BRINGING PRIVACY LAW OUT OF THE CLOSET: A TORT THEORY OF LIABILITY FOR INTRUSIONS IN PUBLIC PLACES ANDREW JAY MCCLURG* In this Article, Professor McClurg posits that the right to privacy in tort law must be expanded. His proposal offers relief to a class of plaintiffs that are routinely denied a forum for litigation-those who suffer invasions of privacy in a "public" place. McClurg asserts that this lack of protection is ironic: while the right to privacy in tort law has been limited by courts in recent years, the excesses of modern journalism and the proliferation of video camcorders have greatly increased the threat that individual privacy might be invaded, particularly in public places. Consequently, McClurg argues for legal recognition of a right of "publicprivacy." While some courts have intuitively recognized such a right,McClurg asserts that express recognitionof a right of action is necessary. McClurg's proposal redefines the tort of intrusion (as incorporated in the RESTATEMENT (SECOND) OF TORTS) to allow recovery for highly offensive instances of public intrusion. He enlists a multifactored standard to assess the offensiveness of intrusive conduct, a standardthat balancesprivacy interests against the countervailing interests of free social interactionand free speech. I. INTRODUCrION .................................. 990 II. THE SHRINKING RIGHT OF PRIVACY IN TORT LAW ....... 996 III. THE GROWING THREAT TO PRIVACY: REVISITING THE FEARS OF WARREN AND BRANDEIS ............. 1009 A. The Uncivil Media ............................ 1009 B. Video Cameras: The Newest Threat to Privacy ...... 1017 IV. PROTECTION IN PUBLIC: A THEORY OF "PUBLIC PRIVACY" .. ................. 1025 A. Defining Privacy ............................. 1028 1. Solitude-Physical Access to a Person ......... 1031 2. Secrecy-Information Known About a Person ... 1031 * Professor of Law, University of Arkansas at Little Rock. The
