In my dissertation, I chart how the American legal concept of a right to privacy first took shape in the national legal imagination in relation to historical realignments in the production of raced and gendered subjects at the end of the nineteenth century. I argue that the evolution and consolidation of this rights claim in the final decade of the nineteenth century served to manage then-pervasive anxieties about the increasing reliance on visuality as a register and regulator of social "difference"—and racial difference, in particular. Set at the intersections of privacy's legal archive with literary and social texts, and mass cultural forms such as print advertising and commercial illustration, my investigative and critical genealogy focuses on the earliest legal articulations of privacy rights in the U.S., a set of claims concerned with the reputed threat posed by a rapidly expanding media culture.
According to most contemporary scholarship on the juridical and popular responses to the "invasion of privacy" widely decried throughout the sunset years of the nineteenth century, the actual contents of newspaper stories or print advertisements were never really at issue. What was at issue? The very material fact of being so depicted. Narrowly focused on historical anxieties about the matter of media forms, this analysis overlooks the ways in which the very forms of representation then believed to be implicitly embarrassing to the individual subject (regardless of content) were, in this era, saturate with depictions explicitly intended to demean and embarrass entire classes of Americans. I have in mind the grotesque racial stereotypes that predominated media representations of African Americans and other peoples of color. In a public culture in which graphic instances of specifically racial denigration, insult, and rebuke acquired the status of social reality, the production in the law of a right to individual privacy for some Americans provided an unequivocally privileged site for a racially "white" citizen-subject as media consumer and subject, and in effect, as the American norm. In my dissertation, I argue that it is this privilege and the system of racial difference it secures that underlie the social, cultural pressures compelling privacy's consecration as a legal rights claim.
I track the evolution of juridical and cultural concepts of individual privacy through readings of legal texts—from case law to legal scholarship—framed in deep interrelation to what I hope are fresh readings of early-twentieth-century authors, such as W. E. B. du Bois, Charles Chesnutt, and James Weldon Johnson. My focus in these readings is on how their major texts capture the racialization of political personhood in privacy doctrine and public culture, as a central aspect of their engagement with the cultural geographies of white supremacy. In my first chapter, I argue that privacy's social meanings as well as the motivations for its defense derive in the capacity of "publicity" to both reinforce and destabilize racial and gender hierarchies. I develop this argument through a reading of W. E. B. Du Bois's The Souls of Black Folk that focuses on how du Bois's concept of "soul" functioned as a critical counterpoint to contemporary, implicitly "white" discourses of privacy as elaborated in the seminal 1890 legal scholarly article "The Right to Privacy." In situating Du Bois's analysis historically, I also draw on Plessy v. Ferguson, a legal text which, I argue, both recognized and disavowed how publicity and its social forms functioned as technologies of racialization. In my second chapter, I address the content of late-nineteenth-century media culture as saturated by depictions explicitly intended to demean and embarrass—namely, the frequently grotesque stereotypes and ethnic caricature that predominated media representations of African Americans and other peoples of color. Such depictions were wholly ignored by the privacy doctrine's original proponents, who asserted that media forms were intrinsically injurious regardless of content. In this chapter, I also examine Charles W. Chesnutt's novel The Marrow of Tradition, and how its retelling of the then-recently decided Plessy case implicates a discourse of racialized privacy as a subtending force in this Supreme Court case's adjudication. In the third chapter, I develop my argument that the denigrating exposure, commodification, and self-alienation that so alarmed privacy rights advocates came to acquire, in the very media sphere regulated by this new legal concept, an intrinsic association with forms of social "otherness" and with racial blackness, in particular. I draw on the early history of privacy rights case law, a jurisprudence that proceeds directly from "The Right to Privacy," and its uncanny intersection with the coeval history of America's most famous instance of racialized publicity—the Aunt Jemima trademark—to argue that it is this racialization of publicity itself that underlies and proceeds from the "whiteness" of privacy.