Genres of Privacy in Postwar America
Palmer Rampell



Genres of Privacy

A FLASH OF BLOOD on the balcony of the Capitol. A row of women in red cloaks and white hoods stood side by side. Armed police officers surrounded them. This was not a scene from a movie or book, though it may have seemed like one. In March 2017, pro-choice women began protesting laws restricting abortion by wearing the red gowns of The Handmaid’s Tale to state capitols and in other public areas. In Washington, DC, and in Texas, Ohio, New Hampshire, Missouri, and even Ireland and Argentina, pro-choice women seized upon the red gowns as highly visible symbols of the way the new laws would collapse their individuality.1 As Margaret Atwood’s imagination come to life, the cloaks were blood-red, making the women all look like homogeneous uterine figures: “two-legged wombs” or “ambulatory chalices.” The white hooded wings around their heads were designed to disguise their individuality: “to keep us from seeing but also from being seen.”2 The red cloaks worked especially well as symbols because their strong association with inherited generic forms threatened to flatten out the women’s personhood. The costumes made the women look childlike—innocent Little Red Riding Hoods (“fairy-tale figures”).3 Or they could have been Scarlet Letter bearers (Atwood was inspired by Boston Puritans), their personality reduced beneath a sign of their gender. Or perhaps, fitting the title, they were transformed into types like the nameless Miller, Knight, Squire, and Nun’s Priest in Chaucer’s Canterbury Tales. As real-life women, they made the statement that they were stuck in yet another inherited genre—feminist dystopia.

Atwood did not want real-life women to be thought of as generic non-persons. She felt similarly about her fictional characters. As a writer, Atwood has been notoriously resistant to the category of science fiction, which she says is about “rockets, chemicals, and talking squids in outerspace.”4 She thinks of herself instead as writing “speculative fiction,” which concerns real people in scenarios that could really happen.5 But in spite of her dismissiveness toward genre, Atwood is far from the only genre writer in the period to imagine a productive tension between generic forms nominally populated by flattened characters and a political liberalism dedicated to protecting the distinctness (or roundness) of private individuals. In and out of the world of the text, characters in genre fiction—whether androids or criminals or Handmaids—are often thought of as less than people. As such, this book argues, genre fiction has been a particularly provocative place in which to consider the right to privacy, which, especially in the aftermath of Roe v. Wade, has often been understood as a right to define oneself as a person.6 The red cloak of the Handmaid gave protesting women a readymade symbol to express the legal logic that tied privacy to abortion: without the right to control their own bodies, they were not being treated as people with distinct private lives and choices to make.

Genres of Privacy argues that Atwood’s The Handmaid’s Tale is only one of myriad instances of postwar genre fiction incisively engaging with the tensions surrounding the right to personal privacy. The constitutional right to privacy was legally enshrined in relationship to questions of sexual reproduction, as a right for a married couple to use contraception, in Griswold v. Connecticut (1965). But before and after its official legal establishment, legal scholars, judges, and everyday people thought about the right to privacy as the right to define oneself as a person, thereby encompassing other issues of personal autonomy and bodily freedom—like queer sexuality, police surveillance, abortion, child abuse, and euthanasia. This book shows how certain aesthetically ambitious genre writers—Patricia Highsmith, Chester Himes, Philip K. Dick, Octavia Butler, Stephen King, Cormac McCarthy, and many more—imagined each of these issues in their fiction, and in doing so, also reimagined their genres. Each chapter examines a different genre—villain-centered crime fiction, the police procedural, New Wave science fiction, mass-market horror, literary westerns—and shows how it developed through an engagement with an issue that fell under the penumbra of the right to privacy. Precisely because they did not write about people (or so their critics imagined), certain genre writers of the postwar era turned out to be particularly incisive in formulating ideas about the right to personal privacy.

To understand more fully why there should have been a deep relationship between the right to privacy and genre fiction, it is worth dilating on the two terms of my argument—first right to privacy, then genre fiction. The phrase “right to privacy” was coined by Samuel Warren and Louis Brandeis in their classic Harvard Law Review article, “The Right to Privacy” (1890), which was concerned with the invasive forces of “instantaneous photographs,” a newly literate mass public, and yellow journalism. Brandeis and Warren claimed to have discovered the right to privacy within the common law, the collective body of cases reaching back hundreds of years in America and England, even though that right to privacy was never explicitly mentioned as such. But even Warren and Brandeis’s original framing was inconsistent: their definition of the right to privacy oscillated between “the right to be let alone”—a freedom from interference—and “the right to an inviolate personality”—an ownership of the core aspects of one’s very self.7 By the early 1960s, most states recognized different types of privacy torts—like publicly disclosing embarrassing facts or appropriating a name or likeness—but privacy had not been established as a constitutional right.8

In fact, before the 1960s, even the legal concept of a “right” was comparatively limited in scope. Constitutional law was more concerned with federalism—the division of power between states and the federal government—than with civil liberties. While in 1933, only 9 percent of cases the Court heard dealt with civil rights and civil liberties, by 1971, that number had ballooned to 65 percent.9 Over the course of the 1960s, society witnessed what constitutional scholars call a “rights revolution,” a social movement that dramatically expanded the scope of civil liberties, leading to new freedoms for women, people of color, criminal defendants, prisoners, children, people with disabilities, the elderly, and other groups.10 Rights became the lingua franca for argumentation about a just society (the Equal Rights Amendment, Miranda rights, the right to an abortion, the Civil Rights Act, etc.) and even spread throughout the broader culture so that people began to use the idea of a right to make extra-legal claims about private duties, obligations, and norms (i.e., what gives you the right?). Though the legal “rights revolution” was in practice composed of, and enabled by, many different movements and groups with diverse politics—civil rights activists, feminists, disability rights advocates, judges, nonprofits, foundations, a robust middle class with access to higher education—in retrospect, we can see that these different movements had a potent ideological vision at their core. First, the fundamental liberties enshrined in the Bill of Rights, and further developed in the 1965 Civil Rights Act, would be extended to as many groups as possible. Second, a right was not only a “trump” against government; it stood for a guarantee at the core of postwar American liberalism: the idea that people should, as much as possible, be allowed and empowered to pursue their own ends.

Because it was a right that was not explicitly written within the Constitution or Bill of Rights, the right to privacy stood, perhaps more than any other, for the way the idea of a “right” underwent a profound transformation in the postwar era. In 1965, the Court first established the right to privacy in Griswold v. Connecticut, in which the ACLU orchestrated a challenge to an old Connecticut law outlawing contraception that had not been enforced for many years. In deliberating, Chief Justice Earl Warren said that “basic rights are involved here—we are dealing with a confidential association, the most intimate in our life.”11 Justice Douglas, author of the opinion, had initially suggested that the case concerned freedom of assembly, but the Court ultimately chose privacy.12 In Douglas’s notoriously cryptic formulation, privacy could be found “emanat[ing]” out of the “penumbras” of the Bill of Rights.13 There were aspects of the First Amendment (freedom of assembly), the Fourth Amendment (freedom from search and seizures), the Ninth Amendment (the possibility of unenumerated rights), and the Fourteenth Amendment (due process) that seemed to guarantee it, even if it wasn’t explicitly enumerated as such. In that initial opinion, Justice Douglas, writing for the majority, described it as the right of a family, protecting “the intimate relation of husband and wife.”14 In Katz v. United States (1967), a landmark case that found warrantless federal eavesdropping in a phone booth unconstitutional under the Fourth Amendment, the Court ruled that the right to privacy was “left largely to the law of the individual States.”15 It was not until Eisenstadt v. Baird (1972), an abortion rights case preceding Roe v. Wade, that the Court spoke of the privacy right as the right of an individual “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”16

When, in Roe, the Court protected early trimester abortion rights, its phrasing seemed designed to allow for ambiguity and expansion. “The right to privacy,” the Court wrote, “is . . . broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”17 It did not specifically enumerate the other activities that could be included under this “broad” right. As Mary Ziegler has shown, in the decades since Roe, different groups have cited it as providing precedent for claims about gay and lesbian rights, sex work, the treatment of mental illness, alternative medicine, and euthanasia.18 The Court’s rhetoric interpreting the decision in Roe has also grown more bombastic. In Thornburgh v. American College of Obstetricians and Gynecologists (1986), Justice John Paul Stevens described privacy not as a right to freedom from interference but as a right to “self-determination.”19 In Planned Parenthood v. Casey (1992), the Court explained privacy as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”20 In the span of less than thirty years, the Court had gone from not recognizing a right to privacy to claiming it as a right to define not only oneself but also the meaning of the universe.21

Many have decried the right to privacy for being not only atextual and ahistorical but also contradictory or inadequate. The law professor Daniel Solove, who believes the term refers to several different types of violations, has chronicled a list of complaints lodged against privacy since Griswold as “exasperatingly vague and evanescent,” “infected with pernicious ambiguities,” and “engorged with various and distinct meanings,” among others.22 From the perspective of some on the Left, the focus on individual liberty cannot address systemic inequalities based on gender, race, or class. A woman’s right to choose an abortion does not guarantee her access to one. The right to privacy has been used to shield marital rape and battery.23 The imagination of privacy as heterosexual (and the corresponding regime of don’t-ask-don’t-tell) has denied queer people public legitimation.24 The right to privacy has done little to protect people of color from a surveillance state, nor does it have much purchase on the poor who lack the privacy of the middle-class home.25 For many on the Right, privacy is ahistorical and atextual, nowhere written in the Constitution. Conservatives frequently saw Roe’s right to privacy as celebrating working women over caregivers or homemakers and as shunting the unborn or those with disabilities to a place of lesser importance.26 They viewed it as an anti-democratic, anti-familial attempt to impose a certain set of moral values on the rest of the population.27

Nonetheless, the idea that individuals should be empowered to pursue their own private idea of the good life was a powerful one, binding together groups with remarkably diverse political commitments: privacy could accommodate a midcentury liberal’s commitment to political deliberation and reflection; the New Left anti-establishment emphasis on the realization of the authentic self; and the neoliberal sense of atomized individualism and personal responsibility in the 1970s and beyond. It was at the heart of the most celebrated text of postwar liberal political philosophy, John Rawls’s Theory of Justice, which harked back to Brandeis and Warren’s peculiar notion of “inviolability” on the very first page: “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”28 For Rawls, the goal of a just society was not to maximize collective happiness, to foster civic debate, nor to ensure the spread of a given culture or religion, but to put fair procedures in place so that individuals could pursue their own visions of the good life—to enable private choice. The new right to privacy may have been atextual, inconsistent, even incoherent, but it also stood for the basic political promise of postwar liberalism: the freedom to make one’s own choices, define one’s own priorities, determine one’s own affiliations, pursue one’s own idea of the good. (This emphasis on individual choice was in contrast to the previous period’s New Deal–era commitment to social solidarity.)

While classical liberals like Rawls were relatively inattentive to the distinctiveness of feminist, queer, or racial claims about justice, liberal activists and theorists imagined that privacy could be reformed to include women’s claims to personal autonomy, LGBTQ rights, or rights for people of color.29 Betty Friedan, for instance, adopted the autonomy argument implicit in Roe in speaking of a woman’s right to an abortion as grounded in “the basic personhood and dignity of woman.”30 The National Organization for Women, ACLU’s privacy project, and the Gay Liberation Front all drew on Roe to argue for recognition of women’s and gay rights.31 In arguing for aid to Black mothers addicted to drugs, the legal scholar Dorothy Roberts imagined that privacy could stand not merely for a right to be left alone, but for the “affirmative duty of government to protect the individual’s personhood from degradation and to facilitate the processes of choice and self-determination.”32 To some, privacy was inadequate and inconsistent; to others, it was the fulcrum by which to obtain legal recognition for new groups and new types of claims to personal autonomy.

The protean right to privacy was thus central to what many in the period imagined as the just society, even as it was also incoherent, constitutionally atextual, and sustained by different groups with conflicting ideologies and priorities. As such, analyzing the explicit letter of the law will take us only so far in understanding the evolution of the idea of privacy. To comprehend how the Court could go from not recognizing a constitutional right to privacy in the early 1960s to claiming, in 1992, that the right to privacy entailed the right to define one’s conception of the universe, we need to look not only at the texts of the Court’s decisions surrounding privacy, the legislation, and the legal arguments, but to the culture surrounding all of these—the powerful discourse surrounding the law that Mary Ann Glendon calls “rights talk.”33 Many scholars have shown how the culture of the Cold War framed American individualism against privacy-destroying communism and totalitarianism.34 More recently, Sarah Igo has extended that logic beyond the Cold War framing, demonstrating that a bevy of new cultural artifacts, sociological structures, and media technologies—suburban architectures, personality testing, mass media, computer databanks, science fiction, and spy movies—gave rise to the overwhelming sense that a long-cherished right to privacy was disappearing.35 Privacy can be found in legislative history or judicial opinions, but it can also be found on the news, in literature or film, in architecture and advertising. When faced with new issues of privacy, Supreme Court justices and legislators often find themselves referring to works like Nineteen Eighty-Four, 2001: A Space Odyssey, or more recently, The Hunger Games to justify their claims.36 Culture was the medium on which the right to privacy developed, the invisible ether through which it propagated.

Certain authors of postwar genre fiction turned out to be particularly insightful about privacy primarily because of a confluence of three factors: a semi-marginalized position in a literary field oriented around the private person, aesthetic ambition, and inherited anti-realist and illiberal forms. While the law of privacy expressed the evolving vision of postwar liberalism—that every person should be entitled to define their idea of the good life—literary critics and novelists imagined literature as playing a particular role in the definition of that vision. Literature, by which they most often meant realist literary fiction, enabled people to understand the multifariousness of the ways that people choose to live their lives. Literature encouraged private reflection and cultivated an appreciation for private choice. A long line of influential critics—Lionel Trilling, Ian Watt, Lynn Hunt, Jürgen Habermas, Martha Nussbaum—have connected the reading of novels with the development of the private individual in a tradition that stretches back to the birth of eighteenth-century liberalism.37 Novel reading, the argument goes, helped people orient themselves to a new mode of life in which individuals had distinct personalities, private lives, and private selves. Personal identity was no longer subsumed in relationship to the church or the aristocracy; distinct individuals, nurtured into being by the private spaces of the home and the family, were positioned in contradistinction to the public spaces of the market, the government, or the town. Novel reading was not only designed to take place in these new private spaces, but it also provided models of individual character and private interiority that individuals could use to shape their newfound individualities. It taught people to imagine and understand the private lives of others different from them.

Authors of literary fiction took up the mantle of defending liberal privacy and personhood, announcing their project as rescuing the private person from the homogenizing forces of mass culture and the marketplace. The liberal political vision of the period—in which people were rational, deliberative citizens who determined their own priorities—was uneasily married to the commercial culture of the marketplace—in which people were desirous consumers. Literary writers saw themselves as protecting the deliberators from devolving into the consumers. In an article for Harper’s entitled “On Privacy” (1955), William Faulkner wrote that without privacy a person would become one “identityless integer in that identityless anonymous unprivacied mass.” Defining himself against the mass media of advertising, film, and radio, the true artist counteracts these forces; he represents “the private individual human spirit.”38 David Foster Wallace similarly imagined his fiction decades later as depicting the fundamental qualities of what it meant to be human. He said something similar to Faulkner but added an expletive: “Fiction’s about what it is to be a fucking human being.”39 Like Faulkner, Wallace imagined “commercial art” culture as infantilizing, training a reader to be “childish” and lazy. In Wallace’s view, while fiction writers were particularly and acutely conscious of the distinction between public and private life, television was most insidious when it provided the fantasy of unmediated voyeurism, that “we’re transcending privacy.”40 In other essays, Jonathan Franzen waxed nostalgic for the “distinction between public and private,” and Richard Powers missed the possibility of “a life lived off the record.”41

For certain literary novelists as well as critics like Edmund Wilson and Dwight Macdonald, an individualized capacity for self-expression and reflection was the hallmark of the private person; genre fiction, by contrast, was “not about people at all,” fucking or otherwise.42 Mark McGurl described the literary fiction of the creative writing program as defining itself against “the machine-made quality of genre fiction.”43 Wilson claimed that neither the stock villain nor the stock hero of detective fiction was “a person like you or me.”44 Critics and theorists like Macdonald, Theodor Adorno, and Jürgen Habermas agreed that mass culture produces a slack-jawed mass subject, capable of neither thought nor action, but only of mindless consumption and enjoyment—as if neither its characters nor its consumers could properly be called persons.

Certain writers of postwar genre fiction—like Patricia Highsmith, Philip K. Dick, Stephen King, and Larry McMurtry—were particularly attuned to the fault lines in the liberal imagination of privacy, in part because they were perceived as inveterate creatures of the marketplace that allegedly threatened to destroy it. Even so, they longed to be lifted out of that indifferentiable miasma of genre fiction and into the pantheon of literary fiction that explored private life. The fact that genre was being published in paperback form, alongside reprints of literary classics, brought its writers ever closer to the ideal of prestige, which their characters also approach by alluding to works of literary fiction and high art. Dick’s androids sing Mozart’s opera and look at Edvard Munch’s paintings, McMurtry’s cowboys read Milton and Virgil on the plains, and Highsmith’s Tom Ripley quotes from Macbeth. Through these allusions, their authors are staking their claims to be included in the tradition of literary fiction, showing their characters’ capacity for distinctive self-expression by their relationship to works of high art. As Andrew Hoberek and Nicholas Brown have shown, aesthetically ambitious genre fiction often experiences a divided allegiance between artistic autonomy and fixed or commodity form.45 That tension between the desire to express oneself and a dependence on inherited forms made these authors particularly incisive thinkers about the right to privacy, which was newly understood in the period as a right to self-express or self-define.

While they may have aspired to transcend their position in the literary field, genre authors’ proximity to the marketplace nonetheless put them in touch with the anxieties, fears, and desires that percolated underneath the seemingly serene exteriors of postwar America—and which often pivoted around questions of privacy, questions like: Do I have full control of my own body? Are children in my neighborhood being abused? Will the police arrest me because of how I look to them on the street? If liberalism celebrated private, reflective individuals capable of distancing themselves from the market, certain creative genre writers figured out how to use those qualities that the marketplace demanded and that critics abhorred—flat characters, a desire to witness spectacle, repetitive plotlines—to comment on the ways the promises of liberalism were incoherent or else unfulfilled. They showed how certain types of people or behaviors deserved to be included in its schema; they revealed that emotions like fear could prove more powerful than rational deliberation; they grappled with privacy’s adequacy to address economic inequality.

The particular forms genre writers inherited had, in fact, been conceived in skeptical or anxious response to the originary split in eighteenth-and nineteenth-century liberalism between public and private life. Many of genre’s urtexts—like Mary Shelley’s Frankenstein, Edgar Allan Poe’s Dupin stories, James Fenimore Cooper’s novels, Samuel Richardson’s Pamela, Horace Walpole’s The Castle of Otranto—were specifically designed to approach questions of privacy.46 Shelley wondered who and what counted as a private person; Poe incited fears about people or creatures who refused to govern themselves in private according to Kantian moral law; Cooper nostalgically looked back to the private moral codes that existed before the existence of the public state; Richardson dramatized anxieties about the dangers of women exercising their choice in private bedrooms; Gothic novelists represented fears about violence in the privacy of the home. The lawlike qualities of genre fiction—its repetitive, reiterated plotlines—enabled its authors to adapt these old responses to liberalism to newly salient legal issues surrounding privacy. This book extends Theodore Martin’s argument that genre writers renovate inherited forms to craft their own shrewd and canny responses to their period—in this case applying them to postwar debates about privacy.47 Science fiction writers turned to Frankenstein, a created-monster story allegorizing pregnancy, to write about abortion; horror novelists recast the Gothic haunted house narrative to address the newly salient issue of child abuse.48

While liberalism was dedicated to the preservation and cultivation of individual distinctness (or roundness), the forms genre writers inherited were often populated with flat characters. By flatness, I partly refer to E. M. Forster’s idea that a “flat” character is a “type” or “caricature”; it has “no pleasures, none of the private lusts and aches,” “the incalculability of life” that we would typically associate with a “round” character.49 Flat characters, as Forster noted, could appear in realist fiction, too, especially as scaffolding for the round ones, and not all genre characters (e.g. Tom Ripley) can adequately be described as flat. But whereas realist round characters and settings often reinforced the inexorability of middle-class private life, genre’s flat characters—its monsters or androids or villains—threatened the consistency and stability of that way of life. They harked back to older, anti-realist modes of characterization—like allegory, melodrama, or romance—that inscribed the individual in explicit relationship to a larger social order.50 Genre’s characters were rarely used in the service of providing an ever-more accurate phenomenological depiction of one person’s private experience. Genre authors instead used their tropes—villains, monsters, androids, and cowboys—to explore the social structures that produced them, both those within the narrative (e.g., the police state, heteronormative culture) and outside of it (a literary marketplace that demanded such characters).

A key finding of this book is thus that a good deal of sophisticated genre fiction can be read, like Atwood’s Handmaid’s Tale, as a double allegory, its tropes representing both political and literary personhood. At the same time that they allegorized an issue of privacy like child abuse or abortion, genre authors also commented on how their characters and fictions were perceived in the literary field. The urtext for this kind of allegory is Frankenstein: while the creation of Frankenstein’s monster can represent what it feels like to give birth to an unwanted or miscarried child, it can also be read as a story of female literary production.51 Haunted houses in Poe and Hawthorne express an anxiety both about titles to private property and about venturing into the publicity of the literary marketplace.52 In the postwar era, Chester Himes imagined the ambivalence of his Black cops, charged with surveilling the population of Harlem, as mirroring the author’s ambivalence about representing African American life in crime fiction. For Philip K. Dick and Octavia Butler, the android and the alien stood for fetuses or newborns; at the same time, these tropes could represent science fiction’s marginalized position in the literary field. Stephen King saw the haunted house both as a figure for the literary marketplace and for the political and legal systems that exacerbated child abuse. All imagined the historical and cultural forces shaping the literary field as continuous with the issues of private personhood they cared about.

At the same time, genre writers’ investments in privacy discourse were not solely theoretical. If writers of a certain strand of aesthetically ambitious genre fiction were among privacy’s foremost theorists, acutely attuned to the contradictions and inadequacies implied by the idea, the reason was not always that they were explicitly invested in debates about the law, but often because they were especially adept at displacing private moments into public mythographies. Rather than aspire toward ever-more realistic narration of the details of everyday life, they reassembled their personal experiences into a collage that resonated with many dealing with the same issues in their own lives. They expressed the emotions and concepts at stake in issues of privacy like abortion or child abuse or queer sexuality—not by narrating, in ever more realistic fidelity, the minute details of lived experience, but by taking private moments and experiences and recasting them in a powerful, allegorical public form. Thus, as we will see, Philip K. Dick expressed his anger about his wife’s abortion by writing a story about a humanoid robot being murdered by a heartless woman, while Octavia Butler used alien parasites to narrate the hardship and terror of pregnancy. Chester Himes transformed his encounters with cops into his police procedurals. Stephen King refracted his abandonment by his father into a story about child abuse in a haunted house. Patricia Highsmith took the stigmatization she faced as a queer woman engaging in what was regarded as immoral, sociopathic behavior and wrote stories about Tom Ripley, an immoral yet sympathetic sociopath. Those genre writers who belonged to what we might call the upper middlebrow took subjects that could be sensitive, difficult to talk about or think about, and displaced them into an evocative genre form that dramatized the emotions or concepts or social structures involved in demarcating the boundaries of public and private. Genre authors transmuted moments in their own lives into their inherited, illiberal forms.

In rethinking the relationship between genre and privacy, this book also builds on and modifies the longstanding idea that literature’s central value is that it helps us understand (or respect the alterity of) the private life of another. Because genre frequently imagines morality and politics as part and parcel of the marketplace, it rebuts the argument that fiction is a market commodity able to create noncommercial emotional connections among readers, characters, and writers.53 This argument is rooted in eighteenth-century liberal philosophy, particularly that of Adam Smith, who imagined a liberalism that would counterbalance the pursuit of self-interest he described in The Wealth of Nations with the altruistic affect he outlined in Theory of Moral Sentiments. The idea that literature, in particular, should generate market-independent empathetic connections gets refracted through various intellectual trends and modes of expression whose purported antagonism masks an underlying consensus. For postwar liberals and New Ethicists alike, the imaginative encounter with a character’s interior life generates a destabilizing alterity, which can help a reader to a better ethics. And yet, studies of literary ethics rarely deal with the fiction of the postwar era or with generic texts. The fact that Henry James, the consummate art novelist, should appear so prominently in the writing of the New Ethicists suggests that their data set is skewed toward the art novel.54

The authors here often could not imagine themselves as apart from the marketplace, nor could they position reading as cultivating empathy and self-reflection. Instead, they saw reading to understand the private life of another as resembling stalking and identity theft, racist police surveillance, or titillating horror films. The familiar tools of the New Ethics—an appeal to alterity or empathy—seem fundamentally inadequate to account for the political issues they took up in their fictions.55 Those who celebrate fiction for its alterity-producing powers need to reckon with the fact that Dick attempted to use his fiction to acknowledge the alterity of the fetus. By contrast, Octavia Butler found that fiction was more politically efficacious when it dehumanized; she turned the human fetus into a parasite in her story “Bloodchild.” Arguing for euthanasia, Charlotte Perkins Gilman tried to reduce empathy in her writing, imagining an old man as “a gross baby, a huge, brainless baby lying like a log in an unclean bed.”56 Neither appeals to empathy nor alterity can give us much traction in theorizing the ethical value of these fictions.

Genre is not a place to hone one’s sense of Otherness or empathy; it is rather the dynamic space in which unresolved and perhaps unresolvable social contradictions and tensions are explored in new, powerful, and conflicting registers. Restoring historical specificity to the generic imagination also corrects an older view that genre is either fundamentally reactionary, providing imagined resolution to liberalism’s insuperable contradictions, or else fundamentally subversive, celebrating Marxist or posthuman collectives.57 Though genre fiction, with its flat persons, has often been orthogonal to a liberalism centered around the deep private interiority of the individual, the precise politics of genre’s limited illiberalism is never predetermined. From the perspective of the contemporary Left, sometimes genre’s challenges to liberalism and empathy discourse can look welcome, aligned with feminism, Marxism, queer theory, and disability studies. Genre writers often took up subjects who did not fit neatly in the neutral schema of liberalism, for whom the right to privacy seemed inadequate or incomplete: queer people, fetuses, pregnant women, people of color, children, people with disabilities, and the elderly. But equally often, close examination of generic texts reveals that writers whose politics initially appear progressive were quite reactionary in other respects—and in ways that trouble familiar pieties about the left-liberal politics and ethics of reading.

In the chapters that follow, I will proceed roughly chronologically, pairing key moments in the postwar history of privacy with certain practitioners of genre fiction, writing in the decades surrounding those moments and turning to privacy issues to reframe their genres. Thus, I match the right of privacy for heterosexual marital sex (Griswold v. Connecticut [1965]) with 1950s queer and proto-feminist crime fiction; the War on Poverty/War on Crime (1964–1970s) with 1950s and 1960s Black crime fiction; Roe v. Wade (1973) with 1960s and 1970s science fiction; the Child Abuse and Prevention Act (1974) with 1960s and 1970s horror; and the right to die (In re. Quinlan [1976], Oregon’s Death with Dignity Act [1997], Vacco v. Quill [1997]) with almost a century of fiction encircling it, placing special emphasis on the westerns from the 1960s to No Country for Old Men (2005). The arguments for this structure are twofold. On the law/cultural history side, pairing salient moments of legislative or judicial history with fictional texts slightly removed from them in time shows that privacy has a strong cultural basis. Generic texts often explore key issues of privacy many years before the law takes up the very same issues. On the genre side, we see how certain practitioners of genre fiction, those with aspirations to literary merit, draw on issues in their own lives to reformulate their genres in striking ways, and how the issues they choose become integral to the period’s understanding of privacy. Reading various genres in relationship to the historical moments they sprang from, we can see privacy’s cultural evolution from a right to protecting heterosexual marriage to a more generalized right to personal autonomy to a right with a more narrowed focus on the atomized individual.

The first chapter, “The Queer Art of Murder,” focuses on female writers of crime fiction in the decade prior to the establishment of a constitutional right to privacy in Griswold v. Connecticut as a right protecting heterosexual marriage. In the years leading up to Griswold, the right to privacy existed only as a generalized sense of anxiety about something that was vanishing—the individual, the family, the home, or the hearth. Liberal midcentury literary critics celebrated the reading of literary fiction precisely for its capacity to restore privacy: it was read in private; it contained accounts of private life; and it cultivated deeper, more reflective individuals better able to participate in public discourse. Female crime novelists writing about villains during roughly the same period, the late 1940s and 1950s (many years before the “personal” became the “political”)—Patricia Highsmith, Dorothy Hughes, and Margaret Millar—instead imagined the traditional heterosexual “zones” of privacy as spaces of oppression. They saw the reading for empathy celebrated by liberals as having a good deal in common with stalking or identity theft. But they also believed that their crime fiction—which focused on outrageous, sympathetic villains—could give them a different kind of privacy: it was the ideal place to conceal taboo ideas about sexuality within public view.

The second chapter, “Midcentury Black Cops,” analyzes why Chester Himes decided to write crime fiction about Black police officers surveilling the working-class community of Harlem. One way of telling the story of privacy is as a right that expanded throughout the 1960s and 1970s with Griswold, Katz, and Roe, but it has looked quite different for African Americans. Many found little refuge in the right to privacy as the War on Poverty and the War on Crime placed them under heightened state surveillance. Beginning his series in the mid-1950s, Himes came early to a version of this narrative, with his description of two brutal but heroic Black cops who surveilled the African American neighborhood of Harlem. In this chapter, I recover the history of the man who inspired the novels—Jess Kimbrough, a Marxist playwright, memoirist, and one of the earliest Black police officers in Los Angeles—where mass incarceration began decades earlier than in other cities. Tasked by his publisher with writing crime fiction for an audience that wanted to behold sleazy depictions of African American life, Himes saw a doubling between the ambivalent positions of the Black crime writer and cops like Kimbrough, both tasked with surveilling working-class Black life for a predominantly white establishment.

The third chapter, “The Science Fiction of Roe v. Wade,” uncovers the way science fiction authors of the 1960s and 1970s reshaped their genre to respond to abortion. After Griswold and Roe, legal scholars, activists, and many in the public came to understand “the right to personal privacy” as a more generalized right to define oneself as a person. But who or what counted as a person, and what did people need to define themselves? Philip K. Dick, Octavia Butler, Kurt Vonnegut, Harlan Ellison, Ursula K. Le Guin, and James Tiptree, Jr. took various analogies establishing legal personhood—comparing fetuses to parasites or to slaves—in law, morality, and popular culture and used them as the starting premise for fictional worlds. It is a critical truism that science fiction has been invested in the philosophical question of what it means to be human or posthuman, but this chapter reveals that, since around 1960, its investigations of that question have been rooted in the abortion debates.

The end of the Great Society and the resurgence of political conservatism brought a backlash against the idea of privacy as autonomy or self-definition. How much autonomy was too much autonomy? The fourth chapter, “Exorcising Child Abuse in the 1970s,” shows how horror novelists and filmmakers like Stephen King, Ira Levin, and William Peter Blatty exploited popular fears about child abuse shielded by middle-and upper-class privacy. In order to pass legislation to protect abused children in an era of family values and austerity politics, Senator Walter Mondale discounted statistics linking child abuse to class, arguing that, for wealthier families, privacy shielded the rampant abuse transpiring behind closed doors. Horror novels and films of the period tapped into the social anxieties Mondale stoked, imagining, in their demonic children and satanic families, the specter of abuse that had hitherto been concealed by the privacy of the home.

In Chapter 5, “Bury Me Not on the Lone Prairie,” I trace a cultural history of euthanasia from Edith Wharton’s long-neglected euthanasia novel, The Fruit of the Tree (1907) to Jodi Picoult’s Mercy (1996), touching briefly on a variety of genres—social realism, science fiction, westerns, and romance. I argue that the western interceded at a decisive moment in the cultural history of the right to die. When citizens of the frontier state of Oregon legalized the right to die in the 1990s, they imagined it as the prerogative of the self-determining cowboy on the range. It wasn’t always imagined this way. In the early part of the century, euthanasia’s critics condemned it as the effete and cowardly surrender of a person who could not endure pain. In response, Wharton imagined the figure of the female professional nurse as ideally suited to carry out euthanasia because of her sensitivity to pain. In the ensuing decades, euthanasia became seen as an instrument of fascistic social planning, and Charlotte Perkins Gilman framed both euthanasia and eugenics as part of a science fictional utopia. In the 1970s and 1980s, westerns reframed euthanasia as an act of masculine, individual agency. In works like Glendon Swarthout’s The Shootist or Larry McMurtry’s Lonesome Dove, authors of the western conceived of the right to die as the cowboy on the prairie, incorporating it into the concept of the right to privacy as a right to self-definition explored in previous chapters. Finally, drawing on the romance, Jodi Picoult sought instead to imagine euthanasia as the ultimate act of love. All the authors I consider here depict various inadequacies in the period’s framing of the right to privacy: it excluded queer people or people of color; it did not apply to fetuses or to women seeking an abortion; it could license child abuse in the home; it did not include a right to die. And yet, few, if any, gave up on the promise of the concept. They instead imagined ways of transmitting verboten private meanings in public view, or of expanding the right to privacy to encompass a group or procedure that had been excluded from it. Even as they proved some of its sharpest critics, they rarely forsook the idea of privacy altogether.

When juxtaposed against some of these authors’ ideas, the public debate about privacy today can feel somewhat anemic.58 There have been of late many outcries about the death of privacy: how digital corporations like Facebook and Google subject our private lives to unprecedented scrutiny.59 But these most often imagine privacy as a matter of data and information—and not as a matter of personal (and embodied) self-definition or self-expression. Meanwhile, with the balance of the Supreme Court skewing originalist, the type of privacy guaranteed in Roe and other cases is likely to be increasingly under siege as fundamentally atextual. But to frame privacy solely as a matter of dataflow, or else as an ahistorical legal fiction is to lose sight of what the concept can mean. Privacy has been loaded with contradiction and ambiguity, yet it has also provided many people with a language to reason about the appropriate boundaries among people, governments, and corporations—and the personal decisions that most profoundly affect the course of their lives. To understand that language, we may look to what might seem an unlikely or unpromising place: the phantasmagoria of genre fiction.


1. See Andrew Liptak, “How The Handmaid’s Tale Inspired a Protest Movement: Turning Cosplay into a Political Act,” The Verge (October 31, 2017):; Christine Hauser, “A Handmaid’s Tale of Protest,” New York Times (June 30, 2018):; Laura Bradley, “Under Their Eye: The Rise of Handmaid’s Tale-Inspired Protests,” Vanity Fair (October 9, 2018):

2. Margaret Atwood, The Handmaid’s Tale (Boston: Houghton Mifflin, 1986), 156, 11. The television show’s costume designer has called the outfits “walking wombs.” Ane Crabtree, quoted in E. Alex Jung, “From the Handmaids to the Marthas, How Each Handmaid’s Tale Costume Came Together,” Vulture (April 28, 2017):

3. Atwood, Handmaid’s Tale, 11.

4. Quoted in David Barnett, “Science Fiction: The Genre That Dare Not Speak Its Name,” The Guardian (January 28, 2009):

5. Margaret Atwood, In Other Worlds: SF and the Human Imagination (New York: Anchor Books, 2011), 6.

6. See Jed Rubenfeld, “The Right of Privacy,” Harvard Law Review, vol. 102, no. 4 (1989): 737–807.

7. Samuel D. Warren and Louis D. Brandeis, Harvard Law Review, vol. 4, no. 5 (1890): 195, 193, 205.

8. William L. Prosser, “Privacy,” California Law Review, vol. 48, no. 3 (August 1960): 383–423.

9. Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998), 27. See also Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).

10. Epp, Rights Revolution, especially 1–70.

11. Kermit L. Hall and John J. Patrick, The Pursuit of Justice: Supreme Court Decisions That Shaped America (New York: Oxford University Press, 2006), 156.

12. Sarah Igo, The Known Citizen: A History of Privacy in Modern America (Cambridge, MA: Harvard University Press, 2018), 152.

13. Griswold v. Connecticut 381 U.S. 479 (1965), 485.

14. Ibid., 483.

15. Katz v. United States 389 U.S. 347 (1967), 352.

16. Eisenstadt v. Baird 405 U.S. 438 (1972), 405.

17. Roe v. Wade 410 U.S. 113 (1973), 154.

18. Mary Ziegler, Beyond Abortion: Roe v. Wade and the Battle for Privacy (Cambridge, MA: Harvard University Press, 2018).

19. Thornburgh v. American College of Obstetricians and Gynecologists 476 U.S. 747 (1986) (Stevens, J. P., concurring). Stevens quotes from Charles Fried, “Correspondence,” Philosophy & Public Affairs, vol. 6, no. 3 (Spring 1977): 288–289.

20. Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992), 861.

21. Ironically, even as its rhetoric about privacy grew more expansive, Casey actually limited abortion rights; it upheld 24-hour waiting periods and informed consent as failing to impose an “undue burden” on women seeking to terminate a pregnancy.

22. Daniel Solove, Understanding Privacy (Cambridge, MA: Harvard University Press, 2008), 1–2.

23. See Catharine A. MacKinnon, “Privacy v. Equality: Beyond Roe v. Wade (1983),” in Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1988).

24. See Lauren Berlant and Michael Warner, “Sex in Public,” Critical Inquiry, vol. 42, no. 2 (Winter 1998): 547–556.

25. See, for instance, Patricia Ann Boling, Privacy and the Politics of Intimate Life (Ithaca, NY: Cornell University Press, 1996).

26. See Kristin Luker, Abortion and the Politics of Motherhood (Berkeley: University of California Press, 1985).

27. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), 95–100.

28. John Rawls, Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1991), 3. On the link between Rawls and privacy, see Charles Fried, “Privacy,” Yale Law Journal, vol. 77, no. 3 (1968): 475–493.

29. On Rawls as stemming from the midcentury moment and insulated from the 1960s social movements, see Katrina Forrester, In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy (Princeton: Princeton University Press, 2019).

30. Betty Friedan, “Abortion: A Woman’s Civil Right” (1969), in Before Roe v. Wade, eds. Linda Greenhouse and Reva Siegel (New York: Kaplan Publishing, 2010), 39, available at

31. Ziegler, Beyond Abortion, 40–81.

32. Dorothy E. Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color and the Right to Privacy,” Harvard Law Review, vol. 104, no. 7 (May 1991): 1419–1482. See also Imani Perry, More Beautiful and More Terrible: The Embrace and Transcendence of Racial Equality in the United States (New York: NYU Press, 2011), 85–126, who tries “To articulate the demand for a more robust privacy right for people of color in the United States” (88); and Anita L. Allen, “Coercing Privacy,” William & Mary Law Review, vol. 40, no. 3 (March 1999), who argues that privacy could be consistent “both with liberalism and with the egalitarian aspirations of feminism” (729).

33. Glendon, Rights Talk, x.

34. See Elaine Tyler May, Homeward Bound: American Families in the Cold War Era, rev. ed. ([1988] New York: Basic Books, 2008); Alan Nadel, Containment Culture: American Narratives, Postmodernism, and the Atomic Age (Durham: Duke University Press, 1995); Deborah Nelson, Pursuing Privacy in Cold War America (New York: Columbia University Press, 2002), 1–42.

35. Igo, The Known Citizen, 99–144.

36. See my “Privacy Cultures,” Public Books (July 25, 2018):

37. Lionel Trilling, The Liberal Imagination ([1950] New York: NYRB Classics, 2012); Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson, and Fielding ([1957] Berkeley: University of California Press, 1962); Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger and Frederick Lawrence (Cambridge, MA: MIT Press, 1989); Martha C. Nussbaum, Love’s Knowledge: Essays in Philosophy and Literature (New York: Oxford University Press, 1992); Lynn Hunt, Inventing Human Rights: A History (New York: Norton, 2007).

38. William Faulkner, “On Privacy: The American Dream: What Happened to It,” Harper’s Magazine, vol. 211, no. 1262 (July 1955): 36.

39. Larry McCaffery, “A Conversation with David Foster Wallace,” The Review of Contemporary Fiction, vol. 13, no. 2 (Summer 1993), available at I have used Wallace’s quote for its epigrammatic verve, but, to be fair, his bugaboo was more television than genre fiction. Indeed, he assigned works by writers like Stephen King and Larry McMurtry in his class at Illinois State. See “Teaching Materials from the David Foster Wallace Archive,” Harry Ransom Center, University of Texas, Austin:

40. David Foster Wallace, “E Unibus Pluram: Television and U.S. Fiction,” in A Supposedly Fun Thing I’ll Never Do Again: Essays and Arguments (New York: Little Brown, 1997), 24.

41. Richard Powers, “Losing Our Souls, Bit by Bit,” New York Times (July 15, 1998): A19; Jonathan Franzen, “Imperial Bedroom,” New Yorker (October 12, 1998): 48–53.

42. Michael Wreszin, Interviews with Dwight Macdonald (Jackson: University Press of Mississippi, 2003), 38.

43. Mark McGurl, The Program Era: Postwar Fiction and the Rise of Creative Writing (Cambridge, MA: Harvard University Press, 2011), 26. Even as the mantra of the creative writing program shifted from the liberal emphasis on experience (“Write what you know”) to one that better reflected the New Left celebration of authenticity (“Find your voice”), both were undergirded by an imagination of good fiction as an expression of the private self.

44. Edmund Wilson, “Why Do People Read Detective Stories?” New Yorker (October 14, 1944): 78–84.

45. Andrew Hoberek, “Cormac McCarthy and the Aesthetics of Exhaustion,” American Literary History, vol. 23, no. 3 (Fall 2011): 483–499; and Nicholas Brown, Autonomy: The Social Ontology of Art Under Capitalism (Durham: Duke University Press, 2019), 79–115.

46. For a small sampling of this literature, see, on Shelley, Mary Poovey, The Proper Lady and the Woman Writer: Ideology as Style in the Works of Mary Wollstonecraft, Mary Shelley, and Jane Austen (Chicago: University of Chicago Press, 1984), 114–142; on Poe, Sean McCann, Gumshoe America: Hard-Boiled Crime Fiction and the Rise and Fall of New Deal Liberalism (Durham: Duke University Press, 2000); on Cooper, Jeffrey Insko, “The Logic of Left Alone: The Pioneers and the Conditions of U.S. Privacy,” American Literature, vol. 81, no. 4 (December 2009): 659–685. If, as Rosen and Santesso have argued, the legal imagination of privacy, as most influentially formulated by Louis Brandeis, drew on Wordsworth, writers of genre fiction wrote in a lineage critical of that very strain of Romanticism. See David Rosen and Aaron Santesso, The Watchman in Pieces: Surveillance, Literature, and Liberal Personhood (New Haven: Yale University Press, 2013), 105–157.

47. Theodore Martin, Contemporary Drift: Genre Historicism and the Problem of the Present (New York: Columbia University Press, 2017).

48. See Ellen Moers, “Female Gothic: The Monster’s Mother,” New York Review of Books (March 21, 1974).

49. E. M. Forster, Aspects of the Novel (New York: Harcourt, Brace, 1927), 103, 104.

50. See, for this view on realism, Franco Moretti, The Bourgeois: Between History and Literature (London: Verso, 2013), 67–101. On the relationship between allegory and genre fiction and privacy, see Rosen and Santesso, The Watchman in Pieces, 157–223.

51. For the former, see Ellen Moers, “Female Gothic: The Monster’s Mother,” New York Review of Books (March 21, 1974): For the latter, see Sandra M. Gilbert and Susan Gubar, The Madwoman in the Attic: The Woman Writer and the Nineteenth-Century Imagination, 2nd ed. (New Haven and London: Yale University Press, 2000), 213–247. See also Mary Poovey, “‘My Hideous Progeny’: The Lady and the Monster,” in The Proper Lady and the Woman Writer, 114–143.

52. For the former view, see Walter Benn Michaels, “Romance and Real Estate,” in The Gold Standard and the Logic of Naturalism: American Literature at the Turn of the Century (Berkeley: University of California Press, 1987); for the latter, see Meredith L. McGill, American Literature and the Culture of Reprinting, 1834–1853 (Philadelphia: University of Pennsylvania Press, 2013), 218–269.

53. For authors who endorse this viewpoint, see Hunt, Inventing Human Rights; Nussbaum, Love’s Knowledge; and Richard Rorty, Contingency, Irony, and Solidarity (Cambridge, UK: Cambridge University Press, 1989). For those who critique it as ideology, see Nancy Armstrong, Desire and Domestic Fiction: A Political History of the Novel (Oxford: Oxford University Press, 1987); Gillian Brown, Domestic Individualism: Imagining Self in Nineteenth Century America (Berkeley: University of California Press, 1990); Lauren Berlant, “The Subject of True Feeling: Pain, Privacy and Politics,” in Cultural Pluralism, Identity Politics, and the Law (Ann Arbor: University of Michigan Press, 1999), 49–84; and Rachel Greenwald Smith, Affect and American Literature in the Age of Neoliberalism (Cambridge, UK: Cambridge University Press, 2015).

54. On the importance of James and on the term “New Ethics,” see Dorothy Hale, The Novel and the New Ethics (Stanford: Stanford University Press, 2020).

55. As C. Namwali Serpell writes in Seven Modes of Uncertainty (Cambridge, MA: Harvard University Press, 2014), “after decades of imperatives to honor the Other, every text seems to give back the same old Otherness” (297). For some notable critiques of the discourse of sentiment, see Suzanne Keen, Empathy and the Novel (Oxford: Oxford University Press, 2010) and Berlant, “The Subject of True Feeling.”

56. Charlotte Perkins Gilman, “The Right to Die—I,” Forum and Century, vol. 94 (November 1935): 299.

57. For the traditional view, with respect to horror, see, for instance, Franco Moretti, “The Dialectic of Fear,” New Left Review, 136 (November–December 1982): 67–85, and Robin Wood, “The American Nightmare: Horror in the 1970s,” Hollywood from Vietnam to Reagan (New York: Columbia University Press, 1986), 70–94. For science fiction, consider N. Katherine Hayles, How We Became Posthuman: Virtual Bodies in Cybernetics, Literature, and Informatics (Chicago: University of Chicago Press, 1999); Donna Haraway, “The Cyborg Manifesto,” in The Cybercultures Reader, eds. David Bell and Barbara M. Kennedy (New York: Routledge, 2000), 291–323; and Fredric Jameson, Archaeologies of the Future: The Desire Called Utopia and Other Science Fictions (New York: Verso, 2005). For a notable and early exception, which sees horror as “craft art,” see Ann Douglas, “The Dream of the Wise Child: Freud’s ‘Family Romance’ Revisited in Contemporary Narratives of Horror,” Prospects, vol. 9 (October 1984): 293–348. For more recent accounts, see Martin, Contemporary Drift; and Annie McClanahan, Dead Pledges: Debt, Crisis, and Twenty-First Century Culture (Stanford: Stanford University Press, 2017), 143–185.

58. For recent, insightful attempts in literary studies to rehabilitate the value of privacy independent of genre fiction, see Katie Fitzpatrick, “Love Actuarially: Privacy, Intimacy, and Information in The Apartment,” Post45 (February 3, 2016):; Scott Selisker, “The Novel and WikiLeaks: Transparency and the Social Life of Privacy,” American Literary History, vol. 30, no. 4 (2018): 756–776; and Rosen and Santesso, The Watchman in Pieces, though Rosen and Santesso ultimately reproduce the empathy argument I critique here.

59. Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (New York: Hachette, 2020), 7.