Celebrating 125 Years of Publishing
Celebrating 125 Years of Publishing
Under the law as it currently stands, the press has great latitude to invade the privacy of ordinary citizens. In a series of cases, American courts have held that the press has a legal right—a constitutional right under the First Amendment—to publicize people against their will—to print their photographs, publish their private facts, and thrust them into the public gaze—so long as their affairs are “newsworthy” or “matters of public interest,” terms that courts have construed broadly. An authoritative legal treatise, the Restatement of Torts, describes privileged “newsworthy” publications as encompassing an array of material, including “publications concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal, and many other similar matters of genuine, even if more or less deplorable popular appeal.”1 It is extremely difficult to win a privacy lawsuit against the news media.2
The right to privacy is feeble in the world of print communications and practically moribund in online media. Section 230 of the Communications Decency Act, passed in 1996, exempts publishers of blogs and websites from liability for invasion of privacy. Web hosts are immunized from liability for material posted by third parties, including embarrassing personal facts such as the details of people’s sexual affairs, nude photos, and intimate medical information, no matter how much the subjects of unwanted exposure are shamed, threatened, or humiliated.3
The United States is an exception in this regard. Europe has a more robust right to privacy that can be invoked against the media. Under circumstances that would be unimaginable in the United States, European courts have subordinated the publishing rights of the press and the public’s “right to know” to the individual’s right to privacy, defined as a fundamental right of personal dignity. In some European countries, newspapers or websites can be forbidden from publishing humiliating but ostensibly newsworthy pictures of people or facts in the public record without the subject’s authorization.4 Publications have been prohibited from printing personal information about those who have been convicted of a crime and served their sentences, in the interest of the former criminal’s rehabilitation and resocialization.5 A “right to be forgotten” that requires search engines to remove links to embarrassing or discrediting personal information on demand was approved by the EU’s highest court in 2014.6
What accounts for this difference? Why are privacy rights relatively weak in the United States, at least when it comes to invasion of privacy by the media? Could we have taken another path?
There is no reason why freedom of the press was destined to trump privacy rights—why the right of the press to publish should be held in higher regard than the individual’s right to be let alone. Indeed, there was a point when American law might have gone in a different direction, toward greater protections for privacy and dignity. That moment came in 1967, in the landmark Supreme Court case Time, Inc. v. Hill.
The events that gave rise to the Hill case began fifteen years earlier, in 1952. In September of that year, a family of seven, the James Hill family, was held hostage by escaped convicts in their home in suburban Philadelphia. The family was trapped for nineteen hours by three fugitives who treated them politely, made gracious chitchat with them, took their clothes and car, and left them unharmed. For a few weeks, the Hills were the subjects of international media coverage. Public interest eventually died out, and the Hills went back to their ordinary, obscure lives.
In 1954, an author named Joseph Hayes published The Desperate Hours, a “true crime” thriller about a family held hostage in their home by three escaped convicts. The Desperate Hours was based loosely on the Hills’ real-life story but substantially leavened by Hayes’s imagination. The novel was filled with violence and suspense; in the story, the father was beaten, the daughter was sexually threatened, and the family attempted a daring rescue. The book became a best-seller and was made into an award-winning Broadway play, and later a major Hollywood film.
In 1955, three years after the hostage incident, Life magazine, the most popular periodical in the country at the time, ran a story on the opening of the play. The article falsely described the play as a “reenactment” of the Hills’ experience, implying that the family had been abused and the daughters raped. Life used the family’s name and a picture of their home to give the piece a “newsy” tie to a “real-life” crime. The family was devastated by this untrue and embarrassing publicity, which thrust them into the media spotlight against their will, forced them to relive the tragedy, and presented them before the public in a false, distorted light. The entire family suffered; the mother, Elizabeth Hill, entered into a severe depression from which she never recovered.
The Hills sued Time, Inc., the publishers of Life, for invasion of privacy in the New York courts. They won at trial, and Time, Inc. appealed through the state’s court system, then all the way to the U.S. Supreme Court. Time, Inc. argued that the judgment for the Hills violated its right to freedom of the press under the First Amendment. Richard Nixon, who was practicing law at a Wall Street firm in the years before his presidency, represented the Hills before the Court.
Although Time, Inc. v. Hill was the first time the Supreme Court addressed the right to privacy and freedom of the press, the conflict between these two important values was hardly new. The Hill case was the culmination of a long and contentious debate in American law and culture. In the early twentieth century, in response to the scandalous “yellow” press, states approved a privacy tort, a civil action for invasion of privacy that allowed individuals to sue over the publication of embarrassing personal facts, and to recover damages for emotional distress.7 With the growth of the publishing and entertainment industries, and increasing voyeurism and sensationalism in the media, privacy law and litigation expanded significantly. By the 1950s, plaintiffs whose personal lives were publicized in the press—their medical histories, personal habits, romantic affairs, and family relationships exposed—were winning judgments for invasion of privacy.8
The rise of the tort of invasion of privacy occurred against a backdrop of widespread concerns with the disappearance of privacy, in all of its meanings and senses. By the 1960s, personal privacy was seemingly besieged by an array of forces: not only the media, but governments, employers, researchers, advertisers, pollsters, and marketers, armed with new electronic surveillance and data collection technologies, including the recently invented digital computer. In 1965, in the midst of this “privacy panic,” the Supreme Court announced its decision in Griswold v. Connecticut. In Griswold, the Court declared, for the first time, a broad, albeit vague constitutional “right to privacy,” found in “penumbras” and “emanations” of guarantees in the Bill of Rights.9
While the invasion of privacy tort was praised for offering protection against an intrusive, exploitative press, publishers decried it as an infringement on their freedoms. Media lawyers described the privacy tort as one of the biggest threats to the publishing industry and the “free marketplace of ideas.”10 A number of courts agreed. While some courts in the mid-twentieth century were expanding liability for invasion of privacy, others went in the opposite direction, limiting the right to privacy in the interest of freedom of the press and the public’s right to know the “news.”11 Courts were also increasing protections for the press in the closely related area of libel law. In New York Times v. Sullivan (1964), the Supreme Court, altering centuries of established libel doctrine, held that the press had an expansive right under the First Amendment to report on public officials, including a right to publish libelous falsehoods about them, unless the statements were made with “reckless disregard” of the truth. The right of the public and the press to discuss public officials and political affairs, the Court declared, was the “central meaning” of the First Amendment.12
It was in this context that Time, Inc. v. Hill reached the Supreme Court. The case was decided in 1967 by the Warren Court, at the height of its legendary influence and power. In addition to Earl Warren, civil liberties luminaries Hugo Black, William Brennan, author of the opinion in New York Times v. Sullivan, and William Douglas, the author of Griswold, occupied the bench. Pitting privacy and freedom of the press against each other, Time, Inc. v. Hill forced the Warren Court to navigate between the two constitutional rights it had created and championed.
After arguments by Nixon and Harold R. Medina Jr., a veteran media lawyer representing Time, Inc., the Court initially came down on the side of privacy. A 6–3 majority decided in favor of the Hills, upholding the judgment of the New York courts. The majority opinion, written by Justice Abe Fortas, delivered a scathing critique of Time, Inc. Life’s use of the family in the story was not “news,” Fortas wrote. It was irresponsible journalism inflicting “needless, heedless, wanton and deliberate injury” on innocent citizens and had no relation to the purpose of the First Amendment.13
Expanding the right to privacy established in Griswold, Fortas declared that the Hills had a constitutional right to privacy that not only protected them against invasions of privacy by the government but also justified legal protections against an intrusive press. “There is . . . no doubt that a fundamental right of privacy exists, and that it is of constitutional stature,” he wrote.
It is not just the right to a remedy against false accusation. . . . It is not only the right to be secure in one’s person, house, papers, and effects. . . . It is more than the specific right to be secure against the Peeping Tom or the intrusion of electronic espionage devices and wiretapping. All of these are aspects of the right to privacy, but privacy reaches beyond any of its specifics. It is, simply stated, the right to be let alone; to live one’s life as one chooses, free from assault, intrusion, or invasion except as they can be justified by the clear needs of community living under a government of law.14
The constitutional right to privacy was a broad right to personal dignity, and it could, under circumstances, trump freedom of the press. Wrote Fortas: “The deliberate, callous invasion of the Hills’ right to be let alone—this appropriation of a family’s right not to be molested or to have its name exploited and its quiet existence invaded—cannot be defended on the ground that it is within the purview of a constitutional guarantee designed to protect the free exchange of ideas and opinions.”15
Had the Fortas opinion come down as law, the Supreme Court would have gestured toward the existence of an expansive right to privacy, one that would have transformed press practices, the scope of the First Amendment, and the tone and content of the news media.
But then it changed its mind.
There was a switch in votes. We need not trouble ourselves with the details right now; they are complex, involving both technicalities in this area of law and internecine politics on the Court—namely, a feud between Fortas and Hugo Black, a First Amendment “absolutist” who believed that the Constitution forbade all restraints on publishing. After discussion and disagreement, the majority that voted for the Hills dissolved; a new 6–3 majority voted in favor of Time, Inc.16
William Brennan wrote the majority opinion, issued in January 1967. Invoking the New York Times v. Sullivan standard, Brennan held that the Hills could not recover for invasion of privacy unless they could show that Life’s story about them was false and that the falsehood was made with reckless disregard of the truth.
The Brennan opinion in Time, Inc. v. Hill proclaimed a capacious vision of freedom of the press, one of the broadest in the Supreme Court’s history to that time. Human-interest stories, gossip columns, and other less-than-enlightened material—the “vast range of published matter” that appeared in the press, including material that exposed people to unwanted publicity—were protected by the First Amendment, Brennan suggested. If a publication was a matter of “public interest”—if the public was “interested” in it—it was “newsworthy” and constitutionally exempt from liability for invasion of privacy. Brennan dismissed the Hills’ privacy argument, claiming that the family had no legitimate expectation of privacy, at least when it came to publicity in the news media: “Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.”17
Time, Inc. v. Hill dealt the legal action for invasion of privacy a “body blow,” in the words of two law professors.18 What seemed like a possibility in the pro-privacy climate of the 1960s—a strong right to privacy that would permit people like the Hills to recover damages for unauthorized, exploitative media publicity—had been undermined.
Time, Inc. v. Hill is a constitutional law classic. It is part of the First Amendment canon and a staple of First Amendment law casebooks. The Hill case has been cited in hundreds of cases and over a thousand law review articles. As one of the Warren Court’s major First Amendment decisions, and the only case Richard Nixon argued during his time as a practicing lawyer, Time, Inc. v. Hill has been the object of a good deal of fascination and curiosity. Despite the significance of the case, there have been no comprehensive, book-length studies of it.19 Drawing on Richard Nixon’s archives and the papers of the justices of the Warren Court, this book is the first to explore the Hill case in detail.
Through a narrative of the case, Newsworthy presents a portrait of American law, culture, and publishing at a pivotal and transformative moment in the twentieth century. In the postwar era, “privacy”—a right to be let alone, a right to personal autonomy, a right to physical seclusion, and a right to choose–had become a prized value, and its loss portended and greatly feared. The United States was becoming both a privacy-conscious society and a media society, saturated by mass communications produced and disseminated by large media companies. The Hill case, pitting an ordinary family against one of the biggest media empires in the country, epitomized what many Americans had come to regard as a pressing issue: the struggle of ordinary citizens to protect their privacy, dignity, and individuality against encroachments by powerful corporations and government institutions.
Newsworthy illuminates two underexplored areas of legal history: the history of libel, privacy, and freedom of the press between 1900 and the 1960s, and the history of American privacy law. There is relatively little scholarship on the history of privacy law, and much of the writing on twentieth-century publishing law and freedom of the press starts with the decision in New York Times v. Sullivan.20 This book traces the development of these areas of law before the 1960s and the many influences that shaped the law, including trends and forces in the publishing industry, in science and technology, and in American culture more broadly. The interplay of law, society, industry, and culture—the intertwined relationship between formal legal doctrines and norms and practices outside the law—is a central theme in the pages that follow.
1. Restatement (Second) of Torts § 652D comment g (1977).
2. See Diane L. Zimmerman, “Requiem for a Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort,” Cornell Law Review 68 (1983): 291; Jonathan Mintz, “The Remains of Privacy’s Disclosure Tort: An Exploration of the Private Domain,” Maryland Law Review 55 (1996): 425, 426; Samantha Barbas, “The Death of the Public Disclosure Tort: A Historical Perspective,” Yale Journal of Law and Humanities 22 (2010): 171.
3. 47 U.S.C. § 230. Part of the motivation behind the act was to keep the Internet, then an emerging medium, a free and open domain for communication; if web hosts feared being sued for every statement that appeared on their sites, it would have a “chilling effect” on speech and publication. See Anthony Ciolli, “Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas,” University of Miami Law Review 63 (2008): 137–268.
4. See Jeanne Hauch, “Protecting Private Facts in France: The Warren and Brandeis Tort Is Alive and Well and Flourishing in Paris,” 68 Tulane Law Review (1994): 1221; James Q. Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty,” Yale Law Journal 113 (2004): 1169–70; Barbara McDonald, “Privacy, Princesses, and Paparazzi,” New York Law School Law Review 50 (2005): 205; Ronald J. Krotoszynski Jr., “Reconciling Privacy and Speech in the Era of Big Data: A Comparative Legal Analysis,” William and Mary Law Review 56 (2015): 1289–90, 1298–1309; Robin Barnes, Outrageous Invasions: Celebrities’ Private Lives, Media, and the Law (New York: Oxford University Press, 2010).
5. Gert Bruggemier, Aurelia Colombi Ciacchi, and Patrick O’Callaghan, eds., Personality Rights in European Tort Law (Cambridge: Cambridge University Press, 2010), 203–205.
6. See David Streitfeld, “European Court Lets Users Erase Records on Web,” New York Times, May 13, 2014, A1.
7. The article credited with “inventing” the invasion of privacy tort is Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4 (1890): 193.
8. See, e.g., Daily Times Democrat v. Graham, 276 Ala. 380, 383 (Ala. 1964); Leverton v. Curtis Publishing Co., 97 F. Supp. 181, 182 (E.D. Pa. 1951); Gill v. Hearst Publishing Co., 239 P.2d 636, 638 (Cal. 1952).
9. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
10. See, e.g., Harriet Pilpel, “Laws of Libel and Privacy Opposite on the See Saw,” Publishers Weekly, August 31, 1964, 296.
11. William L. Prosser, “Privacy,” California Law Review 48 (1960): 394.
12. New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
13. Draft opinion, Time, Inc. v. Hill, June 14, 1966, Abe Fortas Papers, Box 31, Folder 699, Yale University Manuscripts and Archives.
14. Ibid., 9–10.
16. Justice John Marshall Harlan wrote a partially concurring, partially dissenting opinion.
17. Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).
18. Donald M. Gillmor and Jerome A. Barron, Mass Communications Law, Cases and Comment (Minneapolis, MN: West Publishing Co., 1969), 487.
19. The most thorough chronicler of the case was Leonard Garment, the lawyer for the Hills. See Leonard Garment, Crazy Rhythm: From Brooklyn and Jazz to Nixon’s White House, Watergate, and Beyond (New York: Times Books, 1997), chap. 4; Leonard Garment, “The Hill Case,” New Yorker, April 17, 1989, 90–110. Law professor and Supreme Court historian Bernard Schwartz wrote a chapter on the case, and the late New York Times journalist Anthony Lewis included the story of the case in his book on the New York Times v. Sullivan decision and its aftermath. Bernard Schwartz, The Unpublished Opinions of the Warren Court (New York: Oxford University Press, 1985), 240–303; Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York: Vintage Books, 1991), 184–90. See also Lee Levine and Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (Washington, D.C.: American Bar Association, 2014), 55–64.
20. On libel, privacy, and freedom of the press between 1900 and 1960, see David Rabban, Free Speech in Its Forgotten Years, 1870–1920 (Cambridge: Cambridge University Press, 1997); Margaret A. Blanchard, Revolutionary Sparks: Freedom of Expression in Modern America (New York: Oxford University Press, 1992); Norman Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (Chapel Hill: University of North Carolina Press, 1990); Eric Easton, “The Colonel’s Finest Campaign: Robert R. McCormick and Near v. Minnesota,” Federal Communications Law Journal 60 (2008); Norman Rosenberg, “Taking a Look at ‘the Distorted Shape of an Ugly Tree’: Efforts at Policy-Surgery on the Law of Libel during the Decade of the 1940s,” Northern Kentucky Law Review 15 (1988): 11–56; Norman L. Rosenberg, “The New Law of Political Libel: A Historical Perspective,” Rutgers Law Review 28 (1975) 1141–84.
Major writings on the history of privacy law in the United States include Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967); Robert Ellis Smith, Ben Franklin’s Website: Privacy and Curiosity from Plymouth Rock to the Internet (Providence, RI: Privacy Journal, 2004); Frederick S. Lane, American Privacy: The 400-Year History of Our Most Contested Right (Boston: Beacon Press, 2009); David J. Seipp, “The Right to Privacy in American History” (PhD diss., Harvard University, 1978).