173; Godkin, “Libel and Its Legal Remedy,” 729–738; Godkin, “Libel and Its Legal Remedy,” 69–83; Godkin, “The Rights of the Citizen,” 58–67; Godkin, “The Right to Privacy,” 495–496.

James D. Startt and W. David Sloan warn historians to avoid the presumption that a media owner, editor, manager, or other staff member has responsibility for all material that appears in a publication; Historical Methods in Mass Communication, 190.

Rollo Ogden, ed., Life and Letters of Edwin Lawrence Godkin (New York: Macmillan, 1907); William Armstrong, The Gilded Age Letters of E. L. Godkin (Albany: State University of New York Press, 1974); Armstrong, E. L. Godkin: A Biography; Edward Caudill, “E. L. Godkin and the Science of Society,” Journalism Quarterly 66, no. 1 (March 1989): 57–64.

Ogden, Life and Letters of Edwin Lawrence Godkin; Armstrong, The Gilded Age Letters of E. L. Godkin.

The papers of E. L. Godkin stored at Harvard University were not used as a primary source for this research. Armstrong explained that Godkin's family “screened the collection for controversial letters of his before transferring it to Harvard.” Armstrong gathered letters from that collection as well as from the papers of people known to be critical of Godkin to publish in The Gilded Age Letters of E. L. Godkin. Letters published in Armstrong's book were used to contextualize Godkin's writings published in magazines between 1880 and 1890. Armstrong, “Preface,” The Gilded Age Letters of E. L. Godkin, xv–xvi.

See Susan Thomas, The Penny Press: The Origins of the Modern News Media, 1833–1861 (Northport, AL: Vision Press, 2004), 2–3.

Godkin, “Opinion-Moulding,” 126.

Godkin, “Libel and Its Legal Remedy,” 736–738; Godkin, “Libel and Its Legal Remedy,” 79–83; Godkin, “The Law of Libel,” 173; Godkin, “Cheap Newspapers,” 346; Godkin, “The Rights of the Citizen,” 66; Godkin, “The Right to Privacy,” 496.

Godkin, “The Rights of the Citizen,” 65.

Ibid.

Ibid.

Ibid.

Ibid., 66.

Ibid.

Ibid.

Warren and Brandeis, “The Right to Privacy,” 195.

Ibid., 196.

Ibid., 198.

Ibid., 205–206.

Ibid., 196.

Ibid., 196.

Ibid.

Ibid., 214–215.

Godkin, “The Right to Privacy,” 495.

Ibid., 495.

Ibid., 496.

Ibid., 495. It should be noted that some nineteenth-century readers who took offense at newspaper content reacted violently against journalists; however, Godkin's distaste for the news was channeled into calls for professional restraint and legal reforms. See, for example, John Nerone, Violence against the Press (New York: Oxford University Press, 1994), 74–83.

He criticized socialists, anarchists, labor unions, and workers for inexpensive newspapers for upsetting his ideal social order, which would reward moral virtue with achievement, connect material profit to moral well-being, and tie success to personal character. E. L. Godkin, “Cooperation and Character,” Nation, October 14, 1886, 305.

Godkin, “The Adulteration of News,” 107–108; Godkin, “The Public and the Strikes,” Nation, July 26, 1883, 70; Godkin, “Keep My Name Quiet,” Nation, September 18, 1884, 237–238; Godkin, “Newspapers Here and Abroad,” 201–204.

John Stuart Mill, On Liberty, 5th ed. (London: Longmans, Green, Readers and Dyer, 1874), 108.

Godkin studied Mill's work when he was a student at Queen's College. After arriving in America, Godkin sent Mill an article Godkin published in the North American Review in 1865. Mill responded with an invitation for Godkin to continue their correspondence. Godkin declined to do so. William Armstrong explained that Godkin disagreed with Mill's later work on democratic theory; E. L. Godkin: A Biography, 9, 71–72.

Godkin, “The Adulteration of News,” 107.

E. L. Godkin to James Bryce, February 28, 1882, in The Gilded Age Letters of E. L. Godkin, 281.

Godkin, “Keep My Name Quiet,” 237–238.

Ibid.

Ibid. The Tribune was “the dominant voice of the conservative wing of the Republican party.” Michael Emery and Edwin Emery, The Press and America: An Interpretive History of the Mass Media, 6th ed. (Englewood Cliffs, NJ: Prentice-Hall, 1988), 182.

E. L. Godkin, “The Standard of Official Morality,” Nation, September 18, 1884, 238.

Ibid.

The editor attacked the moral authority and credibility of the source of that accusation, a Blaine-backing clergy member. Unfortunately for the editor, he incorrectly alleged that the Blaine supporter “had been charged with moral turpitude.” When the clergyman later sued for libel, Cleveland paid half of Godkin's legal fees. Armstrong, The Gilded Age Letters of E. L. Godkin, 316–317.

E. L. Godkin, “English ‘Sensational Journalism,’ ” Nation, November 19, 1885, 419.

Ibid., 420.

Ibid.

For an excellent discussion of American social standards, see Stow Persons, The Decline of American Gentility (New York: Columbia University Press, 1973).

E. L. Godkin, “Mr. Herbert Spencer on American Civilization,” Nation, October 26, 1882, 348.

Warren and Brandeis, “The Right to Privacy,” 196.

Godkin, “The Law of Libel,” 173; Godkin, “Newspapers Here and Abroad,” 201–204; Godkin, “Cheap Newspapers,” 346; Godkin, “The Rights of the Citizen,” 66–67; Godkin, “The Right to Privacy,” 495–496.

Godkin, “Cheap Newspapers,” 346.

Ibid.

When newspaper editors criticized a New York court of appeals ruling, Godkin contended that those editors could not serve the people as well as the members of that court, which consisted of members with high morals and good manners. He argued that editors could not be trusted to address legal questions “because each would be, consciously or unconsciously, influenced by the consideration of the effect his decision would probably have on his circulation.” Godkin, “The Truth about ‘Stock-Watering,’ ” Nation, October 11, 1883, 307.

Godkin, “Cheap Newspapers,” 346. See also Edward Caudill, “E. L. Godkin and the Science of Society.” The author suggests that Godkin considered newspaper articles to be gossip when those articles reported who, what, when, and where, without emphasizing the how and why.

Watterson was the editor of the Louisville Courier-Journal from 1868 to 1919. See Donald A. Ritchie, American Journalists: Getting the Story (New York: Oxford University Press, 1997), 121–124.

E. L. Godkin, “Stealing News,” Nation, February 21, 1884, 159.

Ibid.

Godkin, “Libel and Its Legal Remedy,” 736; Godkin, “Libel and Its Legal Remedy,” 80.

For example, Daniel J. Solove, “Conceptualizing Privacy,” California Law Review 90, no. 4 (July 2002): 1103; Jessica Bulman, “Edith Wharton, Privacy, and Publicity,” Yale Journal of Law and Feminism 16, no. 1 (January 2004): 62–63.

Godkin, “Libel and Its Legal Remedy,” 736; Godkin, “Libel and Its Legal Remedy,” 79–80.

Godkin, “Law of Libel,” 173.

Ibid.

Ibid.

Ibid.

Ibid.

Godkin, “Cheap Newspapers,” 346; Godkin, “Law of Libel,” 173; Godkin, “Libel and Its Legal Remedy,” 734–738; Godkin, “Libel and Its Legal Remedy,” 77–83; Godkin, “The Adulteration of News,” 107; Godkin, “The Right to Privacy,” 495–496; Godkin, “The Rights of the Citizen,” 66.

Godkin, “Law of Libel,” 173; Godkin, “Libel and Its Legal Remedy,” 736–738; Godkin, “Libel and Its Legal Remedy,” 80–83; Godkin, “The Rights of the Citizen,” 65–67.

For example, Godkin, “Libel and Its Legal Remedy,” 736–738; Godkin, “Libel and Its Legal Remedy,” 80–83; Godkin, “The Rights of the Citizen,” 65–67.

David Nord has identified the 1880s and 1890s as “the genesis of the modern mass-circulation newspaper in America” and “the birth of the modern, mass-circulation national magazine.” David Nord, Communities of Journalism: A History of American Newspapers and Their Readers (Urbana: University of Illinois Press, 2001), 228.

For example, Godkin, “English ‘Sensational Journalism,’” 419–420; Godkin, “The Rights of the Citizen,” 66–67; Godkin, “The Standard of Official Morality,” 238.

For example, Warren and Brandeis, “The Right to Privacy,” 196.

Godkin, “Libel and Its Legal Remedy,” 738; Godkin, “Libel and Its Legal Remedy,” 82–83; Godkin, “The Truth about ‘Stock-Watering,’” 307; Godkin, “The Standard of Official Morality,” 238.

Godkin, “The Adulteration of News,” 107.

White, “Introduction,” Tort Law in America: An Intellectual History, xxiii.

Warren and Brandeis, “The Right to Privacy,” 193.

Godkin, “The Right to Privacy,” 495.

Godkin, “The Standard of Official Morality,” 238; Godkin, “The Adulteration of News,” 107; Godkin, “The Rights of the Citizen,” 65.

Godkin, “Cheap Newspapers,” 346; Godkin, “Law of Libel,” 173.

Godkin, “The Adulteration of News,” 107; Godkin, “Keep My Name Quiet,” 237–238; Godkin, “Cheap Newspapers,” 346.

Godkin, “The Right to Privacy,” 495.

Godkin, “Law of Libel,” 173; Godkin, “The Rights of the Citizen,” 65.

E. L. Godkin, “The Printers and the Press,” Nation, December 6, 1883, 463.

Godkin, “The Law of Libel,” 173.

See, for example, Steven Erlanger and Stephen Castle, “British Tabloids on Trial, Along with Ex-Editors,” New York Times, October 28, 2013, 8A.

See, for example, Janet Stobart, “Britain OKs Plan for Press Regulation,” Los Angeles Times, October 31, 2013, 3A.

See, for example, Leslie Kaufman and Ravi Somaiya, “Drones Offer Journalists a Wider View,” New York Times, November 25, 2013, 1B.

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Erin K. Coyle

Erin K. Coyle is an assistant professor in the Manship School of Communication, Louisiana State University, 215 Hodges Hall, Baton Rouge, LA 70803, [email protected].