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In Copyright


Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against the press for the publication of nondefamatory private facts. The Hill case represented the culmination of a longstanding tension in American law. Since the early 20th century, states had recognized a “right to privacy” that permitted the victims of unwanted, embarrassing media publicity to recover damages for emotional distress. The privacy tort was praised for offering protection against an exploitative press, and at the same time decried by the publishing industry as an infringement on its freedoms. In the 1950s and 60s, with the growth of the media, an increase in privacy actions, and large judgments against the press, the privacy-free press conflict raised contentious debate. Privacy and free speech were charged issues in American culture more generally. In an era that saw the introduction of computers, large-scale data collection, and increasing government surveillance, “privacy” emerged as a major national focus. Free expression rights also assumed new meaning and urgency in the turbulent social climate of the postwar era. These concerns were reflected in the Supreme Court’s decisions from this time. New York Times v. Sullivan (1964) held that the press had an expansive right to report on the public conduct of public officials, including a right to publish falsehoods, unless they were made with reckless disregard of the truth. One year later, Griswold v. Connecticut declared a constitutional right to privacy, protected by “penumbras” and “emanations” of guarantees in the Bill of Rights. Time, Inc. v. Hill cast these freedoms in opposition. The case called upon the Warren Court, the Sullivan Court and the Griswold Court, to reconcile the two constitutional rights it had championed and created. A majority led by Justices Warren and Fortas initially voted to uphold the Hills’ claim. But after a bitter fight, votes switched, and a narrow majority voted for Time, Inc. The opinion by Justice Brennan rejected the notion of a constitutional right against unwanted publicity and declared an expansive view of the First Amendment as protection for all “newsworthy” material. The right of the press to publish on “matters of public interest,” from political reporting to articles about Broadway plays to movies and comic books, outweighed the privacy interests of unwilling subjects of media publicity. This article explains how privacy almost won -- how the Supreme Court almost recognized a constitutional right to privacy against the press -- and why it didn’t. Time, Inc. v. Hill marked a crossroads, a moment when the law could have gone in one of two directions: towards privacy and a measure of press restraint, or towards a freer -- if not at times unruly and uncivil -- marketplace of ideas. The Court chose the latter, and we have lived with the consequences since.

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University of Pennsylvania Journal of Constitutional Law

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