In this article, the soon to be Supreme Court justices argue that a right to privacy is a recognizable property right separate from physical property rights, while also distinguishing it from other intellectual property rights:
These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone…The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality. Id, at page 205.
If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression. Id, at page 206.
The same protection is accorded to a casual letter or an entry in diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. No other has the right to publish his productions in any form, without his consent. ..The right is lost only when the author himself communicates his production to the public – in other words, publishes it. It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer or artist, the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all. The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication. Id, at page 200, emphasis original.
The article is prescient at times and quaint at others- at one point, the authors recognize that “modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party” (“modern devices” apparently meaning cameras capable of taking still photos unbeknownst to the subject) and at another argue that oral infractions of a privacy right are necessarily so minor as to not require any form of legal redress:
But as long as gossip was oral, it spread, as regards any one individual, over a very small area, and was confined to the immediate circle of his acquaintances. It did not reach, or but barely reached, those who knew nothing of him…His peace and comfort were, therefore, only slightly affected by it. Id, at page 217
Clearly, even though sound recording was first accomplished in 1877, the authors did not contemplate, e.g., podcasts or YouTube.
The privacy debate rages on almost 130 years later, though the debate environment has undergone profound change. https://www.jstor.org/stable/1321160?seq=1#metadata_info_tab_contents