sábado, 30 de junio de 2007
Una historia de la puertorriqueñidad
Una de las impresiones que se quiere impartir sobre los puertorriqueños es su supuesta falta de entereza y valor, nada más alejado de la realidad histórica. Desde plantear que nuestros antepasados taínos eran ‘mansos’, alegato que se estrella contra su fiereza ante los ataques de los indios caribe que habían logrado conquistar a las islas de las Antillas menores llegando en su afán hasta instalarse en la isla de Vieques pero que jamás lograron dominar a la isla de Boriquén, hasta plantear que los primeros boricuas padecían de debilidad de espiritú, son falacias orquestadas por quienes temen o atentan contra una puertorriqueñidad afianzada. Aprovecho la fecha para narrar un capítulo de nuestra historia como pueblo que destruye dicha visión apocada de nuestra nación.
Fue una de las invasiones más grandes a los territorios de la corona española.
Hacia el fin del siglo XVIII, Inglaterra quería restaurar el balance de poder en Europa de tal manera que pudiera retener el control de los mares y así obtener el dominio comercial de todo el mundo. Si lograba obtener el control del Caribe, esto facilitaría el proceso. Por eso, en 1797, Gran Bretaña envió al General Ralph Abercromby y al Almirante Henry Harvey al mando de una poderosa flota naval de unos 13 barcos al Caribe. Con la intención de tomar el control de las islas de Trinidad y Puerto Rico, junto con la ya conquistada isla de Jamaica y así establecer un triángulo de poder inglés en el Caribe. En febrero de 1797 lograron arrebatarle la isla de Trinidad a una guarnicion española débil y desmoralizada. Esto les dió la confianza, para creer que podían hacer lo mismo en San Juan.
De acuerdo con la bitácora de Harvey la campaña inglesa que arribó a las aguas de San Juan el 17 de abril de 1797 contaba con 60 velas. Eran cinco navíos de línea, dos fragatas, seis corbetas, ocho goletas y, el resto, transportes de tropas. A las seis de la mañana del 17 de abril se vió frente a la costa de Loíza la escuadra británica.
El Gobernador de la isla, Ramón de Castro, sólo contaba con 300 soldados, pero consiguió que todos los vecinos, blancos y negros, tomaran las armas para defender la ciudad. Además se movilizaron las milicias de los pueblos, que acudieron a defender San Juan, e incluso participaron los presidiarios. 300 soldados, 638 milicianos, 5.533 ciudadanos, 180 presidiarios y 110 franceses se aprestaron a defender a San Juan. Se procedió a dotar a los castillos y a proteger los puentes y puntos estratégicos. En el puerto se montaron dos cañones en dos pontones y se armaron 12 lanchas cañoneras al mando del capitán de fragata Francisco de Paula Castro.
De Castro ordenó que las mujeres, niños y ancianos saliesen de la ciudad. Dispuso que las monjas se trasladasen a Río Piedras, dejando el convento para servicio de hospital, pues la ciudad contaba sólo con el que fué construído por el obispo Jiménez Pérez. El Consul francés, M. Agustín París, ofreció al gobernador sus servicios y los de los compatriotas suyos. De Castro también aceptó los servicios de los corsarios franceses que se hallaban en puerto, "Le Triomphant" y "L'Espiégle" .
De los franceses, solamente pelearon cincuenta en el castillo de San Jerónimo, a las órdenes de M. Barón y sesenta que maniobraban en el campo volante, teniendo por jefe al mismo cónsul de su nación. Entre los ciudadanos de la primera República Francesa que ayudaron eficazmente en la defensa de Puerto Rico se debe menciónar a M. Daubón, capitán del corsario "L'Espiégle"; Lobeau, dueño del corsario "Le Triomphant" y Bernard, artillero de San Jerónimo; y los médicos y practicantes a las órdenes del cirujano mayor del ejército de defensa, el doctor Francisco Oller y Ferrer, que se ocuparon de la sanidad militar. Algunos de estos franceses prefirieron establecerse aquí y constituir familia; y sus descendientes viven en la actualidad en el país. Además dos barcos corsarios franceses ofrecieron sus servicios a la defensa del puerto.
Don Pedro Tomás de Córdoba ha dejado una relación completa de los armamentos y tropas disponibles para hacer frente a los ingleses:
"La plaza tenía 376 cañones, 35 morteros, 4 obuses y 3 pedreros, 10,209 quintales de pólvora, 189,000 cartuchos y 3,367 fusiles; sus obras no estaban completadas, su guarnición veterana era escasa y reducida al Regimiento Fijo con 938 hombres; pero la decisión por defenderse era extrema y el entusiasmo propio de la fidelidad de los puertorriqueños....Toda la fuerza alcanzó á 4,029 individuos, y los urbanos, que entraron del campo… La tropa veterana podía graduarse, á lo más, de 300 hombres, pues el resto era de la Milicia agregada al Regimiento Fijo...Para la defensa de la bahía se armaron dos pontones, cuatro ganguiles, once cañoneras, siete lanchas de auxilio, cuatro botes, un falucho y diez y ocho piraguas, con 27 piezas, 11 esmeriles, 204 fusiles y 546 hombres de tripulacion. "
Sir Ralph Abercromby desembarcó por Santurce para tomar la plaza de San Juan. Sobre los primeros incidentes armados se cita:
"El cuerpo volante salió al mando del teniente coronel D. Isidoro Linares con los de igual grado D. José Vizcarrondo y D. Teodomiro del Toro, ayudante este de las milicias disciplinadas de esta Isla y capitán aquél del Regimiento de infantería de Valencia. D. Isidoro Linares se apostó con cien hombres en el sitio nombrado la Plaza, inmediato á una de las playas de Cangrejos; D. José Vizcarrondo en la playa de San Mateo y D. Teodomiro del Toro en la Torrecilla con igual número de gente cada uno al que tenía Linares siendo los puestos de situación, los más ventajosos y resguardados para rechazar el desembarco que intentase el enemigo y poderse proteger unos á otros. Cada uno de estos comandantes se atrincheró según le permitieron la situación y el tiempo, colocando oportunamente los dos cañones de campaña que llevaban Linares y Vizcarrondo."
Abercromby inicialmente desembarcó 3,910 hombres en la playa del Condado y pudo tomar poder el área de Cangrejos, cortando la comunicación entre San Juan y el interior de la isla. No bastaron las fuerzas españolas para evitar el desembarque de los invasores. Se vieron obligados a retirarse hacia el puente y fuerte de San Antonio.
Al igual que hizo en Puerto España, Abercromby envía un parlamentario ofreciendo una rendición honrosa, mientras que Linares se estaba batiendo con los ingleses en Cangrejos, se aproximó un bote a la boca del Morro. Un oficial inglés entregó un pliego de los jefes Abercromby y Harvey, intimando la rendición de la Plaza, al recibir respuesta negativa, abrieron fuego contra San Juan, al mismo tiempo que un navío y las fragatas bombardeaban los castillos. El fuego de los castillos y los ataques de las lanchas cañoneras obligaron a los barcos a retirarse, mientras que las tropas de tierra inglesas también eran rechazadas al intentar tomar el puente de San Antonio.
Los ingleses desembarcaron en la playa de Cangrejos, y 7.000 hombres se aproximaron a la ciudad. El general Abercromby estableció su cuartel y estado mayor en la casa llamada del Obispo. Hostigados por la artillería de la plaza y por las guerrillas de los milicianos, los ingleses consiguieron instalar dos baterías de cañones y una de morteros. Con el objetivo de capturar el puente fortificado de San Antonio, las fuerzas del rey Jorge III establecieron una batería de artillería en el Condado y otra en la colina del Olimpo para atacar los bastiones de San Antonio y San Jerónimo.
A diferencia de El Morro, que es la defensa de la bahía, San Cristóbal es la defensa contra ataques por tierra. Fue puesto a prueba durante el ataque inglés, comandado por el almirante Sir Henry Harvey y el general Ralph Abercromby, cuyas 7,000 tropas no pudieron tomar la ciudad. Con el fin de poder ganar acceso a la ciudad el enemigo tendría que destruir los fuertes de San Jerónimo y San Antonio que le cortaban el paso. Para deshacerse de estos obstáculos los británicos construyeron trincheras y establecieron baterías en los cerros del Condado y del Olimpo, tratando de dominar así los dos fuertes. La ciudad de San Juan estuvo bajo el fuego de las armas inglesas hasta el 30 de abril.
El día 19 una partida británica saqueó dos ingenios en Puerto Nuevo y San Patricio. Para evitar que el enemigo se internase en el interior, se ordenó al capitán de ingenieros Ignacio Mascaró que fortificara el puente de Martín Peña. En Río Piedras se formó una guerrilla a las órdenes de Francisco Andino para hostilizar al enemigo. Más tarde se le agregaron algunos milicianos de otros pueblos. Se estableció una comandancia militar en Río Piedras confiada al subteniente Luis de Lara. En la madrugada del día 21 las partidas volantes al mando del subteniente de granaderos D. Luis de Lara y el de milicias D. Vicente Andino, y de su hermano el ayudante de plaza D. Emigdio fueron atacadas por una avanzada superior del contrario que se hallaba emboscada fuera de su línea en el puente de Martín Peña. A pesar de la inferioridad de las tropas españolas, fueron sosteniendo una retirada con su fuego hasta llegar a Río Piedras en donde reunidas con otras sobrecargaron al enemigo con un fuego tan bien ordenado que le pusieron en precipitada fuga, obligando a los pocos que de su partida quedaron a ampararse del puente de Martín Peña y batería de tres cañones que estaba establecida en él.
De Castro determinó dar un ataque al enemigo para escarmentarle:
"Escogió al sargento de milicias Francisco Díaz, á cuyas órdenes se puso una partida de 70 hombres bien armados que voluntariamente se prestaron á la acción proyectada; estos eran 20 de las compañías de milicias disciplinadas y 50 escogidos de los destinados á este presidio....." Se embarcaron en piraguas, y sostenidos por dos lanchas cañoneras, entraron por el caño de San Antonio: "Luego que Díaz desembarcó su tropa y la ordenó, debidamente, fué avanzando con cautela hacia la trinchera enemiga, y á proporcionada distancia hizo una descarga contra los trabajadores que en ella se hallaban: la guardia que los sostenía tomó las armas y pretendió defenderse pero Díaz continuó su fuego ganando terreno hasta llegar al caso de entrar en la trinchera con sable en mano acometiendo valerosamente á los contrarios, matando é hiriendo cada soldado nuestro á cuantos se les presentaban delante; de tal modo que los que podían librarse de nuestras armas se ponían atropellada y vergonzosamente en precipitada fuga, sin embargo de haberse calculado que el número de los enemigos en aquella ocasión llegaria á 300. Quedó solo Díaz con su gente en la trinchera enemiga, reconoció una bateriá de cañones muy bien dispuesta dirigida al puente de San Antonio y fuerte de San. Gerónimo… por falta de tiempo y proporciones, determinó la retirada trayéndose un capitán y 13 prisioneros vivos.”
El enemigo siguió sus operaciones contra los fuertes de San Jerónimo y San Antonio.
Una fragata se acercó al fuerte de San Jerónimo disparando algunos cañonazos, pero se vió obligada a retirarse. En cambio el fuego de las baterías del Condado y del Olimpo causó mucho daño a los dos fuertes.
Los puertorriqueños comenzaron a enviar las provisiones y refuerzos a través del río de Bayamón y desde Cataño en canoas. De otro lado los ingleses lograron destruir parte de los fuertes de San Jerónimo y San Antonio. Aún así no pudieron avanzar hacia San Juan por la furia con la que los criollos se defendieron.
La escasez de tropas regulares impidió a los españoles el contraataque, y la situación se estancó durante 12 días, en los que los ingleses estuvieron sometidos al continuo hostigamiento de las guerrillas de las milicias.
La noche del 29 de abril, los españoles atacaron frontalmente las posiciones inglesas con 800 peones y dos compañías de caballería. Resolvió de Castro hacerles un ataque por retaguardia. El gobernador determinó utilizar para esta operación la guerrilla de Andino, las milicias de infantería y caballería y varias partidas de urbanos, que se hallaban reunidas en Río Piedras.
"El subteniente.... Luis de Lara, comandante de nuestro Cuartel general en la retaguardia del enemigo, sin embargo de las órdenes claras que se le dirigieron.... no entendió bien el proyecto del General.... para el ataque del enemigo, y en lugar de las disposiciones y providencias dadas para él lo trastornó y obró del modo siguiente: Reunió todas las partidas hasta el número de 800 hombres con dos compañías de caballería, puso á la cabeza un cañon de campaña, con el que marchó hacia el puente de Martín Peña, llevando su tropa en varias columnas, de las cuales repartió alguna por los costados y manglares inmediatos á fin de cortar al enemigo la retirada en caso de salir del Puente. Llegaron á tiro de pistola de él..... Le incitaron con algunos cañonazos á que respondió con los de su batería. Formó el Comandante su tropa en batalla.... y empezó á hacer un vivo fuego de fusil á los enemigos que se descubrían, provocándolos al ataque sin poderlo conseguir en vista de lo cual, repitió el vivo fuego y el enemigo siguió respondiendo con el de cañon, y reflexionando que la disposición del terreno no le permitía avanzar más y que el enemigo se escusaba de hacerlo, se retiró con su tropa."
En la acción de Martín Peña murió el sargento mayor José Diaz de Toa Alta. Aun en algunas partes, nuestros jíbaros cantan aquella antigua copla:
En el puente Martin Peña
Mataron a Pepe Díaz
Que era el hombre más valiente
Que el Rey de España tenía.
Temiendo que de Castro estuviera proyectando un ataque general, Abercromby decidió retirarse. Se desconoce el número de bajas inglesas, que varían de menos de 100 a cerca de 2.000, según diferentes versiones. Quedaron presos en la isla 4 oficiales y 286 soldados, siendo alemanes algunos de ellos. Por parte española hubo 42 muertos, 156 heridos, 2 desaparecidos y 1 prisionero. Muchos soldados ingleses murieron y dejaron atrás cañones, morteros y obuses que luego fueron colados y usados para hacer la estatua, entre otras cosas, la estatua de Juan Ponce de León que se encuentra en la Plaza de San José en el Viejo San Juan.
El 2 de mayo de 1797 todos los barcos de la invasora flota inglesa levaron anclas, abandonando el bloqueo de San Juan, el cual resultó un completo fracaso. El comandante inglés, Sir Ralph Abercromby, en un intento de explicar este desastre, informó más tarde “…habíamos recibido refuerzos e instrucciones de atacar a Puerto Rico, determinamos probar fortuna, confiando un poco en la debilidad del enemigo. Le encontramos bien preparado, con una guarnición más fuerte que la nuestra y con artillería ponderosa”.
Esta lucha fue diferente a los asaltos sufridas por la Isla en los años 1595, 1598 y 1625. Ésta fue de mayores proporciones. En la misma participó casi toda la Isla desde cuyo interior se enviaron auxilios y se colaboró, en una y otra forma, para derrotar al enemigo. En esta ocasión no fue la guarnición de San Juan, como en los pasados ataques, la que únicamente decidió la suerte de la colonia y de las armas españolas. Participaron los demás pueblos también y el pueblo se unió en la defensa de San Juan, criollos, negros y hasta presos.
El día 3 de mayo se dispuso cantar con toda solemnidad en la Santa Iglesia Catedral el Te Deum con misa mayor y sermón en acción de gracias a Dios por el feliz término de aquella defensa. En recompensa de sus servicios el brigadier de Castro fué ascendido a mariscal de campo, y muchos de los demás jefes militares merecieron ascensos en sus grados. En reconocimiento de la fidelidad, amor y patriotismo de los vecinos de esta isla, se concedieron ocho gracias especiales. Se le otorgó a la ciudad el derecho "...de orlear su escudo de armas" con estas frases "POR SU CONSTANCIA AMOR y FIDELIDAD ES MUY NOBLE Y MUY LEAL ESTA CIUDAD".
Dice el historiógrafo Neumann:
"Nosotros, como puertorriqueños, no podemos menos de enorgullecernos con la gloria alcanzada en aquel memorable asedio por los hermanos don José y don Andrés Cayetano Vizcarrondo: los sargentos José y Francisco Díaz, el párroco del Pepino, don José Dolores del Toro, que peleó honrosamente á la cabeza de ciento cincuenta feligreses y los mantuvo de su peculio durante el sitio; don Francisco Andino, síndico del Ayuntamiento de la Capital, ....don Rafael Conty, hijo de Aguadilla, capitán de artillería que de acuerdo con el teniente á guerra de Bayamón, don Lucas de Fuentes, opuso, con dos cañones...manteniendo por aquella parte franca comunicación con los campos; así como la de otros inolvidables combatientes, cual aquel hidalgo ingeniero don Ignacio Mascaró y Homar, tan poco apreciado, figura activa é inteligente del sitio, que todo lo preveía y á todo atendía, en quien depositó verdadera confianza el Brigadier Castro; don Teodomiro del Toro, bizarro defensor del fuerte de San Jerónimo; los hermanos Emigdio y Vicente Andino; el ayudante de campo don Manuel Bacener; don Blas López, teniente á guerra de Juncos; los artilleros González y Ortega; ....el sargento de San Jerónimo don Marcos Sosa, abuelo del benemérito puertorriqueño don Julián Blanco; .... don José Benítez, padre de la inolvidable cantora de la Cruz del Morro, doña Bibiana, la primera dama que pulsó la lira en Puerto-Rico; ....otro José Díaz, ponceño, tenaz y resuelto en la pelea, como su homónimo el de Toa alta é infinidad de otros coterráneos."
Tomado de varias fuentes y editado por Roberto Ortiz Feliciano.
"The Right to Privacy" by Samuel Warren and Louis D. Brandeis
"The Right to Privacy" by Samuel Warren and Louis D. Brandeis
Originally published in 4 Harvard Law Review 193 (1890)
"It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage."
Willes, J., in Millar v. Taylor, 4 Burr, 2303, 2312.
That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault.1 Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow men, was considered and the law of slander and libel arose.3 Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable.4 Occasionally the law halted--as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit , was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded.5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,6 as works of literature and art,7 good-will,8 trade secrets, and trade-marks.9
This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to man that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone."10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;11 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,13 directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.
Of the desirability--indeed of the necessity--of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.
It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.
Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men--the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria . Injury of feelings may indeed be taken account of,14 in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another.15
It is not, however, necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration.
The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.16 Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word 17 or by signs,l8 in painting,19 by sculpture, or in music.20 Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression.21 The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.22 No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public--in other words, publishes it.23 It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.24 The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.
What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property; 25 and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of a list or even a description of them.26 Yet in the famous case of Prince Albert v. Strange the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also "'the publishing (at least by printing or writing) though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise."27 Likewise, an unpublished collection of news possessing no element of a literary nature is protected from piracy.28
That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private: it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs. 29
The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against the publication of private letters, on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection"; and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published."30 But these decisions have not been followed,31 and it may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed.
Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert v. Strange, already referred to, the opinions both of the Vice-Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both placed their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of property, in the narrow sense, would be drawn in questions, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his," and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt v. Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that "if one of the late king's physicians had kept a diary of what he hear and saw, the court would not, in the king's lifetime, have permitted him to print and publish it"; and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that "privacy is the right invaded." But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting.
These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed--and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.32
If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.
It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement effort.33 This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person--the right to one's personality.
It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence.
Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding "that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling."
In Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had "its foundation in a breach of trust, confidence, or contract," and that upon such ground also the plaintiff's title to the injunction was fully sustained.
In Tuck v. Priester, 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract.
In Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence. Mr. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract." Later, the defendant's counsel argued that "a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer's using his negative." But the court, while expressly finding a breach of contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property,34 in order to bring it within the line of those cases which were relied upon as precedents.35
This process of implying a term in a contract, or of implying a trust (particularly where the contract is written, and where there is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection through the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one's picture could seldom taken without his consciously "sitting" for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested.
Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted.36 Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right of property in the contents of the letter, or his right to privacy.37
A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence.38 It would, of course, rarely happen that anyone would be in the possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge lay an ordinary trespass--for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard, 1 J. & W. 394 (1820), where an injunction was granted against making any use of or communicating certain recipes for veterinary medicine, it appeared that the defendant, while in the plaintiff's employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon "granted the injunction, upon the ground of there having been a breach of trust and confidence"; but it would seem to be difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book.39
We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise.40
If the invasion of privacy constitutes a legal injuria, the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation.
The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one's self from pen portraiture, from a discussion by the press of one's private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.
The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.41
It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property.
First. The right to privacy does not prohibit any publication of matter which is of public or general interest.
In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.42 There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law-- for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.
The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.43 Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case--a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.
In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public quasi-public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi-public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.44
Second . The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.
Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committee of such assemblies, or practically by any communication made in airy other public body, municipal or parochial, or in any body quasi-public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.45 Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned.46
Third . The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.
The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.47 The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.48
Fourth. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided established also what should be deemed a publication--the important principle in this connection being that a private communication or circulation for a restricted purpose is not a publication within the meaning of the law.49
Fifth. The truth of the matter published does not afford a defense.
Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.50
Sixth. The absence of "malice" in the publisher does not afford a defense.
Personal ill-will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an actions for libel or slander at common law, except in rebuttal of some defense, e.g. , that the occasion rendered the communication privileged, or, under the statutes in this state and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is casually complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offenses.
The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely:
1. An action of tort for damages in all cases.51 Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.
2. An injunction, in perhaps a very limited class of cases.52 It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.53 Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defense, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?
Originally published in 4 Harvard Law Review 193 (1890)
"It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage."
Willes, J., in Millar v. Taylor, 4 Burr, 2303, 2312.
That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life--the right to be let alone, the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession-- intangible, as well as tangible.
Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault.1 Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow men, was considered and the law of slander and libel arose.3 Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable.4 Occasionally the law halted--as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit , was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded.5 Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,6 as works of literature and art,7 good-will,8 trade secrets, and trade-marks.9
This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to man that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone."10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;11 and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,13 directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.
Of the desirability--indeed of the necessity--of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.
It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.
Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow men--the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is damnum absque injuria . Injury of feelings may indeed be taken account of,14 in ascertaining the amount of damages when attending what is recognized as a legal injury; but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another.15
It is not, however, necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration.
The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.16 Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word 17 or by signs,l8 in painting,19 by sculpture, or in music.20 Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression.21 The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.22 No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public--in other words, publishes it.23 It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.24 The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.
What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property; 25 and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of a list or even a description of them.26 Yet in the famous case of Prince Albert v. Strange the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also "'the publishing (at least by printing or writing) though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise."27 Likewise, an unpublished collection of news possessing no element of a literary nature is protected from piracy.28
That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private: it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs. 29
The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against the publication of private letters, on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection"; and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published."30 But these decisions have not been followed,31 and it may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed.
Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert v. Strange, already referred to, the opinions both of the Vice-Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both placed their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of property, in the narrow sense, would be drawn in questions, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his," and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt v. Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that "if one of the late king's physicians had kept a diary of what he hear and saw, the court would not, in the king's lifetime, have permitted him to print and publish it"; and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that "privacy is the right invaded." But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting.
These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed--and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.32
If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.
It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement effort.33 This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person--the right to one's personality.
It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence.
Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the Lancet of unpublished lectures which he had delivered at St. Bartholomew's Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding "that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of shorthand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling."
In Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had "its foundation in a breach of trust, confidence, or contract," and that upon such ground also the plaintiff's title to the injunction was fully sustained.
In Tuck v. Priester, 19 Q. B. D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract.
In Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence. Mr. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract." Later, the defendant's counsel argued that "a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer's using his negative." But the court, while expressly finding a breach of contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property,34 in order to bring it within the line of those cases which were relied upon as precedents.35
This process of implying a term in a contract, or of implying a trust (particularly where the contract is written, and where there is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection through the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one's picture could seldom taken without his consciously "sitting" for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested.
Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted.36 Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right of property in the contents of the letter, or his right to privacy.37
A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence.38 It would, of course, rarely happen that anyone would be in the possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge lay an ordinary trespass--for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard, 1 J. & W. 394 (1820), where an injunction was granted against making any use of or communicating certain recipes for veterinary medicine, it appeared that the defendant, while in the plaintiff's employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon "granted the injunction, upon the ground of there having been a breach of trust and confidence"; but it would seem to be difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book.39
We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise.40
If the invasion of privacy constitutes a legal injuria, the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation.
The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one's self from pen portraiture, from a discussion by the press of one's private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.
The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.41
It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property.
First. The right to privacy does not prohibit any publication of matter which is of public or general interest.
In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.42 There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law-- for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.
The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.43 Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case--a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.
In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public quasi-public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi-public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.44
Second . The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel.
Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committee of such assemblies, or practically by any communication made in airy other public body, municipal or parochial, or in any body quasi-public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.45 Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned.46
Third . The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage.
The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.47 The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.48
Fourth. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided established also what should be deemed a publication--the important principle in this connection being that a private communication or circulation for a restricted purpose is not a publication within the meaning of the law.49
Fifth. The truth of the matter published does not afford a defense.
Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.50
Sixth. The absence of "malice" in the publisher does not afford a defense.
Personal ill-will is not an ingredient of the offense, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an actions for libel or slander at common law, except in rebuttal of some defense, e.g. , that the occasion rendered the communication privileged, or, under the statutes in this state and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is casually complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offenses.
The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely:
1. An action of tort for damages in all cases.51 Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.
2. An injunction, in perhaps a very limited class of cases.52 It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.53 Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defense, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and today fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?
From Internet to Gutenberg
A lecture presented by Umberto Eco at The Italian Academy for Advanced Studies in America November 12, 1996
According to Plato (in Phaedrus) when Hermes, the alleged inventor of writing, presented his invention to the Pharaoh Thames, he praised his new technique that was supposed to allow human beings to remember what they would otherwise forget. But the Pharaoh was not so satisfied. "My skillful Theut, he said, memory is a great gift that ought to be kept alive by training it continuously. With your invention people will not be obliged any longer to train memory. They will remember things not because of an internal effort, but by mere virtue of an external device."
We can understand the preoccupation of the Pharaoh. Writing, as any other new technological device, would have made torpid the human power which it substituted and reinforced - just as cars made us less able to walk. Writing was dangerous because it decreased the powers of mind by offering human beings a petrified soul, a caricature of mind, a mineral memory.
Plato's text is ironical, naturally. Plato was writing his argument against writing. But he was pretending that his discourse was told by Socrates, who did not write (since he did not publish, he perished in the course of his academic fight.)
Nowadays, nobody shares these preoccupations, for two very simple reasons. First of all, we know that books are not ways of making somebody else think in our place; on the contrary they are machines that provoke further thoughts. Only after the invention of writing was it possible to write such a masterpiece on spontaneous memory as Proust's La Recherche du Temps Perdu.
Secondly, if once upon a time people needed to train their memory in order to remember things, after the invention of writing they had also to train their memory in order to remember books. Books challenge and improve memory; they do not narcotize it.
However, the Pharaoh was instantiating an eternal fear: the fear that a new technological achievement could abolish or destroy something that we consider precious, fruitful, something that represents for us a value in itself, and a deeply spiritual one.
It was as if the Pharaoh pointed first to the written surface and then to an ideal image of human memory, saying: "This will kill that."
More than one thousand years later Victor Hugo in his Notre Dame de Paris, shows us a priest, Claude Frollo, pointing his finger first to a book, then to the towers and to the images of his beloved cathedral, and saying "ceci tuera cela", this will kill that. (The book will kill the cathedral, alphabet will kill images).
The story of Notre Dame de Paris takes place in the XVth century, a little later than the invention of printing. Before that, manuscripts were reserved to a restricted elite of literate persons, but the only means to teach the masses about the stories of the Bible, the life of
Christ and of the Saints, the moral principles, even the deeds of the national history or the most elementary notions of geography and natural sciences (the nature of unknown peoples and the virtues of herbs or stones), was provided by the images of the cathedral.
A medieval cathedral was a sort of permanent and unchangeable TV program that was supposed to tell people everything indispensable for their everyday lives as well as for their eternal salvation. The book would have distracted people from their most important values, encouraging unnecessary information, free interpretation of the Scriptures, insane curiosity.
During the sixties, Marshall McLuhan wrote his The Gutenberg Galaxy, where he announced that the linear way of thinking instituted by the invention of the press, was on the verge of being substituted by a more global way of perceiving and understanding through the TV images or other kinds of electronic devices. If not Mc Luhan, certainly many of his readers pointed their finger first to a Manhattan Discotheque and then to a printed book by saying "this will kill that."
The media needed a certain time to accept the idea that our civilization was on the verge of becoming an image oriented one - which would have involved a decline of literacy. Nowadays this is a common shibboleth for every weekly magazine. What is curious is that the media started to celebrate the decline of literacy and the overwhelming power of images just at the moment in which, in the world scene, appeared the Computer.
Certainly a computer is an instrument by means of which one can produce and edit images, certainly instructions are provided by means of icons; but it is equally certain that the computer has become, first of all, an alphabetic instrument. On its screen there run words, lines, and in order to use a computer you must be able to write and to read. The new computer generation is trained to read at an incredible speed. An old-fashioned university professor is today incapable of reading a computer screen at the same speed as a teen-ager. These same teen-agers, if by chance they want to program their own home computer, must know, or learn, logical procedures and algorithms, and must type words and numbers on a keyboard, at a great speed.
In this sense one can say that the computer made us to return to a Gutenberg Galaxy.
People who spend their night implementing an unending Internet conversation are principally dealing with words. If the TV screen can be considered a sort of ideal window through which one watches the whole world under the form of images, the computer screen is an ideal book on which one reads about the world in form of words and pages.
The classical computer provided a linear sort of written communication. The screen was displaying written lines. It was like a fast-reading book.
But now there are hypertexts. In a book one had to read from left to right (or right to left, or up to down, according to different cultures) in a linear way. One could obviously skip through the pages, one - once arrived at page 300 - could go back to check or re-read something at page 10 - but this implied a labor, I mean, a physical labor. On the contrary a hypertext is a multidimensional network in which every point or node can be potentially connected with any other node.
Thus we have arrived at the final chapter of our this-will-kill-that story. It is more and more stated that in the near future hypertextual CD-ROMs will replace books.
With a hypertextual diskette books are supposed to become obsolete. If you even consider that
A hypertext is usually also multimedia; the complete hypertextual diskette will in the next future replace not only books but also videocassettes and many other supports.
Now we must ask ourselves if such a perspective is a realistic one or is mere science-fiction - as well as if the distinction we have just outlined between visual and alphabetic communication, books and hypertexts is really that simple. Let me list a series of problems and possible perspectives for our future.
Even after the invention of printing books has never been the only instrument for acquiring information. There were paintings, popular printed images, oral teaching, and so on. One can say that books were in any case the most important instrument for transmitting scientific information, including news about historical events. In this sense they were the paramount instrument used in schools.
With the diffusion of the various mass media, from cinema to television, something has changed.
Years ago the only way to learn a foreign language (outside of traveling abroad) was to study a language from a book. Now our kids frequently know other languages by listening to records, by watching movies in the original edition, by deciphering the instructions printed on a beverage can. The same happens with geographical information. In my childhood I got the best of my information about exotic countries not from textbooks but by reading adventure novels (Jules Verne, for instance). My kids very early knew more than me on the same subjects from watching TV and movies. One could learn very well the story of the Roman Empire through movies, provided that movies were historically correct. The fault of Hollywood is not to have opposed its movies to the books of Tacitus or of Gibbon, but rather to have imposed a pulp- and romance-like version on both Tacitus and Gibbon.
A good educational TV program (not to speak of a CD-ROM) can explain genetics better than a book.
Today the concept of literacy comprises many media. An enlightened policy of literacy must take into account the possibilities of all of these media. Educational preoccupation must be extended to the whole of media. Responsibilities and tasks must be carefully balanced. If for learning languages, tapes are better than books, take care of cassettes. If a presentation of Chopin, with commentary on compact disks, helps people to understand Chopin, don't worry if people do not buy five volumes of the history of music.
Even if it were true that today visual communication overwhelms written communication, the problem is not to oppose written to visual communication. The problem is how to improve both.
In the Middle Ages visual communication was, for the masses, more important than writing.
But Chartres Cathedral was not culturally inferior to the Imago Mundi of Honorius of Autun.
Cathedrals were the TV of those times, and the difference from our TV was that the directors of the medieval TV --read: good books-- had a lot of imagination, and worked for the public profit
(or, at least, for what they believed to be public profit).
The real problems lay elsewhere. Visual communication has to be balanced with the verbal one, and mainly with the written one for a precise reason. Once, a semiotician, Sol Worth, wrote a paper, "Images cannot say Ain't". I can verbally say "Unicorns do not exist" but if I show the image of a unicorn the unicorn is there. Moreover, is the unicorn I see a unicorn or the unicorn, that is, does it stand for a given unicorn or for the unicorns in general?
This problem is not as immaterial as it can seem, and many, many pages have been written by logicians and semioticians on the difference between such expressions as a child, the child, this child, all children, childhood as a general idea. Such distinctions are not so easy to display through images. Nelson Goodman in his Languages of Art wondered if a picture representing a woman is the representation of Women in general, the portrait of a given woman, the example of the general characteristics of a woman, the equivalent of the statement there is a woman looking at me.
One can say that in a poster or on an illustrated book, the caption or other forms of written material can help to understand what the image means. But I want to remind you about a rhetorical device called example, on which Aristotle spent some interesting pages. In order to convince somebody about a given matter, the most convincing is a proof by induction. In induction I provide many cases and then I infer that probably they instantiate a general law.
Suppose I want to demonstrate that dogs are friendly and love their masters: I provided many cases in which a dog has proved to be friendly and helpful and I suggest that there must be a general law by which every animal belonging to the species of dogs is friendly.
Suppose now I want to persuade you that dogs are dangerous. I can do this by providing you with an example: "Once, a dog killed its master...." As you easily understand, a single case does not prove anything, but if the example is shocking I can surreptitiously suggest that dogs can even be unfriendly, and once you are convinced that it can be so, I can unduly extrapolate a law from a single case and conclude: "this means that dogs cannot be trusted." With the rhetorical use of the example I shift from a dog to all dogs.
If you have a critical mind you can realize that I have manipulated a verbal expression (a dog was bad) so to transform it into another one (all dogs are bad) which does not mean the same thing. But if the example is a visual rather than a verbal one, the critical reaction is made more difficult. If I show you the poignant image of a given dog biting its master it is very difficult to discriminate between a particular and a general statement. It is easy to take that dog as the representative of its species. Images have, so to speak, a sort of Platonic power: they transform individuals into general ideas.
Thus by a purely visual communication and education it is easier to implement persuasive strategies that reduce our critical power. If I read on a newspaper that a given man said "we want mister X as president" I am aware that I was given the opinion of a given man. But if I watch on the TV screen a man saying enthusiastically "we want mister X as president" it is easier to take the will of that individual as the example of the general will.
Frequently I think that our societies will be split in a short time (or they are already split) into two classes of citizens: those who only watch TV, who will receive pre-fabricated images and therefore prefabricated definitions of the world, without any power to critically choose the kind of information they receive, and those who know how to deal with the computer, who will be able to select and to elaborate information. This will re-establish the cultural division which existed at the time of Claude Frollo, between those who were able to read manuscripts, and therefore to critically deal with religious, scientific or philosophical matters, and those who were only educated by the images of the cathedral, selected and produced by their masters, the literate few.
A science fiction writer could elaborate a lot on a future world where a majority of proletarians will receive only visual communication planned by an elite of computer-literate people.
There are two sorts of books: these to be read and these to be consulted.
As far as books-to-read are concerned (they can be a novel, or a philosophical treatise, or a sociological analysis, and so on) the normal way of reading them is the one that I would call the detective-like story.
You start from page 1, where the author tells you that a crime has been committed, you follow every path of the detection until the end, and finally you discover that the guilty one was the butler. End of the book and end of your reading experience. Remark that the same happens even if you read, let us say, Descartes' Discourse de la methode. The author wanted you to open the book at its first page, to follow
the series of questions he proposed, to see how he reaches certain final conclusions. Certainly, a scholar, who already knows that book, can re-read it by jumping from one page to another, trying to isolate a possible link between a statement of the first chapter and one of the last one... A scholar can also decide to isolate, let us say, every occurrence of the word Jerusalem in the immense opus of Thomas Aquinas, thus skipping thousands of pages in order to focus his or her own attention on the only passages dealing with Jerusalem... But these are ways of reading that the layman would consider as unnatural.
Then there are the books to be consulted, like handbooks and encyclopedias. Sometimes handbooks must be read from the beginning to the end; but when one knows the matter enough, one can consult them, so selecting also certain chapters or passages. When I was in high-school I had to read entirely, in a linear way, my handbook on mathematics; today, if I need a precise definition of logarithm, I only consult it. I keep it on my shelves not to read and re-read it every day, but in order to keep it up once in ten years, to find the item I need to consult it about.
Encyclopedias are conceived in order to be always consulted and never read from the first to the last page. Usually one picks up a given volume of one's encyclopedia to know or to remember when
Napoleon died or what is the formula of sulfuric acid. Scholars use encyclopedias in a more sophisticated way. For instance, if I want to know whether it was possible or not that Napoleon met
Kant, I have to pick up the volume K and the volume N of my encyclopedia: I discover that Napoleon was born in 1769 and died in 1821; Kant was born in 1724 and died in 1804, when Napoleon was already emperor. It is not impossible that the two met. I have probably to consult a biography of Kant, or of Napoleon - but in a short biography of Napoleon, who met so many persons in his life, this possible meeting with Kant can be disregarded, while a in a biography of Kant a meeting with Napoleon should be recorded. In brief, I must leaf through many books in many shelves of my library, I must take notes in order to compare later all the data I collected, and so on. In short, all this will cost to me a painful physical labor.
With a hypertext, instead, I can navigate through the whole encyclopedia. I can connect an event registered at the beginning with a series of similar events disseminated all along the text, I can compare
the beginning with the end, I can ask for the list of all the words beginning by A, I can ask for all the cases in which the name of Napoleon is linked with the one of Kant, I can compare the dates of their birth and death - in short, I can do my job in few seconds or few minutes.
Hypertexts will certainly render obsolete encyclopedias and handbooks. In few Cd-roms (probably soon in a single one) it is possible to store more information than in the whole Encyclopedia Britannica, with the advantage that it permits crossed references and non-linear retrieval of information. The whole of the compact disks, plus the computer, will occupy one fifth of the space occupied by an encyclopedia. The encyclopedia cannot be transported as the CD-ROM can, the encyclopedia cannot be easily updated. The shelves today occupied, at my home as well as in public libraries, by meters and meters of encyclopedia could be eliminated in the next future, and there will be no reasons to complain for their disappearance.
Can a hypertextual disk replace the books to be read? This question conceals in fact two different problems and could be rephrased as two different questions.
(I) First, a practical one: Can some electronic support replace the books-to-read?
(II) Second an theoretical and an esthetical one: Can a hypertextual and multimedia CD-ROM transform the very nature of a book-to-read, such as a novel or a collection of poems?
Let me first answer the first question.
Books will remain indispensable not only for literature, but for any circumstance in which one needs to read carefully, not only to receive information but also to speculate and to reflect about it. To read a computer screen is not the same as to read a book. Think to the process of learning a new computer program. Usually the program is able to display on the screen all the instructions you need. But usually the users who want to learn the program either print the instructions and read them as if they were in book form, or they buy a printed manual (let me underevaluate the fact that presently all the computer's
Helps are clearly written by irresponsible and tautological idiots, while commercial handbooks are written by smart people). It is possible to conceive of a visual program that explains very well how to print and bind a book, but in order to get instructions on how to write (or how to use) a computer program, we need a printed handbook.
After having spent no more than 12 hours at a computer console, my eyes are like two tennis balls, and
I feel the need of sitting comfortably down in an armchair and reading a newspaper, and maybe a good poem. I think that computers are diffusing a new form of literacy but are incapable of satisfying all the intellectual needs they are stimulating.
In my hours of optimism I dream of a computer generation which, compelled to read a computer screen, gets acquainted with reading, but at a certain moment feels unsatisfied and looks for a different, more relaxed and differently-committing form of reading.
During a symposium on the future of books held at the university of San Marino (the proceedings are now published by Brepols), Regis Debray has observed that the fact that Hebrew civilization was a civilization based upon a Book is not independent on the fact that it was a nomadic civilization. I think that this remark is very important. Egyptians could carve their records on stone obelisks, Moses could not. If you want to cross the Red Sea, a scroll is a more practical instrument for recording wisdom. By the way, another nomadic civilization, the Arabic one, was based upon a book, and privileged writing over images.
But books also have an advantage in respect to computers. Even if printed in modern acid paper, which lasts only 70 years or so, they are more durable than magnetic supports. Moreover, they do not suffer of power shortage and black outs, and are more resistant to shocks. Up to now, books still represent the more economical, flexible, wash-and-wear way to transport information at a very low cost.
Computers communication travels ahead of you, books travel with you and at your speed, but if you shipwreck in a desert island, a book can serve you, while you don't have any chance to plug a computer anywhere. And even though your computer has solar batteries you cannot easily read it while laying on a hammock. Books are still the best companions for a shipwreck, or for the Day After.
For scholarly purposes a book-to-read can be transformed into a hypertextual CD-ROM. A scholar may need to know, let us say, how many times the word good appears in the Paradise Lost.
However there are today new hypertextual poetics according to which even a book-to-read, even a poem can be transformed into a hypertext. At this point we are shifting to question two, since the problem is no more a practical one: it concern the very nature of the reading process.
Conceived in a hypertextual way even a detective story can be structured in a open way, so that its readers can even select a given reading-path, that is, to build up their own personal story - even to decide that the guilty one can and must be the detective instead of the butler.
Such an idea is not a new one. Before the invention of the computer, poets and narrators have dreamt of a totally open text that the readers could infinitely re-write in different ways. Such was the idea of
Le Livre, as extolled by Mallarmé; Joyce thought of his Finnegans Wake as a text that could be read by an ideal reader affected by an ideal insomnia. In the sixties Max Saporta wrote and published a novel whose pages could be displaced so as to compose different stories. Nanni Balestrini gave one of the early computers a disconnected list of verses that the machine put together in different ways so to compose different poems; Raymond Queneau invented a combinatorial algorithm by virtue of which it was possible to compose, from a finite set of lines, billions of poems. Many contemporary musicians have produced musical movable scores, and by manipulating them one can compose different musical performances.
As you have probably realized, even here one is dealing with two different problems. (I) The first is the idea of a text which is physically movable. Such a text should give the impression of the absolute freedom on the part of the reader; but this is only an impression, an illusion of freedom. The only machinery that allows one to produce infinite texts already existed from millennia, and it is the alphabet.
With a reduced number of letters one can produce, really, billions of texts, and this is exactly what has been done from Homer to the present days. A stimulus-text which provides us not with letters, or words, but with pre-established sequences of words, or of pages, does not set us free to invent anything we want. We are only free to move in a finite number of ways pre-established textual chunks.
But I, as a reader, do have this freedom even when I read a traditional detective novel. Nobody forbids me from imagining a different end. Given a novel where two lovers die I, as a reader, can either cry on their fate, or to try to imagine a different end in which they survive and live happy forever. In a way I, as a reader, feel freer with a physically finite text, on which I can muse for years, than with a movable one where only some manipulations are permitted.
(ii) This possibility leads us to the second problem which concerns a text which is physically finite and limited but that can be interpreted in infinite, or at least in many ways. This has been in fact the aim of every poet or narrator. But a text which can support many interpretations is not a text which can support every interpretation.
I think that we are confronted with three different ideas of hypertext. First of all, we should make a careful distinction between systems and texts. A system (for instance a linguistic system) is the whole of the possibilities displayed by a given natural language. Every linguistic item can be interpreted in terms of other linguistic or other semiotic items, a word by a definition, an event by an example, a natural kind by an image, and so on and so forth. The system is perhaps finite but unlimited. You go in a spiral-like movement ad infinitum. In this sense certainly all the conceivable books are comprised
by and within a good dictionary and a good grammar. If you are able to use the Webster you can write both the Paradise Lost and Ulysses.
Certainly, if conceived in such a way, a hypertext can transform every reader into an author. Give the same hypertextual system to Shakespeare and a schoolboy, and they have the same odds of producing Romeo and Juliet.
However a text is not a linguistic or an encyclopedic system. A given text reduces the infinite or indefinite possibilities of a system to make up a closed universe. Finnegans Wake is certainly open to many interpretations, but it is sure that it will never provide you the demonstration of Fermat's theorem, or the complete bibliography of Woody Allen. This seems trivial, but the radical mistake of irresponsible deconstructionists was to believe that you can do everything you want with a text. This is blatantly false. A textual hypertext is finite and limited; even though open to innumerable and original inquiries. FIG.6
Hypertext can work very well with systems, they cannot work with texts. Systems are limited but infinite. Texts are limited and finite, even they can allow for a high number of possible interpretations
(but they do not justify every possible interpretation).
There is however a third possibility. We may conceive of hypertexts which are unlimited and infinite.
Every user can add something, and you can implement a sort of jazz-like unending story. At this point the classical notion of authorship certainly disappears, and we have a new way to implement free creativity. Being the author of the Open Work I cannot but hail such a possibility. However there is a difference between implementing the activity of producing texts and the existence of produced texts.
We shall have a new culture in which there will be a difference between producing infinite texts and interpreting precise and finite texts. That is what happens in our present culture, in which we evaluate differently a recorded performance of Beethoven's Fifth and a new instance of a New Orleans Jam Session.
We are marching towards a more liberated society in which free creativity will co-exist with textual interpretation. I like this. But we must not say that we have substituted a old thing with another one. We have both, thanks God. TV zapping is a kind of activity which
has nothing to do with watching a movie. A hypertextual device that allows us to invent new texts has nothing to do with our ability to interpret pre-existing texts.
There is still another confusion between and about two different questions: (a) will
computers made books obsolete? and (b) will computers make written and printed
material obsolete?
Let us suppose that computers will make books to disappear. This would not mean the
disappearance of printed material.
The computer creates new modes of production and diffusion of printed documents. In
order to re-read a text, and to correct it properly, if it is not simply a short letter, one needs
to print it, then to re-read it, then to correct it at the computer and to reprint it again. I do not think that one is able to write a text of hundreds of pages and to correct it without printing it at least once.
We have seen that - if by chance one hoped that computers, and specially word processors, would have contributed to save trees - that was a wishful thinking. Computers encourage the production of printed material. We can think of a culture in which there will be no books, and people will go around with tons and tons of unbound sheets of paper. This will be pretty difficult, and will pose a new problem for libraries.
People desire to communicate with each other. In ancient communities they did it orally; in a more complex society they tried to do it by printing. Most of the books which are displayed in a bookstore should be defined as products of Vanity Presses, even if they are published by a university press. But with computer technology we are entering a new
Samisdazt Era. People can communicate directly without the mediation of publishing houses. Lot of people do not want to publish, they simply want to communicate each
other. Today they do it by E-mail or Internet, will result in being a great advantage for
books, books' civilization and books' market. Look at a bookstore. There are too many
books. I receive too many books every week. If the computer network will succeed in
reducing the quantity of published books, it would be a paramount cultural improvement.
One of the most common objections against the pseudo-literacy of computers is that young people get more and more accustomed to speak through cryptic short formulas: dir, help, diskcopy, error 67, and so on. One of the closing formulas used in the networks is cul8r.
Is that still literacy? FIG 7
I am a rare-books collector, and I feel delighted when I read the seventeenth-century titles that took one page and sometimes more. They look like the titles of Lina Wertmuller's movies. The introductions were several pages long. They started with elaborate courtesy formulas praising the ideal Addressee, usually an Emperor or a Pope, and lasted for pages and pages explaining in a very baroque style the purposes and the virtues of the text to
follow.
If Baroque writers read our contemporary scholarly books they would be horrified.
Introductions are one page long, briefly outline the subject matter of the book, and thank some
National or International Endowment for a generous grant, shortly explain that the book
has been made possible by the love and understanding of a wife or husband and of some children, and credit a secretary for having patiently typed the manuscript. We understand perfectly the whole of human and academic ordeals revealed by those few lines, the hundreds of nights spent underlining photocopies, the innumerable frozen hamburgers eaten in a hurry...
But let me guess that in the near future we will have three lines saying: "W/c, Smith,
Rockefeller," (to be read as: I thank my wife and my children; this book was patiently revised by Professor Smith, and was made possible by the Rockefeller Foundation.")
FIGURE 8
That would be as eloquent as a Baroque introduction. It is a problem of rhetoric and of acquaintance with a given rhetoric. I think that in the coming years passionate love messages will be sent in the form of a short instruction in Basic language, under the form "if... then", so to obtain, as an input, messages like "I love you, therefore I cannot live with you," (beautiful verse from Emily Dickinson).
Besides, the best of English mannerist literature was listed --as far as I remember-- in some
program language: 2B OR/NOT 2B " FIGURE 9
There is a curious idea according to which the more you say in verbal language, the more
you are profound and perceptive. Mallarmé told us that it is sufficient to spell out "une
fleur" to evoke a universe of perfumes, shapes, and thoughts. Frequently for poetry, the
fewer the words, the more the things. Three lines of Pascal say more than 300 pages of a long and boring treatise on morals and metaphysics. The quest for a new and surviving literacy ought not to be the quest for a pre-informatics quantity. The enemies of literacy are hiding elsewhere.
Until now I have tried to show that the arrival of new technological devices does not necessarily made previous device obsolete. The car is goes faster than the bicycle, but cars have not rendered bicycles obsolete and no new technological improvement can make a bicycle better than it was before. The idea that a new technology abolishes a previous role is too much simplistic. After the invention of Daguerre painters did not feel obliged to serve any longer as craftsmen obliged to reproduce reality such as we believe to see it. But it does not mean that Daguerre's invention only encouraged abstract painting. There is a whole tradition in modern painting that could not exist without the photographic model,
think for instance of hyper-realism. Reality is seen by the painter's eye through the
photographic eye.
Certainly the advent of cinema or of comic strips has made literature free from certain narrative tasks it traditionally had to perform. But if there is something like post-modern literature, it exists just because it has been largely influenced by comic strips or cinema.
For the same reason today I do not need any longer a heavy portrait painted by a modest artist and I can send my sweetheart a glossy and faithful photograph, but such a change in the social functions of painting has not made painting obsolete, except that today painted portraits do not fulfill the same practical function of portraying a person (which can be done better and less expensively by a photograph), but of celebrating important personalities, so that the command, the purchasing and the exhibition of such portraits acquire aristocratic connotations.
This means that in the history if culture it has never happened that something has simply killed something else. Something has profoundly changed something else.
I have quoted McLuhan, according to which the Visual Galaxy had substituted the Gutenberg Galaxy. We have seen that few decades later this was no longer true.
McLuhan stated that we are living in a new electronic Global Village. We are certainly living in a new electronic community, which is global enough, but this is not a Village - if by village one means a human settlement where people are directly interacting each other.
The real problems of an electronic community are the following: (1) Solitude. The new citizen of this new community is free to invent new texts, to cancel the traditional notion of authorship, to delete the traditional divisions between author and reader, but the risk is that - being in touch with the entire world by means of a galactic network - one feels alone.... (2) Excess of information and inability to choose and to discriminate. I am used to saying that certainly the Sunday NYT is the kind of newspaper where you can find everything fit to print. Its 500 hundred pages tell you everything you need to know about the events of the past week and the ideas for the new one. However, a single week is not enough to read the whole Sunday NYT. Is there a difference between a newspaper which says everything you cannot read, and a newspaper which says nothing, is there a difference between NYT and Pravda?
Notwithstanding this, the NYT reader can still distinguish between the book reviews, the pages devoted to the TV programs, the Real Estate supplement, and so on. The user of Internet has not the same skill. We are today unable to discriminate, at least at first glance, between a reliable source and a mad one. We need a new form of critical competence, an as yet unknown art of selection and decimation of information, in short, a new wisdom.
We need a new kind of educational training.
Let me say that in this perspective books will still have a paramount function. As well as you need a printed handbook in order to surf on Internet, so we will need new printed manuals in order to cope critically with the World Wide Web.
Let me conclude with a praise of the finite and limited world that books provide us.
Suppose you are reading Tolstoy’s War and Peace: you are desperately wishing that Natasha will not accept the courtship of that miserable scoundrel who is Anatolij; you desperately wish that that marvelous person who is prince Andrej will not die, and that he and Natasha could live together happy forever. If you had War and Peace in a hypertextual and interactive CD-rom you could rewrite your own story, according to your desires, you could invent innumerable War and Peaces, where Pierre Besuchov succeeds in killing Napoleon or, according to your penchants, and Napoleon definitely defeats General Kutusov.
Alas, with a book you cannot. You are obliged to accept the laws of Fate, and to realize that you cannot change Destiny. A hypertextual and interactive novel allows us to practice freedom and creativity, and I hope that such a kind of inventive activity will be practiced in the schools of the future. But the written War and Peace does not confront us with the unlimited possibilities of Freedom, but with the severe law of Necessity. In order to be free persons we also need to learn this lesson about Life and Death, and only books can still provide us with such a wisdom.
According to Plato (in Phaedrus) when Hermes, the alleged inventor of writing, presented his invention to the Pharaoh Thames, he praised his new technique that was supposed to allow human beings to remember what they would otherwise forget. But the Pharaoh was not so satisfied. "My skillful Theut, he said, memory is a great gift that ought to be kept alive by training it continuously. With your invention people will not be obliged any longer to train memory. They will remember things not because of an internal effort, but by mere virtue of an external device."
We can understand the preoccupation of the Pharaoh. Writing, as any other new technological device, would have made torpid the human power which it substituted and reinforced - just as cars made us less able to walk. Writing was dangerous because it decreased the powers of mind by offering human beings a petrified soul, a caricature of mind, a mineral memory.
Plato's text is ironical, naturally. Plato was writing his argument against writing. But he was pretending that his discourse was told by Socrates, who did not write (since he did not publish, he perished in the course of his academic fight.)
Nowadays, nobody shares these preoccupations, for two very simple reasons. First of all, we know that books are not ways of making somebody else think in our place; on the contrary they are machines that provoke further thoughts. Only after the invention of writing was it possible to write such a masterpiece on spontaneous memory as Proust's La Recherche du Temps Perdu.
Secondly, if once upon a time people needed to train their memory in order to remember things, after the invention of writing they had also to train their memory in order to remember books. Books challenge and improve memory; they do not narcotize it.
However, the Pharaoh was instantiating an eternal fear: the fear that a new technological achievement could abolish or destroy something that we consider precious, fruitful, something that represents for us a value in itself, and a deeply spiritual one.
It was as if the Pharaoh pointed first to the written surface and then to an ideal image of human memory, saying: "This will kill that."
More than one thousand years later Victor Hugo in his Notre Dame de Paris, shows us a priest, Claude Frollo, pointing his finger first to a book, then to the towers and to the images of his beloved cathedral, and saying "ceci tuera cela", this will kill that. (The book will kill the cathedral, alphabet will kill images).
The story of Notre Dame de Paris takes place in the XVth century, a little later than the invention of printing. Before that, manuscripts were reserved to a restricted elite of literate persons, but the only means to teach the masses about the stories of the Bible, the life of
Christ and of the Saints, the moral principles, even the deeds of the national history or the most elementary notions of geography and natural sciences (the nature of unknown peoples and the virtues of herbs or stones), was provided by the images of the cathedral.
A medieval cathedral was a sort of permanent and unchangeable TV program that was supposed to tell people everything indispensable for their everyday lives as well as for their eternal salvation. The book would have distracted people from their most important values, encouraging unnecessary information, free interpretation of the Scriptures, insane curiosity.
During the sixties, Marshall McLuhan wrote his The Gutenberg Galaxy, where he announced that the linear way of thinking instituted by the invention of the press, was on the verge of being substituted by a more global way of perceiving and understanding through the TV images or other kinds of electronic devices. If not Mc Luhan, certainly many of his readers pointed their finger first to a Manhattan Discotheque and then to a printed book by saying "this will kill that."
The media needed a certain time to accept the idea that our civilization was on the verge of becoming an image oriented one - which would have involved a decline of literacy. Nowadays this is a common shibboleth for every weekly magazine. What is curious is that the media started to celebrate the decline of literacy and the overwhelming power of images just at the moment in which, in the world scene, appeared the Computer.
Certainly a computer is an instrument by means of which one can produce and edit images, certainly instructions are provided by means of icons; but it is equally certain that the computer has become, first of all, an alphabetic instrument. On its screen there run words, lines, and in order to use a computer you must be able to write and to read. The new computer generation is trained to read at an incredible speed. An old-fashioned university professor is today incapable of reading a computer screen at the same speed as a teen-ager. These same teen-agers, if by chance they want to program their own home computer, must know, or learn, logical procedures and algorithms, and must type words and numbers on a keyboard, at a great speed.
In this sense one can say that the computer made us to return to a Gutenberg Galaxy.
People who spend their night implementing an unending Internet conversation are principally dealing with words. If the TV screen can be considered a sort of ideal window through which one watches the whole world under the form of images, the computer screen is an ideal book on which one reads about the world in form of words and pages.
The classical computer provided a linear sort of written communication. The screen was displaying written lines. It was like a fast-reading book.
But now there are hypertexts. In a book one had to read from left to right (or right to left, or up to down, according to different cultures) in a linear way. One could obviously skip through the pages, one - once arrived at page 300 - could go back to check or re-read something at page 10 - but this implied a labor, I mean, a physical labor. On the contrary a hypertext is a multidimensional network in which every point or node can be potentially connected with any other node.
Thus we have arrived at the final chapter of our this-will-kill-that story. It is more and more stated that in the near future hypertextual CD-ROMs will replace books.
With a hypertextual diskette books are supposed to become obsolete. If you even consider that
A hypertext is usually also multimedia; the complete hypertextual diskette will in the next future replace not only books but also videocassettes and many other supports.
Now we must ask ourselves if such a perspective is a realistic one or is mere science-fiction - as well as if the distinction we have just outlined between visual and alphabetic communication, books and hypertexts is really that simple. Let me list a series of problems and possible perspectives for our future.
Even after the invention of printing books has never been the only instrument for acquiring information. There were paintings, popular printed images, oral teaching, and so on. One can say that books were in any case the most important instrument for transmitting scientific information, including news about historical events. In this sense they were the paramount instrument used in schools.
With the diffusion of the various mass media, from cinema to television, something has changed.
Years ago the only way to learn a foreign language (outside of traveling abroad) was to study a language from a book. Now our kids frequently know other languages by listening to records, by watching movies in the original edition, by deciphering the instructions printed on a beverage can. The same happens with geographical information. In my childhood I got the best of my information about exotic countries not from textbooks but by reading adventure novels (Jules Verne, for instance). My kids very early knew more than me on the same subjects from watching TV and movies. One could learn very well the story of the Roman Empire through movies, provided that movies were historically correct. The fault of Hollywood is not to have opposed its movies to the books of Tacitus or of Gibbon, but rather to have imposed a pulp- and romance-like version on both Tacitus and Gibbon.
A good educational TV program (not to speak of a CD-ROM) can explain genetics better than a book.
Today the concept of literacy comprises many media. An enlightened policy of literacy must take into account the possibilities of all of these media. Educational preoccupation must be extended to the whole of media. Responsibilities and tasks must be carefully balanced. If for learning languages, tapes are better than books, take care of cassettes. If a presentation of Chopin, with commentary on compact disks, helps people to understand Chopin, don't worry if people do not buy five volumes of the history of music.
Even if it were true that today visual communication overwhelms written communication, the problem is not to oppose written to visual communication. The problem is how to improve both.
In the Middle Ages visual communication was, for the masses, more important than writing.
But Chartres Cathedral was not culturally inferior to the Imago Mundi of Honorius of Autun.
Cathedrals were the TV of those times, and the difference from our TV was that the directors of the medieval TV --read: good books-- had a lot of imagination, and worked for the public profit
(or, at least, for what they believed to be public profit).
The real problems lay elsewhere. Visual communication has to be balanced with the verbal one, and mainly with the written one for a precise reason. Once, a semiotician, Sol Worth, wrote a paper, "Images cannot say Ain't". I can verbally say "Unicorns do not exist" but if I show the image of a unicorn the unicorn is there. Moreover, is the unicorn I see a unicorn or the unicorn, that is, does it stand for a given unicorn or for the unicorns in general?
This problem is not as immaterial as it can seem, and many, many pages have been written by logicians and semioticians on the difference between such expressions as a child, the child, this child, all children, childhood as a general idea. Such distinctions are not so easy to display through images. Nelson Goodman in his Languages of Art wondered if a picture representing a woman is the representation of Women in general, the portrait of a given woman, the example of the general characteristics of a woman, the equivalent of the statement there is a woman looking at me.
One can say that in a poster or on an illustrated book, the caption or other forms of written material can help to understand what the image means. But I want to remind you about a rhetorical device called example, on which Aristotle spent some interesting pages. In order to convince somebody about a given matter, the most convincing is a proof by induction. In induction I provide many cases and then I infer that probably they instantiate a general law.
Suppose I want to demonstrate that dogs are friendly and love their masters: I provided many cases in which a dog has proved to be friendly and helpful and I suggest that there must be a general law by which every animal belonging to the species of dogs is friendly.
Suppose now I want to persuade you that dogs are dangerous. I can do this by providing you with an example: "Once, a dog killed its master...." As you easily understand, a single case does not prove anything, but if the example is shocking I can surreptitiously suggest that dogs can even be unfriendly, and once you are convinced that it can be so, I can unduly extrapolate a law from a single case and conclude: "this means that dogs cannot be trusted." With the rhetorical use of the example I shift from a dog to all dogs.
If you have a critical mind you can realize that I have manipulated a verbal expression (a dog was bad) so to transform it into another one (all dogs are bad) which does not mean the same thing. But if the example is a visual rather than a verbal one, the critical reaction is made more difficult. If I show you the poignant image of a given dog biting its master it is very difficult to discriminate between a particular and a general statement. It is easy to take that dog as the representative of its species. Images have, so to speak, a sort of Platonic power: they transform individuals into general ideas.
Thus by a purely visual communication and education it is easier to implement persuasive strategies that reduce our critical power. If I read on a newspaper that a given man said "we want mister X as president" I am aware that I was given the opinion of a given man. But if I watch on the TV screen a man saying enthusiastically "we want mister X as president" it is easier to take the will of that individual as the example of the general will.
Frequently I think that our societies will be split in a short time (or they are already split) into two classes of citizens: those who only watch TV, who will receive pre-fabricated images and therefore prefabricated definitions of the world, without any power to critically choose the kind of information they receive, and those who know how to deal with the computer, who will be able to select and to elaborate information. This will re-establish the cultural division which existed at the time of Claude Frollo, between those who were able to read manuscripts, and therefore to critically deal with religious, scientific or philosophical matters, and those who were only educated by the images of the cathedral, selected and produced by their masters, the literate few.
A science fiction writer could elaborate a lot on a future world where a majority of proletarians will receive only visual communication planned by an elite of computer-literate people.
There are two sorts of books: these to be read and these to be consulted.
As far as books-to-read are concerned (they can be a novel, or a philosophical treatise, or a sociological analysis, and so on) the normal way of reading them is the one that I would call the detective-like story.
You start from page 1, where the author tells you that a crime has been committed, you follow every path of the detection until the end, and finally you discover that the guilty one was the butler. End of the book and end of your reading experience. Remark that the same happens even if you read, let us say, Descartes' Discourse de la methode. The author wanted you to open the book at its first page, to follow
the series of questions he proposed, to see how he reaches certain final conclusions. Certainly, a scholar, who already knows that book, can re-read it by jumping from one page to another, trying to isolate a possible link between a statement of the first chapter and one of the last one... A scholar can also decide to isolate, let us say, every occurrence of the word Jerusalem in the immense opus of Thomas Aquinas, thus skipping thousands of pages in order to focus his or her own attention on the only passages dealing with Jerusalem... But these are ways of reading that the layman would consider as unnatural.
Then there are the books to be consulted, like handbooks and encyclopedias. Sometimes handbooks must be read from the beginning to the end; but when one knows the matter enough, one can consult them, so selecting also certain chapters or passages. When I was in high-school I had to read entirely, in a linear way, my handbook on mathematics; today, if I need a precise definition of logarithm, I only consult it. I keep it on my shelves not to read and re-read it every day, but in order to keep it up once in ten years, to find the item I need to consult it about.
Encyclopedias are conceived in order to be always consulted and never read from the first to the last page. Usually one picks up a given volume of one's encyclopedia to know or to remember when
Napoleon died or what is the formula of sulfuric acid. Scholars use encyclopedias in a more sophisticated way. For instance, if I want to know whether it was possible or not that Napoleon met
Kant, I have to pick up the volume K and the volume N of my encyclopedia: I discover that Napoleon was born in 1769 and died in 1821; Kant was born in 1724 and died in 1804, when Napoleon was already emperor. It is not impossible that the two met. I have probably to consult a biography of Kant, or of Napoleon - but in a short biography of Napoleon, who met so many persons in his life, this possible meeting with Kant can be disregarded, while a in a biography of Kant a meeting with Napoleon should be recorded. In brief, I must leaf through many books in many shelves of my library, I must take notes in order to compare later all the data I collected, and so on. In short, all this will cost to me a painful physical labor.
With a hypertext, instead, I can navigate through the whole encyclopedia. I can connect an event registered at the beginning with a series of similar events disseminated all along the text, I can compare
the beginning with the end, I can ask for the list of all the words beginning by A, I can ask for all the cases in which the name of Napoleon is linked with the one of Kant, I can compare the dates of their birth and death - in short, I can do my job in few seconds or few minutes.
Hypertexts will certainly render obsolete encyclopedias and handbooks. In few Cd-roms (probably soon in a single one) it is possible to store more information than in the whole Encyclopedia Britannica, with the advantage that it permits crossed references and non-linear retrieval of information. The whole of the compact disks, plus the computer, will occupy one fifth of the space occupied by an encyclopedia. The encyclopedia cannot be transported as the CD-ROM can, the encyclopedia cannot be easily updated. The shelves today occupied, at my home as well as in public libraries, by meters and meters of encyclopedia could be eliminated in the next future, and there will be no reasons to complain for their disappearance.
Can a hypertextual disk replace the books to be read? This question conceals in fact two different problems and could be rephrased as two different questions.
(I) First, a practical one: Can some electronic support replace the books-to-read?
(II) Second an theoretical and an esthetical one: Can a hypertextual and multimedia CD-ROM transform the very nature of a book-to-read, such as a novel or a collection of poems?
Let me first answer the first question.
Books will remain indispensable not only for literature, but for any circumstance in which one needs to read carefully, not only to receive information but also to speculate and to reflect about it. To read a computer screen is not the same as to read a book. Think to the process of learning a new computer program. Usually the program is able to display on the screen all the instructions you need. But usually the users who want to learn the program either print the instructions and read them as if they were in book form, or they buy a printed manual (let me underevaluate the fact that presently all the computer's
Helps are clearly written by irresponsible and tautological idiots, while commercial handbooks are written by smart people). It is possible to conceive of a visual program that explains very well how to print and bind a book, but in order to get instructions on how to write (or how to use) a computer program, we need a printed handbook.
After having spent no more than 12 hours at a computer console, my eyes are like two tennis balls, and
I feel the need of sitting comfortably down in an armchair and reading a newspaper, and maybe a good poem. I think that computers are diffusing a new form of literacy but are incapable of satisfying all the intellectual needs they are stimulating.
In my hours of optimism I dream of a computer generation which, compelled to read a computer screen, gets acquainted with reading, but at a certain moment feels unsatisfied and looks for a different, more relaxed and differently-committing form of reading.
During a symposium on the future of books held at the university of San Marino (the proceedings are now published by Brepols), Regis Debray has observed that the fact that Hebrew civilization was a civilization based upon a Book is not independent on the fact that it was a nomadic civilization. I think that this remark is very important. Egyptians could carve their records on stone obelisks, Moses could not. If you want to cross the Red Sea, a scroll is a more practical instrument for recording wisdom. By the way, another nomadic civilization, the Arabic one, was based upon a book, and privileged writing over images.
But books also have an advantage in respect to computers. Even if printed in modern acid paper, which lasts only 70 years or so, they are more durable than magnetic supports. Moreover, they do not suffer of power shortage and black outs, and are more resistant to shocks. Up to now, books still represent the more economical, flexible, wash-and-wear way to transport information at a very low cost.
Computers communication travels ahead of you, books travel with you and at your speed, but if you shipwreck in a desert island, a book can serve you, while you don't have any chance to plug a computer anywhere. And even though your computer has solar batteries you cannot easily read it while laying on a hammock. Books are still the best companions for a shipwreck, or for the Day After.
For scholarly purposes a book-to-read can be transformed into a hypertextual CD-ROM. A scholar may need to know, let us say, how many times the word good appears in the Paradise Lost.
However there are today new hypertextual poetics according to which even a book-to-read, even a poem can be transformed into a hypertext. At this point we are shifting to question two, since the problem is no more a practical one: it concern the very nature of the reading process.
Conceived in a hypertextual way even a detective story can be structured in a open way, so that its readers can even select a given reading-path, that is, to build up their own personal story - even to decide that the guilty one can and must be the detective instead of the butler.
Such an idea is not a new one. Before the invention of the computer, poets and narrators have dreamt of a totally open text that the readers could infinitely re-write in different ways. Such was the idea of
Le Livre, as extolled by Mallarmé; Joyce thought of his Finnegans Wake as a text that could be read by an ideal reader affected by an ideal insomnia. In the sixties Max Saporta wrote and published a novel whose pages could be displaced so as to compose different stories. Nanni Balestrini gave one of the early computers a disconnected list of verses that the machine put together in different ways so to compose different poems; Raymond Queneau invented a combinatorial algorithm by virtue of which it was possible to compose, from a finite set of lines, billions of poems. Many contemporary musicians have produced musical movable scores, and by manipulating them one can compose different musical performances.
As you have probably realized, even here one is dealing with two different problems. (I) The first is the idea of a text which is physically movable. Such a text should give the impression of the absolute freedom on the part of the reader; but this is only an impression, an illusion of freedom. The only machinery that allows one to produce infinite texts already existed from millennia, and it is the alphabet.
With a reduced number of letters one can produce, really, billions of texts, and this is exactly what has been done from Homer to the present days. A stimulus-text which provides us not with letters, or words, but with pre-established sequences of words, or of pages, does not set us free to invent anything we want. We are only free to move in a finite number of ways pre-established textual chunks.
But I, as a reader, do have this freedom even when I read a traditional detective novel. Nobody forbids me from imagining a different end. Given a novel where two lovers die I, as a reader, can either cry on their fate, or to try to imagine a different end in which they survive and live happy forever. In a way I, as a reader, feel freer with a physically finite text, on which I can muse for years, than with a movable one where only some manipulations are permitted.
(ii) This possibility leads us to the second problem which concerns a text which is physically finite and limited but that can be interpreted in infinite, or at least in many ways. This has been in fact the aim of every poet or narrator. But a text which can support many interpretations is not a text which can support every interpretation.
I think that we are confronted with three different ideas of hypertext. First of all, we should make a careful distinction between systems and texts. A system (for instance a linguistic system) is the whole of the possibilities displayed by a given natural language. Every linguistic item can be interpreted in terms of other linguistic or other semiotic items, a word by a definition, an event by an example, a natural kind by an image, and so on and so forth. The system is perhaps finite but unlimited. You go in a spiral-like movement ad infinitum. In this sense certainly all the conceivable books are comprised
by and within a good dictionary and a good grammar. If you are able to use the Webster you can write both the Paradise Lost and Ulysses.
Certainly, if conceived in such a way, a hypertext can transform every reader into an author. Give the same hypertextual system to Shakespeare and a schoolboy, and they have the same odds of producing Romeo and Juliet.
However a text is not a linguistic or an encyclopedic system. A given text reduces the infinite or indefinite possibilities of a system to make up a closed universe. Finnegans Wake is certainly open to many interpretations, but it is sure that it will never provide you the demonstration of Fermat's theorem, or the complete bibliography of Woody Allen. This seems trivial, but the radical mistake of irresponsible deconstructionists was to believe that you can do everything you want with a text. This is blatantly false. A textual hypertext is finite and limited; even though open to innumerable and original inquiries. FIG.6
Hypertext can work very well with systems, they cannot work with texts. Systems are limited but infinite. Texts are limited and finite, even they can allow for a high number of possible interpretations
(but they do not justify every possible interpretation).
There is however a third possibility. We may conceive of hypertexts which are unlimited and infinite.
Every user can add something, and you can implement a sort of jazz-like unending story. At this point the classical notion of authorship certainly disappears, and we have a new way to implement free creativity. Being the author of the Open Work I cannot but hail such a possibility. However there is a difference between implementing the activity of producing texts and the existence of produced texts.
We shall have a new culture in which there will be a difference between producing infinite texts and interpreting precise and finite texts. That is what happens in our present culture, in which we evaluate differently a recorded performance of Beethoven's Fifth and a new instance of a New Orleans Jam Session.
We are marching towards a more liberated society in which free creativity will co-exist with textual interpretation. I like this. But we must not say that we have substituted a old thing with another one. We have both, thanks God. TV zapping is a kind of activity which
has nothing to do with watching a movie. A hypertextual device that allows us to invent new texts has nothing to do with our ability to interpret pre-existing texts.
There is still another confusion between and about two different questions: (a) will
computers made books obsolete? and (b) will computers make written and printed
material obsolete?
Let us suppose that computers will make books to disappear. This would not mean the
disappearance of printed material.
The computer creates new modes of production and diffusion of printed documents. In
order to re-read a text, and to correct it properly, if it is not simply a short letter, one needs
to print it, then to re-read it, then to correct it at the computer and to reprint it again. I do not think that one is able to write a text of hundreds of pages and to correct it without printing it at least once.
We have seen that - if by chance one hoped that computers, and specially word processors, would have contributed to save trees - that was a wishful thinking. Computers encourage the production of printed material. We can think of a culture in which there will be no books, and people will go around with tons and tons of unbound sheets of paper. This will be pretty difficult, and will pose a new problem for libraries.
People desire to communicate with each other. In ancient communities they did it orally; in a more complex society they tried to do it by printing. Most of the books which are displayed in a bookstore should be defined as products of Vanity Presses, even if they are published by a university press. But with computer technology we are entering a new
Samisdazt Era. People can communicate directly without the mediation of publishing houses. Lot of people do not want to publish, they simply want to communicate each
other. Today they do it by E-mail or Internet, will result in being a great advantage for
books, books' civilization and books' market. Look at a bookstore. There are too many
books. I receive too many books every week. If the computer network will succeed in
reducing the quantity of published books, it would be a paramount cultural improvement.
One of the most common objections against the pseudo-literacy of computers is that young people get more and more accustomed to speak through cryptic short formulas: dir, help, diskcopy, error 67, and so on. One of the closing formulas used in the networks is cul8r.
Is that still literacy? FIG 7
I am a rare-books collector, and I feel delighted when I read the seventeenth-century titles that took one page and sometimes more. They look like the titles of Lina Wertmuller's movies. The introductions were several pages long. They started with elaborate courtesy formulas praising the ideal Addressee, usually an Emperor or a Pope, and lasted for pages and pages explaining in a very baroque style the purposes and the virtues of the text to
follow.
If Baroque writers read our contemporary scholarly books they would be horrified.
Introductions are one page long, briefly outline the subject matter of the book, and thank some
National or International Endowment for a generous grant, shortly explain that the book
has been made possible by the love and understanding of a wife or husband and of some children, and credit a secretary for having patiently typed the manuscript. We understand perfectly the whole of human and academic ordeals revealed by those few lines, the hundreds of nights spent underlining photocopies, the innumerable frozen hamburgers eaten in a hurry...
But let me guess that in the near future we will have three lines saying: "W/c, Smith,
Rockefeller," (to be read as: I thank my wife and my children; this book was patiently revised by Professor Smith, and was made possible by the Rockefeller Foundation.")
FIGURE 8
That would be as eloquent as a Baroque introduction. It is a problem of rhetoric and of acquaintance with a given rhetoric. I think that in the coming years passionate love messages will be sent in the form of a short instruction in Basic language, under the form "if... then", so to obtain, as an input, messages like "I love you, therefore I cannot live with you," (beautiful verse from Emily Dickinson).
Besides, the best of English mannerist literature was listed --as far as I remember-- in some
program language: 2B OR/NOT 2B " FIGURE 9
There is a curious idea according to which the more you say in verbal language, the more
you are profound and perceptive. Mallarmé told us that it is sufficient to spell out "une
fleur" to evoke a universe of perfumes, shapes, and thoughts. Frequently for poetry, the
fewer the words, the more the things. Three lines of Pascal say more than 300 pages of a long and boring treatise on morals and metaphysics. The quest for a new and surviving literacy ought not to be the quest for a pre-informatics quantity. The enemies of literacy are hiding elsewhere.
Until now I have tried to show that the arrival of new technological devices does not necessarily made previous device obsolete. The car is goes faster than the bicycle, but cars have not rendered bicycles obsolete and no new technological improvement can make a bicycle better than it was before. The idea that a new technology abolishes a previous role is too much simplistic. After the invention of Daguerre painters did not feel obliged to serve any longer as craftsmen obliged to reproduce reality such as we believe to see it. But it does not mean that Daguerre's invention only encouraged abstract painting. There is a whole tradition in modern painting that could not exist without the photographic model,
think for instance of hyper-realism. Reality is seen by the painter's eye through the
photographic eye.
Certainly the advent of cinema or of comic strips has made literature free from certain narrative tasks it traditionally had to perform. But if there is something like post-modern literature, it exists just because it has been largely influenced by comic strips or cinema.
For the same reason today I do not need any longer a heavy portrait painted by a modest artist and I can send my sweetheart a glossy and faithful photograph, but such a change in the social functions of painting has not made painting obsolete, except that today painted portraits do not fulfill the same practical function of portraying a person (which can be done better and less expensively by a photograph), but of celebrating important personalities, so that the command, the purchasing and the exhibition of such portraits acquire aristocratic connotations.
This means that in the history if culture it has never happened that something has simply killed something else. Something has profoundly changed something else.
I have quoted McLuhan, according to which the Visual Galaxy had substituted the Gutenberg Galaxy. We have seen that few decades later this was no longer true.
McLuhan stated that we are living in a new electronic Global Village. We are certainly living in a new electronic community, which is global enough, but this is not a Village - if by village one means a human settlement where people are directly interacting each other.
The real problems of an electronic community are the following: (1) Solitude. The new citizen of this new community is free to invent new texts, to cancel the traditional notion of authorship, to delete the traditional divisions between author and reader, but the risk is that - being in touch with the entire world by means of a galactic network - one feels alone.... (2) Excess of information and inability to choose and to discriminate. I am used to saying that certainly the Sunday NYT is the kind of newspaper where you can find everything fit to print. Its 500 hundred pages tell you everything you need to know about the events of the past week and the ideas for the new one. However, a single week is not enough to read the whole Sunday NYT. Is there a difference between a newspaper which says everything you cannot read, and a newspaper which says nothing, is there a difference between NYT and Pravda?
Notwithstanding this, the NYT reader can still distinguish between the book reviews, the pages devoted to the TV programs, the Real Estate supplement, and so on. The user of Internet has not the same skill. We are today unable to discriminate, at least at first glance, between a reliable source and a mad one. We need a new form of critical competence, an as yet unknown art of selection and decimation of information, in short, a new wisdom.
We need a new kind of educational training.
Let me say that in this perspective books will still have a paramount function. As well as you need a printed handbook in order to surf on Internet, so we will need new printed manuals in order to cope critically with the World Wide Web.
Let me conclude with a praise of the finite and limited world that books provide us.
Suppose you are reading Tolstoy’s War and Peace: you are desperately wishing that Natasha will not accept the courtship of that miserable scoundrel who is Anatolij; you desperately wish that that marvelous person who is prince Andrej will not die, and that he and Natasha could live together happy forever. If you had War and Peace in a hypertextual and interactive CD-rom you could rewrite your own story, according to your desires, you could invent innumerable War and Peaces, where Pierre Besuchov succeeds in killing Napoleon or, according to your penchants, and Napoleon definitely defeats General Kutusov.
Alas, with a book you cannot. You are obliged to accept the laws of Fate, and to realize that you cannot change Destiny. A hypertextual and interactive novel allows us to practice freedom and creativity, and I hope that such a kind of inventive activity will be practiced in the schools of the future. But the written War and Peace does not confront us with the unlimited possibilities of Freedom, but with the severe law of Necessity. In order to be free persons we also need to learn this lesson about Life and Death, and only books can still provide us with such a wisdom.
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