The Whiteness of Privacy: Race, Media, Law

This essay explores how the early history of the American right to privacy, first expressed in the law as a right to media privacy, reflects the racialization of concepts of privacy and publicity in nineteenth-century visual culture. Where standard scholarly treatments focus on the gendering of these concepts, Osucha argues that they can also be explained by nineteenth-century anxieties about stabilizing the boundaries of racial whiteness. Analyzing the historical legal discourse via the seminal 1890 Harvard Law Review article “The Right to Privacy,” as well as via early case law directly inspired by that article, Osucha links the doctrine's fundamental concern with privacy-as-property to new understandings of subjectivity, commodification, and the image produced at the nexus of an emergent commercial mass media and technological and social transformations of photography in the same era. The reconfiguration of privacy is also linked to how race, gender, and class are articulated visually in nineteenth-century media culture. Thus drawing on histories of photography and consumerism, legal history, and cultural theory, as well as on the visual archive of the original Aunt Jemima trademark, the present essay argues that anxieties about the media exposure and commodification of white women that saturated the legal texts of media privacy were correlative to the spectacular forms of exposure and commodification of black subjects routine in the era's commercial print culture. This conjunction of legal and media discourse calls for a rehistoricization of the function of media publicity as a technology of racialization