A Vote for the Press over Privacy

The "right to be let alone" took a vital new direction in the 1890 Harvard Law Review. In an article that was to become the most famous of all U.S. law-review articles, Boston Attorneys Samuel D. Warren and Louis D.

Brandeis denounced yellow-press invasions of "the sacred precincts of private and domestic life." The denunciation contained obvious merit; over the years, 34 states have guaranteed personal privacy in varying degrees. The denunciation also bore the seeds of conflict with the First Amendment guarantee of free dom of the press. Sooner or later, the Supreme Court would obviously have to settle a basic question: To what ex tent does the First Amendment immunize the press from observance of state privacy laws?

Last week the court answered that question for the first time. Out went a New York privacy judgment against Time Inc., publisher of LIFE magazine. In came a new standard: the First Amendment protects the press against privacy suits for false news reports--unless the plaintiff manages to prove conclusively that the report was deliberately or recklessly false.

"Re-enactment." In 1952, James Hill and his family were held captive for 19 hours by three escaped convicts in their suburban home near Philadelphia. The Hills later told newsmen that the convicts had been completely courteous. After police caught the fugitives, killing two of them in the process, the Hills moved to Connecticut and shunned further publicity. But in 1955, Playwright Joseph Hayes dramatized a similar ordeal of the "Hilliard" family in The Desperate Hours. In the Hayes version, the convicts beat Mr. Hilliard and subjected his daughter to a verbal sexual insult.

So far, no clear connection. But when the play opened in Philadelphia, LIFE photographed the cast playing some of the scenes in the Hills' old house. The Hills were not consulted about it. LIFE headlined its story TRUE CRIME INSPIRES TENSE PLAY. Without clear qualification, it described the play as having "re-enacted" the Hills' harrowing experience.

Though the article lauded their "heroism," the Hills were so upset by the publicity that they charged LIFE with having "fictionalized" their experience to serve "commercial purposes." While accurately reporting the play, they argued, LIFE inaccurately reported them as having been mistreated. However sympathetic the story, they said, the magazine had "perpetrated a hoax on its readers."

Charging invasion of privacy, the Hills sued LIFE'S corporate parent, Time Inc., under an old, tough New York State civil rights statute that requires the written consent of any living person when his name or picture is used "for the purposes of trade." Originally aimed at unscrupulous advertising, that law was a 1903 byproduct of the Warren-Brandeis article. To avoid conflict with the First Amendment, New York courts have construed it as permitting the press truthfully to portray anyone without his consent as long as he was involved in news of public interest. But that privilege rarely if ever protected false or "fictionalized" reporting.

Fatal Omission. At the trial, the LIFE writer testified that he had honestly believed the Hilliard play mirrored the "heart and soul" of the Hill incident. But the jury found LIFE at least negligent and perhaps even reckless or intentional in overlooking readily available news reports showing that the Hills were not mistreated.

The Hills eventually won a $30,000 judgment, which New York's highest court upheld. In appealing to the Supreme Court, Time Inc. Lawyer Harold Medina Jr. argued that the First Amendment permits honest mistakes in reporting legitimate news. Calling the New York law unconstitutional, Medina cited a "fatal omission"--the law did not require plaintiffs to prove "intentional falsehood." Appearing as the Hills' lawyer, former Vice President Richard Nixon answered that LIFE'S mistake was so egregious as to be outside the protection of the First Amendment. Nixon charged the magazine with "reckless disregard for the plaintiff's rights."

By a vote of 6 to 3, the Supreme Court reversed the judgment against LIFE, but even the majority was splintered as to reasons for the reversal. Speaking for the court, Justice William

J. Brennan approved a recent ruling by New York's top court that limits the law to news stories suffering from "material and substantial falsification." Minor errors are forgiven. But to survive under the First Amendment, said Brennan, the statute needs a further safeguard. Specifically, the trial judge did not clearly instruct the jury that Hill could only recover if LIFE perpetrated a "knowing or reckless falsity." As a result, the Hills must try again if they hope to collect from Time Inc. Last week Lawyer Nixon announced that the Hills will seek a new trial.

All nine Justices agreed that First Amendment freedom of the press requires "generous construction." Beyond that, opinions differed sharply. Justices Black and Douglas thought the court had not gone far enough in protecting freedom of expression. Justice Harlan thought it had gone too far in immunizing careless reporting. Justice Abe Fortas spoke for himself and two other dissenters (Warren and Clark) in arguing that the majority had no good reason to reverse. As Fortas saw it, the judge's instructions and the jury's verdict left no doubt that the jury had found LIFE guilty of "knowing or reckless falsity." If Plaintiff Hill can "stand the emotional and financial burden" of a new trial, said Fortas, "there is reason to hope that he will recover damages for the reckless and irresponsible assault upon himself and his family which this article represents."

Press Priority. In bending state privacy laws to the First Amendment, the court invoked New York Times Co. v. Sullivan, the famous 1963 defamation decision that public officials can collect from their critics only for a damaging statement "made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard for whether it was false or not." Though it borrowed the Times standard, the court was careful to point out that it was not imposing that burden of proof on private persons alleging defamation. Hill's claim was not that he had been defamed, only that he had not been "let alone."

In sum, the Supreme Court held that when it comes to reporting legitimate news, the New York privacy law must yield to the Constitution's First Amendment. And it ruled that in invasion-of-privacy cases the plaintiff must prove malice on the part of the "invader." These rulings will probably eliminate many of the nuisance cases filed against magazines and newspapers.

The rulings strike the concept of privacy a considerable blow, but "freedom of discussion" takes priority, said Brennan. "We create grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person's name, picture or portrait, particularly as related to nondefamatory matter."

This file is automatically generated by a robot program, so reader's discretion is required.