布兰代斯的隐私权思想——以《隐私权》一文为起点的考察

Brandeis' Thought of the Right to Privacy: An Examination from His Article “The Right to Privacy”

研究隐私权不得不提及路易斯·D.布兰代斯,他与塞缪尔·D.沃伦合著的《隐私权》一文长期占据Heinonline引征率排行榜榜首,国内外学界主流观点均认为该文首次阐发了隐私权理论。他在奥姆斯特德诉合众国案中的异议意见闻名于世,亦被国内外研究隐私权理论的学者不断引用。他在吉尔伯特诉明尼苏达州案中的异议意见、帕克公司诉犹他州案中所著的法庭意见中也包含隐私权思想,影响深远。"侵权隐私权—宪法隐私权"这一分析工具易令人只关注侵权主体的区别,更为恰当的分析工具是尼尔·理查德教授所阐释的"侵权隐私权—智识隐私权"的二分法。布兰代斯在其一生中关于隐私权与言论自由关系的思想不断发展变化,终究陷入自己在《隐私权》一文中所宣称的侵权理论的深刻矛盾之中。总的来说,布兰代斯的隐私权思想经历了从侵权隐私权到智识隐私权的转向。

As to a study of the right to privacy, Louis D. Brandeis must be referred to. He and Samuel D. Warren are the very authors of "The Right to Privacy", which has been the most cited article on Heinonline for a long time, and has been regarded as the first work expounding the theory of privacy. And he is also famous for the dissent in Olmstead v. United States, which has been cited again and again at home and abroad. Furthermore, his opinions in Gilbert v. Minnesotae and Packer Corporation v. the Utah include some significant views of the right to privacy. The analytical tool of "tort privacy & constitutional privacy" tends to simply focus on the difference of the subjects of tort, and then it is "tort privacy & intellectual privacy" explained by Professor Neil Richard that is properer as the analytical tool. During his lifetime, Brandeis' thought about the relationship between the right to privacy and freedom of speech has changed so much that he falls into the profound contradiction of the theory of tort declared in The Right to Privacy. In a word, Brandeis' thought of the right to privacy has shifted from tort privacy to intellectual privacy.