Time, Inc. v. Hill/Dissent Fortas
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 concludes, 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 predicated only on a finding of knowing or reckless falsity in the publication of the Life article. Presumably, the appellee is entitled to a 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 irresponsible 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 without significant cause. This does not exist. Perhaps the purpose of the decision here is to 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 decision in constitutional terms. Short of that purpose, with which I would strongly disagree, there is no reason here to order a new trial. The instructions in this case are acceptable even within the principles today announced by 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 speech, assembly, and religion, and the freedom to petition are of the essence of our liberty and fundamental to our values. See, e.g., Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). I agree with the statement of my Brother Brennan, speaking for the Court in N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), that 'These freedoms are delicate and vulnerable, as well as supremely precious in our society.' But I do not believe that whatever is in words, however much of an aggression it may be upon individual rights, is beyond the reach of the law, no matter how heedless of others' rights-how remote from public purpose, how reckless, irresponsible, and untrue it may be. I do not believe that the First Amendment precludes effective protection of the right of privacy-or, for that matter, an effective law of libel. I do not believe that we must or should, in deference to those whose views are absolute as to the scope of the First Amendment, be ingenious to strike down all state action, however circumspect, which penalizes the use of words as instruments of aggression and personal assault. There are great and important values in our society, none of which is greater than those reflected in the First Amendment, but which are also fundamental and entitled to this Court's careful respect and protection. Among these is the right to privacy, which has been eloquently extolled by scholars and members of this Court. Judge Cooley long ago referred to this right as the right 'to be let alone.'  In 1890, Warren and Brandeis published their famous article 'The Right to Privacy,' in which they eloquently argued that the 'excesses' of the press in 'overstepping in every direction the obvious bounds of propriety and of decency' made it essential that the law recognize a right to privacy, distinct from traditional remedies for defamation, to protect private individuals against the unjustifiable infliction of mental pain and distress.  A distinct right of privacy is now recognized, either as a 'commonlaw' right or by statute, in at least 35 States.  Its exact scope varies in the respective jurisdictions. It is, simply stated, the right to be let alone; to live one's life as one chooses, free from assault, intrusion or invasion except as they can be justified by the clear needs of community living under a government of law. As Mr. Justice Brandeis said in his famous dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), the right of privacy is 'the most comprehensive of rights and the right most valued by civilized men.'
This Court has repeatedly recognized this principle. As early as 1886, in Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, this Court held that the doctrines of 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 offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property * * *.'
In 1949, the Court, in Wolf v. People of State of Colorado, 338 U.S. 25, 28-29, 69 S.Ct. 1359, 1361-1362, 93 L.Ed. 1782, described the immunity from unreasonable search and seizure in terms of 'the right of privacy.' 
Then, in the landmark case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), this Court referred to 'the right to privacy,' no less important than any other right carefully and particularly reserved to the people,' as 'basic to a free society.' Id., at 656, 81 S.Ct. at 1692. Mr. Justice Clark, speaking for the Court, referred to 'the freedom from unconscionable invasions of privacy' as intimately related to the freedom from convictions based upon coerced confessions. He said that both served the cause of perpetuating 'principles of humanity and civil liberty (secured) * * * only after years of struggle.' Id., at 657, 81 S.Ct. at 1692, quoting from Bran v. United States, 168 U.S. 532, 544, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). He said that they express 'supplementing phases of the same constitutional purpose-to maintain inviolate large areas of personal privacy.' Ibid., quoting from Feldman v. United States, 322 U.S. 487, 489 490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408 (1944).
In Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court held unconstitutional a state law under which petitioners were prosecuted for giving married persons information and medical advice on the use of contraceptives. The holding was squarely based upon the right of privacy which the Court derived by implication from the specific guarantees of the Bill of Rights. Citing a number of prior cases, the Court (per Douglas, J.) held that 'These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.' Id., at 485, 85 S.Ct. at 1682. As stated in the concurring opinion of Mr. Justice Goldberg, with whom The Chief Justice and Mr. Justice Brennan joined: 'the right of privacy is a fundamental personal right, emanating 'from the totality of the constitutional scheme under which we live." Id., at 494, 85 S.Ct. at 1687. 
Privacy, then, is a basic right. The States may, by appropriate legislation and within proper bounds, enact laws to vindicate that right. Cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949), sustaining a local ordinance regulating the use of sound trucks; and Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), sustaining a state law restricting solicitation in private homes of magazine subscriptions. Difficulty presents itself because the application of such state legislation may impinge upon conflicting rights of those accused of invading the privacy of others. But this is not automatically a fatal objection.  Particularly where the right of privacy is invaded by words-by the press or in a book or pamphlet the most careful and sensitive appraisal of the total impact of the claimed tort upon the congeries of rights is required. I have no hesitancy to say, for example, that where political 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 protection that this Court extended in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). But I certainly concur with the Court that the greatest solicitude for the First Amendment does not compel us to deny to a State the right to provide a remedy for reckless falsity in writing and publishing an article which irresponsibly and injuriously invades the privacy of a quiet family for no purpose except dramatic interest and commercial appeal. My difficulty is that while the Court gives lip service to this principle, its decision, which it claims to be based on erroneous instructions, discloses hesitancy to go beyond the verbal acknowledgment.
The Court today does not repeat the ringing words of so many of its members on so many occasions in exaltation of the right of privacy. Instead, it reverses a decision under the New York 'Right of Privacy' statute because of 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 the publication of the Life article.' In my opinion, the jury instructions, although they were not a textbook model, satisfied this standard.
In the first place, the Court does not adequately deal with the fact that the jury returned a verdict for exemplary or punitive damages, under special instructions dealing with them, as well as for compensatory damages. As to exemplary damages, the jury was specifically instructed that these might be awarded 'only' if the jury found from the evidence that the defendant 'falsely connected plaintiffs with The Desperate Hours, and that this was done knowingly or through failure to make a reasonable investigation.' The jury was then informed that 'You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs' rights.' (Emphasis supplied.) The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. The judgment was reversed solely on the quantum of damages, the Appellate Division sustaining the finding of liability for both compensatory and exemplary damages. The Appellate Division's conclusion was that the award of damages was excessive, and it criticized the admission of certain evidence as improperly tending to cause the jury to return inflated damages. In subsequent proceedings before the trial court on assessment of damages, a jury was waived by stipulation of the parties, the case proceeded to reassessment of damages and the judge fixed the amount of damages at $30,000, compensatory only. Judgment thereupon was affirmed by the Court of Appeals. It is this judgment that is before us namely, jury findings of liability based on instructions covering both exemplary and compensatory damages, and an award stated to be for compensatory damages alone. 
The Court refers only to that part of the instructions as to exemplary damages which speaks in terms of the 'failure to make a reasonable investigation,' and condemns it as permitting a verdict based solely on 'negligent misstatement.' I respectfully submit that the instruction cannot fairly be so read. The instruction requires the jury to find both that (1) defendant 'falsely connected' plaintiffs with the play, and (2) did so knowingly or through failure to make a reasonable investigation. This is certainly a charge satisfying the Court's requirement that 'a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article.' An error in the course of investigation might be mere negligent misstatement. Failure to make a reasonable investigation is something else. The standard of a 'reasonable investigation' is certainly a minimum yardstick by which to measure the liability of publishers. It is certainly not incompatible with the full flavor of the First Amendment and disregard of this standard in the circumstances is recklessness. It might well be that what constitutes an adequate basis for a jury finding of failure to make a reasonable investigation would differ, for example, in the case of a daily newspaper as compared with a feature magazine. But here no such problem arises. The truth was in a folder on the desk of the author of the story. It was deliberately disregarded by his editor. Lead time on the story was three months. 
In addition, however, even if appellee had to rely only upon the instructions to the jury on compensatory damages, I do not agree that we should set aside the jury verdict and reverse the New York Court of Appeals. Such drastic action-the reversal of a jury verdict by this remote Court-is justified by the Court on the ground that the standard of liability on which the jury was instructed contravenes the Firth Amendment. But a jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect. Instructions are to be viewed in this commonsense perspective, and not through the remote and distorting knothole of a distant appellate fence. Read in this perspective, the core of the instructions here on compensatory damages-even if we disregard the fact that the jury found liability under the more exacting instructions relating to exemplary damages-was sufficient to meet the majority's test. The gravamen of the court's charge, repeated three times in virtually the same words, was the following:
'It is for you to determine whether, in publishing the article, the defendant Time, Incorporated altered or changed the true facts concerning plaintiffs' relationship to The Desperate Hours, so that the article, as published, constituted substantially a fiction or fictionalized version for trade purposes * * *.' (Emphasis supplied.)
The jury was also instructed that 'Before the plaintiffs can be entitled to a verdict * * * you must find that the statements concerning the plaintiffs in the article constituted fiction, as compared with news, or matters which were newsworthy.' (Emphasis supplied.) With all respect, I submit that this is close enough to this Court's insistence upon 'knowing or reckless falsity' as to render a reversal arbitrary and unjustified. If the defendant altered or changed the true facts so that the article as published was a fictionalized version, this, in my judgment, was a knowing or reckless falsity. 'Alteration' or 'change' denotes a positive act-not a negligent or inadvertent happening. 'Fictionalization' and 'fiction' to the ordinary mind mean so departing from fact and reality as to be deliberately divorced from the fact-not merely in detail but in general and pervasive impact.  The English language is not so esoteric as to permit serious consequences to turn upon a supposed difference between the instructions to the jury and this Court's formulation. Nor is the First Amendment in such delicate health that it requires or permits this kind of surgery, the net effect of which is not only an individual injustice, but an encouragement to recklessness and careless readiness to ride roughshod over the interests of others.
The courts may not and must not permit either public or private action that censors or inhibits the press. But part of this responsibility is to preserve values and procedures which assure the ordinary citizen that the press is not above the reach of the law-that its special prerogatives, granted because of its special and vital functions, are reasonably equated with its needs in the performance of these functions. For this Court totally to immunize the press-whether forthrightly or by subtle indirection in areas far beyond the needs of news, comment on public persons and events, discussion of public issues and the like would be no service to freedom of the press, but an invitation to public hostility to that freedom. This Court cannot and should not refuse to permit under state law the private citizen who is aggrieved by the type of assault which we have here and which is not within the specially protected core of the First Amendment to recover compensatory damages for recklessly inflicted invasion of his rights.
Accordingly, I would affirm.
^1 Cooley, Law of Torts 29 (2d ed. 1888).
^2 4 Harv.L.Rev. 193, 196 (1890). See Prosser, Law of Torts 829 et seq. (3d ed. 1964).
^3 Prosser, op. cit. supra, 831, 832.
^4 Wolf held that the basic values of the Fourth Amendment apply to the States via the Fourteenth, but declined to require the States to exclude illegally seized evidence in criminal trials. In this latter respect it was overruled by Mapp v. Ohio, infra.
^5 Last Term, in Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966), Mr. Justice Stewart, concurring, referred to the 'right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt' as reflecting 'our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.' He referred to the 'protection of private personality, like the protection of life itself,' as entitled to 'recognition by this Court as a basic of our constitutional system.' See also Mr. Justice Douglas, dissenting, in Poe v. Ullman, 367 U.S. 497, 521, 81 S.Ct. 1752, 1765, 6 L.Ed.2d 989 (1961).
^6 Cf. Breard, supra, at 625-626, 71 S.Ct. at 923:
'* * * There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose.'
^7 There is no indication in the record that the court's award was intended to set aside or otherwise nullify the jury's finding under the punitive damage restrictions.
^8 The majority seek to avoid the impact of the instruction's reference to the necessity of finding 'a reckless or wanton disregard of the plaintiffs' rights' by speculating that this referred only to failure to obtain consent and not to falsity. Not only is there no basis for this speculation, but the placing of this part of the instruction-immediately after the discussion of falsity-suggests that the contrary is true.
^9 The court's charge and the New York cases emphasize this definition. The most important recent case is Spahn v. Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 221 N.E.2d 543 (1966). In Spahn, the Supreme Court of New York observed: 'While untrue statements do not necessarily transform a book into the category of fiction, the all-pervasive distortions, inaccuracies, invented dialogue, and the narration of happenings out of context, clearly indicate, at the very best, a careless disregard for the responsibility of the press and within the context of this action, an abuse of the public's limited privilege to inquire into an individual's life.' 43 Misc.2d 219, 230, 250 N.Y.S.2d 529, 541 (1964). Affirming, the Appellate Division (per Breitel, J.) observed that the book in question had been 'fictionalized, concededly, in order to make it suitable for a juvenile readership' and the publishers 'made no effort and had no intention to follow the facts concerning plaintiff's life, except in broad outline.' 23 App.Div.2d 216, 219, 260 N.Y.S.2d 451, 454 (1st Dept. 1965). The Appellate Division surveyed the earlier New York cases, including the present Hill case, and concluded they were all based on the 'distinction between an intentionally fictionalized treatment and a straight factual treatment (subject to inadvertent or superficial inaccuracies) * * *.' Id., at 220, 260 N.Y.S.2d, at 454. (Emphasis supplied.)