*1 v. HILL. TIME, INC. 18-19, 1966. Reargued October April Argued 1966. 22.
No. January 9, 1967. Decided *2 reargued appellant. Medina, Harold R. Jr., the cause for With him on the briefs was Victor M. Earle III. reargued _Richard the cause and filed a brief M. Nixon appellee. Attorney pro Louis Lejkowitz, J. General, se, Samuel A. Attorney Hirshowitz, First Assistant General, Barry Soloff, Attorneys General, Assistant Mahoney and Brenda Attorney General of the State of New filed a brief for curiae, urging affirmance. as amicus York, opinion delivered Brennan Mr. Justice Court. pub- case is question appellant,
The this whether pro- Magazine, lisher of Life was denied constitutional speech application tections Civil York 50-51 of the New York §§ New courts damages allegations Rights appellee Law to award complete Rights 50-51 text of the New York Law Civil §§ is as follows: *3 Right privacy 50.
“§ of person, corporation advertising purposes, “A firm or that uses for picture any- purposes trade, name, portrait or or for the the living person having without first obtained the written consent parent guilty person, guardian, or if minor of or her or such a his is of a misdemeanor.” damages injunction 51. Action and
“§ for for “Any person picture name, portrait this whose or is used within purposes advertising purposes state for or for the of trade without provided may the written consent first obtained above maintain as supreme against equitable an in the action the court this state person, corporation using name, portrait picture, firm or his or so may prevent thereof; and restrain the use also sue and recover damages any by injuries reason of if sustained such use and the person’s knowingly name, portrait defendant shall have used such or picture by in manner or such as is forbidden declared to be unlawful section, discretion, may exemplary jury, the last its award damages. nothing But contained in this act shall be so construed as any prevent person, corporation, practicing profession firm or photography, exhibiting from in or about his or its establishment specimens establishment, work such unless the same is by person, corporation continued such firm or after written notice been-given by person objecting portrayed; thereto has nothing prevent contained in this act shall so construed as to corporation using name, portrait any person, firm or from falsely, Life that a reported play portrayed new experience suffered appellee and his family.
The appeared article in Life in February 1955. It was “True Inspires entitled Crime Play,” Tense with the sub- title, “The ordeal family of a trapped by gives convicts ” Broadway a new thriller, Desperate ‘The Hours.’ The text of the article reads follows: years
“Three ago all over country Americans desperate read about ordeal of the James Hill who family, prisoners held were in their home out- Philadelphia by side three escaped convicts. Later they read about it in Joseph Hayes’s novel, Desperate Hours, inspired by family’s expe- they rience. Now can story see the re-enacted Hayes’s Broadway play based on the book, and next year will see it in his movie, which has been filmed being but is up held until play has a chance to pay off.
“The play, directed Montgomery Robert expertly acted, a heart-stopping account of how family rose to heroism crisis. photo- Life graphed play during its Philadelphia tryout, transported some of the actors to the actual house where the Hills were besieged. On the page next from scenes play are re-enacted on the site of *4 the crime.” pictures
The on the ensuing pages two included an of enactment the being son “roughed up” by one of the convicts, entitled “brutish convict,” picture a picture any manufacturer or dealer in goods, connection with the wares and manufactured, merchandise produced or dealt him which disposed he has sold or name, portrait with picture such or used connection therewith; using or from name, portrait or picture any author, composer or artist with connection his literary, productions musical or artistic which disposed he has sold or name, portrait with picture such used in connection therewith.” drop him a convict to make hand of biting daughter of the father daughter,” and one “daring gun, entitled try” a “brave through the door after throwing gun his family is foiled. to save his appel- to in the article is referred
The James Hill involuntarily children and five his wife lee. He and being story news after front-page of a subjects became the suburban, in their escaped three convicts hostage held Septem- Pennsylvania, home for hours on Whitemarsh, family In 11-12, ber 1952. The was releaséd unharmed. newsmen departed, interview with after the convicts appellee family stressed that the convicts had treated the courteously, had not not them, molested and had been at all violent. The appre- convicts were thereafter widely publicized hended in a encounter with police killing resulted in the of two of the convicts. Shortly family thereafter moved to Connecticut. The appellee discouraged all efforts to. keep them in the public spotlight through magazine articles or appear- ances on television.
In spring of 1953, Joseph Hayes’ novel, The Des- perate Hours, published. story depicted experience family of four held hostage by three es- caped convicts in the family’s suburban home. But, un- like Hill’s experience, family story suffer violence at the hands of the convicts; the father and son are beaten and the daughter subjected to a verbal sexual insult.
The book was made into a play, also entitled The Desperate Hours, and it is Life’s article about play which is the subject of appellee’s action. The com- plaint sought damages under §§ 50-51 on allegations the Life article was intended to, and did, give the impression that the play mirrored the Hill family’s ex- perience, which, to the knowledge of defendant “. . . was false and untrue.” Appellant’s defense was that
the article was “a subject legitimate news interest,” “a subject general interest and of value and concern to the public” at the time of publication, and that was “published in good faith any without malice what- soever . . . .” A motion to dismiss complaint substantially these reasons was made at close the case and was denied the trial judge on ground the proofs presented jury question toas the truth of the article.
The jury appellee awarded $50,000 compensatory and $25,000 punitive damages. On appeal the Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury verdict of liability. The court said as to liability: “Although the play was fictionalized, article Life’s
portrayed it as a re-enactment of the Hills’ experi- ence. It is an inescapable conclusion that this was done to advertise and attract further attention to the play, and to increase present and future maga- zine circulation as well. It is evident article cannot be characterized aas mere dissemina- tion of news, nor even an effort to supply legitimate newsworthy information in had, might have a proper interest.” 18 App. Div. 2d 485, 489, 240 N. Y. 2dS. 286, 290.
At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory damages without punitive damages.2
The New York Court of Appeals affirmed the Appel- late Division “on the majority and concurring opinions 2Initially, appellee's joined wife was in the action, and awarded $75,000 compensatory and $25,000 punitive damages by the jury. However, her action was apparently dismissed stipulation prior to remand, because the action has proceeded since solely upon appellee’s judgment. *6 380 15 dissenting. judges two Division,” Appellate
at probable noted We 604. E. 2d 207 N. 986, Y. 2d N. con- important to consider appeal of jurisdiction in- speech of freedom of questions stitutional Term, last argument After 936. S. 382 U. volved. S. 384 U. reargument, for the docket to restored was case of the Court case to and remand reverse We 995. with this not inconsistent proceedings further for Appeals opinion.
I. advantage of had the we have reargument, Since of York New Appeals of the Court opinion understanding of that us in our materially aided has opinion It is the statute. court’s construction Mess v. Julian Spahn for the court Keating Judge (1966). E. 2d 221 N. Inc., 324, Y. 2d ner, 18 N. following the deci in 1903 enacted The statute Roberson v. 1902 in Appeals the Court sion of 442. Co., Y. 64 N. E. Box Folding N. Rochester adorning against defendants an action Roberson was her con picture without bags plaintiff’s with their flour alleged invasion of upon an grounded sent. It was to be Appeals the Court of defined “right privacy,” pass through this right a man has the “the claim that pub having picture his wills, if he without world, upon either in eccentricities commented ... or his lished newspa periodicals handbills, circulars, catalogues, E., at 64 N. at 443. The pers Y., . . . .” 171 N. theory to the celebrated Appeals Court of traced Brandéis, Right article of Warren and entitled The Privacy, published in 1890. 4 Harv. L. Rev. 193.3 The “right” subject of this The various facets have been the much g., Beaney, See, Right Privacy e. The Constitutional comment. Supreme Court, Sup. 212; Privacy, Prosser, Ct. Rev. (1960); Westin, Science, Privacy, 48 Calif. L. Rev. 383 Freedom: Proposals (Part I), Issues for the 1970’s 66 Col. L. Rev. 1003 Court of Appeals, however, denied the existence of such a right at common law but observed that legisla “[t]he body tive very could well interfere and arbitrarily provide that no one should permitted for his own pur selfish pose to use picture dr the name of another for adver tising purposes without his consent.” 171 Y.,N. at 545, 64 N. E., 443. The legislature enacted §§ 50-51 in response to that observation.
Although “Right
Privacy”
caption
is the
of §§ 50-51,
*7
the term nowhere appears in the text of the statute
itself. The text of the statute appears
proscribe
only
conduct of the kind involved in Roberson,
is,
that
the ap
propriation and use in advertising or to promote the sale
of goods, of
name,
another’s
portrait
picture
or
without
his consent.4 An application of that limited scope would
present different questions of violation of the constitu
tional protections
for speech
press.
Compare
Valentine v. Chrestensen,
The New York courts have, however, construed the statute to operate much more broadly. In Spahn Court of Appeals stated that “Over years since the statute’s enactment in 1903, its social desirability and remedial nature have led to its being given a liberal con- struction consonant with its over-all purpose . . . .” N. 18 Y. 2d, at 221 327, E. 2d, N. at 544. Specifically, (1966); Feinberg, Developments Recent in the Law of Privacy, 48 Col. L. 713, Rev. (1948). 717-726 The latest collection of arti appears cles in 31 Law & Contemp. Prob. 251-435 (1966). The commentary relates not so much to the assertion of constitutional protections against intrusions government, see Griswold v. Connecticut, 381 U. 479, S. as to rights of action injunctive for relief or damages to combat intrusive behavior private in sector society. 4 Utah’s statute was modeled on New and, York’s following early New York decisions, the Supreme Utah Court has it construed afford a cause of only action in such cases. Donahue v. Warner Bros. Pictures Corp., Dist. 2 Utah 2d 272 P. 2d (1954). 177 382 authorize circumstances in some held has been communications other against remedy portraits pictures, names, publish
media how- fact, Reflecting the consent. their without people questions raise serious may applications such that ever, speech protections constitutional with the conflict to limit have tended the statute under decisions press, mindful “[E]ver application.5 statute’s engrafted have courts involved, picture word or written any avoid statute to onto the and restrictions exceptions ideas, thoughts, free dissemination with the conflict interest.” newsworthy and matters events, 544-545. at Id., 2d, 221 E. N. 2d, 18 N. Y. asked to were counsel light questions
In the
relevant
particularly
it is
reargument,6
argue on
5
Corp.,
(C.
g.,
Pub.
A. 2d
Sidis
F-R
383
of Appeals
crystal
Court
made
clear in the Spahn opinion
truth is a complete defense in actions under the
statute
upon
based
reports of newsworthy people or
events.
The opinion states:
“The factual
report-
ing of newsworthy persons and events is in
public
interest and
protected.”
18 N. Y. 2d, at 328, 221
N. E. 2d, at 545.7 Constitutional questions
might
rather
for
purpose
sole
of increasing circulation,
then the
rationale for exemption from section 51
longer
no
exists and the
exemption
apply.
should not
In such circumstances
privilege
to use one’s name
granted
should not be
even though a true account
given
the event be
alone when the account is
—let
sensationalized
”
and fictionalized.’
arise 72-75. Louisiana, 64, S. 379 U. v. Garrison cern. Cf. “little affords statute York the New although But newsworthy person, of a “privacy” to the protection” 8the stat- involuntarily” choice or he be such “whether or name, picture, when his action right a him gives ute article.9 report “fictitious” subject of is the portrait (C. Cir. 2d A. 3d Co., 251 F. 447 Pub. Dell 1962); Jenkins v. Cir. 2d 372, 153 F. 467 App. Pearson, D. C. 80 U. S. 1958); Elmhurst v. (C. A. Cir. Co., 2d 953 3d 193 F. Thompson Pub. v. Curtis (1946); (D. Cal. Supp. C. N. D. Co., 327 122 F. Pub. 1952); v. Curtis Samuel 1957); (D. Del. Supp. C. 240 C., 157 F. N. B. 1954); Miller v. (D. Supp. C. Co., 957 79 F. Tribune Minneapolis & Berg Star v. (1948); 250, 118 Doss, 37 2d 251 Ala. So. 1948); Smith v. Minn. Angeles Los Exam (1926); Metter v. 416 Suratt, 7 Alaska Smith v. v. News-Journal (1939); Barbieri 2d 491 304, P. App. 2d 95 iner, 35 Cal. Co., Southern (1963); Jacova v. 2d 773 Del. -,189 A. - Fleetwood, (Fla. 1955); Waters v. Co., 2d 34 83 & T. V. So. Radio Co., Ill. 31 (1956); Buzinski Do-All v. 344 161, E. 2d 212 91 S. Ga. Co., Post 230 (1961); Jones v. Herald 577 N. E. 2d App. 191, 2d 175 Co., Mass. Kelley 327 Post Pub. (1929); v. 2d Ky. 227, 972 18 S. W. 668, Dorton, 210 Miss. (1951); Martin v. 2d 286 N. E. 275, 98 Co., 69 M.N. Journal Pub. (1951); Hubbard v. 2d 391 50 So. Meredith, 609, 107 Pa. 378 (1962); Schnabel v. 2d 147 473, 368 P. S. E. Press, 95 S. C. Associated 230 Meetze v. (1954); A. 2d 860 104, 119 Enterprises, D. 80 S. Kenco v. (1956); Truxes 606 2d d §867, Restatement, comment Torts (1963). See 2d 914 N. W. (1939). 8 statutory prohibition is exceptions to the the clearest “One of by choice or figure, he be such public whether rule that ,of publicity searching beam subject involuntarily, to the often interest, law legitimate that, balance with supra, 328, 221 Spahn, at protection,” privacy little his affords 545. 2d, N. E. 9 (1913); 1108 51, 103 N. E. Vitagraph Co., N. Y. 210 Binns v. Inc., App. 2d Broadcasting System, Div. Youssoupoff v. Columbia App. Corp., 277 (1963); v. Hearst Sutton 2d 1 865, 244 Y. S. N. Koussevitzky Allen, v. Towne (1950); Y. S. 2d 155, N. Div. aff’d, App. Div. 2d S. 479, 68 N. Y. Heath, Inc., 188 Misc. & Inc., Mirror, Daily (1947); 2d 432 Lahiri 759, 69 N. Y. S.
385
was an action
Spahn
the distinction.
Spahn points up
professional
the well-known
brought
statute
under the
sought
injunc-
an
Spahn. He
pitcher,
baseball
Warren
of
damages against
publication
tion and
the unauthorized
The trial
biography
to be a
of his life.
purported
what
estab-
judge
unequivocally
had found that “the record
776,
Supp.
(1937).
Misc.
295 N. Y.
382
The doctrine of “fictionaliz
applied
g.,
See,
ation”
is no
e.
Lever
has been
where there
statute.
Co.,
(C.
1951);
ton v. Curtis Pub.
2d
Hazlitt
192 F.
974
A. 3d Cir.
Pubs.,
(D.
Supp.
1953);
v. Fawcett
116 F.
538
C. Conn.
Garner v.
1951).
Triangle Pubs., Inc.,
Supp.
(D.
97
D. N. Y.
F.
546
C. S.
protected
“privacy”
have
Commentators
likened the interest
those
upon
falsity
protected
cases which focus
of the matter to that
th§
reputation.
Prosser,
injury
in eases of libel and
to the
See
slander —
Privacy,
383,
(1960); Wade,
48 Calif. L. Rev.
398-401
Defamation
(1962).
Right
Privacy,
But
of
Vand. L. Rev. 1093
see
Bloustein, Privacy
Aspect
Dignity:
An
An
As
of Human
Answer to
Prosser,
Many
(1964).
Dean
39 N. Y. U. L. Rev.
991-993
“right
privacy”
brought
of
in fact
“libel
cases could
have been
as
per quod” actions,
brought
grounds.
and several have been
on both
Jewelry
See, g.,
Pubs., supra;
e. Hazlitt v. Fawcett
Freeman Busch
v.
Co.,
Supp.
(D.
Peay
1951);
98 F.
Curtis
C. N. D. Ga.
Co.,
Supp.
(D.
1948);
Pub.
78 F.
C. D. C.
Foster-Milburn
Chinn,
Ky.
(1909).
Although
Co. v.
As the instant case went to the jury, appellee, too, was regarded to be a newsworthy person “substantially with- out a right to privacy” insofar as his hostage experience was involved, but ¡to entitled to his action insofar as that experience “fictionalized” “exploited for w^s the defendants’ commercial benefit.” “Fictionalization,” Spahn opinion states, “is the heart of the cases in point.” 18 N. Y. 2d, at N. E. 2d, at 545.
The opinion goes on to say that the “establishment of minor errors in an otherwise accurate” report does not prove “fictionalization.” Material and substantial falsi- fication is the test. However, is not clear whether
proof knowledge falsity or that the article was prepared reckless.,disregard with for the truth is also re Sullivan, New York Times Co. quired. In 376 U. S. 254, we held that the Constitution delimits a State’s? j power damages to award brought by libel actions I against officials critics of their official conduct. | Factual error, content of official reputation, defamatory are both, insufficient for an of damages award for false statements unless actual knowledge that malice — are disregard statements false or in reckless of the truth— is alleged proved. The Spahn opinion reveals that New York Times defendant case relied the basis an argument application of the statute publication of a substantially biography fictitious would run afoul of the guarantees. constitutional Court of Appeals held that New York Times had no ap *12 plication. The court, distinguishing after the cases on ground that Spahn did not deal public with officials or official conduct, then says, speech “The free which encouraged is and essential to operation of a healthy government is something quite different from an individual’s attempt to enjoin publication of a ficti tious biography public him. No interest served protecting the dissemination of the latter. We perceive no constitutional infirmities this respect.” 18 N. Y. 2d, N. E. 2d, at 546.
If this is meant to imply proof of knowing or falsity reckless is not essential to a constitutional appli- cation of the statute in these cases, disagree we with the Court of Appeals.10 We hold that the constitutional pro- tections speech for and press preclude application Spahn Of course is not before us and we in imply no any wise view of the merits of judgment remedy or plaintiff afforded the in that case. Our solely reliance is Judge on Keating’s opinion as an aid to understanding the placed construction the statute the New York courts. mat- reports false to redress York statute of the New proof in the absence interest public ters of knowledge of its with report published defendant of the truth. disregard falsity in reckless or pre- are not the speech press guarantees for upon public or comment expression political serve of healthy government. are to those affairs, essential magazine to any newspaper or only pick up need One matter which range published the vast comprehend citizens and private both exposes persons public view, varying self to others Exposure officials. community. of life in a civilized degrees is a concomitant is an essential incident of life exposure of this The risk society primary value on freedom of places in a if it would speech press. discussion, and of “Freedom fulfill its historic function in this must embrace nation, appro- all issues which information is about needed priate society the members of cope enable with the exigencies Alabama, period.” of their Thornhill v. suggestion U. S. 88, 102. “No can be found in the Con- stitution that the freedom guaranteed speech there and the bears inverse ratio to the timeliness importance seeking expression.” of the ideas Bridges California, U. S. 269. We have no doubt that the subject of the Life article, the opening of a rrew play to an linked actual is a incident, matter of public interest. “The line between informing and the entertaining is too elusive for protection of . . . [freedom *13 press].” Winters York, v. New U. S. Er- 510. roneous statement is no less inevitable in such a case than in the case of upon public comment affairs, and in both, if merely innocent or negligent, “. . . it protected must be if expression freedoms of are to have the ‘breathing space’ that they ‘need ... to survive’. . . .” New York Times Sullivan, Co. v. supra, at 271-272. As James Madison said, degree “Some of abuse is inseparable from every thing; and in proper use no instance is this
more true press.” than Elliot’s Debates (1876 ed.). the Federal Constitution 571 We create a grave risk of serious indispensable impairment service of a free if press society a free we saddle the press with impossible burden of verifying to a cer- tainty the facts person’s associated news with a articles name, picture or portrait, particularly as related non- matter. defamatory negligence Even would be a most elusive standard, especially when the content of the speech warning itself affords no prospective harm to another through falsity. A negligence place test would on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken verify the accuracy every reference to a name, picture or portrait.
In this context,
against
sanctions
either innocent or
negligent misstatement
present
would
grave
hazard of
discouraging
press
from exercising the constitutional
guarantees.
guarantees
Those
are not for the benefit of
press
so much as for the benefit of all of
Aus.
broadly defined freedom of
assures the main-
tenance of
political
our
system
open
society.
and_
Fear of large verdicts in damage suits for innocent or
merely negligent misstatement, even fear of the expense
involved in their defense, must
inevitably
pub-
cause
lishers to “steer . . . wider of the unlawful zone,” New
York Times Co.
Sullivan,
v.
But the constitutional guarantees can tolerate sanc- tions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no im- *14 public a alleged defamation of munity in the case calcu- Similarly, conduct. concerning his official official immunity in the situation enjoy no falsehood should lated Louisiana, in Garrison v. us. What we said presented here equally applicable: at supra, put . would “The use calculated falsehood . . question. a cast on the Al- different constitutional though may even if utterance, inaccurate, honest right further the fruitful exercise of free not follow speech, lie, knowingly it does deliberately published a enjoy . . . should like immunity. . . . Eor the use of the known lie as a at premises tool is once odds with the of demo- government cratic orderly and with the manner in which economic, social, political change is to be effected. Calculated falsehood falls into that class of utterances which ‘are no part any essential exposi- tion of ideas, slight and are such social value as a step to truth any may benefit that be derived from them is clearly outweighed by the social interest in order morality. . . .’ Chaplinsky v. New Hampshire, 315 U. S. 572. Hence the know- ingly false statement and the false statement made with reckless disregard' of the truth, do not enjoy constitutional protection.”
We applicable find here the standard of knowing or reckless falsehood, through not application blind of New York Times Co. Sullivan, relating solely to libel actions by public but officials, only upon consideration of the factors which arise in particular context of the ap- plication of the New York statute in cases involving private individuals. This is neither a libel action private individual nor a statutory action official; Therefore, although the First prin- Amendment ciples pronounced in New York Times guide our conclu- *15 only by these applying reach that conclusion
sion, we It therefore serves discrete context. in this principles from those in the facts here distinguish purpose no York Times. Were this a libel the distinc- New action, relative suggested op- between the tion which has been private the individual portunities public of the official and the defamatory charges might germane. And to rebut of the individ- protection additional state interest the against damage reputation ual to his would be involved. Baer, Cf. Rosenblatt J., 383 U. S. (Stewart, concurring). might a test be re- Moreover, different a quired statutory by public action a official, opposed by a statutory libel action official aor action private individual. might Different considerations concerning degree arise protection of “waiver” of the might State afford. But the question whether the same applicable standard should be persons both to vol- untarily involuntarily public limelight thrust into the is not here before us.
II. Turning to the facts of the present case, proofs reasonably would support jury finding either a of inno- cent or merely negligent by Life, misstatement or a find- ing that portrayed Life play as a re-enactment of the family’s Hill experience reckless of the truth or with actual knowledge that portrayal was false. The rele- vant testimony is as follows:
Joseph Hayes, author of the also book, play. wrote the story The theme was inspired by the desire to write about “true crime” and years before writing the book, he collected newspaper clippings of stories of hostage incidents. story His was not shaped by any single inci- dent, but several, including incidents which occurred in California, New York, and Detroit. He said that he did not consciously portray any member of the Hill fam- admitting family’s although experience, Hill or the ily, “trig- way” experience the Hill very “in a direct play. writing of the book and gered” the direction and prepared The Life article was editor, supervision of its entertainment under play production Prideaux. He learned Mont- story. play’s a news Robert director, from interesting stage to him that its suggested later gomery, for an setting play subject would make the a worthwhile article in At about the same Prideaux ran time, Life. photographer, a free-lance Hayes, into a friend of author play who told Prideaux in casual conversation that *16 a had “substantial connection with true-life incident family being escaped of a held convicts near Philadel- phia.” trying As was in play Philadelphia, out Hayes Prideaux decided to contact the author. con- firmed that an incident play somewhat similar to the had occurred Philadelphia, agreed with Prideaux to find out whether the former Hill residence would be available for shooting pictures for a Life article. Prideaux then met Hayes with in Philadelphia where he saw play Hill Hayes drove with to the former residence to test its suitability for a picture story. Nei- ther then nor thereafter did question Hayes Prideaux about the extent to which play was based on the Hill incident. “A specific question of that nature was never asked, but discussion of play itself, play what the about, light my own knowledge of what the true incident was about, my confirmed in beyond mind any doubt that there was a relationship, Hayes’ and Mr. presence at this whole negotiation was tacit proof of that.”
Prideaux sent photographers to the Hill residence for location photographs of scenes of the play enacted in the home, and proceeded to construct the text of the article.
In file” “story his were several news clippings about the Hill incident which revealed its nonviolent character, and a York New Times article Hayes in which he stated that play “was based on various news stories,” mentioning incidents in New York, California, Detroit and Philadelphia. first
Prideaux’s draft made no mention of the Hill except name for the caption of one the photographs. The text related that a true story of a suburban Phila- delphia family “sparked had off” Hayes to write the novel, that the play was a “somewhat fictionalized” ac- count the family’s heroism in time crisis. Pri- deaux’s research assistant, whose task it was to cheek the draft for accuracy, put a question mark over the words “somewhat fictionalized.” Prideaux testified that question mark “must have been” brought to his atten- tion, although he did not recollect having seen it. The draft was also brought before the copy editor, who, the presence of Prideaux, made several changes in em- phasis and substance. The first sentence was changed to focus on the Hill incident, using the family’s name; the novel was said to have been “inspired” by inci- dent, and the play-was referred to as a “re-enactment.” The words “somewhat fictionalized” were deleted.
Prideaux labeled as “emphatically untrue” defense counsel’s suggestion during redirect examination that from the beginning he knew that the play had no rela- tionship to the Hill apart incident from being a hostage incident. Prideaux admitted that he knew the play was “between a little bit and moderately fictionalized,” but stated that he thought beyond doubt that the important quality, the “heart and soul” of the Hill play, was the incident.
The jury might reasonably conclude from this evi- particularly that the New York dence— Times article “some- copy editor deleted that the story file, was in the ques- assistant after the research what fictionalized” he that Prideaux admitted and that accuracy, tioned its moderately a little bit was “between play knew the falsity of, or was reck- Life knew the fictionalized” —that story in article that “the in, stating less of truth experience. On the other family’s the Hill re-enacted” finding a might reasonably predicate hand, jury testimony on the only negligent misstatement innocent or free-lance to Prideaux a was made that statement in an incident Phila- play that photographer linked the arranging in Hayes cooperated that the author delphia, Hill availability home, former that for the the “heart and beyond that thought Prideaux doubt Hill was the incident.11 play soul” of the
III. con- the instructions think, however, We do not finding a on a jury liability fined the verdict based article were made with knowl- that the statements edge falsity disregard of their or in reckless of the truth. jury liability instructed that could not be found “merely because of some incidental mis- under 50-51 §§ fact, statement,” incidental incorrect or some take liability only findings could rest verdict “not to disseminate (1) published article, Life using plaintiffs’ names, but was connection with news, episode as to plaintiffs’ relationship fictionalized to The Desperate Hours”; variously the Court this restated requirement “fictionalization” terms such whether appellant changed “altered the true facts concerning support either result finds Where reasonable in the record it jury, Court, is for not this to determine whether there was knowing Sullivan, or reckless falsehood. New York Cf. Times Co. v. supra, 284-285.
plaintiffs' relationship to The Desperate Hours, so that the article, as published, substantially constituted fiction or a fictionalized version . ,” . . whether the article consti- tuted “fiction,” or was “fictionalized”; and that (2) the article published was to advertise play or “for trade purposes.” This latter purpose variously was defined one “to amuse, thrill, astonish or move reading public so as to increase the circulation magazine or for some other material benefit,” “to increase or circulation enhance the standing of the magazine with its readers,” and “for the publisher’s profits through increased circulation, induced exploitation of plaintiffs.”
The court also instructed the jury award of punitive damages justified was if the jury found that appellant falsely connected appellee to play “knowingly or through failure to make a reasonable investigation,” adding “You do not need to find that there any was actual ill will personal or malice toward plaintiffs if you find a reckless wanton disregard of the plaintiffs’ rights.”
Appellee argues that the instructions to determine whether Life “altered or changed” the true facts, and whether, apart from incidental errors, the article a “substantial fiction” or a “fictionalized version” were tantamount to instructions that the jury must find that Life knowingly falsified the facts. We do not think the instructions bear that interpretation, particu- larly light of the marked contrast in the instructions on compensatory and punitive damages. The element of “knowingly” is only mentioned in the instruction that punitive damages must supported by a finding that Life falsely connected the Hill family with the play “knowingly or through failure to make a reasonable in- vestigation.” Moreover, even punitive as to damages, the instruction that such damages were justified on the *19 investigation” a reasonable make to “failure of basis misstatement negligent of proof that instruction an is negligent of test the rejected have we enough, is judge trial the Next, inadequate.12 as misstatement limiting the instructions his regard not did plainly know- of finding aon liability based of a verdict to jury to motion appellant’s denied he falsity; reckless ing or per- he because evidence the of close after the dismiss Life the “whether find jury the for it was that ceived obtained could inference an whether or true was article a implies This not true.” it was that reading it from “fal- with synonymous was “fictionalization” that view negligence, or even knowledge regard without sity” damages. punitive of an award purpose the except decided cases York in the New nothing Finally, reck- knowing or cases liability to limited of trial time question has left since, decided Spahn, falsity less in doubt.13 find also jury requirement
The as defined purposes,” trade “for published article by requiring instruction qualified this court Although the rights” plaintiffs’ disregard of or wanton finding of “reckless malice,” this personal will or ill finding of “actual aof in absence truth relate, not to jury to by the been taken reasonably have could privacy. appellee’s toward appellant’s attitude falsity, but or constitutionally been have would instruction even this Therefore error prejudicial found not Division Appellate had Even infirm. judgment before damages, the punitive affecting jury’s award finding on that jury’s basis be sustained not us could issue. App. Messner, Inc., 23 Spahn Julian v. Division Appellate (1965), stated 451, 454 2d Y. S. 216, 220, 260 N. 2d Div. an between “distinction aon rested concept fictionalization straight treatment factual intentionally treatment fictionalized (Em inaccuracies) . . .” . superficial inadvertent (subject to opinion, we Appeals Court light In supplied.) phasis law. York of New accurate statement accept this as cannot
the charge, cannot save the charge from constitutional
infirmity.
“That books, ‘newspapers, and magazines are
published and sold for profit does not prevent them from
being a form of expression whose liberty
safeguarded
by the First Amendment.”
Joseph Burstyn,
Inc. v.
Wilson,
IV. The appellant argues that the statute should be de- clared unconstitutional on its if face construed the New York courts to impose liability without proof of knowing reckless falsity.14 Such a declaration would not be warranted even if it were entirely clear that this had previously been the view of the New York courts. The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in construing the stat- ute to avoid invasion of the constitutional protections of speech and press. We, therefore, confidently expect that the New York courts will apply the statute consistently with the constitutional command. Any possible differ- ence with us to the thrust of the constitutional com- mand is narrowly limited in this case to the failure of the trial judge to instruct the jury that a verdict of liability could be predicated only on a finding of knowing or reckless falsity in publication the of the Life article.
14Appellant further contends that the threat of criminal penalty invalidates the statute. However, there have only been two eases of criminal proceedings under the statute and both resulted in dismissal. People v. Charles Sons, Scribner's 818, Misc. 130 N. Y. S. 2d 514 (1954); People v. McBride & Co., 159 Misc. 288 N. Supp. Y. (1936). There is therefore little realistic threat prosecution. Cf. United States v. Raines, 362 U. S. 20-24 (1960). aside and is set Appeals Court of the The judgment incon- not proceedings for further remanded case opinion. this with sistent ordered.
It is so Douglas Mr. Justice whom with Black, Mr. Justice concurring. joins, based case in this judgment reversal in
I concur opinion. the Court’s in stated reasons grounds on able to be the Court order however, this, doI case important in this opinion on agree to time this expressed doctrine constitutional prevailing based 254. S. Sullivan, U. v.Co. York Times New this with accordance case decides opinion Court’s In agreeing adhere. majority to which doctrine, any from not I do recede opinion, Court’s much about expressed previously I have views First and I think freedoms speech wider grant designed were Amendments Fourteenth *21 v. Times Co. York g., e. New See, Nation. of the people Rosen opinion); (concurring 293 S., Sullivan, 376 U. dissenting (concurring Baer, S. 383 U. v. blatt opinion).
I. narrower here of application I acquiesce the belief with York Times of New view constitutional appli- away its as pass to is bound too doctrine this that protect to inadequacy its proves cases new cation cases and libel from destruction press of the freedom “malicious” words The one. this like cases other truth” can never disregard “reckless particularly Amendment the First for substitutes effective as serve freedom abridging . . . no law make . “. . words: think, I Experience, . .” . . speech,, can freedoms Amendment First prove bound no more be permanently diluted or abridged by this Court’s action than could the Sixth guar- Amendment’s right antee of to counsel. I think the fate that befell Brady, Betts v. Gideon Wainwright, (cf. U. S. 335), U. S. is already foreseeable, only even if dimly, for the New York Times’ dilution of First Amendment rights.
II. I think it not inappropriate to add l would if not difficult, impossible, the Court ever to sus tain a judgment against Time in this case withou t using the recently popularized weighing balancing formula. Some of us have pointed from out time to time that the First Amendment freedoms pos could not sibly live with adoption of that Constitution-ignoring- and-destroying technique,1 when there are, here, palpable penalties imposed speech or press specifically because of the that are spoken views or printed. The prohibitions of the Constitution were prohibit written to certain specific things, and one of the specific things prohibited is a abridges law which freedom press. That freedom written into the Constitution and that Constitution is or should be binding on judges as well as other officers.. "weighing” plainly doctrine encourages and actually judges invites to choose for themselves between conflicting values, where, even as in the First Amendment, Founders made choice of values, one of press. which is a free Though the Consti requires tution judges swear obey it, and enforce *22 not altogether strange it is that all are judges always not 1See, g., Anastaplo, e. In re 366 82, (dissenting opinion); U. S. 97 States, Braden United 365 (dissenting U. S. opinion); States, Barenblatt v. United (dissenting U. S. 140-145 opinion). that ex- interpretations constitutional against
dead set claimed once is power when and that powers, their pand up. it to give are loath others some, by constitu- of choice balancing judicial the if Finally, I could Court, by this adopted be is to changes tional Amendment. First the not started had it wish are essential Amendment that guaranteed freedoms Amendment That ours. like government in a freedoms its put to designed language deliberately written change while to government of the reach beyond freedoms however, have, judges If unrepealed.2 remained equal privacy right today created fiat their own the Constitution that free press of a right to the superior next, and the day next and the tomorrow then created, other away balance that rights more can create judges any one is If there freedoms. Rights Bill cherished the Founders that indicate strongly could that thing press, free ain trust much so reposing wrong were not itself press for the be it would that suggest I would inherent freedom, danger to its grave up to the to wake conduct Life’s process.” “weighing in this and certain incidental understandable a mere most here was does newsworthy One event. reporting fact in error like that judgments foresee a prophet have not punish the frighten can reverse we here the one news report trying to will cease publishers much so is—and long as there fashion readable lively and in a accuracy complete as to will be—doubt always there Amendment First purpose wrote Jefferson words, same sentence, under same guarding . “. . insomuch, that press: speech, and religion, of freedom sanctuary covers either, down throws violates whatever with defamation, equally falsehood, and libels, others, and fed cognizance of from religion, withheld are heresy and false 1904). (Ford ed. Jefferson, 464-465 Works tribunals.” eral *23 newsworthy hardly facts.3 Such consummation clearly expressed purpose with the consistent seems in our press spot a favored guarantee Founders to society. free concurring. Douglas,
Mr. Justice Rosenblatt v. in my separate opinion As intimated in Baer, 88, opinion my 383 U. S. id., Black case, Brother the same state action abridge freedom of the is barred the First and Fourteenth Amendments the discussion con- where cerns public matters in the episode domain. The around which this book was written had been news of the day for some time. The most that can be said is that novel, play, and magazine article revived that interest. A fictionalized treatment of is, the event my view, as much public in the domain would be a watercolor of the assassination of a public official. It seems to me any irrelevant to talk of right of privacy in this context. private Here a person is catapulted into news over events which he had no control. He and his activities are then in domain as fully as the matters at issue in New York Times Co. v. Sulli- van, S.U. 254. Such privacy person as a normally has ceases when his life has ceased to private.
Once we narrow the ambit of the First Amendment,
creative writing is imperiled and the “chilling effect” on
free expression which we feared in Dombrowski Pfister,
v.
3See, for example,
Publishing
Curtis
Butts,
Co. v.
351 F. 2d
($3,000,000
libel judgment,
$460,000
cut
appeal),
cert.
granted, post, p. 811; Associated Press Walker,
v.
393 S. W. 2d
(Tex.
App.)
Civ.
($500,000
judgment),
libel
cert. granted,
post, p. 812; New York Times Co.
Sullivan,
I. opinion Court’s demonstrates that the fictionali- upon zation doctrine which premises New York liability strip newsworthy would other- material, one wise protected, its constitutional upon shield a mere Baggett Bullitt,
*And see
360;
Button,
U. S.
NAACP v.
showing of substantial falsity. I agree that the com- pensatory damage instruction given by the trial court required only such a determination and a finding “commercial purpose” liability. sustain reading And opinion Appellate Division in light other New York I decisions believe that this was the , theory upon which the jury finding was sustained.1 True,,
the trial court told the jury that it must find that! .the appellant “altered or changed the true facts.” But: ¡it did not specify whether this alteration or changed would have to be reckless or negligent, j whether inno-j cent variation from the facts as found jury would suffice for the award of damages. Clearly know- ing falsification was not required, for the court refused *25 appellant’s request charge that the jury must find in its favor unless it found knowing falsification.
The instructions punitive damages required the jury to find at least “failure to make a reasonable investiga- tion,” in my view a crucial determination. However, the entire damage award was set aside as excessive majority 1 The in the New Appellate York Division denied that the article could “be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy informa tion They ....’’ “points added that of similarity in the book and the occurrence justified . . . neither the identification nor the com exploitation mercial plaintiffs' of name and family with play.” the Justice Rabin, concurring, agreed that subject the could have been presented liability without presentation “albeit of such news worthy material publisher’s increases the circulation.” The New York Court of Appeals affirmed “on the majority and concurring opinions at Appellate Division.” The decision below seems to ample have support in New York See, law. g., Spahn e. v. Julian Messner, Inc., 18 N. 324, Y. 2d 221 N. 543; E. 2d Binns Vitagraph v. Co., App. 147 783, Div. Supp. N. Y. 237, aff’d, 51, 210 N. Y. 103 N. 1108; E. Youssoupoff CBS, v. Inc., 41 Misc. 42, 2d N. Y. S. 701, aff’d, 2d 19 App. 865, Div. 2d 244 N. Y. 1; S. 2d Koussevitzky Allen, Towne & Heath, Inc., 188 479, Misc. N. Y. S. 779, 2d aff’d, App. Div. 69 N. Y. S. 2d 432. influenced unduly it found Division Appellate for reconsidera- remand On inflammatory evidence. made. was award compensatory only a damages, of tion Appeals by the Court affirmed award was This in this case reviewing. With arewe decision there that fairly be said can it not think I do posture, degree interpretation binding jury been has with agree I and fictionalization in the involved fault variety bear a would involved conduct that the Court interpretations. problem narrow only a that I consider Court, Like not “privacy” me this To facts. by these is presented Torts Law of Prosser, See truest sense. in its litigation 34 Ford. Amendment, First Privacy Silver, 112; § Aspect anas Bloustein, Privacy 553; but see Rev. L. Y. 39 N. Prosser, Dean An Answer Dignity: Human any there is made claim 962. No Rev. L.U. private affairs solitude the Hills' upon intrusion power publication. for information to obtain order o intrusion remedy such t control a State Mapp v. cf. denied, cannot newsgathering purposes Similarly not here asserted. but is Ohio, S. 367 U. are certain facts strongly contended may be poten intimate and so interest such limited may State embarrassing an individual tially to" . Feeney v. *26 publication to deter power its exercise Sidis Supp. Y. 501, 481; 181 N. see App. 191 Div. Young, the instruc 806, F. 2d 808. But 113 Corp., Pub. F-Rv. appellate York in the opinions the New jury, to tions sides both arguments advanced and indeed the courts, the theme recognize Court all before this one perfectly proper a was in question article prepared without been type could have an article of this York, 333 510. New U. S. Winters liability. v. commenting articles on the replete with record is The Hours, pre- one which Desperate was genesis of The pared by appellee author himself and used supposed falsity demonstrate of the Life piece. Finally no claim appellant published made that article to advance in play. commercial interest There is no evidence to any show that had Time, Inc., financial in production interest or even that article published advertisement. Thus the question may whether a State more apply stringent lim- itations to the of the personality use in “purely com- mercial advertising” is not before Court. See Valentine Chrestensen, v. S. 52. U.
1—1I—1
Having come
far
this
m step with the
opinion,
Court’s
I
part
must
company with its sweeping extension of the
principles of New York Times
Sullivan,
Co. v.
S.U.
254.
It was established in New York Times that mere
falsity will not suffice to remove constitutional protection
from published matter relating to the conduct
public
of a
official that
is of
concern. But that decision and
those in which the Court has developed its doctrine,
Rosenblatt
Baer,
v.
Baer, supra, of the rejection the underlying principles of the scrutiny ancillary safe- imposition and the falsity criterion mere seeks State the interest the as well guards, of this resolution proper a necessary to reach is protect, case. the Court’s underlie seem to principles essential
Two Times. York in New criterion falsity mere of the rejection in situation error of some inevitability is The first matters abstract when especially debate in free presented illustrated Certainly consideration. are under making pre- a encountered difficulty to be in the here in- Hill relationship between of the description cise is the The second Desperate Hours. cident are at many areas which recognition Court’s readily identi- a is not “truth” debate center of prejudices pre-existing putting concept, fiable may effec- is “true” what a jury determination nation which Any censorship. tively system institute so heritage cannot of its part trial as Scopes counts the finding of jury sanctions on a ideas to readily expose Connecticut, 296, S. falsity. Cantwell v. U. See still marketplace of ideas” where functions 310. “The for testing ground truth. remains the best against suppressing is found arguments But these what negative not ground “false” on that alone do encouraging publication State’s of well interest likely Certainly more to be true. researched materials power positive it is within to use means— State provision training of facilities3 and of students4— may library Thus the take State land construction g., Hay Bangor, E. 731; facilities. v. 102 Me. 66 A. Laird ford Pittsburg, 54 A. Pa. 324. many professional Thus journal state universities have schools of Department Health, ism. See 3 Welfare, Educ. & Education Directory Higher Education. —
to further this end. The issue presented this case the constitutionality of a employment State’s of sanctions to accomplish that goal. same The Court acknowledges that may sanctions employed against be knowing or reckless falsehoods but would grant seem to a “talismanic immunity” to all unintentional errors. However, the distinction between the facts presented to us here and the situation at issue in the New York Times case and its progeny casts serious doubt on grant of immunity and calls for a more limited “breathing space” than that granted in of criticism public officials.
First, we cannot avoid recognizing that we have entered an area where the “marketplace of ideas” does not func- tion and where conclusions premised on the existence of that exchange are apt to be suspect. In Rosenblatt v. Baer, supra, the Court made the New York Times ration- ale operative where “the public has an independent in- terest in qualifications performance and person who holds [government it position], beyond the general public interest in the qualifications performance all government employees . . . Id., .” In 86. elabo- ration the Court'said: “The employee’s position must one which would invite scrutiny and discussion of person holding it, entirely apart from scrutiny discussion by occasioned particular charges in con- troversy.” Id., at 87, n. 13. To me this seems'a clear recognition of the fact falsehood is easily more tolerated where public attention creates the strong like- lihood of a competition among ideas. Here such com- petition is extremely unlikely for the scrutiny and discussion of the relationship of the Hill incident and the play is “occasioned particular charges in con- troversy” and the matter is not one in which the public has an “independent interest.” It would be unreason- able to assume that Mr. Hill could find a forum for Life material refutation successful making a for the be sufficient in would interest public’s area in that might itas comparison out to win truth state society. Thus free to a central discussion preparation checking careful encouraging interest York in New stronger than is far material published far are unchallengeable untruth dangers Times. summarily dismissed.5 to be too well documented interest state difference vast Second, there is *29 irresponsibly from Hill Mr. like individuals protecting in pro- in similar interest state and the publicity prepared we Times York New In official. public for tection whom from breed to be officials public acknowledged and criti- innuendoes, charges, exposure hardiness assumed voluntarily and who might be demanded cisms arena. entry into the things by such risk of Fair Game and Fair Democracy Defamation: Riesman, See Illinois, S. 343 U. 1085; Beauharnais I, L. Rev. 42 Col. Comment And de 2d 877. 395, 22 A. J. L. Klapprott, 127 N. 250; State v. ger is rebuttal opportunity for that denial spite the Court’s stemming falsity the harm the circulation mane, be it must liability imposition of allow Court lead the it which from matter “a article subject the Life finds For the Court at all. self to “[ejxposure And it states public interest.” civilized in a of life degrees is a concomitant varying in others com to allow permit New York could not community.” Thus it it is holding, as I am sure it is exposure unless mere pensation for material in written falsehood some reckless presence of not, that the suggestion protection. Court’s strips all constitutional it of because the falsehood to rebut anxious might not be Hill Mr. applicable to equally exposure is harm from his might increase by fear may limited be rebut opportunity to where libel actions than emphasizes, rather And this factor reiterating libel. it increases discouraging falsehood lessens, state interest to the detriment to circulate falsity will continue the likelihood of all benefit encouraged “for the should truth when of some of us.”
376 U. at S., 273. But Mr. Hill came to public attention through unfortunate circumstance not of making his rather than his voluntary actions and he can in no sense be considered to have any protection “waived” the State might justifiably afford him from irresponsible publicity. Not being inured to the of journalistic vicissitudes scru- tiny such an individual easily more injured and his means self-defense are more limited. The public is less likely to view with normal skepticism what is written about him because it is not accustomed to seeing his name press and expects only a disinterested report.
The coincidence of these factors this situation leads me to the view that a State should be free to hold the press to a duty of making a investigation reasonable of the underlying facts limiting itself to “fair com- ment” on the materials so gathered. Theoretically, of course, such a rule might slightly limit discussion of matters touching individuals like Mr. Hill. But, from a pragmatic standpoint, until now the press, least in negligence A standard has applied been in libel actions both *30 where underlying the alleged facts are to libelous, Layne be v. Co., Tribune 177, 108 Fla. 234, 146 So. and where comment is the subject of action, Clancy the Daily News Corp., 1, 202 Minn. 277 N. Similarly W. press 264. the should be not constitution ally insulated privacy from brought by actions parties posi in the tion of Mr. Hill when reasonable care has not been taken in ascertaining or communicating underlying the facts or where the publisher has kept not within the traditional boundaries of “fair comment” with relation to underlying facts opinion. and honest See Prosser, Law of 110, Torts § 815-816. Similar standards of reason investigation able presentation long have applied been in misrep resentation See, g., cases. e. International Products Co. v. Erie R. Co., N. 244 Y. 155 662; N. E. Nash v. Minnesota Title Ins. & Co., Trust Mass. 40 N. E. 1039. Under such a standard the publication fact that the involved in this case was not defama tory would enter into a determination of the amount of care which would have been reasonable in preparation of the article. handicap exacting more under labored York, New certainly re- has law and privacy York existing New social great activity professional Other robust. mained care7 reasonable duty of under carried is value hardy less be would press suspect to reason nois there example. for attorneys or practitioners medical than First by the guaranteed press” of the “freedom The can- Fourteenth, reflected Amendment, and re- from conduct press all insulate to thought not majority The inflicted.8 for harm responsibility view it only when conduct such against sanctions allow would also be reached can that it I insist morally culpable. is in- to harm irremediable risk of a severe creates when pro- to powerless it and to exposed involuntarily dividuals to the case remand would it. I against themselves tect under possible retrial for courts York New principle. press relieves doctrine
A constitutional seems sort of this in cases responsibility minimal even this the perma- ultimately harmful unnecessary and me York New If the itself. press health good nent Practitioners, Required of Medical McCoid, g., The Care See, e. Negli Liability Attorney’s for Wade, 549; The L. Rev. 12 Vand. pro argued that other may be 755. It Rev. L. gence, 12 Vand. against may insure practitioners distinguishable because fessions are Developments press. open to the is also course liability. But this 875, 906. Rev. Defamation, Harv. L. Law, in the privilege an has absolute that the held never Court has This history First nothing falsity. publish There contem authors Fourteenth, that the to indicate Amendment, legal persons ability private to seek on the plated restrictions Levy, Legacy of generally injury. See press-inflicted redress the Press Development of Freedom Duniway, The Suppression; attempt by rejected Madison Founders *31 in Massachusetts. against guarantee of freedom the I, Art. to add § against was that it argument advanced The main action. state See proper powers of the States. unduly with interfere would Cong. 1 Annals of 756. (Hunt ed.); Writings 378 5 Madison’s
Times case has ushered such a trend it will prove in its long-range impact to have done a disservice to the true values encompassed in the freedoms of speech and press. Mr. Justice Fortas, with whom The Chief Justice
and Mr. Justice Clark join, dissenting.
The Court’s holding here is exceedingly narrow. It declines to hold that the New York “Right of Privacy” statute is unconstitutional. I agree. The Court con- cludes, however, that the instructions to the jury in this case were fatally defective because they failed to advise the jury that a verdict for the plaintiffs could be predi- cated only on a finding of knowing reckless falsity in the publication of the Life article. Presumably, appellee is to a entitled new trial. If he can stand the emotional and financial burden, there is reason to hope that he will recover damages for the reckless and irre- sponsible assault upon himself and his family which this article represents. But he has litigated this case for 11 years. He should not be subjected to the burden of a new trial significant without cause. This does not exist. Perhaps the purpose of the decision here is indicate that this Court will place insuperable obstacles in the way of recovery by persons who are injured by reckless and heedless assaults provided they are in print, and even though they are totally divorced from fact. If so, I should think that the Court would cast its deci- sion in constitutional terms. Short of that purpose, with which I would strongly disagree, there is no rea- son here to order a new trial. The this instructions in case are acceptable even within the principles today announced the Court.
I fully agree with the views of my Brethren who have stressed the need for a generous construction of the First Amendment. I, too, believe that freedom of the press, of *32 412 petition to freedom and the religion, and assembly,
speech, our to fundamental liberty and our of essence of are 131 S. Louisiana, U. 383 Brown v. g., e. See, values. Brother my of statement with agree I (1966). P. v. C.A.A.N. in the Court for Brennan, speaking freedoms “These that (1963), Button, U. S. precious supremely aswell vulnerable, as and delicate are is whatever that believe not I do But society.” in our upon may be it aggression anof much however words,, no law, of the reach beyond is rights, individual from remote rights others’ of heedless how —how matter untrue and irresponsible, reckless, how purpose, Amendment First that not I believe do may be. privacy— of right of the protection effective precludes I not do of libel. law effective matter, an that for or, those to deference should, in or must we believe First scope to the are absolute views whose action, state all strike down to ingenious Amendment, be words the use penalizes which circumspect, however There assault. personal and aggression as instruments society, none in our values important and great are First Amend- in the reflected than those greater is which to entitled and also fundamental are which ment, but Among protection. and respect careful this Court’s eloquently has been privacy, to right these Judge of this Court. members scholars extolled right “to be right as to ago referred this Cooley long published Brandéis Warren and alone.” In let in which Privacy,” Right “The article famous their the “excesses” argued they eloquently the obvious bounds every direction “overstepping law it essential decency” made propriety from traditional distinct privacy, right recognize individuals protect private defamation, remedies pain of mental infliction unjustifiable against 1888). (2d Cooley, Torts 29 ed. Law of distress.2 A right distinct of privacy is now recognized, either as a “common-law” right by statute, in at least 35 States.3 Its exact scope varies in the respective jurisdictions. It is, simply stated, right *33 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 government of law. As Mr. Justice Brandéis said his famous dis sent in Olmstead v. States, United 277 U. 438, S. 478 (1928), the right of privacy is “the most comprehensive of rights and right most valued by civilized men.”
This Court has repeatedly recognized this principle.
As early as
1886, Boyd v. United States, 116 U.
616,
S.
630, this Court held that the
of
doctrines
the Fourth and
Fifth Amendments “apply to all invasions on the part
of the government and its employes of the sanctity of
a man’s home and the privacies of life.
It is not the
breaking of his doors, and the rummaging of his drawers,
that constitutes the essence of the offence; but it is the
invasion of his indefeasible right of personal security,
personal liberty
private
property . . . .”
In 1949, the Court, in
v. Colorado,
In Griswold under a state law unconstitutional held Court persons married giving prosecuted were petitioners contracep- use advice medical information *34 right of upon based squarely holding tives. from by implication derived Court which the privacy a Citing num- Rights. Bill of guarantees specific J.) held Douglas, (per the Court cases, of prior ber right privacy which that the witness cases bear “These Id., at one.” legitimate a here is recognition presses for of Mr. concurring opinion Justice stated in 485. As Mr. Goldberg, with whom Justice The Chief is a privacy right “the joined: Brennan Justice totality emanating ‘from the right, personal fundamental ” under which we live.’ scheme of the constitutional Id., at 494.5
5 (1966), Mr. Baer, Term, 92 383 U. S. Last Rosenblatt concurring, “right man referred to the of a to Stewart, Justice unjustified protection reputation from invasion and of his own dignity wrongful reflecting concept “our essential hurt” as basic being concept any every the root of and worth of human —a “protection system liberty.” tie referred to the decent of ordered private personality, protection itself,” life as entitled like system.” by of our constitutional “recognition Court as a basic this Ullman, Douglas, dissenting, in Poe v. See also Mr. Justice (1961). U. S.
Privacy,
then,
right.
is a
basic
The States may,
legislation
appropriate
proper
and within
enact
bounds,
laws to vindicate
right.
Cf.
Cooper,
Kovacs v.
U.
77S.
(1949),
sustaining
local ordinance regulating
the use of sound trucks;
Alexandria,
and Breard v.
U. S. 622 (1951),
sustaining
state law restricting solici
tation in private homes of magazine subscriptions. Diffi
culty
itself
presents
because the application of such state
legislation may impinge upon conflicting rights of those
accused of invading the privacy of others.
this is
But
not automatically a fatal objection.6 Particularly where
right
privacy
invaded by
words —
or in a book or pamphlet
most careful and sensitive
—the
appraisal of the total
impact of the claimed tort upon
the congeries of rights is required.
I have no hesitancy
say,
example, that
political
where
personalities or
issues are involved or where the event as to which the
alleged invasion of privacy occurred is in itself a matter
of current public interest, First Amendment values are
supreme and are entitled to at least the types of protec
tion that this Court extended in New York Times Co. v.
Sullivan,
The Court occasions many on so members its many of so of it reverses Instead, privacy. of right of exaltation Privacy” stat- of “Right York the New under a decision instruct judge to the trial “failure of ute because predicated liability could that a jury verdict in the falsity knowing or reckless finding of only on a my jury opinion, In article.” publication of the Life instructions, model, they were not textbook although this standard. satisfied deal adequately place,
In the Court does not the first for returned a verdict exem- jury with the fact that instructions special under plary punitive damages, or damages. compensatory as for dealing them, with as well in- specifically was exemplary damages, jury As to if “only” jury might be awarded these structed “falsely con- the defendant from the evidence found and that Desperate Hours, The plaintiffs nected with make a through or failure to knowingly was done this informed then investigation.” jury The was reasonable any actual to find that there “You do not need you plaintiffs personal malice toward ill will find if rights.” disregard the plaintiffs’ wanton a reckless or appellee $50,000 jury The awarded (Emphasis supplied.) damages. judg- $25,000 punitive compensatory damages, solely quantum on the ment was reversed finding liability sustaining the Division Appellate damages. The exemplary compensatory and both conclusion was that the award Appellate Division's the admission of excessive, and it criticized damages was tending jury to cause improperly evidence certain In damages. proceedings subsequent inflated return damages, jury court on assessment the trial before *36 was waived stipulation of the parties, pro- the case ceeded to reassessment damages and the judge fixed the amount of damages $30,000, compensatory only. Judgment thereupon affirmed the Court of Ap- peals. It is this judgment that is before namely, us— jury findings of liability based on instructions covering both exemplary and compensatory damages, and an award stated to be for compensatory damages alone.7
The Court refers only to part of the instructions as to exemplary damages which speaks in terms of the “failure to make a reasonable investigation,” and con- demns it permitting a verdict based solely “negli- gent misstatement.” I respectfully submit instruction fairly cannot be so read. The instruc- tion requires the jury find both (1) defend- “falsely ant connected” plaintiffs with the play, (2) did so knowingly through failure to make a reason- able investigation. certainly This is charge satisfying the Court's requirement that “a verdict of liability could be predicated only on a finding of knowing or reckless falsity publication of the Life article.” An error in the course of investigation might be negligent mere misstatement. Failure make a investiga- reasonable tion is something else. The standard a “reasonable investigation” certainly yardstick minimum by which liability measure the of publishers. It is certainly incompatible not with the full flavor the First Amend- ment and disregard of this standard the circumstances is recklessness. might It well be that what constitutes an adequate basis for a jury finding of failure to make a investigation reasonable would differ, example, in the case daily of a newspaper as compared with a feature magazine. But here no problem such arises. The truth
7There is no in the indication record that the court’s award was intended to set aside or nullify otherwise jury’s finding under punitive damage restrictions. *37 story. of the author of the desk on the in a folder was time Lead by editor. his disregarded deliberately It was months.8 three was story on the only rely had to appellee if however, even addition, In dam- compensatory on jury the instructions to the upon jury the aside set we should agree that I not do ages, Appeals. of Court New York the and reverse verdict by a verdict jury reversal action —the drastic Such the the Court justified remote Court—-is this jury the liability on which the standard ground But Amendment. the contravenes First instructed magical not a It is not abracadabra. is instruction jury which will break from deviation slightest incantation, the codes formalistic examples are Only poorer its spell. the masters. At please appellate trial judge recited a trial from communication rugged simple, is best, it its ap- entitled to ordinary people, jury to a judge are to be effect. Instructions of its net in terms praised not perspective, commonsense this viewed in aof distant distorting knothole through remote and the of the the core perspective, in this Read appellate fence. if we damages compensatory here on instructions —even liability under jury found fact that the disregard the exemplary dam- relating to instructions exacting more The majority’s test. to meet ages- sufficient —was three times charge, repeated the court’s gravamen following: was the words, same virtually the publishing whether, you for to determine is “It Incorporated al- Time, article, the defendant impact instruction’s of the to avoid the majority seek The disregard necessity finding or wanton “a reckless to the reference only speculating referred rights” by this plaintiffs’ only falsity. no Not there not to consent and failure to obtain part in placing of this speculation, but basis this falsity suggests that immediately the discussion of after — struction — contrary is true.
tered or changed the true facts plaintiffs’ concerning relationship to The Desperate Hours, so that article, as published, constituted substantially fiction a version for purposes trade . . . .” fictionalised (Emphasis supplied.) jury was also instructed that “Before plaintiffs
can be entitled to a verdict . you . . must find that statements concerning plaintiffs in the article consti- tuted fiction, compared with news, or matters which were newsworthy.” (Emphasis supplied.) With all re- *38 spect. I submit this is close enough to' this Court’s insistence upon “knowing or falsity” reckless toas render a reversal arbitrary and unjustified. If the defendant or changed altered the true facts so that the article as published was a version, in this, my judg- fictionalized ment, was a knowing or reckless falsity. “Alteration” or “change” positive denotes a act —not a negligent or inad- vertent happening. “Fictionalization” and “fiction” to the ordinary mind mean so departing from fact and real- ity as to be deliberately divorced from the fact —not merely detail but general and pervasive impact.9 9 The charge court’s and the New emphasize York cases this defini tion. important The most Spahn recent case is Messner, Inc., 18 324, N. Y. 2d 221 (1966). N. 2dE. 543 Spahn, Supreme In the Court of New York observed: “While untrue statements do not necessarily transform a book into category the fiction, the all- pervasive distortions, inaccuracies, dialogue, invented and the narra tion of happenings context, out of clearly indicate, very best, at the disregard careless responsibility the press of the and within the context of action, this an public’s abuse of the privilege limited life,” inquire into an to. individual’s 43 219, Misc. 230, 2d N. Y. S. 2d (1964). Affirming, Appellate the (per Division Breitel, J.) observed question the book in had been “fictional ized, concededly, in order to make it juvenile suitable for a reader ship” publishers and the “made no effort and had no intention to follow the facts plaintiff’s concerning life, except in broad outline.” App. Div. 216, 219, 2d 260 N. Y. (1st S. 2d Dept. 1965). Appellate The surveyed Division the earlier cases, New York includ- permit to so not esoteric language is English The difference supposed upon turn to consequences serious Court’s this and jury the to instructions between deli- such Amendment First is the Nor formulation. sur- this kind permits or requires cate health individual only an not effect net gery, and recklessness encouragement but injustice, interests over roughshod to ride readiness careless of others. public either permit not must and may not courts But press. inhibits or censors action that private
or pro- values preserve is to responsibility this part of press citizen that ordinary which assure cedures pre- special its law—that reach of above is not func- vital special of its because granted rogatives, in the needs its with reasonably equated are tions, totally this Court For of these functions. performance by subtle forthrightly immunize —whether news, comr the needs beyond far areas indirection —in public discussion events, persons and public ment no to freedom service would like issues hostility that free- but an invitation to press, *39 per- not refuse and should This Court cannot dom. aggrieved is citizen who law the private mit state under here and which which we have type of assault First core specially protected not within the damages reck- compensatory to recover Amendment rights. lessly inflicted invasion of his I Accordingly, would affirm. they
ing present case, were based on Hill and concluded all intentionally treatment and a “distinction between fictionalized superficial straight (subject factual treatment inadvertent (Em- inaccuracies) Id., 2d, 220, 260 Y. S. 454. N. at phasis supplied.)