New England Law | Boston

Return to the New England Law | Boston home page.
New England Law Opportunities

April 2, 2010

J.D. Salinger's Privacy Precedent

At the time of his death in February, J.D. Salinger was as well known for the lengths to which he went to protect his privacy as for his stories about Holden Caulfield and the Glass family. Those efforts included litigation, in a case Salinger brought against Random House, publisher of an unauthorized biography called J.D. Salinger: A Writing Life, written by the other named defendant, the writer Ian Hamilton.

Hamilton researched and wrote the book in the mid-1980s, without any assistance from his subject or the vast majority of the subject’s friends and acquaintances. This was not unusual; in several chapters, Hamilton canvassed the many failed attempts by journalists over the years to learn more about the reclusive Salinger, including visits to Cornish, New Hampshire, where Salinger resided, to query the townspeople about the legendary and mysterious author. (Among the townspeople whom reporters approached was Judge Learned Hand, who summered in Cornish and declined to speak to an reporter from Newsweek about his friend and neighbor. In the book Random House eventually published, In Search of J.D. Salinger, Hamilton discussed their warm friendship, as did Gerald Gunther, many years later, in his biography of Hand.)

Though individuals closest to Salinger would not cooperate with him, Hamilton did have access to many of Salinger’s unpublished letters. In the first complete draft of A Writing Life, he quoted from those letters, so that readers might get a sense of the way in which Salinger expressed himself—his “tone,” as Hamilton put it. When Salinger (having obtained a galley copy of the then-unpublished book) objected, Hamilton turned to paraphrasing the letters. But Salinger did not withdraw his objection, and instead sought a preliminary injunction in the United States District Court for the Southern District of New York. Random House defended on the ground of fair use. The defendants prevailed in the District Court, but the First Circuit had other ideas. In Salinger v. Random House, the court reasoned:

To deny a biographer like Hamilton the opportunity to copy the expressive content of unpublished letters is not, as appellees contend, to interfere in any significant way with the process of enhancing public knowledge of history or contemporary events. The facts may be reported. Salinger’s letters contain a number of facts that students of his life and writings will no doubt find of interest, and Hamilton is entirely free to fashion a biography that reports these facts. But Salinger has a right to protect the expressive content of his unpublished writings for the term of his copyright, and that right prevails over a claim of fair use under “ordinary circumstances.”

The U.S. Supreme Court denied certiorari.

The First Circuit’s decision provides protection for unpublished work—at least, it provides protection for the work’s “expressive content,” as distinguished from the “facts.” But does the decision really protect privacy? That depends, of course, on how privacy is defined and measured. Alan Westin famously described privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” Privacy, in other words, is about the extent to which we can control the dissemination of information about ourselves.

On this understanding, Salinger v. Random House really doesn’t offer any kind of broad guarantee of personal privacy. To be sure, the decision safeguards those form of the thoughts that we commit to paper but do not publish. And this is something—we may take some comfort in knowing that the law will protect the way in which we choose to express ourselves within the confines of a communication we neither intend nor desire to share with the world.

Importantly, however, the Salinger case provides virtually no protection for the information contained in an unpublished expression of thought, which can be mined for what it is worth. “The facts,” the court concluded, still “may be reported.” In short, Salinger’s effort to stop disclosure of his unpublished letters resulted in a decision that shields the words with which we choose to explain ourselves, not the substance of what we say.

Lawrence Friedman

No comments:

Post a Comment