Buried safely in the Brooke Russell Astor Reading Room for Rare Books and Manuscripts at the New York Public Library, guarded by lions, is a series of what appears to be unpublished love letters written by Grover Cleveland.
Cleveland, bachelor president, married a young woman named Frances Folsom while he was in his first term in office and had a devoted wife, young children, and everything else to make him happy when he died. He seemed the perfect family man by many biographical accounts—but those letters offer a glimpse into a potentially scandalous relationship, one that the day’s voters may have liked to know about.
It’s no wonder that Cleveland argued for the “right of privacy,” complaining that newspaper reporting which dared delve into the more personal was “an outrage upon all the privacies and decencies of life.”
Back then, Cleveland was good friends with a rich lawyer named Samuel Warren, the man who would partner with future Supreme Court Justice Louis Brandeis in 1890 to author the Harvard Law Review article titled “The Right to Privacy.” Many credited that article for birthing the right of privacy in the United States. But that’s not precisely correct, because privacy interests had been around for decades, protecting certain personal, embarrassing secrets from exposure. The article moved things along, to be sure, and it continues to have a huge impact on how we think about the right to privacy today.
That means that Cleveland continues to have a huge impact, too. Warren and Brandeis argued in “The Right To Privacy” that the media was far too invasive, that technology threatened our need to be let alone, and—key here—that even politicians have the right to privacy, including privacy in past indiscretions.
Journalists shouldn’t be able to investigate the lives of prominent public men to ferret out past scandal is what the two authors wrote, because that sort of detail from private life should not be laid bare for public inspection. This language was right in line with what Cleveland had suggested earlier: that the newspapers of the day had “violate[d] every instinct of American manliness and in ghoulish glee desecrate[d] every sacred relation of private life.” Something had to be done.
That sort of law would turn out to be strongly protective for the Cleveland administration. A few years later, in a proto-#MeToo moment, a newspaper editor reported that a Cleveland appointee had made indecent proposals to women in the office and had fired those who’d rejected him. The appointee sued and the jury agreed that the newspaper editor had no place reporting the appointee’s misbehavior, that the law protected only the truth that was published “with good motives and justifiable ends.” This sort of public condemnation was neither well-motivated nor justifiable because only Cleveland had the power to hire or fire, so the editor should have gone to the president alone with the sordid details, jurors decided, perfectly in line with how the judge had instructed them.
Cleveland agreed with the jury and then some. In rejecting the editor’s bid for clemency, Cleveland acknowledged that the editor had published truth, but not the sort of truth that came from “decent journalism.”
“[T]his convict published an outrageous libel in a newspaper,” Cleveland wrote, and therefore needed punishment in order to promote “the peace of society, and the protection of those constantly subjected” to journalistic attack.
Some said at the time that the case was all about the appointee’s privacy.
The Grover Cleveland story is a familiar one in the history of privacy rights; you might think of Cleveland as continuing a presidential tradition. Thomas Jefferson too wanted “to keep out of view” everything “of a private nature.” He was, of course, especially worried about the Charlottesville rumors that he was sexually involved with Sally Hemings, one of his slaves. He too believed that prosecution of “the most eminent offenders” of journalistic excess would help restore journalistic integrity, and he called out especially those who’d reported on the Hemings relationship. That sort of reporting was a “truthful libel,” they’d say back then, one founded on the idea that scandalous truth was sometimes so embarrassing, so reputation-harming that those who published it could be punished despite its accuracy. They didn’t call it a right to privacy—“the greater the truth, the greater the libel,” they’d say—but it’s in part the way the law thinks about the right to privacy today.
All this is why some historians equate Cleveland and Jefferson. Both had secrets that they wanted to keep, and both used privacy-relevant law in part to facilitate those interests.
But law wasn’t the only way to keep personal happenings in the White House and beyond quiet. In the 1920s, former newspaperman-turned-President Warren Harding lobbied his fellow journalists for privacy. He did so based on life experience, he said, citing the privacy-relevant rules that had worked in his newsroom: be decent; boost, don’t knock; there’s good in everybody; never needlessly hurt the feelings of anybody; don’t reveal misdeeds of a relative in a way that would bring embarrassment to an innocent family; never let a suggestive story get into type.
The lobbying worked. The American Society of Newspaper Editors, celebrating Harding as “the most distinguished journalist in the world, the Editor-in-Chief of the United States of America,” enacted its first ethics code that day. “A newspaper should not invade private rights or feelings without sure warrant of public right as distinguished from public curiosity,” one line read. Another suggested that “details of crime and vice” should be omitted for the general good. Drafters said that they’d intended to be responsive to complaints from politicians that reporters had assumed “a right to violate with pen and camera” constitutional privacy.
President Harding praised the new ASNE code, especially the privacy-protecting part. He died about three months later. Four years after that, one of Harding’s mistresses published The President’s Daughter, a “proper and true account of the relations of the author with Warren G. Harding,” including the fact that she’d fallen in love with Harding when she was 13 and he was in his forties. Their first kiss would come when she was 18 and he was in his early fifties, after Harding, then a U.S. senator, had invited her up to a New York hotel’s “bridal chamber” so that their discussion of a possible job and her admiration of him “might continue…without interruptions or annoyances.” Later, he’d register her at hotels as his niece.
She also revealed that, right at the time that Harding had started to lobby journalists to embrace an ethics code like his own, he’d told her that he wanted to make their brand-new baby “a real Harding.” If only he could.
What these stories of Cleveland, Jefferson, and Harding suggest is that even though the law considers the privacy rights of presidents as nearly non-existent—the father of modern privacy and longtime-dean of the School of Law at UC-Berkeley, William Prosser, wrote specifically in 1960 that “perhaps there is very little in the way of information about the President of the United States, or any candidate for that high office, that is not a matter of legitimate public concern”—many have been able to cloak themselves with privacy even so.
This includes former President Richard Nixon, who the Supreme Court decided had some level of privacy in his “personal communications” springing from Watergate—because snippets from recorded White House tapes might prove embarrassing if the news media used them maliciously.
More modern courts have shielded former President George W. Bush’s National Archives document requests because “the American public stands to gain little from knowing what the former officials are researching” and “the invasion of privacy on the former officials and their designees is great.” Former President Barack Obama’s FBI background check, including his birth certificate, would be kept out of public hands too if that’s the way Obama wanted it: one who runs for the presidency doesn’t sacrifice all privacy, one federal court explained.
And all this is why, when Donald Trump argued and argues for privacy in his tax returns, it isn’t all that ludicrous.
First, presidents very clearly had and continue to have some right to privacy—no matter what William Prosser suggested. Second, the Restatement of the Law of Torts, a legal treatise of sorts, agrees that income tax returns are not public information and therefore that it would be an invasion of privacy to publish them. Sure, it doesn’t say anything about presidential tax returns, past or present, but the language protecting privacy in tax information is there, in our most modern and influential Restatement of the Law. And in 1989 that same language was quoted by the U.S. Supreme Court—that an income tax return “is not public and there is an invasion of privacy when it is made so.”
Maybe this is a good time to acknowledge and remind that the right to privacy is very important. Those who have argued for well more than a century that we have the right to be let alone, the right to keep people out of the more private areas of our lives, and the right to keep journalists and others from reporting on certain personal matters, have done a great service, especially in an internet age when anyone can publish anything they’d like in one click and send it out to the world for perusal. There are some things—including certain medical diagnoses and treatment, graphic sexual information, and nudity—that have nearly always been protected, and that have nearly always been off limits for publication in the United States. That continues to be the law of privacy and it continues to be a part of journalism ethics too.
But it’s also important to know that this privacy-related law and those privacy-related journalism ethics provisions have been influenced by some very powerful people, including presidents, some of whom had an awful lot to hide.
At a time of technological invasions, when privacy interests are mushrooming and the right to know seems to have taken a back seat, a question remains. How do we keep privacy-interested, self-interested politicians from hampering democracy? History suggests that even presidents stand ready to tell us that we can’t.
From SEEK AND HIDE by Amy Gajda, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2022 by Amy Gajda.
