furnishing alcohol to minors.39
One researcher warned, “social networks reveal aspects of a parent’s life that judges have
not had access to before.”40 Another warned that some posts can come back to bite parents, and to
prevent this future harm, parents either have to “act like a Stepford parent and post only positive
and glowing things about your every moment with your child,” or “never to have … a social
network page.”41 However, Andrews failed to acknowledge that even creating a glowing
reputation for your child online could infringe on their right to self-definition.
There are some benefits to our social media craze. The Pew Research Center has found that
social networking helps us maintain our social ties, have more close ties and be less likely to face
social isolation.42 Facebook users in particular are more trusting and have more close relationships
than non-Facebook users, and Facebook itself revives “dormant” relationships.43 However, despite
the benefits of social media, the problem remains that children largely have no say in whether or
not they will have an online presence.
III. THE WARREN AND BRANDEIS ANALYSIS:
FUNDAMENTAL RIGHTS IN EXISTING LAW
A. Right to Privacy
In 1890, the Harvard Law Review published one of the most cited articles on privacy law:
The Right to Privacy.44 The article discussed that the growing need for privacy was due to “column
upon column … filled with idle gossip, which can only be procured by intrusion upon the domestic
circle.”45 They viewed this intrusion negatively, due to the effect of such gossip: “invasions upon
his privacy, subjected him to mental pain and distress…”46 The authors also discussed that in
addition to a right to be free from the gossip of others, people have a right not to express, or in
other words, to keep things private. They provide a hypothetical of a man who writes in his diary
that he decided not to dine with his wife on a particular day, and assert that not only is he the only
one allowed to publish that writing, but that the right of privacy extends to the act itself.47
The Warren and Brandeis article “established a method for judging new technologies,”48
the basis for which is the fundamental values that are inherent in the Constitution and common
law.49 Technology’s impact on individuals, institutions, and society on a wide scale was important
39 ANDREWS, supra note 3, at 5.
40 Id. at 141.
47 Id. at 201 (“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.”).
48 ANDREWS, supra note 3, at 57.