Time, Inc. v. Hill – Oral Argument – April 27, 1966

Media for Time, Inc. v. Hill

Audio Transcription for Opinion Announcement – January 09, 1967 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Earl Warren:

Number 562, Time Incorporated, Appellant, versus James J. Hill.

Mr. Medina.

Harold R. Medina, Jr.:

Mr. Chief Justice, may it please the Court.

This is an appeal from a judgment of the Court of Appeals for the State of New York.

It involves a First Amendment problem and involves the privacy statute of the State of New York.

On file originally, there was a jury verdict of $175,000.

Reversed on appeal, was being grossly excessive and for prejudicial error.

Upheld however, on liability with the presiding Justice Botein dissenting in a — on a written opinion.

Retrial without a jury, a $30,000 award that went up to — direct to the Court of Appeals, affirmed with — dissenting, they affirmed on the opinions of the Appellate Division with dissenting opinion by Mr. — by Judge Fuld and Judge Bergan along the same lines as presiding Justice Botein.

There are three factual elements that go into this case.

First, a 1952 incident in which Mr. Hill, the appellee and his family were held prisoner by three escaped convicts.

Secondly, a book written in 1953 by one Joseph Hayes, later converted by him into a play in a motion picture called “The Desperate Hours” which involved a family held prisoner by three convicts.

And lastly, a reporting by Life Magazine in February of 1955 when the play appeared on Broadway which involved a prominent mention of the Hill family in connection with the recording on that play.

I think I have two main functions today.

First, to tell you about the facts and probably more detailed than is normal because the facts are somewhat complex but I think once they are understood, the conclusion flows in actual belief from those facts.

And secondly to suggest one or two propositions that may lead to what I think is a rather simple solution to this case which has been over — overly complicated.

And I start with Mr. Hill and his family back in September 1952 and he and his wife in their early 40s, they were an attractive couple and they had two teenage daughters, a young son aged 11 and a pair of four-year-old twins.

They lived in the suburbs of Philadelphia and they got up on September 19 of 1952 and they had breakfast and after breakfast, Mr. Hill and their daughters went off, they went to school and he to work and Mrs. Hill turned on the radio and heard a report that there had been three escaped convicts.

Shortly thereafter and precisely at 8:30 o’clock in the morning, there was a knock in the door and there was the three escaped convicts.

Two of them was — were brothers, the older one was the spokesman for the three and they entered the house.

They held the family captive.

They captured Mr. Hill and their daughters when they returned later on the day.

They stayed until 3:30 the following morning when they left in the family car.

The family was unharmed.

Those are the essential elements of that incident.

The next afternoon after Mr. Hill had reported —

John M. Harlan II:

Anything taken from the house?

Harold R. Medina, Jr.:

Not in that moment.

There was some clothing and some cash — cash Your Honor.

I’m trying to stress the elements that — that’ll come into place later when I get to the Desperate Hours.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

The following afternoon, Mr. Hill came out in his floor — front porch and with a microphone held a press conference.

A picture of him with that press conference is Exhibit A at page 379 of the record.

William J. Brennan, Jr.:

Are you suggesting that he called the press conference?

Harold R. Medina, Jr.:

No sir.

The press was there and he determined that he would have to say something to them and he did.

I do think privacy wise it may be of importance in our case.

At any event he gave publicly his story to the press on a microphone.

Earl Warren:

You say you think it what — you mean what concerning your case?

Harold R. Medina, Jr.:

Privacy wise, the fact that this is a public fact maybe of some importance Your Honor.

Earl Warren:

I see.

Harold R. Medina, Jr.:

Not a private fact.

It would be one thing if Mr. Hill had said nothing perhaps not going to com — to the police.

And then he had published something about the incident.

But certainly, this fact was made public first by Mr. Hills’ own act and he —

William J. Brennan, Jr.:

Well, that that’s — now, that’s what’s not clear.

You said that you’re not suggesting that he called the press conference.

Harold R. Medina, Jr.:

Well, the press was there and he was there and he went with a microphone and gave a statement to them.

Now, whether you call that calling a press conference or not, I don’t know but that was what happened.

William J. Brennan, Jr.:

Well, would the — this was news and the press was there, (Voice Overlap) —

Harold R. Medina, Jr.:

That’s right.

The following morning, the New York Times had a front page story on it and that’s Exhibit B and that’s pages 380 and 381 of the record and it runs over to the second page.

And Mr. Hill agreed that it was substantially what he gave in his press conference.

Now, that happens to be of importance because later on both the author and the Life people have this New York Time story before them.

Earl Warren:

Why do you call this a press conference?

Harold R. Medina, Jr.:

I’ve (Inaudible) what is about that?

Earl Warren:

Press conference as were used was a different conference (Voice Overlap) —

Harold R. Medina, Jr.:

He merely made a statement to the press, I think is —

Earl Warren:

But if the press descends upon a man’s home and he agrees to talk to them and they urge him to talk over the microphone, do you call that a press conference?

Harold R. Medina, Jr.:

Well, all I was suggesting was that that was precisely what happened.

He was urged by the police officers there to say something to the press and he testified that he himself wanted to say something because he wanted to make sure that they all knew as precisely what happened on there.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

That’s the fact of the matter.

Earl Warren:

Yes.

Harold R. Medina, Jr.:

Now, thereafter, after that incident, the Hill family moved from Philadelphia and went about their ways and tried to forget about it.

William J. Brennan, Jr.:

Did they leave Philadelphia or was there some evidence that they left Philadelphia?

Harold R. Medina, Jr.:

Yes sir, they did.

William J. Brennan, Jr.:

Tried to escape the publicity (Voice Overlap) —

Harold R. Medina, Jr.:

In part of it, they had planned to leave before that but they accelerated to move was the testimony Your Honor.

And move to Greenwich, Connecticut that fall.

Now, the next actor that comes in is Mr. Joseph Hayes.

He in April and May of 1953 wrote “The Desperate Hours.”

He had the New York Times clipping before him.

Later on, that novel which became a bestseller and which was serialized in Collier’s which came out with the Literary Guild which would — came out as a paperback with the pocketbooks and a con — in condensed form with Reader’s Digest was turned into a play.

And the play which is what we’re reporting on was identical with the story which I have just given you.

There was a middle 40s, attractive couple living in the suburbs with a teenage daughter and a 10-year-old son.

And they got up in the morning and had breakfast and Mr. Hilliard was the name of the man in the play and the novel.

Mr. Hilliard left with his teenage daughter and Mrs. Hilliard turned on the radio and heard a story about three escaped convicts.

And promptly, at 8:30 in the morning, the same as — actually happened the same as in the New York Times, three convicts, escaped convicts arrived, two of them were brothers, the older one acted as the spokesman for the three of them.

And they entered the house and thereafter they captured Mr. Hilliard and the daughter when they returned and they left thereafter and the family were unharmed.

Now, that was — that is the essence of the Desperate Hours leaving out the incidents which occurred in the house when the convicts were there.

John M. Harlan II:

Is there (Inaudible) brought of this publication as to that (Inaudible)

Harold R. Medina, Jr.:

One of — there was — one of the significant things Your Honor is no protest was made to anyone by Mr. Hill until October 1955 with the institution of this suit.

There was a lawsuit commenced in October of 1935 by Mr. Hill was joined as defendants (Inaudible) Colliers, for the serialization in Colliers.

The Literary Guild and Random House for the book, the Reader’s Digest for the condensation, pocketbooks for the paperback, the Desperate Hours for the play and Paramount Pictures so they all came in eventually.

But after the novel came out —

Earl Warren:

May I ask you — may I ask you Mr. Medina if there was anything in the book that indicated that this did go out, that incident?

Harold R. Medina, Jr.:

No sir, there was nothing whatsoever.

Earl Warren:

So, the public have no knowledge (Voice Overlap) —

Harold R. Medina, Jr.:

Well, I’m about to come up to that Your Honor.

Earl Warren:

Oh, alright.

Harold R. Medina, Jr.:

Because as soon as the book appeared and incidentally when the book appeared the Philadelphia Inquirer reviewed it and said Philadelphia readers will immediately recognize, they sliced out of real life of the recent past.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

And incidentally when the play first came out and long before Life reviewed it, the Philadelphia Inquirer said, this is based on a real life incident.

Suffice it to say that as soon as the novel came out and thereafter with these other publications, all of the Hill’s friends and their — his business acquaintances came up and say, “Your story has been written up in a book.

Haven’t you read it?”

So, that there was immediate identification by their friends and acquaintances and that’s — you would expect not very bad.

Abe Fortas:

Are you going to describe to us the differences between the play and the book and the real life incident?

Harold R. Medina, Jr.:

I’m not going to try that in detail Your Honor or (Inaudible) —

Abe Fortas:

Just the general.

Harold R. Medina, Jr.:

— it will take too long, that a period of time.

Its covered completely in our briefs.

Abe Fortas:

Well, there were some rather ugly incidents or incidents that might be considered ugly.

It took place in the house on — in accordance with the narration in the novel and the play that did not take place in actual life, —

Harold R. Medina, Jr.:

There is no question —

Abe Fortas:

— isn’t that so?

Harold R. Medina, Jr.:

— but what on the incidents in the house.

The same incidents did not take place in the novel as took – its place in the incident.

Abe Fortas:

And do I incorrectly recall or incorrectly characterize them when I say they were rather ugly?

Harold R. Medina, Jr.:

No sir, I do not.

I think that’s an incorrect characterization.

I think a reading of the play and that’s why it’s difficult to put this in an argument rather than put in a brief or read the play.

Well, we’ll convince you that there were only four incidents which could be called violence in the play.

Mr. Hill was struck twice but not severely injured.

Mr. Hilliard was struck twice but not severely injured.

The boy —

Potter Stewart:

Mr. Hill wasn’t struck at all, was he?

Harold R. Medina, Jr.:

Pardon?

Potter Stewart:

Mr. Hill —

Harold R. Medina, Jr.:

He was not struck at all.

Potter Stewart:

— was (Voice Overlap) at all nor was anybody in his family?

Harold R. Medina, Jr.:

That’s right.

But the degree of violence, if — really where it comes down to is a degree of terror because on the terror end of it, there’s no doubt for what the original incident was the most terrifying one and was so testified to by Mrs. Hill.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Abe Fortas:

Your adversary’s brief indicates that there were some indication in the novel and in the play of sexual danger so far as the daughter was concerned —

Harold R. Medina, Jr.:

No sir.

They — their brief specifically says that the daughter was hurt.

It was not in the play or the book.

It’s a plain erroneous statement of fact.

There were two incidents when one of the convicts had in — sort of incipient leer at the daughter and in each instance —

Abe Fortas:

How about the younger brother?

Harold R. Medina, Jr.:

— the younger brother of the convicts politely cut him off and he throughout addressed the daughter as Miss.

William J. Brennan, Jr.:

Did you say an incipient what?

Harold R. Medina, Jr.:

Leer.

William J. Brennan, Jr.:

Incipient leer?

Harold R. Medina, Jr.:

Well, he started to think according — if you read the part in the play.

William J. Brennan, Jr.:

Yes, a coupled it up with leer and incipient?

Harold R. Medina, Jr.:

Well, I think what I coming down to and what I’m trying to show because the main point I’m going to end up with is the substantial relationship between the two even though you can’t take every incident on the thing.

Now after these things have happened, we entered the scene and our editor-in-charge of the entertainment world, Tom Prideaux.

The first he heard of it is in a chance conversation with Robert Montgomery, the director of the play.

And Robert Montgomery told him that it was based upon an incident.

Shortly thereafter, he saw a man named Bradley Smith, a freelance photographer and a friend of Joseph Hayes the author and Bradley Smith said, there is a substantial connection between the play and a real life incident in Philadelphia.

Later, he noticed that the play was opening in Philadelphia.

He called Hayes, the author in Philadelphia and said, “Was there an incident?”

And Hayes said, “Yes”.

And there after at Prideaux’s request, Hayes made arrangements to go out to the house which the Hill’s formerly had occupied but then they’d left so that pictures could be taken in the house.

Now based on all of that, and the fact that Mr. Prideaux had read the Time’s article, he saw the play twice and he said, “I came to the conclusion that the play was the heart and soul of the family’s incident.

And based on that, I thought that what we finally wrote in the article was completely truthful and true and honest.

I may say also that is as the case in any Life with Time article, there is a specific researcher assigned to check the matter and her job is to check the facts and put a checkmark over every word to show that she’s going back to make sure of his accuracy.”

And she was the young lady named Laura Ecker at the time of the trial she’d left us and was married named Laura Ludwig.

And she testified, “Yes, I checked this article and the checkmarks appeared and I was satisfied that it was true and correct and honest.”

Now the article itself —

Earl Warren:

Did she check with the Hills?

Harold R. Medina, Jr.:

No sir, she did not.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

As a matter of fact Mr. Prideaux said, “The matter of privacy never entered my mind because it was a matter of public record.

It had been in streaming headlines.”

And I think this matter of public record I’ll be reverting to Your Honor and it comes down to this public fact business.

The article itself —

Earl Warren:

May I ask you what research your researcher made to determine the truth about it?

Harold R. Medina, Jr.:

She read the Time’s article, she saw the play.

She talked with Prideaux and got Prideaux’s version of having talked with Montgomery, with Bradley Smith, and then with the author.

And the fact that the author had made all the preparations for use of this very house which was obviously envisaging a connection between the incident and the house and said nothing more.

Prideaux said, “I assumed after all that that there was a connection.”

The article itself at pages 15 and following in the record is headed, “True Crime Inspires Tense Play,” and it shows the Hill house and then goes on and says, the ordeal of a family trapped by convicts gives Broadway a new thriller, The Desperate Hours.

Then it goes to say “Three years ago, Americans all over the country read about the desperate ordeal of a James Hill family who were held prisoners in their home outside Philadelphia by three escaped convicts.”

Later, they read about it in Joseph Hayes’ novel, The Desperate Hours, inspired by that family’s experience.

Now they can see the story reenacted in Hayes’ Broadway play based on the book.

The next year, they were seen in this movie which had been filmed and which is being held up.

The play directed by Robert Montgomery and expertly acted is a heart stopping account of how a family rose to heroism in a crisis then it goes on.

Now that’s the gist of the article.

After the summons and complaint served in this action originally named all of these other defendants which I have pointed out to Your Honor and also through three verified complaints said that the play with some fictionalization was based on the Hill’s story and that the play constituted a portrayal of the Hill story.

It was at that point that the author of the play Joseph Hayes was examined before trial and obviously being anxious to avoid the effect of those three amended complaints he backpedaled as far as he could on any connection between the incident and the play although he did affirm that the title “True Crime Inspires Tense Play” was a correct and true title.

And did state that later, they read about it in Joseph Hayes novel, “The Desperate Hours” inspired by the family’s experience was true and correct.

Thereafter, the present complaint was served nameling — naming Time, Inc. and Hayes and the Desperate Hours Company as the only remaining defendants.

But this complaint says, it wasn’t a portrayal at all and it wasn’t based on an incident at all and to have said that was at — was completely false.

We move for summary judgment that was denied and was affirmed on appeal.

The motion for summary judgment is being based on precisely the same grounds.

I’m now putting forward — or will be putting forward Your Honors.

At the trial, Mr. Hill was merely the sole witness for himself on saying that he had been distressed by this and people would think that he’d lied when he described what had actually happened.

Hayes was cross-examined a — cross-examined and he finally admitted on cross-examination that the matter had been triggered in a very direct way.

It was brought out on cross-examination that in 1954 when the novel came out, he had written a little advertising splurge that came out in wings, the Reader’s Digest Magazine, stating that the story was based on two incidents, one, the Snyder case in New York and the Hill case.

The Snyder case in New York had no resemblance.

It was merely one convict pulling a woman and her young daughter, a prisoner and killing the daughter as the police closed in.

Later, it was brought out that in January 1955 and this is prior to the Life article, he had written an article for the New York Times entitled, “Fact out of Fiction” and he said it was based then on four incidents.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

The Snyder case, the Hill case and two others, one in Detroit that turned out to be just a man driving the girl out on a car and another one, a California episode where some convicts captured a car in a dessert, drove back to a family’s home and then were captured as they drove back to town.

Abe Fortas:

Does it make any difference for purposes of this lawsuit whether the play was or was not based on the incident, that is to say, as I understand it and perhaps I’m wrong, this is an action under the New York “Right of Privacy” statutes.

Harold R. Medina, Jr.:

That’s right.

Abe Fortas:

And the real thrust of it as I understand it is that the — your client without the permission or consent of the Hill family went into their former residence, took pictures and published an article in which they showed pictures of the former residence and said that the play was based on that.

Does it make any difference whether that was —

Harold R. Medina, Jr.:

In this Court, it makes absolutely —

Abe Fortas:

— true or false?

Harold R. Medina, Jr.:

In this Court, we have to assume falsity.

Up to the Court of Appeals I was saying true.

Constitutionally, in this Court we have to assume that the inference we drew was erroneous.

Abe Fortas:

So that — really, the only issue that we have before us is whether the New York statute either on its face or as applied to the Life Magazine article violates First Amendment, is that right?

Harold R. Medina, Jr.:

That’s quite true Your Honor except that the sole test that was utilized with the jury, it was a dual test.

One was a remodel, to increase circulation.

It was to my mind, it’s just crazy (Inaudible) because any publisher has a motive to increase circulation so any jury is always going to say “yes” to that.

It might just well say, “It is your motive sitting on the bench to earn money, you’re obviously being paid for it but your motive is to do a good job as a judge.”

So if the motive to increase circulation proves nothing, the other thing was truth or falsity.

And all I’m going to be working up to is that you cannot constitutionally use that as a test in a “right of privacy” action.

But I’ll come back to Your Honor’s question later in that context if you let me go on with a different story.

Abe Fortas:

Yes, I want you to go on and (Inaudible) present in that — those questions to us, as I understand you.

Harold R. Medina, Jr.:

Not as yet.

I’m — all I’m trying to do —

Abe Fortas:

Because I understand your petition in your brief, have you or have you not?

Harold R. Medina, Jr.:

We certainly have said that you cannot constitutionally hold us for an error in our publication.

Abe Fortas:

But that’s the only issue that you’ve presented to us, isn’t it?

Harold R. Medina, Jr.:

That’s right, that’s right.

You cannot hold us either on the specific application or the statute in general because I think the statute in general is too broad which is now the point.

Now, after getting back to the stories again, I’d like to get these facts straightened out because I think they’re of importance.

After Mr. Hayes was finished, Prideaux and Laura Ecker-Ludwig took the stand just along the lines I’ve previously indicated on their belief in the truth of the article.

And then we went to the question of what went to the jury and I think it’s perfectly evident that all that went to the jury was the truth or falsity of our article.

And the theory which was followed by the plaintiff, it was stated by Mr. Gorman (ph), pages 306 and 307 as follows.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

Your Honor if they are telling news, if they are telling news purporting to tell news but have as the basis for the use of the individual’s name something that is spurious or essentially false.

That we contend is to trade purposes so that his test was one of truth or falsity.

And the Courts stated the same thing when he denied my motion to dismiss because he said, page 292, “I think that it’s a question of fact as to whether the Life article was true or whether an inference could be obtained from reading it that it was not true.”

And then he went on with the (Voice Overlap) —

Earl Warren:

May I ask you this?

Well, is there any question about whether there is a difference between the play and the article that Life wrote?

Harold R. Medina, Jr.:

The novel you mean?

Earl Warren:

Yes.

Harold R. Medina, Jr.:

No, they’re substantially the same, there’s no doubt — there’s no —

Earl Warren:

There’s no difference between the — either the book and Life’s article or the play in Life’s article.

Harold R. Medina, Jr.:

Well, I don’t know.

They strictly speak in relevant because all we referred to was the play.

The author testified —

Earl Warren:

(Inaudible) — with the play then.

Harold R. Medina, Jr.:

The author testified however that the play tracked the novel in substance with appropriate changes in the conversion process.

The Court also charged in addition to a general charge if they found falsity that was the end of it.

That we could — we — be held if one of our purposes was for the purposes of making the article more interesting to its readers.

It thus went to the jury purely on an — question of truth or falsity.

We took an appeal and on the first appeal, there were three opinions, one by Mr. Justice Stevens were said in effect, this must be for advertising purposes and to increase the circulation.

In any way, you should have asked some more questions of Hayes.

That’s a negligence theory on that.

A concurring opinion by Mr. Justice Rabin, he said it obviously was to increase your circulation and that should be the test.

And then a dissenting opinion by presiding Justice Botein had said, the sole test should be whether the connection between the two is tenuous or not and if it is not tenuous then clearly it was not tenuous, that is the end of the matter so far as the court should be concerned.

And certainly the statements which were made were not so extravagant that the (Inaudible) — that the defendant should be held.

In the Court of Appeals, the — both concur — both opinions in the Appellate Division were upheld and Judge Fuld’s dissent said the same thing to Mr. Justice Botein that there was a close and legitimate relationship between the two and that was the end of the matter.

William J. Brennan, Jr.:

But may I ask Mr. Medina, are these differences in the Appellate Division and in the Court of Appeals, differences in the interpretation of the New York statute?

Harold R. Medina, Jr.:

There are no differences — well, I suppose they are, really.

William J. Brennan, Jr.:

Well, what I’m trying to gather of course is, what the New York courts construe their statute to be, it should be no concern to us.

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

We’re — we can be concerned only whether — to the question whether the statute as construed as you suggested that once filed of the First Amendment and what I’m trying to get at is, I’ve read this opinion, I don’t see that they turn on any constitutional differences among the judges, do they?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

Well, the statute as construed has imposed liability of us — upon us on a falsity theory Your Honor.

William J. Brennan, Jr.:

I know, I agree but what’s the — the division among the judges is over the correct meaning of the statute, isn’t it?

Harold R. Medina, Jr.:

Let me put it —

William J. Brennan, Jr.:

What significance do they —

Harold R. Medina, Jr.:

Let me —

William J. Brennan, Jr.:

What significance of the division, that’s what I’m trying to get to —

Harold R. Medina, Jr.:

Let me put it this —

William J. Brennan, Jr.:

— it has upon the constitutional question before us.

Harold R. Medina, Jr.:

Let me put it this way.

I come to a point I was going to reserve for later.

I think the statute is so broad that you have the guessing game on to it — under it which this Court prohibited in Winters —

William J. Brennan, Jr.:

Now, that wasn’t my —

Harold R. Medina, Jr.:

— against New York.

William J. Brennan, Jr.:

That’s not my question Mr. Medina.

I’m just trying to discover what the significance is of the division among the judges in New York.

If that division is only over the meaning, the instruction of the statute, it has no significance for our purposes here, does it?

Harold R. Medina, Jr.:

Your Honor, if a statute be construed as presiding Justice Botein and Judges Fuld and Bergan stated namely, if there’s a legitimate and close relationship between the past news event and the present event, that’s the end of it.

If the statute be so construed, I say that that’s constitutionally the test that should be followed.

William J. Brennan, Jr.:

Well, I didn’t read them though with saying that they reached that conclusion based on any constitutional —

Harold R. Medina, Jr.:

They did not.

William J. Brennan, Jr.:

— theory.

Harold R. Medina, Jr.:

And I am suggesting that constitutionally, that’s all they can say and if you go beyond that, if you go to a question of truth or falsity, at that point, the constitution does not permit it.

I may say in addition when Mrs. Warren and Brandeis first proposed this “right of privacy” in 1890, they were careful to observe obviously truth or falsity has nothing to do with these matters.

The American Law Institute says in 1867 dealing with “right of privacy” states specifically in its comments that truth or falsity has nothing to do with this.

And my point on this is that you cannot constitutionally test the matter of privacy on the ground of truth or falsity.

This — just to test out that way.

Last night’s paper at an article on Big Fireball startles many in the East and they quoted three gentlemen, Dr. Thomas Nicholson, Chairman of the Hayden Planetarium and Dr. Fred L. Whipple, Director of the Smithsonian Astrophysical Observatory and Dr. C.T. Olivia, President of the American Meteor Society all with conflicting statements.

Now let’s suppose that as a practical matter one of the reporters for the evening story got mixed up and none of those gentlemen made those statements whatsoever so that it was completely false to have stated that they made those statements.

What I’m suggesting is that those three gentlemen did have relevant connection to a story about a meteor and that that should be the end of the matter privacy wise.

It may be that you’re going to get into libel and if you get into libel, truth or to — falsity is the test.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

But I’m — getting the head of my (Inaudible) — of the game but that’s really what I’m (Inaudible) I’m coming to.

Now, I have really two initial points and two corollaries problem.

First, privacy cannot constitutionally exist for a public fact which is relevantly connected with the present news or general interest event.

Secondly, the privacy cannot constitutionally exist for a public fact period.

Now if either relevance or the nature — the public nature of the fact be the only two tests that you have, you don’t have the guessing contest which was condemned in Winters against New York.

And all we’ve been doing in this case for 10 and a half years frankly is guessing as to where we’re going.

And I suggest however that as between the two tests constitutionally in trying to put aside — make some solution to the “right of privacy” on the one hand and the First Amendment on the other hand that it’s an easier solution to use the relevance test than to use the public fact test because with the public fact test, you have the constitutional point of can a man put his past in his pocket.

Can you say that after awhile a public event which has been reported, he can say to the press, you can’t touch it again?

It’s just as if Roy Riegels on his 1929 wrong way touchdown which was most embarrassing to say, the press can’t mention that anymore, this is in the past.

Now I suggest, this is a slightly tougher question to decide constitutionally on this public fact although I think it is the correct constitutional solution in trying to harmonize the First Amendment and “right of privacy”.

Earl Warren:

Well, do you suggest that if there was publicity concerning some event in a person’s life particularly when he had done nothing wrong that a publication could follow him every place he went in the country and over a period of years, dig that up to his detriment and published it on the faces of his news.

Harold R. Medina, Jr.:

Right.

All we’re treating here Your Honor —

Earl Warren:

No, I — don’t know.

This don’t say what you’re treating —

Harold R. Medina, Jr.:

Alright (Voice Overlap) —

Earl Warren:

— there, would you answer (Voice Overlap) —

Harold R. Medina, Jr.:

There, I would say — I would say that an entirely different tort might give a cause of action against that publication for doing that but I think the tort of privacy does not, that’s my simple point on that because there’s nothing private about it by definition.

Earl Warren:

Alright.

Well, if you couldn’t — if a publication couldn’t do it, what would it be violating?

Harold R. Medina, Jr.:

At that point, it might be if you’re stating something false in connection with this, what we’re doing here, intentional falsehood.

Earl Warren:

No, but we — no, we’re not talking about falsehood now.

You put that behind you.

You said that made no difference and I was so considering it.

Harold R. Medina, Jr.:

Right sir.

Earl Warren:

Assume even that it was true, originally, can they follow him around the country and that — and when he tries to forget it and have his family forget it, can they keep publishing it on him to his detriment wherever he goes.

Harold R. Medina, Jr.:

Any intentional act to cause harm which you know is going to cause harm gives a separate type of cause of action.

That’s covered in Section 873 the restatement.

Earl Warren:

Do you concede here that they knew it was going to cause harm or that it did cause harm?

Harold R. Medina, Jr.:

I say first, they didn’t know it’s going to come — cause harm and secondly, they had — they didn’t know there was anything wrong about it.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

At the time this article was published, everybody at Life plus the checker thought it was entirely true and correct.

And even at the trial, Prideaux and Ecker — Laura Ecker-Ludwig took the stand and say, “In our judgment this article is true.”

Now, I’m — passed that point in this Court but so far as intention, there was nothing in any of the opinions below to cast any aspersions in our intentions or motives in this case.

So it’s not a malice case.

This is a case where you made a mistake.

I come to this Court saying that.

Alright, we made a mistake.

And I say the fact we made out a mistake constitutionally is unimportant when you’re dealing with privacy.

It comes down to — if you (Inaudible) — if you treat it on a mistake basis and on truth or falsity, what’s happened the law of libel, you don’t need the law of libel anymore and the safeguards, it’s much easier to sue for a violation of your “right of privacy” but all the defenses that have been set up in the libel law, disappeared.

Let me illustrate with an illustration here.

Here’s a picture of a golf player plays in — out of a trap.

His face is sort of shaded.

It has the thing dirty player under it and it obviously refers to South Africa’s Gary Player but supposing there’s been a mistake made and this isn’t Mr. Player at all, it’s an amateur partner of his in the same tournament.

Now at that point, I say since we’re still dealing with something relevant to that tournament, the fact you’ve make — made a mistake is unimportant privacy wise.

If they made a mistake libel wise, they’re heading dirty player would obviously give that amateur player a cause of action because ever since the (Inaudible) Jones case, there’s not a defense to a libel suit and say he didn’t know about it but I’m suggesting that with respect to this if there has been an error made, as long as it’s relevant to the tournament that you’re entitled to do it.

Abe Fortas:

Yes, because it occurred three years later.

Harold R. Medina, Jr.:

Two and a half years later Your Honor.

Abe Fortas:

Forgive me, two and a half years later.

I’ll even ask the question two years later, that occurred two years later, does that same principle apply?

That’s really the problem that we have.

In other words, let me put it this way.

Let us suppose that news — this incident when it first happened was news and let’s suppose that the man’s house could be visited by photographers and anything could be publishing them but they wanted to with the (Inaudible) then two years passed and out of — and without anything being done by the person concerned, the photographers without his consent go to his former house and photographed it and run this article about him and his family.

And then you have to add to that the fact that there is a New York statute that on its face seems to say that this is a tort.

And the narrow question that you’re presenting to us is not the question it seems to me that whether the First Amendment impinges upon news but whether the First Amendment impinges upon this publication which I have described which took this — which was issued more than two years after the incident.

Harold R. Medina, Jr.:

Your Honor, we started out with a newsworthy event, a play on Broadway, a play which has been a novel of that sort, it’s been made to a motion picture.

When we’re recording on that fact, if you want to forget “right of privacy”, I say we can report anything as relevant to that and that no one can say snag.

And the question of interest or non-interest, that’s up to us to make it interesting or not interesting.

That’s the very reason we have in the First Amendment.

Now, it so happens that there is this “right of privacy”.

Whether you find it in the Fourth or Fifth or Ninth or Fourteenth, I don’t know.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

We recognized it and now for it.

I’m not disputing that.

When the two come together, boom, where do you draw the line as to when they go (Inaudible) — as to how far you’re going to go on it?

Abe Fortas:

You don’t attack this statute as unconstitutional on its face.

Harold R. Medina, Jr.:

Yes I do.

That’s 0.2 in our brief also.

I say it’s much too broad.

That’s pro — obviously, mostly a matter of argument in the briefs or haven’t touched on it too much but the main fact — mere fact that we have had the guessing contest in this case for ten and a half years through all these courts should be a sufficient indication that it is a guessing contest.

And it’s much too broad so that we should be able to attack it.

Now, I still come down to either you have as a solution to this confrontation of the two rights.

As a solution, the question of is it relevant to a present news event and do you know about it.

That’s the solution that we’ve mainly suggested in our brief.

It was the solution suggested by Mr. Justice Botein and Judge Fuld and Judge Bergan below.

That’s — follows along your New York Times against Sullivan sort of a — primary past suit.

The second point is, if it’s public fact, you never get to that because with the public fact — well, as the Supreme Court of Alabama said, “You can’t do anything because the story of John Lindgren is part of the history of our community.

And I say that once it’s part of the history of the community that you can’t take it away.

But again, that’s a more difficult point.

Perhaps the type of statutes you might have to deal with is — the defense law for instance says that after ten years, truth is no longer a defense for libel.

They in effect put your past in your pocket in ten years.

Of all the cases that have passed upon it in this country, every single case have said, you can continue to publish with two exceptions.

One was the case of the reform prostitute on California, Melvin against Reid.

Another was a similar criminal identification case in Utah, Mau against Rio Grande.

But every other case which has passed upon in this country has upheld the right and I think it’s a constitutional right that once a matter gets in the public news, it stays there.

Now mind you here, we’re dealing with a very limited area of the law of privacy.

I’m not touching intrusion or appropriation.

We’re dealing with, can you take a past newsworthy fact and relate it to a present newsworthy fact even though you slipped off and telling the exact nature of that relationship.

But if the relationship be not tenuous, I say that we’re entitled to do that, (a) because it’s relevant and (b) because we didn’t know there’s anything wrong with it.

Potter Stewart:

Well, now they — whether or not it’s a tenuous relationship, it’s basically a matter of fact and on that matter, on that issue of fact, the members of the New York courts disagreed but the majority thought that it was not a relevant relationship (Voice Overlap) —

Harold R. Medina, Jr.:

The question of tenuous —

Potter Stewart:

— isn’t that true?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

— of relationship Your Honor was never put to that jury.

I request the charge on that.

I summed up on it.

Potter Stewart:

Well, that was the issue which divided the New York courts, wasn’t it?

Harold R. Medina, Jr.:

No sir.

Potter Stewart:

I thought that that’s what you told us —

Harold R. Medina, Jr.:

That was not (Voice Overlap) —

Potter Stewart:

— that Judge Botein dissented upon.

Harold R. Medina, Jr.:

Let me put it this way.

The majority opinions of the Appellate Division didn’t think that this non-tenuous relationship was sufficient as the defense.

Indeed, Mr. Justice Rabin in one concurring opinion said, “Quite surely they could have mentioned the Hill family if they’d wish to but not in the way they did.”

Potter Stewart:

Exactly.

Harold R. Medina, Jr.:

Now, if we could have said the two stories are strikingly similar, at that point, if you can mention them, privacy goes out the window.

From then on, you’re testing it by libel and not by privacy.

And that’s the reason I say once it’s relevant you can mention it of course.

And the way in which you mention it is your business except that if you’re defamatory, you’re going to be held for libel but don’t take the defenses of libel away by the backdoor of this “right of privacy” cause of action.

And that’s in essence what’s been happening.

Potter Stewart:

Now as I understand the — Section 50 doesn’t have anything to do with libel, it has to do with the appropriation and use of another person’s name or picture without that person’s consent for commercial purposes or for what —

Harold R. Medina, Jr.:

It says, “For trade or advertising purposes.”

Potter Stewart:

For trade or advertising purposes and that’s the extent of the statute in whether or not these facts come within the statute was a matter for the New York courts to decide and their having decided it, we must take that as is and all you have here is the constitutional question.

I think we have all agree on that, isn’t that true?

Harold R. Medina, Jr.:

Well, I say the New York courts have done three things which are unconstitutional.

First, they’ve said that there can be privacy for a public fact and this was a public fact.

Secondly, they said that the test is truth or falsity and I say that has no relationship to privacy.

And thirdly, they’ve said that the test must be motivation to increase circulation and I say that it cannot constitutionally be the test as to whether we’re going to be held for having done something wrong to somebody.

Potter Stewart:

The financing of this story came from the producers of the play, did it not?

Harold R. Medina, Jr.:

No, the financing —

Potter Stewart:

Some of that part (Voice Overlap) —

Harold R. Medina, Jr.:

Primarily it came from (Voice Overlap) from Life.

Potter Stewart:

But primarily — but the — isn’t it — that a part of it come from (Inaudible) of the play?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

That’s true Your Honor.

That’s true Your Honor.

Potter Stewart:

And I suppose they were —

Harold R. Medina, Jr.:

But —

Potter Stewart:

— interested in making money for the play, weren’t they in attracting publicity —

Harold R. Medina, Jr.:

But any —

Potter Stewart:

— and therefore (Voice Overlap) —

Harold R. Medina, Jr.:

— line up or report of any play indeed of any article in a major magazine has countrywide circulation always has the indirect effect of helping promote that specific or novel or idea, whatever it is you’re talking about.

But that certainly cannot be the test as an advertising news, that’s an incidental promotional test.

William J. Brennan, Jr.:

New York has told us that under the test of its statute, its statute does fit these facts and there’s no point arguing about that in this Court, isn’t that correct?

Harold R. Medina, Jr.:

No, I say if New York has said that, then it is going right smack dab up against the First Amendment.

Potter Stewart:

(Inaudible) again.

Harold R. Medina, Jr.:

And that at this point, we are entitled if that’s what New York says, the statute says, we’re entitled to come to this Court and say, “Call a hold to it.”

William J. Brennan, Jr.:

Let’s try to (Inaudible) but that’s what we’re trying to get to.

And why argue with us whether New York correctly constitute its statute as applied to these facts.

It seems to me your only argument here is that that thing the construction of the New York statute does it offend — does that construction defend the First Amendment.

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

Well, why don’t we get to that?

Harold R. Medina, Jr.:

Well, I thought I had —

William J. Brennan, Jr.:

We tried going —

Earl Warren:

May I ask you one question, —

Harold R. Medina, Jr.:

Yes sir.

Earl Warren:

— just before you get to that.

According to your theory, do you make any distinction between a so-called public fact as you have stated it where it concerns a private person or on the other hand a person in public life or —

Harold R. Medina, Jr.:

No, I do not.

Not from the point of view of privacy Your Honor.

Earl Warren:

Makes no difference.

Harold R. Medina, Jr.:

No sir.

I don’t believe so.

Byron R. White:

You mean that if a — if this Hill incident had never been in the newspapers, had never been made public, the only people who knew about it were the neighbors and the convicts and the Hills, never been a matter of public interest or an object to news before that the same thing could have happened, the Time Magazine and —

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

That — no sir.

That is what I’m not sure of and —

Byron R. White:

Well, that is the import of the (Voice Overlap) —

Harold R. Medina, Jr.:

Yes, but that isn’t the point presented by this case and I don’t know the answer to that to be frank.

I think eventually you may get to it —

Byron R. White:

You mean —

Harold R. Medina, Jr.:

— and one of my reasons for pointing out of this — in our case is that you’ve got large areas such as that still opened as to what the facts are.

Byron R. White:

Well, what about the — do you mean that — you mean then that Life or Time could not just decide that a very interesting thing is the life of an ordinary government official — a government worker or an ordinary industrial worker and follow him around against his consent for a week and write up every detail of his life.

Harold R. Medina, Jr.:

Well, let me give you the test that I’ve used for 25 years with Time (Inaudible).

I’ve said number one, you have no right to use anybody’s name or picture.

Number two, you can do it if there’s a reason for it.

And all I’m trying to do is articulate, its been — to what the reason is.

Now if the reason — if you have a reason for it, I think you can do it.

If you haven’t got a reason, you can’t do it.

Our reason for the Hill case is we’re reporting on the play.

Byron R. White:

You mean you had a — if you’ve got enough good reason.

Harold R. Medina, Jr.:

Well, I think constitutionally, you have to have some sort of a reason for it.

At least that is what we have been following down.

Byron R. White:

Well, what about in my example.

The perfectly good sound reason is that by instincts, everybody would be interested in what the ordinary life of a steel worker’s life.

Harold R. Medina, Jr.:

I think at that point it could well be but I still would —

Byron R. White:

It well be what?

Harold R. Medina, Jr.:

— see that the reason for doing it —

Byron R. White:

It could well be what?

Does it —

Harold R. Medina, Jr.:

Well, you have that type of case as to — if you follow the fellow at work and you follow him down the street and it’s a public place and so far so good.

And then he goes into his home and that’s the end of it right there.

I think we are in accord.

When you get into the home, then you have an intrusion aspect which comes — the different end of things.

Byron R. White:

I don’t — and I wouldn’t suggest that they had even intruded.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Byron R. White:

They just followed him around, recorded what ballgames he went to or what boy scout troops he visited or what taverns he went into or things like that just to — and ordinarily, wouldn’t think was a news worthy event but nevertheless, the make it if they want to.

Harold R. Medina, Jr.:

Well, you know this matter of news, general interest is as much news and doesn’t have to be that this happened today in an — that new sense.

So it’s a general interest event that we’re talking about really.

Byron R. White:

So you do — so what — you really do mean it then you don’t draw any line between the public figure or — and the private figure or between a newsworthy event or a non-newsworthy event.

Harold R. Medina, Jr.:

Not so far as privacy once it’s come out into the public at that point.

Now —

Byron R. White:

But what — once somebody has made it public —

Harold R. Medina, Jr.:

That’s right.

Byron R. White:

— like a newspaper.

Harold R. Medina, Jr.:

Well, the newspaper doesn’t make the news.

The news is reported in the newspaper.

When you’ve got the cart before the horse —

Byron R. White:

Well, that’s not necessarily true —

Harold R. Medina, Jr.:

What is the —

William J. Brennan, Jr.:

Lot of journalism schools teach?

Potter Stewart:

No.

Well, let’s suppose Life Magazine decided that they’d make a feature of how the ordinary man and wife go to bed every night and they put a telescopic camera or tried at the window of a — some marital bedroom and they took a lot of pictures and printed that as a feature.

That wouldn’t make news.

That would probably sell copies of the magazine, wouldn’t they?

Harold R. Medina, Jr.:

This is why I tried to point out the question with which you’re presenting is a very narrow one, on a public fact related to a public thing.

If you really want to have all the various facets of privacy, you have the intrusion cases right off the bat.

You have in the appropriation cases.

You put a young lady and put her on a bag of flowers, they did in the Robertson case, obviously there’s no relevance and you know what’s you’re doing, you should be held under statute.

But if you want to try and sow in this one case every privacy problem that exist, we can be talking about this for a week because there are multitude of them.

And all I’m really saying is that with this specific problem on past news related to present news that relevance is the test.

And if it were not for privacy on your constitutional question Mr. Justice Brennan, if it were not for privacy, obviously you could go ahead and do that and then it’s a question of finding the same balance that Your Honors found in New York Timesagainst Sullivan as to where the balance comes between these two opposing forces.

And all I’m suggesting is that the balance must depend on this case on relevance plus the (Voice Overlap) —

William J. Brennan, Jr.:

Well, you do start with the premise that there is a — some constitutional protection for privacy though.

Harold R. Medina, Jr.:

We accept that Your Honor.

We don’t challenge that at all.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

William J. Brennan, Jr.:

And now you’re suggesting that it is also of course that there is a constitutional protection for free press.

Harold R. Medina, Jr.:

Yes sir.

William J. Brennan, Jr.:

Are you’re going to try to suggest to us a standard by which those two can be reconciled, is that it?

Harold R. Medina, Jr.:

I say the standard at least in a case —

William J. Brennan, Jr.:

Therefore I’m wishing you’d get to whether it would stand —

Harold R. Medina, Jr.:

Well — but all I can say Your Honor is the standard at least in a case when you’re dealing with an event of present interest —

William J. Brennan, Jr.:

Yes.

Harold R. Medina, Jr.:

And you’re going to relate something in the past —

William J. Brennan, Jr.:

And in this instance, that is the play.

Harold R. Medina, Jr.:

That is the play or Broadway opening that certainly is of general news interest.

William J. Brennan, Jr.:

Yes.

Harold R. Medina, Jr.:

And you’re going to relate to that past news worthy facts.

I say that you —

William J. Brennan, Jr.:

Here, newsworthy because of these exhibits you’ve shown as of what happened on the case but rather —

Harold R. Medina, Jr.:

It’s been in the news.

It’s a public event so that privacy no longer exists for that.

I’d say in that situation, we — the only test is relevance and not truth or falsity so that the fact that we may have without knowing it, misstated the nature of the relationship is constitutionally immaterial I was saying.

William J. Brennan, Jr.:

Well, how do you define relevance, in what sense?

Harold R. Medina, Jr.:

Certainly, the past event was so similar to the present play that in talking about the play, it was relevant to consider as to whether this past have had anything to do with it.

Certainly, we could have said they’re strikingly similar and at that point, the privacy would’ve disappeared and that no one would contend that there was any cause of action against this.

And I’m saying the difference between saying strikingly similar and inspired is so or reenacted, it’s so small that we shouldn’t be charged $30,000 for it and we shouldn’t be worrying about it.

William J. Brennan, Jr.:

But I suppose you say false — truth or falsity should — is not to be a consideration.

Also, these were knowingly a false — if comparison —

Harold R. Medina, Jr.:

Alright.

William J. Brennan, Jr.:

There is falsity here, isn’t there?

In the sense that the — there is — there are differences between the actual incident and the play, is that it?

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

So that in saying it were the same thing, that would — that was a false statement.

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

Now suppose you knew that they were not the same thing and yet made the false statement, then what?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

I say, you start off, once they are relevant, you never get to the question of intent.

William J. Brennan, Jr.:

I see.

No matter how knowledgeable you maybe in the falsity of the statement —

Harold R. Medina, Jr.:

I don’t —

William J. Brennan, Jr.:

— if they are relevant there’s no libel?

Harold R. Medina, Jr.:

If they’re relevant that’s — I’m trying to get to that.

William J. Brennan, Jr.:

Alright.

Harold R. Medina, Jr.:

That’s right.

Now I’m suggesting that either relevance or a past public fact, either one is a defense.

I think it’s a more difficult constitutional question as this past public fact because of the reformed prostitute type of case as to whether you should be able to do that.

But I’m perfectly clear that if there’s relevance and that’s precisely what was said by the dissenting opinions of the two courts below if there’s relevance and the connection is not tenuous —

William J. Brennan, Jr.:

However, knowingly false (Voice Overlap) —

Harold R. Medina, Jr.:

You never get to the question of knowledge.

William J. Brennan, Jr.:

I know.

That’s what you’re saying.

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

I just want to be sure.

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

However, (Inaudible) knowingly false statement, nevertheless there was no liability.

Harold R. Medina, Jr.:

Because otherwise for — if — mind you, this is a non-defamatory article.

They said the families were heroes.

On every item that you publish or you can check any front page of any paper on the interior pages.

If you’re going to have a test of beyond relevance to go into — shall we interrogate as to knowledge, my goodness, with every — perfectly innocuous news item that appears in the papers, you’re going to have to have a dual test of it.

William J. Brennan, Jr.:

Its only be if in fact the falsity were in a defamatory sense, that probably (Voice Overlap) —

Harold R. Medina, Jr.:

Well, you still have an entirely independent tort of intentional falsehood which has nothing to do with this case here so that if someone intentionally says something false and goes out to damage someone, you’re liable for those special damages.

And I’m not suggesting that intentional falsehood or libel are going to be in anyway hampered by what you rule in this case.

Those are independent remedies.

All I’m suggesting is to bring it under a privacy remedy begs the question that gives a false test and I still come down to Tom Prideaux who said, the question of privacy never crossed my mind because it was a matter of public record.

He used that test and I think he was correct in it.

Abe Fortas:

Well the photographs that you took and that you used were not taken from the (Inaudible).

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Abe Fortas:

They were not past news items.

You deliberately sent a photographer out.

There was a staging of incidence there.

This was something that was created —

Harold R. Medina, Jr.:

That’s right.

Abe Fortas:

— in 1955.

And isn’t it possible that there is a difference with respect to first in — for purposes of First Amendment between the creation of that kind of a news item or that kind of a — of an item on the one hand and the use of past news.

Harold R. Medina, Jr.:

Now, you’re creating —

Abe Fortas:

I’m not creating anything.

Harold R. Medina, Jr.:

You’re trying to test a value of judgment as to the content of the news which is the very reason why the First Amendment was set up since you couldn’t.

Abe Fortas:

No, I’m not.

I’m asking if there’s any difference with respect to the definition of news for this purpose between the use of something that appeared in the press in 1952 on the one hand.

And what happened here?

What happened here is that you sent a photographer out and had actors there, form a house, you’ve created this matter too which you then used without the permission of the Hill family.

Under New York statute we have the — we have to take validly.

The judgment of the Court is if the New York statute — judgment of New York courts was — the New York statute makes this a tort.

Harold R. Medina, Jr.:

Well, all I can say is that that was precisely what I say that they can’t make it a tort.

But it is not made a tort because of the matter of presentation.

If it is, you are right on First Amendment grounds because you’re passing a value of judgment as to what we’ve done to make the article interesting.

And we’re entitled to make it interesting in our way as long as we don’t trespass rights.

Thank you.

Earl Warren:

Mr. Nixon.

Richard M. Nixon:

Mr. Chief Justice, may it please the Court.

I believe that the fundamental issue here cannot be determined unless there is a judgment with regard to the facts.

There has been discussion to the effect that the truth or falsity of the Life article is not material and should not raise a constitutional question.

But if the Court would permit, I would like to present the facts as we see them for a moment.

And in doing so, let me read from the reply brief of the defendant.

The Desperate Hours in a very fundamental way was the reenactment of the Hill incident and the Life article was accurate and substantially more accurate than it needed to be to gain First Amendment protection.

And later on, the differences are superficial differences.

Now, as my argument will develop, if those statements or conclusions are correct, this decision by this Court of New York should be reversed both on constitutional grounds and also, I would say parenthetically that this case would not qualify for liability under the law of New York.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

Let us turn to the facts for a moment.

Was this a reenactment?

Now the Court has some primary documents which it can examine to answer that question.

Therefore, one, the Life article, two, the play, three, the current news accounts which are in the record written at the time the play came out, and four, an article by the author written at the time the play came out indicating his view as to whether the play was a reenactment.

Looking to the point of whether the play was a reenactment however, I think it is fundamentally necessary for us to get away from the superficial and I would state that they are those similarities or differences as far as the cast of characters in the stage setting are concerned.

It doesn’t make any difference whether or not it happens that the Hill family, there were five children and in the fictional family there were two children.

It doesn’t make any difference that this incident may have taken place in early fall or late fall that in the Hill incident, it occurred in Philadelphia and that in the fictional incident, it occurred in Indianapolis or that the house in the Hill case was a three-storey house and the house in the case of the fictional story was a two-storey house.

All of those factors whether they are similarities or differences relate to the cast of characters into the stage setting.

And as the member of this Court, I think we’ll agree, the cast of characters in stage setting tell us no more about a play than a picture frame tells us about a portrait or a painting.

The question with regard to the portrait is what’s on the canvass?

And the key question with regard to the play, what took place in the play?

What went on?

Now on that point, we have some primary evidence and it comes directly from the article itself.

Abe Fortas:

Mr. Nixon, how is the play —

Richard M. Nixon:

Yes sir.

Abe Fortas:

— why your relevant here?

That is to say or is it your theory that the Life article by referring to the play brings the entire text of the play into operation for legal purposes as if they were a part of the Life article?

Richard M. Nixon:

Mr. Justice Fortas, the reading of the Life article can lead to no conclusion except that those individuals who go to the play, playing at the Barrymore Theatre at that time would see a reenactment of an incident which happened to the Hills.

The reading of the article and of the pictures which of course were the heart of the article would lead to that conclusion.

Abe Fortas:

Well, you are in effect then saying that the purposes of this case one must read the article as if it included the text of the play.

Richard M. Nixon:

I’m saying that for the purposes of this case, Life told its readers that the play was a reenactment of the Hill incident and that that was the message that Life got across and therefore the play therefore becomes quite material to the facts of the case.

William J. Brennan, Jr.:

Well, in this instance Mr. Nixon if the reader gets the impression that seeing the play, he is going to see something that happened to the Hills whereas in fact what he sees — when the see — when he sees the play is not what happened to the Hills, is that it?

Richard M. Nixon:

Exactly.

What I am saying is that when we look at the Hill incident and the play, we have incidents that instead of being similar except as — for the cast of characters in the stage settings are concerned are as far apart as they could possibly be.

Let’s look at the Hill incident for a moment.

What made it a particularly unusual hostage instance?

What made that particularly unusual hostage incident was the fact that it had an absence of violence.

As Mrs. Hill pointed out, the convicts acted like perfect gentlemen in Time Magazine in a current news report precociously said and titled its account, house party because a complete lack of violence.

Now what made the play a hit?

It wasn’t the fact that it was just about hostage instances or that because it happened to relate to the Hill incident which it didn’t but what made the play a hit was that it took an old theme as the New York Times review pointed out which many times have been written about it in plays and novels.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

And that the author quoting again from the New York Times review, melt the last drop of horror from this macabre situation.

So you have the Hill incident distinguished for the fact that it lacked violence completely and you have a play, a three-day reign of terror.

But notice, he would — Life do it —

John M. Harlan II:

What would’ve been your position if the Life article were a 100% accurate but had brought in to its commentary about the play the name of the Hill family without its consent?

Richard M. Nixon:

Under those circumstances Mr. Justice Harlan, there would be no liability under the law of New York.

Because under the law of New York, and this was one of the problem of falsity and truth is very apart.

Under the law of New York, the test of whether an article is for purposes of trade depends upon fictionalization.

If it is a true account of a newsworthy event then even though it goes back many, many years referring earlier to Mr. Justice Fortas’ question then a true account incurs no liability.

But it’s only when the publisher falsifies, fictionalizes the term that is used in the New York cases, the relationship between a past event and the plaintiff and falsifies for the purpose of — purposes of trade in order of course to make it a more newsy salable article.

It is then only that liability incurs.

Abe Fortas:

Now, do you get that — you don’t get that from the statute, you get it from the cases, I assume —

Richard M. Nixon:

Mr. Justice Fortas the statute states basically liability on the basis of two tests.

One, advertising which is relevantly clear, the use of an ad even there, there are exceptions.

But second, for the purposes of trade.

Now, if for purposes of trades had not been over a period of 60 years been very narrowly interpreted by the New York statutes to include only those instances where there had been falsification amounting to fictionalization, this statute I believe would be subject to constitutional question.

Abe Fortas:

In your — what case are you relying on, New York?

Richard M. Nixon:

Well, the New York cases going back over a period of years have held that where there is a true account, a true account of a past situation that there is no liability, the leading case in that respect is the Sidis case, a case which involved actually a very sad situation.

Abe Fortas:

Yes.

Richard M. Nixon:

A genius who was newsworthy at that time giving instructions when he was 11 years of old to people on higher mathematics at Harvard and then with the sensitivities somewhere in times characteristic of genius retreating into private life.

A quarter of a century later, dug up with the New Yorker Magazine in a story written about it.

The story entitled “April Fool”.

He’d been born in April Fool’s Day.

And yet the New York Court in indication of its concern for the First Amendment in this case refused to hold the publications liable on the ground that it was a true account of what had been a newsworthy event and in which there was still an interested news.

John M. Harlan II:

Is that a Second Circuit case?

Richard M. Nixon:

That’s right.

Now —

Abe Fortas:

Whatever that might be, I suppose you would agree that so far as we’re concerned, we will have to take it that the question of liability under the New York statute is foreclosed and the question before us is the — its impact upon First Amendment rights.

Richard M. Nixon:

I would say that as far as the question of liability is concerned, that question is foreclosed if I understand your question.

That question is foreclosed insofar as any report that is true.

On that particular point, it is clear that the New York cases lay down a very strict test that there could be no liability without fictionalization.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Abe Fortas:

Let me try to clarify it.

Richard M. Nixon:

Yes sir.

Abe Fortas:

Sidis dealt with the question of statutory construction —

Richard M. Nixon:

It did.

Abe Fortas:

— in New York.

Sidis does not deal with the First Amendment impact of the statute on its face or as applied, is that correct?

Richard M. Nixon:

Not specifically except I would say there was a relationship to it Mr. Justice Fortas in a sense.

Abe Fortas:

There may be a relationship but there’s — I don’t read Sidis and I don’t recall that Sidis discusses a First Amendment problem.

That was in the opinion by Judge Clark.

Richard M. Nixon:

True.

But I would say that when you read all of the cases in New York going back over 60 years, it will be found that the New York courts recognized that if for the pur — if the phrase for purposes of trade were interpreted in a broad sense to mean that any time a publisher took a newsworthy item and used it for purposes of increasing circulation that that would be an invasion of privacy.

The New York courts recognized that that would run into First Amendment problems.

Abe Fortas:

Well, are you (Voice Overlap) —

Richard M. Nixon:

And I think that is — I would say that while that may not have been specifically mentioned from a constitutional sense — point in Sidis, I believe that that was the basis for the Court’s conclusion in Sidis.

John M. Harlan II:

Well, you don’t have to argue that case because (Inaudible)

Richard M. Nixon:

Yes sir.

John M. Harlan II:

— here in this Court (Voice Overlap) —

Richard M. Nixon:

May I get —

John M. Harlan II:

No, but I think my point is that — perhaps the point is that this — are you saying that to us that in your judgment unless we conclude that the judgment of the New York Court of Appeals was based on the falsity of the article then we must conclude that this is a violation of the First Amendment.

Is that your position?

Richard M. Nixon:

Mr. Justice Fortas, in my view, where we have in this new field of the law which this Court has not yet spoken.

Where we have a situation of a newsworthy event even though there has been a passage of time and then a state attempting to protect the “right of privacy”, I believe that you would run into a very difficult constitutional question in the event that liability incurred when the account was truthful.

I believe that the New York test which provides for liability only if there’s a combination of three circumstances, one, the use of the proper name, two, a fictionalized account primary and substantial insofar as the statement is concerned and three, fictionalizing for the purposes of trade which means, falsehood for commercial purposes.

William J. Brennan, Jr.:

Mr. Nixon, may I ask then —

Richard M. Nixon:

I’ve — excuse, yes.

William J. Brennan, Jr.:

I know that the Court of Appeals — I wouldn’t make it difficult (Inaudible) let’s say the practice of the Court of Appeals that here they affirmed on the opinions both of Justice Stevens and the concurring opinion of Justice Rabin.

So I gather when Justice Rabin say this, “The difficulty with the provision of the defendant’s Time, that if for trade, the previous dealing in the high (Inaudible) manner have represented that the play was a true version of that event.

It was not — it was fictionalized and the jury so found consequently and prior to Section 1 of the Civil Rights law that in (Inaudible), you are not — to say that this case comes us to with a finding that Section 51 first of all is limited at least as applied here, the liability because this was fictionalized and is really so find and as — in a First Amendment context (Inaudible) of a determination based on a — this finding that this was a fictionalized version of the Hills incident, is that it?

Richard M. Nixon:

The narrow finding in this case in New York and the state of the facts before the Court here today is the use of false statements to invade privacy for purposes of trade.

And only in the event that it was a fictionalized account and I go further, not only must to be fictionalized, it must be primary, the individual who sues must be the primary subject to the account and as far as the fictionalization is concerned, it must impair the essential accuracy of the whole account.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

William J. Brennan, Jr.:

Then you’re telling us that the New York cases, it needs to limit the statute to the application where those three things appear?

Richard M. Nixon:

Mr. Justice Brennan that is exactly the point.

The New York cases because of their concern in my point — in my opinion and I will agree with Mr. Justice Fortas, they may not specifically have referred to this in each instance but because of their concern for First Amendment considerations, the New York cases have said that purposes of trade requires a fictionalized account otherwise you would have a situation where any publisher would be liable for publishing news and that would be certainly a violation of the Fifth Amendment.

Byron R. White:

Mr. Nixon, could I ask (Voice Overlap) —

Richard M. Nixon:

Yes, Mr. Justice White.

Byron R. White:

If it comes to us in that posture, are we to understand that New York does not draw a distinction for purposes of liability of the privacy law between stories about past events which are false or which are knowingly false and stories which are not known to be false at the time they’re published but actually are false.

Let’s assume here for example that the author had told the Life reporter that it is a true enactment.

Or in other words the Life reporter really had no good reason to believe otherwise.

New York, I suppose, under its rule would impose liability whether Life knew the story was false or not.

Richard M. Nixon:

We get there Mr. Justice White as to whether or not in the case there has been fictionalization there should be the element of malice in the testing of of the Sullivan and New York Times case.

I would say that in the — that in this particular case looking at the facts of this case that there was knowledge —

Byron R. White:

Yes, I know you (Voice Overlap) —

Richard M. Nixon:

There was (Voice Overlap) —

Byron R. White:

— how about the purposes of New York law.

Richard M. Nixon:

And under New York law, it would be my view that in the event of lack of knowledge, in the event that there was fictionalization in the sense of staging not a current new story, let me make it clear.

Mr. Medina has referred to several current news stories.

There is no New York case that has held liability in 60 years for a current news story.

In every instance fictionalization has required a passage of time.

It has required stages.

It required contrivance.

Now your case would be one where you had staging.

There had been a passage of time that it was a contrived situation but the individual did it in good faith believing that it was correct and yet it was false.

In my view, he would be liable under the case of New York —

Byron R. White:

So you would say —

Richard M. Nixon:

— but that was not the finding in this case.

Byron R. White:

No.

As the New York statute comes to us however, it would cover the situation where the story about the past event was false but it was only negligently false for example or we might say that it was an excusable error but it was nevertheless false.

You would say New York would impose liability in that case.

Richard M. Nixon:

Mr. Justice White, I believe New York would impose liability in such a case.

I know of New York — I’ve known a New York case where that has happened.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

I recognize what Mr. — what the Justice is getting at but this was a possibility for the future but let me make one thing very clear —

Byron R. White:

Well, I’m suggesting it to be —

Richard M. Nixon:

— were it to be — The legal standard.

Byron R. White:

— in this Court that sometimes statutes have been invalidated because they’re overbroad in the First Amendment (Inaudible).

Richard M. Nixon:

— let me come back to the fundamental point.

The New York cases require fictionalization.

It is very difficult for me to think of a state of facts in which there has been a passage of time, fictionalization requires that, in which there is staging, in which the individual whose name is used without his consent is the primary subject and in which the fictionalization is — impairs the essential accuracy where that could happen without knowledge and I would say that it would amount Mr. Justice White if not to knowledge certainly to reckless disregard —

Byron R. White:

Well, fiction —

Richard M. Nixon:

Because fictionalization is a conscious act.

Fictionalization under the New York cases is conscious.

You would put a hypothetical case which I do not think could ever happen but my view is that since fictionalization connotes conscious knowledge that this means that you would either have conscious knowledge or certainly at the very least a reckless disregard of the facts which you had here in any event.

Could I spend one moment with regard to the differences between this play because the point of fictionalization becomes critical.

If this play was a reenactment, a substantial reenactment then there is a constitutional problem here.

Now the members of this Court know Life Magazine that it tells its stories through pictures.

And also the members of this Court are aware of the fact that Life Magazine being the most popular of the picture magazines does not use pictures that relate superficial events.

They go to the heart of the case.

Now, the Court passed on — in its records, it’s the first piece of evidence, it has the life story.

And if you will take your attention for the moment to the pictures, there are six which are used in this article.

Now, understand this is the article about the play which the appellant says is a reenactment in which the differences are superficial.

There are six pictures.

The picture in the first page, two convicts in the living room harangued the daughter while the mother, Nancy Coleman watches helplessly.

That didn’t happen in the Hill incident.

Go to the second page entitled “True Crime, Three Crises at a Backdoor”, and the picture there at the real house where the family was trapped, the actress you’ve seen from the play.

Here, daughter Cindy stalls off her beau from entering the home.

That didn’t happen —

Byron R. White:

Did what?

Richard M. Nixon:

— to the Hills.

Earl Warren:

I didn’t get that.

Would you repeat what — the caption please?

Richard M. Nixon:

Mr. Chief Justice, Cindy stalls off her beau from entering the home at the real house.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Earl Warren:

Yes.

Richard M. Nixon:

Now Cindy is the daughter and she stalls off her beau later on her beau incidentally gets into the house and is wounded in this play which Mr. Medina has characterized as not having any particularly ugly factors.

Then the next picture in that page, a brave try to save the family fails when the father has to toss out a gun because the son is held as hostage.

That didn’t happen in the Hill incident.

There were no heroics in the part of the son or the father or the daughter or any other member of the family.

And then the next picture, their (Inaudible) — first hope for rescue comes when a trash collector chats with the wife and senses something is wrong.

He is killed in the play but his death puts the police in the trail.

That didn’t happen to the Hills.

No trash collector came to the house, no one was killed, not the trash collector, not the two convicts who were killed in the play and no one was wounded as was the boyfriend.

Now, let’s go to the next page.

And here we find Robish, the brutish convict.

If the Court will look at the — there, it says, brutish convict roughs up the young son Ralphie who shows his spunk by talking up to the criminals.

Incidentally, as we look at that picture, you can look at appellant’s brief and note that the violence was rather mild but I submit that wrapping up is certainly can’t be characterized as less than violence and I think less than ugly.

And then the next picture, daring daughter bites the hand of the youngest convict.

That didn’t happen in the play.

And then finally, and this was the critical point of the play, Feverish father cleverly foist off unloaded gun on the leader Paul Newman, saves his son, saves the family, the convicts are killed as a result of this brilliant move in his part.

Abe Fortas:

But did — did he — suppose that of any consequence Mr. Nixon, that is to say the basic fact is that Life Magazine sent photographers out there and they staged this incidence, that’s right isn’t it?

Richard M. Nixon:

That’s correct.

Abe Fortas:

Now, suppose that the incidence had been staged with absolute fidelity to the actual events in — that involved the Hill family.

This is a kind of problem that we have to explore I think —

Richard M. Nixon:

Yes sir.

Abe Fortas:

And would that have — had any bearing upon whether this is First Amendment, this statute as applied violates the First Amendment.

That is to say, it would still have been a fictionalization and that’s important I take it according to your argument with the purpose of taking it out of the category of news whatever bearing that may have.

Now, if you have — does the truth or falsity or the specific accuracy in portraying specific events have a bearing on this or isn’t the operative or is it that the operative fact is whether they took existing news items from the morgue let’s say or on the other hand went out and created a fictionalized version of them.

Richard M. Nixon:

Well, Mr. Justice Fortas, the reason that truth or falsity bears not only on liability in New York courts but bears on First Amendment is this.

In the event that there was a newsworthy event and if Life Magazine had repub — had published accurately even under a stage situation, the relationship of the Hills to that event, I believe that would raise a grave constitutional question because you then get into the point that once you’re in the news, always in the news, what the New York courts have said here however and I think that it is an appropriate distinction is that once an individual is involuntarily in the news as was the case with the Hill’s —

Byron R. White:

Voluntarily?

Richard M. Nixon:

Involuntarily in the news, as was the case of the Hill’s, as was brought out a moment ago.

It’s ridiculous to believe that he called a press conference and brought his little microphone out from the house.

Mr. Hill and his family, I think it’s quite clear in all the evidence clearly demonstrates that this is a classic case of privacy not only did they do not seek publicity, they refused to go in the Ed Sullivan Show.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

They refused — Mr. Hill wrote a letter to one author who wanted to write an article and share the proceeds with him and why?

Not because they were interested in the price that they were going to get for privacy but because privacy to them was priceless.

That is why defendants attempt throughout this case to downgrade privacy, downgrade it and to say that invasions of privacy insofar as (Inaudible) — I mean false statements with regard to privacy have a — as I understand it more value, social value than false statements regarding defamation makes no sense.

This it seems to me is an area of the law which deserves a paramount measure of protection because certainly, it is an area where like belief as Mr. Emerson has pointed out in a recent article, it’s an area where you have the fundamental problem that confronts all Americans today and that is how does an individual remain an individual in our mass communication society?

But I digressed if I can come to the — again to the point.

The reason that the constitutional point is tied in to the falsity is that unless you have the use of false statements for commercial purposes that then you would have a serious constitutional problem.

If it was a true account of what the Hills have done even though it did invade their privacy.

In my view, it would raise questions not only in New York where there would be no liability but it could potentially raise constitutional questions.

Now, that case is not before this Court because the only — there are other cases and other jurisdictions which defendant is (Voice Overlap) —

Abe Fortas:

All I meant (Voice Overlap) —

Richard M. Nixon:

— Melvin versus Reid which raises that very point.

Abe Fortas:

I’m not entirely sure of that.

But suppose you had a current news event and the Life Magazine reported it and they reported it inaccurately.

Would that make that report of that current news event subject to be false or inaccurate report of that kind of news event subject to the New York statute consistently with the First Amendment?

Richard M. Nixon:

Current — Mr. Justice Fortas, current news under all the New York cases is beyond the scope of the New York statute.

Abe Fortas:

At — constitutional principle.

Does it make any difference with respect to impact of First Amendment?

This is what bothers me about your true or false distinction for purposes of our problem which is — I take it to be a First Amendment problem.

Suppose the New York statute were construed and applied so as to say that if the current account of a news event is for — is inaccurate the same degree with this Life Magazine as arguably inaccurate then the New York statute says that it’s an invasion of the “right of privacy” is the fact that it’s inaccurate even though it’s a current news event, make it a fall under the ban on the First Amendment?

Richard M. Nixon:

Where it is a current news event, it does fall it seems to me under the bond of the First Amendment and there is a distinction and a very appropriate one that could be made.

What we are talking about here in this whole First Amendment context where this Court has been so involved in the past two to three years.

What we’re talking about here is protecting individual rights whether it’s in defamation or privacy, this new right that is now before this Court while at the same time, having a maximum commitment to freedom of expression.

Now in the event that liability were imposed for a current news story.

For example, a current review of the play using the Hill’s name.

It would seem to me that that would raise a serious First Amendment problem.

It seems to me that what is involved here in the test of fictionalization if I may say so is protecting the “right of privacy” but with a maximum commitment of the First Amendment by requiring that there must be a conscious action on the part of the publisher in which he falsely connects the individual with a newsworthy event where he does harm through falsehood.

If I could — for Mr. Justice Brennan’s benefit particularly explore that point one bit further.

Defendant has suggested as the test for this cases that where we have any connection between the person whose name is used and a past newsworthy event that that gives an absolute license to lie for the rest of his life.

If there is any connection for example, that means you could take any hostage instance and write about it.

Write about it and say that it related to this particular play.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

I would say that that kind of a test is one that, it seems to me, meets no constitutional standard and I would suggest also that it would give a license not to responsible publications like Life Magazine who very seldom make mistakes like this but to every (Inaudible) scandal sheet in the country to take private persons or even public persons who for the moment had been in the public eye and then years later because there were some connection with event fictionalized, lie about them for purposes of trade.

And that’s why we must understand that Life took this argument and proceeded to say that this was a reenactment of the Hill incident.

William J. Brennan, Jr.:

Tell me Mr. Nixon, is there any question here or sufficiency in the evidence if I understand you, fictionalization, conscious fictionalization I think you were just saying (Voice Overlap) —

Richard M. Nixon:

Yes sir.

William J. Brennan, Jr.:

— is an essential element of liability under this statute if it’s (Inaudible) First Amendment (Voice Overlap) —

Richard M. Nixon:

That’s correct.

William J. Brennan, Jr.:

(Inaudible) Now, what about conscious fictionalization, is fictionalization in of itself import a conscious on truth?

Richard M. Nixon:

It is.

William J. Brennan, Jr.:

And is that your position?

Richard M. Nixon:

It requires that.

If I can ex — go on in that point for one second longer, I believe that the test of fictionalization as applied to the tort of privacy is a more appropriate test for privacy cases than the malice test of New York Times and Sullivan as applied to defamation.

And I’m going to suggest something out that may surprise the Court.

I believe that the test of fictionalization as applied to privacy by the New York courts gives greater protection to freedom of the press an expression than does the malice test in the New York Times.

Let’s look at the differences for fictionalization and for liability to be found, one, the proper name must be used, New York Times, Rosenblatt and Baer, you had a problem with names.

You don’t have that problem here.

Second, it must be primary in the article.

That is not a requirement in defamation.

Third, the defamation or I should say the fault statements in fictionalization must affect the essential accuracy of the whole article, incidental inaccuracy is enough in defamation.

And fourth, it is necessary that the fictionalization be for purposes of trade, commercial in per — terms of defamation there is no need that the fictionalization of the fault statements were used to serve the commercial purposes of the publisher.

Hugo L. Black:

May I ask you a question that (Voice Overlap) —

Richard M. Nixon:

Yes sir.

Hugo L. Black:

— about the purposes of trade.

Every newspapers run for purposes of trade, isn’t it?

Its news as published for purposes of trade and wants to sell its papers and I understood — I can’t find the charge but I understood that it was the charge of somebody in some answer to someone, charged that if the newspaper was publishing this in order to increase its circulation and it was liable otherwise not, is that right?

Richard M. Nixon:

Mr. Justice Black, the charge does not put liability on that narrow ground alone.

Hugo L. Black:

But is that (Voice Overlap) —

Richard M. Nixon:

The charge —

Hugo L. Black:

Is that one of them?

Richard M. Nixon:

No, that — that they — what the charge says is that only if the jury finds that one — that these three factors come together.

One, the use of a name in a fictionalized context for purposes of trade.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Hugo L. Black:

Now, every — how can a newspaper publish anything except for purposes of trade?

Richard M. Nixon:

And that is —

Hugo L. Black:

Why wouldn’t that cover every news item they have or every editorial?

Richard M. Nixon:

Mr. Justice Black, you have put your finger on the reason why the New York courts have insisted on providing for and requiring the element of false statement or fictionalization because otherwise it is absolutely true that newspapers and magazines publish their articles for purposes of trade.

But what we are saying here is that the purposes of trade test is not met unless the publication fictionalized the plaintiff’s connection with the event.

In other words, where instead of publishing news about the plaintiff, it published a fictionalized account which is very different from news with what were to —

Hugo L. Black:

Then if I under — then as I understand it, that narrows down the statement that under New York law, any newspaper that publishes a fictionalized — they can’t because all of them is just for trade, publishers of fictionalized attempt.

It can be held liable under this New York statute.

Richard M. Nixon:

Not unless it invades privacy.

Not unless there’s damage.

Not unless it is primary and not unless it is factually —

Hugo L. Black:

But any publication of that event invade privacy?

Richard M. Nixon:

Excuse me.

Hugo L. Black:

Doesn’t any publication made about a human being affect his privacy?

Richard M. Nixon:

Any publication does in the general sense but I should point out that in 60 years, the New York courts had been — have followed a very narrow line of definition in this particular field because of their concern for First Amendment problems.

William J. Brennan, Jr.:

Is that an arguable distinction that this statute clearly said they may be liable at least for a fictionalized version of a news event.

That might satisfy First Amendment but New York has added an additional limitation.

The limitation being that it must be a fictionalized version for profit.

Richard M. Nixon:

Exactly.

William J. Brennan, Jr.:

Is that it?

Richard M. Nixon:

It’s a fictionalized version for profit.

Let me bring it back to the facts of this case.

Hugo L. Black:

Well, don’t newspapers run for profit?

Richard M. Nixon:

Yes sir.

And Mr. Justice Black, unless the New York courts had been very scrupulous in insisting that there’d be any additional element of fictionalization, I would say that this New York statute would have very great difficulties in the constitutional point.

Let me emphasize again that the reason that Life Magazine did this is I think in the testimony where they say one of their researchers, it was a good gimmick.

They were using these people as props.

This was the hoax.

They were using them as props for the purpose of making the article more readable and for selling more magazines.

Now let me say, if they stated the truth about these people, that would have been perfectly within their constitutional rights but when — what they did was to use them in a fictionalized context for the purposes of trade then certainly this does not present a constitutional problem.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Abe Fortas:

You had answered Mr. Justice Stewart’s question earlier in the affirmative that is to say if newspaper just set out, wrote a story based upon some photographs taken of the intimacies of a married couple, published those as a news story since that’s not fictionalized in the usual sense, you would say then that that were held to be an invasion of privacy under the New York statute this Court should find that the New York statute was applied in violation of the First Amendment, is that your position?

Richard M. Nixon:

I would say that based on all of the New York cases and obviously, I must limit my answer to those cases over a period of 60 years that all of the New York cases have held that the element of fictionalization must be present in order to have a violation under the statute —

Abe Fortas:

(Inaudible)

Richard M. Nixon:

— because fictionalization is the essential element to prove purposes of trade.

Abe Fortas:

Their problem then —

Richard M. Nixon:

And where you have the — and so Mr. Justice Fortas, where you have the element of truth, truth thereby makes it news.

And news therefore brings us in the First Amendment problems.

Abe Fortas:

That problem (Voice Overlap) —

Richard M. Nixon:

That would be my answer to the question.

Abe Fortas:

Our problem is to get at the theory of this —

Richard M. Nixon:

Yes sir.

Abe Fortas:

And so that you would say that Mr. Justice Stewart’s example if I understand the last part of your statement just now that that could not constitutionally be held to invade the “right of privacy”.

Richard M. Nixon:

That would be my conclusion.

Earl Warren:

Mr. Nixon, may I ask you this question?

Suppose that Life instead of doing this the way it did, said that this play of Mr. Hughes is reminiscent of the Hill incident in Philadelphia which we recalled to be as follows.

And they then proceed to revive the story substantially as it occurred.

Would you say that no matter how sensitive these people were to their privacy, no matter how hard they had tried to get away from reliving this thing that that would be appropriate and Life could do that without violating your law?

Richard M. Nixon:

Mr. Chief Justice, cruel as it might be in special circumstances as it was in the Sidis case and in other area, I believe that that would not be a violation under New York law.

It is required under New York law that there’d be fictionalization —

Earl Warren:

Yes.

Richard M. Nixon:

— which means that there’d be a conscious staging in a fictionalized context.

And in the case that you’ve presented, the article would have had the qualifying phrase indicating that there was a relationship, let me point out that in the first draft of the article that Mr. Prideaux wrote, it was not about as far as his major theme is concerned “The Hills” which was the article you see before you.

It was about the play.

It didn’t have the Hills in the text of the article although it had it in some of the pictures.

And it also had in the first draft of the article the terms somewhat fictionalized, was written into the first part of the article.

It happens that when the checker went over the article as in Life’s very, very careful checking of the facts that question marks were put over the phrase, “somewhat fictionalized” and this brings us back to the question of intent, what happened when that was brought to the attention of not only Mr. Prideaux but of his editor of media, (Inaudible), Mr. Kassner.

Did they check with the Hills?

No.

Did they check with the author?

No.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

What they did was to strike out the word “somewhat fictionalized”, rewrite the whole article, changed the running head of the article so that it — instead of being Desperate Hours about the play, True Crime about the Hill’s.

In other words, they went to the very last limit to identify that play with the Hill’s and the true incident which certainly bears on the point that this was a fictionalized account and that there was certainly knowledge and at the very least, reckless disregard of the facts.

Earl Warren:

Suppose Mr. Nixon that we didn’t consider that the fictionalization of the article was the crux of the constitutional question, how would you answer the question that I first put to you.

Would you think that involved the First Amendment rights?

Richard M. Nixon:

If I understand the Chief Justice’s question, it is that — let’s suppose we had a situation where liability were found in the case that you present, would that involve constitutional rights?

Earl Warren:

Exactly, yes, exactly.

Richard M. Nixon:

Mr. Chief Justice, I would say it would.

I’m referring now not to the New York cases.

I’m referring to this whole field of privacy which will be before this Court, I am sure in times in the future.

But what we have here is the problem of all publishers, not publishers just like Time or Life with huge staffs and research staffs but we have publishers that do not have the facilities to check stories as much as others.

And I believe that if the lines are drawn too tightly that you would have a serious restriction on freedom of expression.

I think the reason that the New York statute does not present a First Amendment problem is because it has been so narrowly constructed.

And I believe the very fact that it is denied recovery in cases like Sidis and would deny recovery in the case of the Chief Justice’s point.

I believe that this answers the fundamental question that has been raised by appellant in this case as to whether or not this case does violate First Amendment considerations.

Earl Warren:

Let us take the case in California that counsel referred to–

Richard M. Nixon:

Melvin versus Reid?

Earl Warren:

The case of the — yes, of the —

Richard M. Nixon:

Yes sir.

Earl Warren:

(Inaudible) reformed prostitution.

Richard M. Nixon:

Yes sir, yes sir.

Earl Warren:

He wrote that?

Do you — you consider that that involved First Amendment rights?

Richard M. Nixon:

As the Chief Justice would know when an individual prepares a case, he concentrates on his own law and his own case.

Looking at Melvin versus Reid, recognizing that first in California, this was a common law decision.

There was no statute in California.

And incidentally, there are some other jurisdictions where true cases —

Earl Warren:

Do we have common law jurisdiction of that?

Richard M. Nixon:

I think its common law jurisdiction.

That’s my req — pardon me, I’m sorry.

Earl Warren:

Under what?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

Under the California Code.

Earl Warren:

Right.

Richard M. Nixon:

But I would say that the — as far as this — the California is concerned, if I could digress for a moment, the California courts recognized the “right of privacy” under a phrase in the California constitution providing for the pursuit of happiness which it seems to me is a fundamentally a sound proposition.

But let’s get to the point.

Melvin versus Reid, a reformed prostitute, a motion picture years later after she has established a place in the community dredging up all the facts through question, does it present a constitutional problem?

And I would say here, if I maybe so bold that I believe that this came before this Court, this Court would have to apply the — an ad hoc balancing test.

I recognized at this point whether that test is still valid after recent decisions remains to be seen.

But certainly, you would have to balance in this case the community interest in rehabilitating the reformed prostitute against the First Amendment considerations involved in giving to newspapers and television, a right to publish things that maybe interesting and newsworthy.

This is the problem that would be presented.

William J. Brennan, Jr.:

Would that involve a (Inaudible) aspect of fictionalization in the (Inaudible)

Richard M. Nixon:

There — Mr. Justice Brennan is absolutely correct.

There were aspects of fictionalization but they were, if I may use Mr. Medina’s term, superficial.

They didn’t go to the heart of the case.

The heart of the case was substantially accurate insofar as the report is concerned.

Could I say one other thing with regard to Life Magazine’s position here?

I want to set the record straight at one point.

The appellant in his reply brief points out that we as representing the plaintiff obviously don’t like Life’s style.

And Mr. Chief Justice, that isn’t the issue in this case.

I happened to like Life Magazine and even if I didn’t, the fact that it is the most popular picture magazine in the nation indicates that they must be doing something right.

John M. Harlan II:

What my (Inaudible)

Richard M. Nixon:

But on the other point that I would make, the key point here is not Life’s style, the point here is, why is Life the most popular picture magazine.

Two reasons, one because it’s newsy.

It takes last week’s news and makes it interesting so it has that problem.

But two, why is it as the most quoted yet in Time of all the weekly news magazine, because it’s accurate, because people can rely on it because it’s true.

Abe Fortas:

Mr. Nixon, in what connection — did I —

Richard M. Nixon:

And that’s what’s involved in this case.

Abe Fortas:

Did I understand you earlier to concede, I don’t think really that the quality of Life Magazine is different as I see it but did I understand you a little earlier to volunteer the statement that Life had carefully checked the story or that they had a practice of carefully checking?

Richard M. Nixon:

Yes.

Mr. Justice Fortas, under Life’s procedure —

Abe Fortas:

Did you say “yes” to my question?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

Oh, under — that the answer is they had checked it to this extent.

Under Life’s procedure, a researcher has the responsibility to read the article and to check each word in the article indicating that she has checked its accuracy.

In this instance, each word in the first draft of this article had been — a checkmark had been placed over each word but over the words “somewhat fictionalized”, question marks (Voice Overlap) —

Abe Fortas:

Well, are you conceding here that this article was carefully checked by Life Magazine whatever use — whatever technique they used except for those two words?

Richard M. Nixon:

Well, it was carefully checked except for what is the heart of this case somewhat fictionalized and on that it was not carefully checked.

In fact, Life was put on notice by the fact that its researcher indicated there was somewhat fictionalized that that ought to be checked and then they failed to make any check at all.

They proceeded to go even further in the direction that the researcher indicated they should not go.

Abe Fortas:

Well, that may lead him with the problem in the event that we don’t agree that somewhat fictionalized is the heart of the case.

Richard M. Nixon:

That’s correct.

Hugo L. Black:

Mr. Nixon, is there any reason why we shouldn’t have the courts charge before us?

Is it accessible?

Richard M. Nixon:

I — excuse me sir.

Hugo L. Black:

The court’s charge, is there any reason why it shouldn’t be here in the record?

Richard M. Nixon:

Yes, it is in the record.

Hugo L. Black:

It is?

I didn’t find it.

Richard M. Nixon:

Yes.

Hugo L. Black:

Not the charge, I didn’t find, I would like to know where it is if it is.

Richard M. Nixon:

Page 306, Mr. Justice Black.

Would you like me to read portions of it?

Hugo L. Black:

Oh no, that’s alright.

Richard M. Nixon:

Fine.

Hugo L. Black:

Is it all there?

Richard M. Nixon:

Yes, it’s all there and all the — I think Mr. Medina would agree, the whole — all of that charges is in the record.

Potter Stewart:

Yes, on page 292 I think.

Richard M. Nixon:

292.

I was reading from —

Potter Stewart:

Yes, it begins on page 292.

Richard M. Nixon:

Page 292 and following.

Potter Stewart:

The both of you agreed that that’s all the charge?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

Just to the charge Your Honor is on page 307 because that portion was repeated no less than six different times and that’s the heart of the charge right there.

William J. Brennan, Jr.:

Yes, but the complete charge is here.

Richard M. Nixon:

The complete charge is in the record.

Hugo L. Black:

Yes.

Richard M. Nixon:

Which is on page 307.

Hugo L. Black:

It is here.

Richard M. Nixon:

Yes sir.

Potter Stewart:

Page 292, the charge begins and —

Richard M. Nixon:

I couldn’t tell that.

Potter Stewart:

— it goes over to 307.

Richard M. Nixon:

I also should say that there’s additional punitive damage charge which comes at page 565 and 566 which was added later.

And may I say on the punitive damage charge, appellant in his brief quotes that charge but it — but I should and I — only because that my inadvertence was left off of the quote.

Appellant points out that — in its quote that this was done knowingly or through failure to make a reasonable investigation but the balance of the charge or the punitive damage charge, is 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 plaintiff’s rights.

My point being is that the punitive damage charge was not based simply on failure to make a reasonable investigation.

There it — there had to be the failure to make a reasonable investigation and a reckless or wanton disregard to the plaintiff’s rights —

Abe Fortas:

But do you think that —

Richard M. Nixon:

— which again gets us within the test (Voice Overlap) —

Abe Fortas:

Is it your position that that occurred?

And you submit (Voice Overlap) —

Richard M. Nixon:

Yes it did.

Abe Fortas:

(Inaudible) if there was?

Isn’t that (Voice Overlap) —

Richard M. Nixon:

It is — there was a finding, Mr. Justice Fortas, the jury found for the plaintiff after hearing that charge, it is my position that there was a reckless disregard of the plaintiffs’ rights.

Abe Fortas:

By reason —

Richard M. Nixon:

Reckless and wanton disregard of plaintiffs right and that no reasonable investigation had been made, yes.

Does that answer the question?

Abe Fortas:

Yes, thanks you.

Thank you.

Byron R. White:

Mr. Nixon, the way you tell us about the — present this New York statute is just as though New York statute as — that New York has a law which — although labeled as privacy is really a law which gives a remedy for an intentional falsehood for gain entitlement?

Richard M. Nixon:

Mr. Justice White, I think you have picked up on a fundamental point.

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Richard M. Nixon:

I would say further, what we have here before this Court as a matter of first impression is the use of falsity to invade privacy for purposes of profit and as compared with the use of falsity to damage reputation.

Byron R. White:

Well, your adversary said in his argument that he wouldn’t have any doubt that constitutionally a state could give a remedy for intentional torts like telling a deliberate lie about a person who is damaged and it sounds as though, although New York calls this a law of privacy as I understand you, there is a — the — this is almost what this New York law is.

Richard M. Nixon:

The New York law of privacy Mr. Justice White is a very limited law.

The recoveries for privacy in New York under this statute are far more limited than as the case in most that the jurisdictions including our State of California.

William J. Brennan, Jr.:

And I take it Mr. Nixon that we can’t really know how limited it is merely by reading it based on the statute.

I understand from your argument that case after case had cut it down in its present size, do you get it?

Richard M. Nixon:

Mr. Justice Brennan, the fundamental point that has been made by appellant and which must be considered by this Court that vagueness is answered by what has happened over 60 years.

William J. Brennan, Jr.:

Limiting construction.

Richard M. Nixon:

Limiting construction.

Limiting for example in — including in matters that are news or comic strips, a comic strip portrayal of the man who was a hero and the plane flew into the Empire State building, no liability because a comic strip was considered to be — since it was true even though it was sensational.

It isn’t sensationalism alone here.

What is involved is fictionalization for the purpose of profit.

Harold R. Medina, Jr.:

Can I say one more —

Earl Warren:

Mr. Medina you have (Voice Overlap) to —

Harold R. Medina, Jr.:

In answer to Mr. Justice White’s question.

The word intentional should be omitted.

It’s falsehood for profit.

There was no proof of intentional here.

It was never given to the jury is what I requested.

So if the statute has been construed on falsehood to increase circulation, period.

And I say those two tests —

Byron R. White:

Do you say —

Harold R. Medina, Jr.:

— should not be used.

Byron R. White:

Do you say that knowing falsehood is not an element of the offense in New York?

Harold R. Medina, Jr.:

That’s right.

Hugo L. Black:

Is that (Voice Overlap) —

Harold R. Medina, Jr.:

It was not given to the jury in this case.

Hugo L. Black:

That requested charge —

Harold R. Medina, Jr.:

Yes sir.

Hugo L. Black:

— also in the record?

Audio Transcription for Oral Reargument – October 18, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

del

Harold R. Medina, Jr.:

Yes it is sir.

Earl Warren:

Very well.

We’ll adjourn.