Time, Inc. v. Hill/Concurrence Harlan
Mr. Justice HARLAN, concurring in part and dissenting in part.
While I find much with which I agree in the opinion of the Court, I am constrained to express my disagreement with its view of the proper standard of liability to be applied on remand. Were the jury on retrial to find negligent rather than, as the Court requires, reckless or knowing 'fictionalization,' I think that federal constitutional requirements would be met.
The Court's opinion demonstrates that the fictionalization doctrine upon which New York premises liability is one which would strip newsworthy material, otherwise protected, of its constitutional shield upon a mere showing of substantial falsity. I agree that the compensatory damage instruction given by the trial court required only such a determination and a finding of 'commercial purpose' to sustain liability. And reading the opinion of the Appellate Division in the light of other New York decisions I believe that this was the theory upon which the jury finding was sustained.  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 change would have to be reckless or negligent, or whether innocent variation from the facts as found by the jury would suffice for the award of damages. Clearly knowing falsification was not required, for the court refused appellant's request to charge that the jury must find in its favor unless it found knowing falsification.
The instructions on punitive damages required the jury to find at least 'failure to make a reasonable investigation,' in my view a crucial determination. However, the entire damage award was set aside as excessive by the Appellate Division which found it unduly influenced by inflammatory evidence. On remand for reconsideration of damages, only a compensatory award was made. This was the award affirmed by the Court of Appeals in the decision we are reviewing. With the case in this posture, I do not think it can fairly be said that there has been a binding jury interpretation of the degree of fault involved in the fictionalization and I agree with the Court that the conduct involved would bear a variety of interpretations.
Like the Court, I consider that only a narrow problem is presented by these facts. To me this is not 'privacy' litigation in its truest sense. See Prosser, Law of Torts § 112; Silver, Privacy and the First Amendment, 34 Ford.L.Rev. 553; but see Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962. No claim is made that there was any intrusion upon the Hills' solitude or private affairs in order to obtain information for publication. The power of a State to control and remedy such intrusion for newsgathering purposes cannot be denied, cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, but is not here asserted. Similarly it may be strongly contended that certain facts are of such limited public interest and so intimate and potentially embarrassing to an individual that the State may exercise its power to deter publication. Feeney v. Young, 191 App.Div. 501, 181 N.Y.S. 481; see Sidis v. F-R Pub. Corp., 2 Cir., 113 F.2d 806, 808, 138 A.L.R. 15. But the instructions to the jury, the opinions in the New York appellate courts, and indeed the arguments advanced by both sides before this Court all recognize that the theme of the article in question was a perfectly proper one and that an article of this type could have been prepared without liability. Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840. The record is replete with articles commenting on the genesis of The Desperate Hours, one of which was prepared by the author himself and used by appellee to demonstrate the supposed falsity of the Life piece. Finally no claim is made that appellant published the article to advance a commercial interest in the play. There is no evidence to show that Time, Inc., had any financial interest in the production or even that the article was published as an advertisement. Thus the question whether a State may apply more stringent limitations to the use of the personality in 'purely commercial advertising' is not before the Court. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262.
Having come this far in step with the Court's opinion, I must part company with its sweeping extension of the principles of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. It was established in Times that mere falsity will not suffice to remove constitutional protection from published matter relating to the conduct of a public official that is of public concern. But that decision and those in which the Court has developed its doctrine, Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597; Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, have never found independent value in false publications  nor any reason for their protection except to add to the protection of truthful communication. And the Court has been quick to note that where private actions are involved the social interest in individual protection from falsity may be substantial. Rosenblatt v. Baer, supra, 383 U.S., at 86-87, n. 13, 86 S.Ct., at 676. Thus I believe that rigorous scrutiny of the principles underlying the rejection of the mere falsity criterion and the imposition of ancillary safeguards, as well as the interest which the State seeks to protect, is necessary to reach a proper resolution of this case.
Two essential principles seem to underlie the Court's rejection of the mere falsity criterion in New York Times. The first is the inevitability of some error in the situation presented in free debate especially when abstract matters are under consideration. Certainly that is illustrated here in the difficulty to be encountered in making a precise description of the relationship between the Hill incident and The Desperate Hours. The second is the Court's recognition that in many areas which are at the center of public debate 'truth' is not a readily identifiable concept, and putting to the pre-existing prejudices of a jury the determination of what is 'true' may effectively institute a system of censorship. Any nation which counts the Scopes trial as part of its heritage cannot so readily expose ideas to sanctions on a jury finding of falsity. See Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 906, 84 L.Ed. 1213. 'The marketplace of ideas' where it functions still remains the best testing ground for truth.
But these arguments against suppressing what is found to be 'false' on that ground alone do not negative a State's interest in encouraging the publication of well researched materials more likely to be true. Certainly it is within the power of the State to use positive means-the provision of facilities  and training of students - to further this end. The issue presented in this case is the constitutionality of a State's employment of sanctions to accomplish that same goal. The Court acknowledges that sanctions may be employed against knowing or reckless falsehoods but would seem to grant 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 that grant of immunity and calls for a more limited 'breathing space' than that granted in criticism of public officials.
First, we cannot avoid recognizing that we have entered an area where the 'marketplace of ideas' does not function 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 rationale operative where 'the public has an independent interest in the qualifications and performance of the person who holds it (government position), beyond the general public interest in the qualifications and performance of all government employees * * *.' Id., 383 U.S. at 86, 86 S.Ct., at 676. In elaboration the Court said: 'The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.' Id., at 87, n. 13, 86 S.Ct., at 676. To me this seems a clear recognition of the fact that falsehood is more easily tolerated where public attention creates the strong likelihood of a competition among ideas. Here such competition is extremely unlikely for the scrutiny and discussion of the relationship of the Hill incident and the play is 'occasioned by the particular charges in controversy' and the matter is not one in which the public has an 'independent interest.' It would be unreasonable to assume that Mr. Hill could find a forum for making a successful refutation of the Life material or that the public's interest in it would be sufficient for the truth to win out by comparison as it might in that area of discussion central to a free society. Thus the state interest in encouraging careful checking and preparation of published material is far stronger than in New York Times. The dangers of unchallengeable untruth are far too well documented to be summarily dismissed. 
Second, there is a vast difference in the state interest in protecting individuals like Mr. Hill from irresponsibly prepared publicity and the state interest in similar protection for a public official. In New York Times we acknowledged public officials to be a breed from whom hardiness to exposure to charges, innuendoes, and criticisms might be demanded and who voltarily assumed the risk of such things by entry into the public arena. 376 U.S., at 273, 84 S.Ct., at 722. But Mr. Hill came to public attention through an unfortunate circumstance not of his making rather than his voluntary actions and he can in no sense be considered to have 'waived' any protection the State might justifiably afford him from irresponsible publicity. Not being inured to the vicissitudes of journalistic scrutiny such an individual is more easily injured and his means of 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 in the press and expects only a disinterested report.
The coincidence of these factors in this situation leads me to the view that a State should be free to hold the press to a duty of making a reasonable investigation of the underlying facts and limiting itself to 'fair comment'  on the materials so gathered. Theoretically, of course, such a rule might slightly limit press discussion of matters touching individuals like Mr. Hill. But, from a pragmatic standpoint, until now the press, at least in New York, labored under the more exacting handicap of the existing New York privacy law and has certainly remained robust. Other professional activity of great social value is carried on under a duty of reasonable care  and there is no reason to suspect the press would be less hardy than medical practitioners or attorneys for example. The 'freedom of the press' guaranteed by the First Amendment, and as reflected in the Fourteenth, cannot be thought to insulate all press conduct from review and responsibility for harm inflicted.  The majority would allow sanctions against such conduct only when it is morally culpable. I insist that it can also be reached when it creates a severe risk of irremediable harm to individuals involuntarily exposed to it and powerless to protect themselves against it. I would remand the case to the New York courts for possible retrial under that principle.
A constitutional doctrine which relieves the press of even this minimal responsibility in cases of this sort seems to me unnecessary and ultimately harmful to the permanent good health of the press itself. If the New York Times case has ushered in 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.
^1 The majority in the New York Appellate Division denied that the article could 'be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information * * *.' They added that 'points of similarity in the book and the occurrence * * * justified neither the identification nor the commercial exploitation of plaintiffs' name and family with the play.' Justice Rabin, concurring, agreed that the subject could have been presented without liability 'albeit the presentation of such newsworthy material increases the publisher's circulation.' The New York Court of Appeals affirmed 'on the majority and concurring opinions at the Appellate Division.' The decision below seems to have ample support in New York law. See, e.g., Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543; Binns v. Vitagraph Co., 147 App.Div. 783, 132 N.Y.S. 237, aff'd, 210 N.Y. 51, 103 N.E. 1108, L.R.A.1915C, 839; Youssoupoff v. CBS, Inc., 41 Misc.2d 42, 244 N.Y.S.2d 701, aff'd, 19 A.D.2d 865, 244 N.Y.S.2d 1; Koussevitzky v. Allen, Towne & Heath, Inc., 188 Misc. 479, 68 N.Y.S.2d 779, aff'd, 272 App.Div. 759, 69 N.Y.S.2d 432.
^2 The passage from Garrison v. State of Louisiana, supra, quoted in the opinion of the Court makes clear that the only interest in protecting falsehood is to give added 'breathing space' to truth. It is undeniable that falsity may be published, especially in the political arena, with what may be considered 'good' motives-for example a good-faith belief in the absolute necessity of defeating an 'evil' candidate. But the Court does not remove state power to control such conduct, thus underlining the strong social interest in discouraging false publication.
^3 Thus the State may take land for the construction of library facilities. E.g., Hayford v. Municipal Officers of City of Bangor, 102 Me. 340, 66 A. 731, 11 L.R.A.,N.S., 940; Laird v. Pittsburg, 205 Pa. 1, 54 A. 324, 61 L.R.A. 332.
^4 Thus many state universities have professional schools of journalism. See 3 Department of Health, Educ. & Welfare, Education Directory-Higher Education.
^5 See Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; State v. Klapprott, 127 N.J.L. 395, 22 A.2d 877. And despite the Court's denial that the opportunity for rebuttal is germane, it must be the circulation of falsity and the harm stemming from it which lead the Court to allow the imposition of liability at all. For the Court finds the subject of the Life article 'a matter of public interest.' And it states that '(e)xposure of the self to others in varying degrees is a concomitant of life in a civilized community.' Thus it could not permit New York to allow compensation for mere exposure unless it is holding, as I am sure it is not, that the presence of some reckless falsehood in written material strips it of all constitutional protection. The Court's suggestion that Mr. Hill might not be anxious to rebut the falsehood because it might increase his harm from exposure is equally applicable to libel actions where the opportunity to rebut may be limited by fear of reiterating the libel. And this factor emphasizes, rather than lessens, the state interest in discouraging falsehood for it increases the likelihood that falsity will continue to circulate to the detriment of some when truth should be encouraged 'for the benefit of all of us.'
^6 A negligence standard has been applied in libel actions both where the underlying facts are alleged to be libelous, Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 86 A.L.R. 466, and where comment is the subject of the action, Clancy v. Daily News Corp., 202 Minn. 1, 277 N.W. 264. Similarly the press should not be constitutionally insulated from privacy actions brought by parties in the position of Mr. Hill when reasonable care has not been taken in ascertaining or communicating the underlying facts or where the publisher has not kept within the traditional boundaries of 'fair comment' with relation to underlying facts and honest opinion. See Prosser, Law of Torts § 110, at 815-816. Similar standards of reasonable investigation and presentation have long been applied in misrepresentation cases. See, e.g., International Products Co. v. Erie R. Co., 244 N.Y. 331, 155 N.E. 662, 56 A.L.R. 1377; Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N.E. 1039, 28 L.R.A. 753. Under such a standard the fact that the publication involved in this case was not defamatory would enter into a determination of the amount of care which would have been reasonable in the preparation of the article.
^7 See, e.g., McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549; Wade, The Attorney's Liability for Negligence, 12 Vand.L.Rev. 755. It may be argued that other professions are distinguishable because practitioners may insure against liability. But this course is also open to the press. Developments in the Law, Defamation, 69 Harv.L.Rev. 875, 906.
^8 This Court has never held that the press has an absolute privilege to publish falsity. There is nothing in the history of the First Amendment, or the Fourteenth, to indicate that the authors contemplated restrictions on the ability of private persons to seek legal redress for press-inflicted injury. See generally Levy, Legacy of Suppression; Duniway, The Development of Freedom of the Press in Massachusetts. The Founders rejected an attempt by Madison to add to Art. I, § 10, a guarantee of freedom of the press against state action. The main argument advanced against it was that it would unduly interfere with the proper powers of the States. See 5 Madison's Writings 378 (Hunt ed.); 1 Annals of Cong. 756.