Time, Inc. v. Hill – Oral Reargument – October 18, 1966

Media for Time, Inc. v. Hill

Audio Transcription for Opinion Announcement – January 09, 1967 in Time, Inc. v. Hill
Audio Transcription for Oral Argument – April 27, 1966 in Time, Inc. v. Hill
Audio Transcription for Oral Reargument – October 19, 1966 in Time, Inc. v. Hill

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

Earl Warren:

Number 22, Time, Incorporated, Appellant, versus James J. Hill.

Mr. Medina.

Harold R. Medina, Jr.:

Chief Justice, may it please the Court.

We start this term where we left off last term with Mr. Justice White’s question concerning an intentional falsehood.

I think your questions are directed to that and our simple position is that New York has not created a cause of action for intentional falsehood and that the omission of intent and falsity is fatal.

And we start with a standard that non-defamatory language about a public fact which we have here is protected by the Constitution unless there is both falsity and knowledge of falsity.

Let me turn to the New York cases attempting to discuss them in the order that the Court’s questions were put to us, first, in the question of truth.

The New York courts have enjoined truthful and newsworthy accounts without intent.

And I turn to the case of Mrs. Blumenthal and this case went to our Court of Appeals and Mrs. Blumenthal in the early 1930s was selling bread on Orchard Street.

She was pictured in a travel log for approximately six seconds out of a 17-minute travel log.

The Court enjoined that presentation.

Potter Stewart:

It’s the one they made kind of a comedy out of, isn’t it?

Harold R. Medina, Jr.:

Well, the appellee’s brief said there are ethnic comments and gags and derisive commentary.

Potter Stewart:

Yes.

Harold R. Medina, Jr.:

Let me read what two of the justices of the Appellate Division, Mr. Justice O’Malley and Mr. Justice Finch who viewed the picture said took place.

It is further shown that no time displaying this picture appear alone but on the contrary, the pictures of other individuals appear on the side, in front or in back of her.

In no part of the picture either by sound, title, subtitle or otherwise is any reference what so — whatever made to her or any of her actions or emotions.

And nothing whatever is reproduced to emphasize her likeness, occupation or actions other than the usual silent reproduction of life and events in that particular quarter of the city.

It is further shown that at no time in the picture is plaintiff depicted in a foolish, unnatural or undignified manner.

There is no tendency to hold here up to public ridicule or contempt.

There is no distortion or exaggeration of a natural and normal physical conditions which obtained or of the events portrayed.

The parties posing as guides and school teachers engaged in a dialogue which consist largely a million ounce in the places, buildings etcetera in the sections through which they pass but there is no statement or announcement in the dialogue, billing or otherwise referring in any manner to the picture of the plaintiff.

So —

Potter Stewart:

(Inaudible) those are probably the dissenting members of the Court or the —

Harold R. Medina, Jr.:

But these were two members of the Court.

The Court viewed the picture, Your Honor.

Potter Stewart:

Yes.

Harold R. Medina, Jr.:

And this is the description by the two dissenting members —

Potter Stewart:

Yes.

Harold R. Medina, Jr.:

— as to what they saw.

Harold R. Medina, Jr.:

The — I think —

Potter Stewart:

What they said —

Harold R. Medina, Jr.:

— that the comments and complaint in appellee’s brief were taken from the complaint which were rebutted by an actual scene of the picture.

Now, if any further — in anything further on that, you can turn to the comment by the Court of Appeals in 1952 in the Gautier case concerning Mrs. Blumenthal and her selling bread in — bread on Orchard Street.

And there, the Court said, “The Blumenthal case supra illustrates the area of privacy which may not be invaded even in this modern era of television, when travelling upon the public highway may expect to be televised but only as an incidental part of the general scene, so when attending a public event, such as a professional football game, they expect to be televised in the status in which he attends.

If a mere spectator, he may be taken as part of the general audience but may not be picked out of the crowd alone, thrust upon the screen and unduly featured for public view.”

Now, let me illustrate what I think that means.

It’s the New York Times, a couple of Sundays ago, this one picture here of a race riot in San Francisco.

There’s another picture down here of a soldier in Vietnam.

Those two pictures are as, to use the language of Gautier, may not be picked out of a crowd alone, thrust upon the screen and unduly featured for a public view.

So strictly under the language, covering Mrs. Blumenthal’s case, as going again in the Gautier case in 1952, these two pictures are subject to the same injunction which issued in the Blumenthal case and the person publishing them is — is subject to a crime.

And as what —

Potter Stewart:

Well, the New York Times doesn’t agree with you.

Harold R. Medina, Jr.:

Well, it may well be that they will take their chance on that but as of the present, on a strict reading of that case, that’s precisely what it means.

Byron R. White:

There is a rather — rather obvious difference though as if they’re — would you claim there’s really something newsworthy about Mrs. Blumenthal?

Harold R. Medina, Jr.:

A travel log of New York City which took up 17 minutes, showing scenes throughout the city, happened to have had her in one scene for six seconds.

If that suffice, so the Court issued an injunction.

Now, it’s a current —

Byron R. White:

Now, let’s just carry out your point but what’s newsworthy about it?

Harold R. Medina, Jr.:

It’s a — the word “newsworthy”, Your Honor —

Byron R. White:

(Voice Overlap) —

Harold R. Medina, Jr.:

— it’s not only current news.

Byron R. White:

How could you say there’s a major difference between those two pictures you showed us in the newspaper and Mrs. Blumenthal in purpose of newsworthiness?

Harold R. Medina, Jr.:

I don’t know when this picture of the soldier in Vietnam was taken.

Byron R. White:

Well, would you agree or not?

Harold R. Medina, Jr.:

Pardon?

Byron R. White:

Would you agree or not, in terms of newsworthiness? (Voice Overlap) —

Harold R. Medina, Jr.:

There are different degrees of newsworthiness, Your Honor, a matter of general interest comes within the normal term “newsworthy”.

If you’re going to limit that term solely to current news events, that’s one thing.

I do not think that the term can be so limited.

Harold R. Medina, Jr.:

Certainly, a matter of general interest, such as what goes on in New York, should be covered by the Constitution, a non-defamatory language.

Byron R. White:

So what does — if six seconds of Mrs. Blumenthal’s life was newsworthy so with two hours, I suppose be.

And if they followed her around for two or three hours or two or three days or two or three weeks and made a travel log of Mrs. Blumenthal, I suppose you would say the same thing.

Harold R. Medina, Jr.:

That’s the question you put last time, Your Honor.

Byron R. White:

Yes.

Harold R. Medina, Jr.:

(Voice Overlap) —

Byron R. White:

I take it you don’t want to answer it.[Laughter]

Harold R. Medina, Jr.:

I may first say that I think it’s extremely unlikely that any picture which resulted will be such that it will be of enough interest so that you’d show it.

Secondly, I do think that you do have your limited that you cannot, by lawful means, do harm to someone, go and repeatedly taking pictures of him right and left.

And it maybe that it’ll get up to the disinterested malevolence of Mr. Justice Holmes in actually using lawful means to so harass someone that they are harassed.

But absent that, if you want to take a series of picture of someone in a public street on a public fact, and — and put that on the screen, I think you’re entitled to absent intentional falsehood.

Abe Fortas:

Well, you think that harassment wouldn’t be an exception to the proposition nine, that is, simply took pictures of Mrs. Blumenthal frequently, with excessive frequency, then you think that that might be under the invasion of her right under the statute?

Harold R. Medina, Jr.:

I think you might reach the point where you have that disinterested malevolence that you’re intentionally trying to do harm to here even though by legal means so that you’d have another tort created, the same tort that Mr. Justice Holmes referred to in the Atlanta Bank — Bank —

Abe Fortas:

Is it fair if she thought —

Harold R. Medina, Jr.:

— case, 256 U.S.

Abe Fortas:

— she probably thought that either there was intentional harm being done or here or reckless harm because she didn’t like the way she was being presented —

Harold R. Medina, Jr.:

I thought that —

Abe Fortas:

— and that might be a jury question but on that — on your theory, that would bring it within the statute.

Harold R. Medina, Jr.:

I will call, Your Honor.

Abe Fortas:

Well, let’s — let’s do, I suggested to (Inaudible) that if you say that harassment of that person by repeated picture taking might bring the statute into play without running around —

Harold R. Medina, Jr.:

No, I didn’t say the statute.

That’s the entirely different tort, Your Honor.

Abe Fortas:

Well, why?

Harold R. Medina, Jr.:

I do not —

Abe Fortas:

What’s tort?

Harold R. Medina, Jr.:

— say that this will bring the statute into play.

Abe Fortas:

What — what is a tort?

Harold R. Medina, Jr.:

The tort would be a prima facie tort of intentional infliction of a harm, and you know that you’re doing it.

Abe Fortas:

What —

Harold R. Medina, Jr.:

That’s entirely a separate tort.

Abe Fortas:

— what kind of tort do you call that?

What right is being invaded?

Harold R. Medina, Jr.:

It’s the right recognized by this Court in the Atlanta Bank case in 256 U.S. 350, 358.

Abe Fortas:

Well, what — how would you state it?

What is this?

It’s — what right is being protected other than the right of privacy?

Harold R. Medina, Jr.:

Anyone who uses lawful means with the sole intent of harming someone else —

Abe Fortas:

That’s not —

Harold R. Medina, Jr.:

(Voice Overlap) —

Abe Fortas:

— the case that I put to you thought — I put to you the Blumenthal case with the element that you had in which it was the element of harassment.

Now, let’s take another situation talking about this statute, privacy statute of New York.

Let’s suppose the New York Times, this is inconceivable and anybody knows that paper.

Just for example, let’s suppose if the New York Times published a (Inaudible) picture of certain people taken in their own bedroom.

Now —

Harold R. Medina, Jr.:

Then — we’re dealing with a private fact, I was careful to state —

Abe Fortas:

We’re dealing — we’re dealing —

Harold R. Medina, Jr.:

— the none —

Abe Fortas:

— would that be a breach of this statute, violation of this statute?

Harold R. Medina, Jr.:

I don’t know whether it would or not on this question of trade or advertising.

Abe Fortas:

But this is our problem.

Harold R. Medina, Jr.:

That’s right.

The present statute is so broad that it literally covers anything on — on the trade.

Abe Fortas:

You wouldn’t call that news, would you?

Harold R. Medina, Jr.:

But I would certainly would not.

And I — and I think the normal privacy case outside of this statute, Your Honor, stops going into a person’s home, well, you have a non-public fact then and that’s why I said non-defamatory language —

Abe Fortas:

Suppose somebody’s —

Harold R. Medina, Jr.:

— as to a public fact is entitled to constitutional protections.

Abe Fortas:

Suppose somebody’s office, suppose there were picture taken in somebody’s office, would you — I gather what you’re now saying is that the person in his home is entitled to protection under the — as a matter of his right to privacy, is that what you’re saying or not?

Harold R. Medina, Jr.:

Yes, sir.

I would think he would be entitled constitutional protection.

Abe Fortas:

And that that does not run or apply with any constitutional prohibition.

Harold R. Medina, Jr.:

I think there is a constitutional prohibition against that, Your Honor, going to someone’s home.

Abe Fortas:

Yes, but I say that that — you — you can do that but not — you can assert a crossmatching for that tort or without running counter to the Constitution of the United States.

Harold R. Medina, Jr.:

I think that’s right, Your Honor.

Abe Fortas:

Alright.

Now, how about the office, somebody’s office?

Harold R. Medina, Jr.:

It depends whether the public is allowed in the office, if the public is allowed then it’s fine.

Abe Fortas:

Within his private office, you’re private office in my (Voice Overlap) —

Harold R. Medina, Jr.:

Certainly, when you get to the — our reception room, yes.

When you get to the — the next office back, I have a more difficult problem as to whether that’s part of the public or you’re private — but then —

Abe Fortas:

I don’t want to — I don’t want to cross this unduly — this endeavor but I do want to get the theory that you’re —

Harold R. Medina, Jr.:

Well, as to you —

Abe Fortas:

— asserting here and that what you’re asserting here, as I understand it, is that there are in certain circumstances, rights of privacy, the invasion of which gives rise to a cause of action and that cause of action in those circumstances is not foreclosed by Article 1 of the United States Constitution.

Harold R. Medina, Jr.:

That’s right.

Abe Fortas:

Right?

Harold R. Medina, Jr.:

That’s right.

I think what we’ve come down to here that this phrase “privacy” is a misnomer because we’re really talking about intentional falsehood rather than privacy even though the statute has that label and investigating as to whether which it could view constitutionally, whether you created a cause of action for intentional falsehood under the guise of this statute because I’m limiting to myself to public facts, the facts we have here as the Hill family was a public fact as opposed to a private fact.

And all I’m saying here is that when you have non-defamatory language about a public fact that is constitutionally protected unless and until you have both falsity and knowledge of falsity.

William J. Brennan, Jr.:

Incidentally, Mr. Medina, I noticed the title Section 50 is right of privacy but —

Harold R. Medina, Jr.:

Yes, sir.

William J. Brennan, Jr.:

— that word nowhere appears in the text of the statute that cover it.

Harold R. Medina, Jr.:

That is correct.

William J. Brennan, Jr.:

How does it get in the title, it’s the part of the original enactment?

Harold R. Medina, Jr.:

I don’t know the answer to that.

But obviously, the original enactment was passed in order to prevent you from publishing a young lady’s photograph and a bag of flower but then was expanded beyond that.

William J. Brennan, Jr.:

But you wouldn’t prevent negligent falsity either though.

Harold R. Medina, Jr.:

No, sir, I don’t.

I do not think —

William J. Brennan, Jr.:

I mean you wouldn’t prevent recovery for negligent falsehood.

Harold R. Medina, Jr.:

Well, let — let me put this way.

Harold R. Medina, Jr.:

If you have non-defamatory language about a — a public fact, that’s the typical free speech, free press language you’re talking about as opposed to defamatory language.

Now, at that point, absent falsity and intentional falsity, I say it’s protected because both of your libel and privacy in a way come under the thing, the Constitution does not protect intentional falsity.

Byron R. White:

But you really aren’t talking much about a public fact if you — if you state a non-fact, are you?

Harold R. Medina, Jr.:

But a public fact, Your Honor —

Byron R. White:

If it’s false — if it’s false is not about a public fact, no fact at all.

And — so how do you get around in saying that — that’s protected by the First Amendment?

Harold R. Medina, Jr.:

I’m saying the language concerning this public fact even though you may erroneously report — report it, if it’s non-defamatory, must be tested both by falsity and by knowledge of falsity.

Byron R. White:

How about negligent falsity?

Do you think it’s true or it isn’t?

Harold R. Medina, Jr.:

I’m saying that if you’re talking about negligent falsity at that point, that’s when the Constitution interposes because public discuss — discussion of non-defamatory nature is a sufficient importance so that you should not impose a check on this unless there is both falsity and intent.

Byron R. White:

How about recklessness?

Harold R. Medina, Jr.:

Well, I include recklessness with — with intentional falsity of course.

Well, that — that goes without saying it.

So — so that — that is the standard that I’m — I’m supposing here that was being followed.

That was the New York.

Of course first, we start with something true as with Mrs. Blumenthal which has been enjoined.

The very test of fictionalization is not one of truth or falseness — falsity.

It’s embellishment or exaggeration, so that you will have articles which are basically true but which involve elements of — of embellishment which have been prohibited or — or to our ability, found.

The Sutton against Hearst case, which we have in our brief, the Red Rose case — the Red Rose.

There, the majority found there was fictionalization but the dissenting opinion by then presiding Justice Peck and Mr. Justice Shientag said, “Well, on the facts before us, the article is basically true even though there is embellishment.”

So that I that suggest to you that with the fictionalization cases by themselves, it is not a test of truth or falsity.

And even the Binns case again which started this fictionalization, at the end of the case, they had a very significant little passage.

It is urged that there is danger of serious trouble in the practical enforcement of any rule which maybe adopted in construing and enforcing the statue so far as it relates to purposes of trade.

If there is any basis for the suggestion of danger enforced in a part of the statute or consideration, it is the duty of the legislature to repeal such part thereof or so modify it as to define with a greater particularity what it intends should be prohibited.

But the statute was never amended despite that suggestion by the Court.

I may say in that regard that just as this Court in the New York Time case used Coleman against MacLennan in the Supreme Court of Kansas as a guide to the common law that I would suggest that a similar use maybe made of Donahue against Warner Brothers in the Supreme Court of Utah.

That case construed a New — a Utah statute practically identical with the New York statute here.

And for the very reasons which I have been putting forward to this Court, found that it have to be construed to mean use of a name or picture solely in connection with — with the sale of a commodity because otherwise, they found the same constitutional difficulties which I am urging upon you here.

So, I suggest that that Donahue case, which is cited in our brief, can be used as the model much as you did with the Supreme Court of Kansas in the New York Times.

William J. Brennan, Jr.:

When — when was that decided?

Harold R. Medina, Jr.:

That was decided in 1954 and they ended up by saying, “The twilight areas of uncertainty between the alternative as such that a publisher would have to be constantly negotiating a hazardous course between educational and none educational, fact and fiction, public and private character from one quandary to another so that the situation would be both impracticable and intolerable and go right along the same constitutional theory that I’m following here.

So I — I merely suggest that that’s a possible — be of possible utility to the Court on — on this question.

Hugo L. Black:

Is it not cited in your brief?

Harold R. Medina, Jr.:

It’s cited in the brief, yes, sir.

Hugo L. Black:

Which one?

Harold R. Medina, Jr.:

Donahue and it’s in the reply brief, yes.

Potter Stewart:

Reply brief, on page 222?

Harold R. Medina, Jr.:

Yes, sir.

Now, on the question of standing on this matter of truth, I say that we have standing for two reasons.

First, we have, up to the time we got to this Court throughout all the New York courts stated that the Life article was true, in the broader sense of the word “truth”.

Surely that there was the ambiguous inaccuracy on the word “enactment — reenactment”.

But aside from that, the fact that the play was the heart and soul of the Hill incident as testified to at the trial and the fact that it basically — merely was a — a picture of a family being terrorized by three convicts.

We made the point throughout that the article was basically true.

I think myself that is the reason why the Court of Appeals affirmed on both opinions below including the opinion by Mr. Justice Raiben which said that even if — if it’s true, you still going to be libel.

It was an answer to that contention of ours.

So that I say that on that broader test of truth having put that forward throughout the courts below, we have standing to raise this question of — of truth.

I may say that on this broader question of truth, this question of standard to illustrate, people say that the British and the American libel law are the same and that each has a defense of truth.

That’s true when you ask completely false in a way.

I — if I should write that Johnny Jones stole a watch last Tuesday and I come in the Court and prove that Johnny Jones stole a clock last Tuesday, that’s a defense under our law, it is not a defense under British law.

Or if I find that Johnny Jones — truth of Johnny Jones stole a watch last Wednesday instead of Tuesday, it is not a defense under British law.

And you can refer to Gatley Section 257 in that regard.

So, it depends whether you’re using the narrower test of truth or a broader test of truth in applying these standards.

In any event, we did raise that and it seems to me, it does give us standing to raise the point of truth.

Secondly, under Button and Dombrowski, in this Court, when you have a statute which has been applied to enjoin, as in Mrs. Blumenthal, a truthful account and in other cases which we cited in our — in our brief.

When you have this statute, it does have an inhibitory effect.

And I say that at that point, this Court should raise the point and go into it.

I ensure that ever since the Youssoupoff case, which is cited in our brief and which I will go into in a minute, the C.B.S. has been more than careful in trying to hold back in some other things it has done.

It’s impossible to affect to — really to appraise the effect of the decisions but we do know that they do take place and the smaller publishers just can’t afford to be coming up to this Court.

In this case alone, this is the fifth appeal we’ve argued and two trials and we’ve been at it for 11 years.

Abe Fortas:

Mr. Medina, did you say — did I correctly understand you to say that — or you thought that a negligent misstatement would not permit, would not constitutionally permit the imposition of any sanction that a statement which was ‘grossfully’ negligent or willfully negligent would constitutionally permit the imposition of the —

Harold R. Medina, Jr.:

The record —

Abe Fortas:

— sanctions by a statement.

Harold R. Medina, Jr.:

— well, all I’m saying is you — you need both falsity and intent if you have non-defamatory language because intentional falsity has no constitutional protection and shouldn’t have and the law of libel is part of that except that you allow the States to presume both intent and falsity except when you’re dealing with a public official, when you yank that presumption back and say, “Go back and prove intent and prove — and prove falsity because it’s important when you’re talking about public officials.

Abe Fortas:

Well, you don’t believe that the First Amendment provides federal inhibition upon state law of libel.

Harold R. Medina, Jr.:

I do not, no.

Except that — you may — if the libel is concerning public officials and perhaps, you’ll extend it to public figures and public issues that is — other — be coming up in other cases of course but — but you still come back to intentional falsehood.

Abe Fortas:

Right.

Harold R. Medina, Jr.:

And all I’m saying is you have to prove it.

Abe Fortas:

Alright.

Then I — then our problem with little respect anyway maybe to draw the line for the — the transitory moment of history between negligence and willful negligence from your theory, is that right?

Harold R. Medina, Jr.:

I might be — I think that’s — I think that’s so and moreover which the —

Abe Fortas:

Now, let me ask you one specific question as — let me put to you a specific case.

Let us suppose that there is presented to a publisher, to the editor of a publication, a story and which says in conspicuous type, “This is a fictionalized version based upon an incident that happened to Joe Jones and his friend.

This is a fictionalized version.”

And then the editor for reasons known to himself about any inquiry whatever, strikes that sentence and publishes the article as it is, so that the article is no longer represented to be fictionalized.

Now, is that negligence, wilful negligence or an intentional misrepresentation?

Harold R. Medina, Jr.:

Well, it’s probably a question for the jury as to wherever it’s reckless —

Abe Fortas:

Well, it’s a — so that — and if the jury — well, suppose the jury had imposed liability, would the First Amendment of the United States Constitution operate to supervene the judgment in the case?

Harold R. Medina, Jr.:

If the jury found falsity and based on the facts you’ve stated found reckless indifference to whether it was false or not, I think that verdict would be upheld and that would be the end of the matter.

Byron R. White:

If they were proper instructions.

Harold R. Medina, Jr.:

Yes, sir, of course.

And that brings me to the question of intent, first, on the cases other than our case and secondly to our case.

I think it is clear beyond the — from a venture of a doubt that this question of intent or knowledge of falsity or even malice or certainly knowledge of falsity is utterly falling to this question of privacy as interpreted by the New York courts.

And the clearest example I can give you is the Thompson against Close-Up case, which we’ve cited in our brief, where a magazine used a wrong picture and a summary disposition of the case was denied because, said the Court, “It may be found that the publication although, perhaps, by mistake, was — was published in order to increase circulation.”

So that, the intent end of it was totally thrown out.

The Youssoupoff decisions and case where the admitted assassin of Rasputin coming into Court and saying, “You didn’t tell it correctly.”

Intent was following to that case throughout.

It reached the point initially whether it’s a motion for summary judgment by the plaintiff which was almost granted.

Two concurring judges in our Appellant Division said, “He should’ve gotten it because there was embellishment,” but no discussion of intent whatsoever.

It went back to trial.

Harold R. Medina, Jr.:

And we found in the Supreme Court of New York County trying as to whether the admitted assassin of Rasputin and to have his — have the story correctly told and the matter was put to a jury are the test of charge for the juries, in appendix to my brief, no question of intent raised throughout.

And the only question given to the jury was truth or falsity.

On the motion to dismiss, the judge — trial judge specifically said, “Malice is not a part of this.”

So that I say it clearly appears from the Youssoupoff case and those decisions that intent is — is not a necessary element, no scienter under this New York statute.

The most recent decision of that is the Spahn case by our Appellate Division in 1965 and at the end of that, it said, “If the publication, however, by intention per report or so format, is neither factual nor historical, the statute applies.

And if the subject is 11 person, his written consent must be obtained.”

So that it’s clear from other cases that intent is not a portion of this crime.

And this is a crime were talking about.

Now, let’s see what happened in this case.

I got my first indication of what was going to happen when I made a motion to dismiss.

They — specifically on the ground that intent had not been proved.

And the trial judge denied that and said, “I think we better put up to the jury whether the article is true or false.”

Then we got the summation.

And my second point of summation dealt with intent and that they should prove that we knew what we were doing.

And immediately, counsel for appellee got up and interrupted my summation and said, “This is quite erroneous,” and trial judge said, “Well, I will instruct on that.”

Then we got to the charge.

I had a specific request to charge on intent, request number six.

Byron R. White:

Where is that?

Harold R. Medina, Jr.:

Page 311, Your Honor.

“Even if you do find that the statements in the Life article concerning plaintiffs were wholly fictitious, you must nevertheless return a verdict, the defendant, Time, Inc., if you also find that Time, Inc. published those statements in the belief that they were true.”

Stating conversely, “You may not return a verdict in favor of either plaintiff against Time, Inc. for having used their names either for trade purposes or for advertising purposes, unless you were satisfied by a preponderance of the evidence that the Life article was pure fiction regarding plaintiff’s and that Time, Inc.’s employees knew it was a fiction at the time the article was published.

Abe Fortas:

Yes.

But where — where is this?

There are two different things in there.

When you say that the charge that you requested implies that Time, Inc. would be exonerated if it knew — if it believed that the statements were true.

Harold R. Medina, Jr.:

Yes, sir.

Abe Fortas:

Now, is there any evidence in the record — is there any evidence in the record to the effect that the editor above Mr. Prideaux, man above Mr. Prideaux in the hierarchy, you thought, believed or had any reason to think or believed that the challenged statements were true, namely, that this was a true to life version of what had happened to the Hill family?

Harold R. Medina, Jr.:

Your Honor, we put both the writer who wrote the article and the researcher who checked it on the stand.

Both of them —

Abe Fortas:

I’m not talking about the editor (Voice Overlap) —

Harold R. Medina, Jr.:

There was no other testimony by anybody else.

I had one editor in Court.

I spoke to the plaintiff.

I’ve announced to the judge he’s in court if anybody wants to — wants to examine it —

Abe Fortas:

Yes, but —

Harold R. Medina, Jr.:

— and no one did.

Abe Fortas:

— this is —

Harold R. Medina, Jr.:

But I thought that would have the writer and the researcher, the two people who had to deal with the article, both of them testified that in their judgment at the trail, the article was true and at the time they wrote it.

They thought it was true and correct.

Abe Fortas:

But why is the objection to your request of instruction that there would be — that there was no basis for the first half of it in the record?

Harold R. Medina, Jr.:

No, sir — there was no objection to the instruction, the — the Court just didn’t charge it.

Abe Fortas:

Right.

Now, the second part —

Harold R. Medina, Jr.:

And I specifically accepted to the failure of the charge.

Abe Fortas:

Now, the second part of your request of instruction, as I remember, required affirmative proof, did it not, of — of knowledge of falsity?

Harold R. Medina, Jr.:

That defendant, Time, Inc.’s employees knew it was fiction at the time it was published.

Abe Fortas:

Required if it’s a converse —

Harold R. Medina, Jr.:

That’s right.

Abe Fortas:

— of the point.

Now, is it your position that it’s — in this sort of a case, in order to avoid the — the impact of the First Amendment that the plaintiff has the burden of proving that the statement was known to be false?

Harold R. Medina, Jr.:

Yes, sir.

That’s precisely my — my —

Abe Fortas:

Your point is that it’s not merely a matter of defense but then its part of the plaintiff’s affirmative burden.

Harold R. Medina, Jr.:

That’s right.

Now, we’re — we’re talking about deemed process false like case.

That’s in essence what we’ve reduced this case to.

And — and as he said, “It is high time that we realized what we are you doing and give some consideration to the question of where if anywhere we ought to call a halt.”

And he characterized those cases, and I’m reading from my original brief, page 23, gone as the defensive truth and the defendant is held liable for the publication of entirely accurate statements of fact without any wrongful motive.

Byron R. White:

Well, Mr. Medina, the trial court might have refused to give this instruction because it already instructed over it.

Harold R. Medina, Jr.:

But he had not, Your Honor, I’m just getting to that.

Byron R. White:

You’re going to (Voice Overlap) —

Harold R. Medina, Jr.:

Because what the trial court said was, “I give it to you, the jury, to pass on whether the statements in the article constituted fiction.”

And then —

Byron R. White:

And whether there was fictionalization, whatever you call it.

Harold R. Medina, Jr.:

That’s right.

But whether the statement in the article constituted fiction and that isn’t — that isn’t a — a question of — of intent there.

And then, the jury came back.

They were confused about this work trade and they said, “We like to know some more about it.”

And at that time, I think Mr. Garment, representing the appellee, made two significant statements which pointed out his position and the Court followed him.

First, he said, “Our claim is that the total article must be read and the jury must determine whether it conveyed the basically false impression as to the relationship of the Hill family to The Desperate Hours, that’s page 306 of the record.

And then the Court said, “Well, we’re going to charge that, the thing is covered,” and then — then Mr. Garment said, “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 furious or essentially false, that we contend,” and I think the law is clear, “it is for trade purposes.”

So, it is purely a falsity test, and it’s the same falsity test which was applied in Youssoupoff and indeed, it is the falsity test which is called for under the prior appellate decisions in New York.

So, all I’m really saying is that — that the question of intent never entered this case and doesn’t enter in New York law so far as this question of privacy is concerned.

And that’s a fatal omission.

Now, when we got to the Appellate Division in this case, again, on intent, we — we had Mr. Justice Stevens saying, “The defendant merely concluded that basically, the play was a reenactment and so stated.”

Again, there’s no question of intent.

It’s a question — we concluded that it was reenactment and so stated.

Byron R. White:

But it fictionalized in itself means — meant to the jury or means by the law of New York that a person deliberately falsify or deliberately fictionalize that word in and of itself, carries that import why, perhaps, this — this law is put in a different way.

Harold R. Medina, Jr.:

But the charge to the jury, Your Honor, you must find that the statements concerning the plaintiffs in the article constituted fiction.

It’s a question of truth or falsity on that.

And short fiction connotes in the ways in fiddling with the facts but there is nothing in any of the — of the Appellate decisions in New York on this question of intent.

Intent is entirely disregarded and — and I think the — the Spahn case which I’ve read to you, the Youssoupoff case that we’ve gone through and Thompson against Close-Up.

And they said — they may have — they may perhaps published something by mistake.

This is a wrong picture case.

Byron R. White:

Well, this is what you — that the jury had to find — find this fiction to award compensatory damages, what they have —

Harold R. Medina, Jr.:

Well, the Court knew perfectly well —

Byron R. White:

— what they have —

Harold R. Medina, Jr.:

— how they to knowledge.

Byron R. White:

— what they have to find to report punitive damage.

Harold R. Medina, Jr.:

Because in regarding punitive damage, then he got knowledge there alright and that this was done knowingly or through failure to make a reasonable investigation.

Harold R. Medina, Jr.:

So, he got the punitive damage, intent and knowledge came right in, intent plus negligence.

Byron R. White:

Well, now, the jury awarded punitive damages.

Harold R. Medina, Jr.:

Yes, sir, they did.

Byron R. White:

So, in this case, how can you really complain if the — if the jury — the jury was instructed on both compensatory and punitive damages, compensatory or near view only — required only (Voice Overlap) —

Harold R. Medina, Jr.:

The jury award on damage was set aside, Your Honor, because of the — the evidence which was put in which — which went against us so far and we’re so —

Byron R. White:

So you’d say that punitive damage thing is out of this case, does it come to us?

Harold R. Medina, Jr.:

Yes, sir, I do.

I do.

And all you have is compensatory.

That’s all that was awarded.

Byron R. White:

And there has never been any — there has never been any review of — of whether or not the — the jury verdict was sustainable on punitive damages.

Harold R. Medina, Jr.:

That’s right.

That was set aside.

The jury verdict was set aside and —

Byron R. White:

And so only the compensatory damage matters appeared?

Harold R. Medina, Jr.:

That’s right because on the new trial, this whole award of damage by a judge trying without a jury was for compensatory damages.

So the question of punitive damage is no — no longer here.

Byron R. White:

And in any — and in any event I suppose you would say that instruction of punitive damages, that’s what I’m referring to — to satisfy you anyway.

Harold R. Medina, Jr.:

Well, it’s one on negligence.

Byron R. White:

Because it allows recovery on negligence.

Harold R. Medina, Jr.:

That’s right.

And it’s a strange doctrine that you’re going to have punitive damages on negligence.

And yet that is — that is precisely what we have here.

William J. Brennan, Jr.:

Are you saying, Mr. Medina, that fiction or fictionalization is really under New York law only synonymous with falsehood here?

Harold R. Medina, Jr.:

It’s synonymous with embellishment or exaggeration.

It’s a funny type of falsehood.

It isn’t really true or falsehood.

Byron R. White:

But it’s not intentional, isn’t it?

Harold R. Medina, Jr.:

It’s not intentional.

Byron R. White:

Yes.

Byron R. White:

It’s neither —

Harold R. Medina, Jr.:

There’s not the slightest doubt of that.

Under the cases in general, and on — and as applied in our case, intent is not a factor.

And I say that we need that protection in —

Byron R. White:

It can be —

Harold R. Medina, Jr.:

— the Constitution.

Byron R. White:

It can be — it can be fiction even if they intended — but it can also be fiction even if they don’t, is that your point?

Harold R. Medina, Jr.:

That if it — if you don’t intend at all, it’d still be fiction.

It wasn’t said that the charge was — is the article fiction?

Not did the defendant create fiction, which might connote knowledge and the charge in Youssoupoff was whether the television program fiction?

Was it true?

Was it false?

And — and that —

Abe Fortas:

But, Mr. — Mr. Medina, has — haven’t the New York courts said, I’m not suggesting that New York courts in this branch of the law have been clear, [Laughs] but haven’t the New York Court said at sometime that fictionalization means the creation of a story or narrative or a motion picture really without regard to its factual accuracy and for the purpose of preventing a story or romance or whatever it may be without reference to its coincidence with the facts of life.

Isn’t that about what they have said?

Harold R. Medina, Jr.:

No, I — I don’t think that is so.

It — it comes down to the question — and I think the Sutton versus Hearst, the Red Rose case is a good illustration, of — of embellishment, of exaggeration a bit, where the facts of which they — where they start are basically true facts and that’s what caused the split in the court there.

In that case, there was a very violent split.

And presiding Justice Peck and Mr. Justice Shientag said, “Well, these facts as we have them are basically true even though if they have been blown up.”

And that’s all you’re talking about even in the Binns case, that original telegraph operator case.

Everything where several different reels and the only thing that was condemned was the last one because it had a picture of them with a title of “This Big American Smile.”

And they said, “Well this is — this is going too far”, even though the facts as to what he’d done were basically quite correct.

So it is not a truth or falsity test, it’s an in-between type of thing so that you don’t point in what you’re talking about really.

Now, even if you — if you say this is truth or falsity, they still haven’t got intent in this.

Abe Fortas:

Well, I gather, and I may be — this might be quite wrong.

What I gathered from as much as I can gather anything specific from these New York cases on the subject of fictionalization that the New York courts were trying to convey the idea of — that it is a work of fiction in the ordinary sense of that term that is to say something that is presented as primarily a product of the imagination, whether or not it — it has a basis or kernel of truth as most works of the imagination do.

Harold R. Medina, Jr.:

Well, I’m suggesting that the difference in some of these cases comes down to the individual judgments of the judges involved is whether they like the story or not, which is precisely the type of censorship that the First Amendment is intended to do away with.

And to try and exempt other cases on any assumption other than that is practically an impossibility.

So that if you are trying to get some judgment to give the editor of Life of what can you publish, and you try to make sense there, these New York cases, you have ever done tough job, even on this New York Times illustration I gave.

You come within the precise language of Gautier and maybe you’re going to say, “Alright, we’ll take a chance and do it.”

Harold R. Medina, Jr.:

But I say we shouldn’t be in that position, that the decent journalist should be able to have some test they can follow when they’re deciding what to publish.

Abe Fortas:

Well, don’t you have that problem all the time practically everyday with respect to the laws of libel?

Harold R. Medina, Jr.:

No, sir, you do not.

Your simple test is whether it’s true or not and whether it’s privileged or not.

Abe Fortas:

And —

Harold R. Medina, Jr.:

And if you can prove it true it, surely, you can publish it.

Abe Fortas:

— and in — and in between.

Harold R. Medina, Jr.:

Well, it is not so much in between.

And — and they referred with the average decent publication.

There’s very little error.

And — and once you know that something is true, you know you can publish it.

Now, in this feeling — field of privacy, I’m merely suggesting, when it’s non-defamatory, and you’re talking about a public fact, we should have the protection that the fellow who comes in to sue us must prove a falsity and knowledge of falsity or recklessness.

And that — this is a minimum because mind you, this article here, the dissent in the Appellate Division form was an informative presentation of legitimate news, the dissent in our Court of Appeals.

It I understood, the article is on its face, an account of newsworthy information.

Certainly, this is something more than having the slightest redeeming social importance that this Court has protected in the average obscenity cases.

We’re a long way from that.

We are contributing something to public discussion.

William J. Brennan, Jr.:

Mr. Medina, what do you want us to do with this New York statute?

Harold R. Medina, Jr.:

I think — I think the statute should be struck down, Your Honor.

William J. Brennan, Jr.:

Completely?

Harold R. Medina, Jr.:

Yes, sir, because I — I think it — it should have — in non-defamatory language of public events, you should have a sine que non just as you had in New York Times when dealing with defamatory language of public officials.

You should have a sine que non of falsity plus knowledge of falsity or recklessness.

William J. Brennan, Jr.:

I take it if we did, that this case — that this case, at least, cannot be retried.

Harold R. Medina, Jr.:

That’s right, Your Honor.

John M. Harlan II:

Well — you’re asking us — now, excuse me.

You’re asking us to strike the statute down on its face.

Harold R. Medina, Jr.:

Yes, sir.

Or as applied thus — either way.

But I think the statute is before you.

John M. Harlan II:

Well, that makes a difference.

Harold R. Medina, Jr.:

I know of —

John M. Harlan II:

Difference doesn’t necessarily mean that we have to deal with it on its face.

Harold R. Medina, Jr.:

Well, you have before you —

John M. Harlan II:

You say either way that you’re entitled to (Voice Overlap) —

Harold R. Medina, Jr.:

I would urge upon you strongly to strike it down as being, on its face, against and as interpreted directly against the Constitution.

Byron R. White:

Even if — even if we didn’t agree that it applied to truthful statements.

Harold R. Medina, Jr.:

That’s right.

Byron R. White:

You would still state it on its face is bad because it applies to false statements but you didn’t know were false.

Harold R. Medina, Jr.:

On its face, it’s clear that (Inaudible) but as construed by the courts and that that construction does not involve intent and also at times hasn’t — has — has involved truthful statements.

Byron R. White:

But what if we read New York cases as construing that statute not to cover truthful statements, no matter what the purpose for the publication was?

Harold R. Medina, Jr.:

Well, that comes down as to whether you —

Byron R. White:

Well, if we — if we construed the statute as to the cases that way, then the statute would be construed that way but you would still say that it’s bad on its face because it still covers negligently false statements —

Harold R. Medina, Jr.:

That’s right.

That’s right.

Byron R. White:

— and as applied to it.

Harold R. Medina, Jr.:

Or non-negligent false statement.

Byron R. White:

Right, right.

Harold R. Medina, Jr.:

It may just be plain wrong with no negligence whatsoever and —

John M. Harlan II:

What your argument is on (Inaudible) the Constitution in regards to measuring a privacy law like this is the New York Times public official rule test?

Harold R. Medina, Jr.:

Well, it isn’t quite — it is — it has come down to that.

All I’m saying it — and — and the word “privacy” is what throws us all off because this —

John M. Harlan II:

Well —

Harold R. Medina, Jr.:

— really isn’t a privacy law.

It’s an intentional falsehood maybe law with — with neither of those elements.

And I’m saying that intentional falsehood is not protected by the Constitution.

Intentional falsehood is really what you’re talking about when you’re talking about defamation, except that the States have given you a little aid and make the defendant a sitting duck by presuming both intent and falsehood.

Now, you yanked out of the presumptions defamatory language dealing with public officials as entitled to the protections that plaintiff must prove in this case.

I’m saying that non-defamatory language which is the run — one of the middle language of freedom of speech and freedom of the press, non-defamatory language of public facts deserves the same protection as certainly as defamatory language about public officials.

If you’re going to have free public discussion.

John M. Harlan II:

Well, it adds up whether you call it a privacy statute or something else, it adds up to the New York Times rule as being the constitutional test.

Harold R. Medina, Jr.:

For a non-defamatory language —

John M. Harlan II:

For non-defamatory.

Harold R. Medina, Jr.:

— about public fact because —

John M. Harlan II:

And — and how about private — how about private areas?

Harold R. Medina, Jr.:

But we’re not — that isn’t involved here and that’s why I’ve been careful because —

John M. Harlan II:

Well, that — that’s a —

Harold R. Medina, Jr.:

— because if you’re going to get into the — the private area, you — you have — have some entirely different problems.

John M. Harlan II:

But don’t we have at least — would you agree that we have a question here as to whether, on the facts of this particular case, we’re dealing essentially with something in the public area or essentially with something in the private area.

Harold R. Medina, Jr.:

You’re dealing —

John M. Harlan II:

I mean to something that’s half of one and half of the other.

Harold R. Medina, Jr.:

No.

You’re dealing with something which was a newsworthy event two and half years before our articles, sufficient so as on the front pages of every — of every paper in the country.

John M. Harlan II:

(Voice Overlap) —

Harold R. Medina, Jr.:

Now, at that point, you’re no longer dealing with a private fact.

John M. Harlan II:

Are we dealing —

William J. Brennan, Jr.:

That’s your test whether it’s a newsworthy item

Harold R. Medina, Jr.:

I’m talking whether public or private.

William J. Brennan, Jr.:

That’s what I say.

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

That’s your test, isn’t it?

Harold R. Medina, Jr.:

That’s right.

William J. Brennan, Jr.:

It’s a public fact, if it’s been in — in the past, a newsworthy.

Harold R. Medina, Jr.:

That’s right.

I say once is public is public.

William J. Brennan, Jr.:

And I take it, newsworthy item means only that it had gotten to the news.

Harold R. Medina, Jr.:

Well, now, you’re going to have to define as to newsworthy —

William J. Brennan, Jr.:

Who’s going to that?

Harold R. Medina, Jr.:

— for general interest.

William J. Brennan, Jr.:

Who’s going to that?

Harold R. Medina, Jr.:

Well [Laughter] Dr. Michael John whom you know said that the citizens have not delegated their authority to decide for themselves what they shall read and write.

Harold R. Medina, Jr.:

And when you’re talking about non-defamatory language, that’s precisely his point and it’s precisely mine.

But you cannot have freedom of discussion without — of non-defamatory language unless you give the protection of saying “If you’re false and you know you’re false, my gosh, you’ll get hit.”

But up until that point, you should be able freely to discuss matters.

And that’s the very simple test that — that I propose.

William J. Brennan, Jr.:

And now you drew a line though it’s something called the private area.

Harold R. Medina, Jr.:

Because that’s — not involved here.

William J. Brennan, Jr.:

What is that area?

Harold R. Medina, Jr.:

Alright.

You going to put a camera into someone’s bedroom because you’re going to invade the home.

You have the intrusion cases.

You have a multitude of —

William J. Brennan, Jr.:

How about Mrs. — how about Mrs. Blumenthal’s story?

Harold R. Medina, Jr.:

She was right out in the public street.

William J. Brennan, Jr.:

Suppose she did it in her store.

Harold R. Medina, Jr.:

In her store for — for the public, it’s still public.

Now, that’s —

William J. Brennan, Jr.:

Is the —

Harold R. Medina, Jr.:

— the number of different — of different types of privacy problems is illustrated best by processing this, what I said his — these are his false light cases we’re dealing with now.

Excuse me, Mr. Justice White.

William J. Brennan, Jr.:

Well, you’re just really saying that there’s really important privacy there is — there are just intents of tort.

It’s the intentional invasions of — of somebody’s interest.

Harold R. Medina, Jr.:

I’m — I’m saying — forget the label privacy here.

You can start and to think — correct yourself that if you have non-defamatory language about a public event, again or public fact, that you can use that language all you want as long as you don’t falsify and intentionally falsify.

Now, that’s what you’ve said in New York Times.

It is applicable to defamatory language about public officials.

And I say the same rule should apply to non-defamatory language.

That’s — that’s the bread and butter of all of these, no normal speech, no normal talking and — and you don’t have the red flag of defamatory language.

If an editor has something or is saying something really bad about someone, he knows darn well, there’s a red flag there and he’s going to have to prove its true or he can’t print it.

William J. Brennan, Jr.:

But — but as — surely, your area of private fact, there is that distinction between public fact and private is a very, very narrow and limited one indeed, isn’t it?

Harold R. Medina, Jr.:

No, sir.

Harold R. Medina, Jr.:

There’s a — there’s a great area of the law dealing with the electronic spying in someone’s bedroom, going to someone’s home and —

William J. Brennan, Jr.:

Well, now, we’re still — we’re in the house or in the bedroom —

Harold R. Medina, Jr.:

And you would have a — you would have a much tougher case if Mr. Hill instead of telling for everybody about this incident and the people coming in have said nothing, he just sits in his home knows — knows these convicts have been in and did nothing.

Now, I still think we might have a right if it’s tied into the play to say something about.

That’s a much more difficult case.

If he — if he’d done nothing, then no one knew about it.

But this is a public fact.

I’m not — I’m trying to suggest that you restrict yourself in this case to the false light cases of Dean Prosser and to public facts and to non-defamatory discussion of public facts.

You may want to go beyond them later on but that’s all this case involves.

And I’m suggesting that with those — with — with that type of a fact, the non-defamatory discussion that we should have both intent and falsity.

Thank you very much.

Earl Warren:

Mr. Nixon.

Richard M. Nixon:

Mr. Chief Justice, if it please the Court.

We’ve come far afield from the first time that we argued this case this spring.

Then the question before the Court was whether or not the judgment in this case impinged on the First Amendment.

Now, we have the problem of whether or not the judgment in all of the New York cases going back over 63 years may have impinged upon the First Amendment.

I am not going to make a point of arguing the standing question because I believe that not only this judgment but the interpretations of the Court of New York of this statute over 63 years can be sustained as on First Amendment grounds.

But to bring the whole matter into context, I think it is vitally important to see first and to come back to the case that this Court must decide in this proceeding.

Now, counsel for the appellant has stated here as he stated previously that this account was basically true.

His backup position to that is that if there was falsehood, it was at most negligent falsehood.

He also contends that as far as the law is concerned as applied in this case, that law did not require proof of intentional falsehood.

It is our contention that in this case, it was argued by the plaintiff, it was established by the evidence, it was charged by the Court, it was found by the jury and it was held by the courts of New York in their Appeals Courts that Life Magazine lied.

And that Life Magazine knew that it lied.

That is the proposition that I contend for here.

Now, let us look at the facts in this case.

John M. Harlan II:

(Inaudible)

Richard M. Nixon:

They did.

John M. Harlan II:

(Inaudible)

Richard M. Nixon:

In the case of this — presented before the Court, Life Magazine by what I would call the device of a — of a verbal picture.

Life Magazine presented to its millions of readers the proposition that the Hill incident was the same as The Desperate Hours play.

Richard M. Nixon:

Now, that was not true.

We argued that proposition previously in the spring but the best and most eloquent proof that it was not true is that Life tells its pictures not only by its words but primarily by its pictures.

And in telling its story by pictures, the six pictures that it selects on this play presents incidents none of which occurred to the Hills, all of which, of course, had happened in the play.

This was not simply incidental falsity, it was substantial falsity and it was complete falsity on every one of those incidents.

Now, the contention is made by the appellant that the only error involved here was the use of the word “reenacted”, and that that was at best negligence.

But appellant had to use the word “reenacted” by reason of what it had done in terms of the presentation of the photographic story because if it had said what was the truth that the Hill incident was one of several hostage instances about which the author had read, and that it was reminiscent of this incident, this would not have been editorially in keeping with the picture story which Life presented to its readers.

The second proposition is that not only did Life make this false statement, but that its editors and in this case, its picture editor, made the statement with knowledge that it was false, what information did he have before him.

And here, Mr. Justice Brennan, I would like to distinguish the information that was available to Life Magazine from the information that was available to the New York Times in the case of New York Times versus Sullivan.

In that case, there was information in the Times’ general files, as you pointed out in your opinion, which proved the falsity of some of the materials in the ad.

In that case, the New York Times was printing a — an ad which had been submitted to them by others rather than printing what was in effect a statement that had been authored by the New York Times staff itself.

In this case, we have a story that was originated by the defendant, and we have the truth about this story, not in the general files of the defendant, but in the story files of the defendant.

And in the story file of the defendant, there were not only the current statements and stories that have been carried at the time the Hill incident occurred but there was an article by the author himself in which he specifically stated that his play was not based on any specific incident but was based on many instances incur — occurring in several different cities and that when he had completed his story, it was different from any of the hostage instances about which he had read.

The defendant’s editor Prideaux was questioned on that point.

In his testimony, he agreed that he had that story in his possession and that he had read it and in its brief in the appellate court, the appellant indicated and conceded that the defendant — witness Prideaux had read this story.

And so we have first, falsity, second, knowledge of falsity and then third, how did the defendant, with knowledge of this falsity, proceed to use the facts.

Let us now understand another point.

In the 63 years of the history of this statute, there has never been an instance of an application of a privacy finding, the finding of liability with regard to a current news story.

In this entire 63-year period, these stories have always involved either magazines with lead times, like Life Magazine, or television or motion picture stories.

All of which involve creation and time for creation rather than the kind of misstatement that may occur, for example, as was mentioned in New York Times in the heat of debate or because of having to meet a deadline.

Let’s look at the Life Magazine story.

That story had a lead time of three months.

During that three-month period, the appellant’s editors had the opportunity to question the Hills as to whether the story was true, they did not.

To ask the author as to whether the story was a reenactment, they did not.

Hugo L. Black:

Didn’t he go with them to make the picture?

Richard M. Nixon:

The author did go with them to make the picture.

Hugo L. Black:

In the house?

Richard M. Nixon:

He did.

But they did not question the author.

And the author in his testimony in this trial made it clear that that question had not been asked to him and that he had not told them that it was a reenactment of that story.

They not only did not do that, but in the light of the testimony that they had and the evidence that they had in their own files, they nevertheless then proceeded to write a story and in each successive draft, they removed deliberately every qualifying phrase which would indicate that the Hill experience might be different from The Desperate Hours.

Richard M. Nixon:

They struck out the words somewhat fictionalized.

They struck out the words that the house in which the pictures were made was the Hills’ former home.

They struck out the word “former home”.

They changed the running head of the article from the story of the play, The Desperate Hours to the story of the Hills True Crime.

All of these was done deliberately, all of this was done with knowledge from evidence that they had in their own files that this was not the story of the Hills and that The Desperate Hours, as the author himself had written, was based on several instances.

And when he had completed his story, it was different from any one of the hostage instances about what she had written.

Hugo L. Black:

In my memory, I may be wrong.

Richard M. Nixon:

Yes sir.

Hugo L. Black:

But it seems to me like the first statement, this author made about here, explaining what was meant by the novel and the play, was it inspired by two incidents, one in Pennsylvania and another in New York, is that right?

Richard M. Nixon:

As a matter of fact, the statement by the author —

Hugo L. Black:

I’m talking about this first statement.

Richard M. Nixon:

The first statement, I have it here in front of me.

This — the novel and the play were based on various news stories in California, in New York State, in Detroit, in Philadelphia.

This was what was in the files to which I have been referring.

Hugo L. Black:

Was there not one in which you said two instances?

Richard M. Nixon:

He mentions four.

The novel — I’m — I’m —

Hugo L. Black:

(Voice Overlap) that one, but there was — there’s another — another one in which he mentioned two.

Richard M. Nixon:

What I am referring to, Mr. Justice Black —

Hugo L. Black:

I’m talking about the first statement he made —

Richard M. Nixon:

Either —

Hugo L. Black:

— when this was to be given to the public as to what he based it on.

Richard M. Nixon:

Yes.

And what I am referring to, Mr. Justice Black, is to the knowledge of the defendant, Time, and what the — the defendant, Time, had knowledge of was this article which had appeared in the New York Times news magazine written by the author, and this is what that or this reads.

Hugo L. Black:

But what I wanted to know about, maybe you don’t know it, is the one in the first statement he made in reference to this publication referring to two instances which had stimulated his thought on that subject.

One in Pennsylvania which was very much like what this turned out to be and the other one in New York which was wholly unlikely.

Richard M. Nixon:

I recall no testimony, and I don’t believe that the appellant has any testimony to that effect.

In fact, the only testimony that we have here is what the appellant had in its files and this of course bears on the question of knowledge and on the question of intent.

It says in California, in New York State, in Detroit and in Philadelphia frightened and dangerous men entered houses.

Instead of researching any of the specific cases, however, I found it best to let my imagination play with the idea.

Richard M. Nixon:

In the end, even the plot itself became something quite distinct from all of the other hostage instances I had ever encountered.

That was the statement that the author of the play had made and that was the statement which Life Magazine headed its files and which Mr. Prideaux, its picture editor, testified that he had read.

And it is on that particular statement that I make the charge here that not only did Life misstate the facts, make up all statements but have had knowledge when it made that statement that it was false.

William J. Brennan, Jr.:

May I ask you?

Richard M. Nixon:

Yes, sir.

William J. Brennan, Jr.:

Are you in agreement with Mr. Medina that constitutionally, facts of Life is — has to be limited to intentionally or recklessly false statement?

Richard M. Nixon:

Mr. Justice Brennan, as far as the application of the New York statute is concerned, it is limited to intentionally false statements.

Now, on that score, I think it is important to refer to the charge and to point out that Mr. Medina did not read that portion of the charge which refers to the point that Mr. Justice White had made a moment ago.

The charge over and over again uses the term “alter and change the true facts”.

It is for you to determine whether in publishing the article, the defendant, Time —

William J. Brennan, Jr.:

May I ask what page is that?

Richard M. Nixon:

— altered or changed — yes, sir, on page 300 of the charge —

William J. Brennan, Jr.:

Thank you.

Richard M. Nixon:

— of the record.

It is for you to determine whether in publishing the article, the defendant, Time, Inc., altered or changed the true facts concerning plaintiffs’ relationship to The Desperate Hours so that the article as published constituted substantially fiction or a fictionalized version for trade purposes.

And —

Byron R. White:

Do you think that’s — that the intent part of it meant that there are knowledge knowing that there’s knowing falsehood.

Is it wrapped up in that?

Richard M. Nixon:

Mr. Justice White, alter and change connotes deliberate action to say deliberately altered and changed in my opinion would be redundant.

And particularly to say deliberately altered and changed in the light of the record in this case because there are 87 pages of testimony of the cross-examination of Prideaux in this case which go into his reasons for making the changes in the article for his reasons for striking out the words “fictionalized”, somewhat fictionalized which also go into the knowledge that he had when he made these statements.

Byron R. White:

Well, on that basis, you can get punitive damages in New York, one including negligence that would take intention to get to that situation.

Richard M. Nixon:

I think if you read the charge on punitive damages, that it requires not only what — what you have referred to as just negligence but it does require in effect reckless because if you will turn to page 566 of the record, there are two particular qualifications.

You may award exemplary damages if you find from the evidence that the defendant or defendants knowingly refer to the plaintiffs without first obtaining their consent and falsely connected plaintiffs with The Desperate Hours and that this was done knowingly or through failure to make a reasonable investigation.

Byron R. White:

That was the latter part.

Richard M. Nixon:

Yes.

But then we go on to the rest.

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 want in disregard to the plaintiff’s rights.

In my view, both of these conditions are necessary in order to find punitive damages and the jury did find that both did exist in this particular case.

Byron R. White:

But you could have —

Richard M. Nixon:

Let me also point out —

Byron R. White:

— you could have liability here though, under this construction without finding recklessness.

Richard M. Nixon:

Excuse me.

Byron R. White:

You could have liability without recklessness under this construction if you found just ill will.

Richard M. Nixon:

On the contrary — well, I agree that the charge might leave that implication.

The — the words “ill will” are used here without any reference to anything in the record.

The “ill will” was not pled.

And I believe that in this particular instance that what the Court in effect was saying to a jury of layman that the issue here is not Ill will in a personal sense and incidentally, ill will in a personal sense is never involved —

Byron R. White:

Yes.

Richard M. Nixon:

— in privacy cases, as it sometimes is in defamation cases.

But the issue is here is reckless or want in disregard to the plaintiffs’ rights.

Byron R. White:

In any event, the punitive damage — the requirements of punitive damages are no more severe than for compensatory damages.

Richard M. Nixon:

In my view, that is correct.

Byron R. White:

And so this was really surplusage of the whole —

Richard M. Nixon:

Yes.

Byron R. White:

— doctrine.

Richard M. Nixon:

That’s right.

Let me also point out that as far as the finding of punitive damage is concerned, it was set aside by the Court not because the Court questioned the jury’s finding but because the Court questioned the admission in evidence of the motion picture.

Byron R. White:

But the judgment of punitive damages is out of the case.

That’s in —

Richard M. Nixon:

It — it is out of the case and no punitive damages were — no — no punitive damages were —

William J. Brennan, Jr.:

Well, may I ask —

Byron R. White:

— awarded.

William J. Brennan, Jr.:

— Mr. Nixon, if the New York statute only reaches knowing or intentional falsity, now, what are we to do with this affirmance of — by the Court of Appeals of that concurring opinion of the Appellate Division and the sentence in that concurring opinion that is quoted at — in question 2 that we asked to be discussed in your argument.

I think it’s at page 5 of your brief, the bottom of that page.

Richard M. Nixon:

Yes, sir.

What you are referring to is the opinion of Mr. Justice Raiben —

William J. Brennan, Jr.:

Yes.

Richard M. Nixon:

— and the opinion as it deals particularly with his declaration that even if the item was true —

William J. Brennan, Jr.:

Yes.

Richard M. Nixon:

— even if the item was not — that was true, that then there should be a liability.

Richard M. Nixon:

Well, let me point out first of all that there has never been a New York case in which there has been a finding of liability where a newsworthy item has been true.

And I would be glad to answer your questions on Blumenthal or any of the other cases that have been raised in that respect.

Blumenthal was not newsworthy.

William J. Brennan, Jr.:

Well, if I may suggest —

Richard M. Nixon:

Yes, sir.

William J. Brennan, Jr.:

— he — accepting that is so that there’s never been a case —

Richard M. Nixon:

Yes.

William J. Brennan, Jr.:

— where within the terms of that sentence, liability has been visited on a defendant.

Nevertheless, what are we to do here with the affirmance of an opinion which includes that sentence, an affirmance by the Court of Appeals and ordinarily, we, of course, let me take, were bound by it, the interpretation of the statute that the Highest Court of the State pronounced it.

Richard M. Nixon:

Mr. Justice Brennan, as I understand it, the Court of Appeals affirmed on both opinions.

William J. Brennan, Jr.:

Yes.

Richard M. Nixon:

And therefore, both opinions are the law of New York.

But opinions in New York just like the opinions in the Supreme Court not only may make a holding as to a particular case but also may have a dictum.

This is a dictum in this case.

It has not been applied and as far as the future is concerned, it may not be applied.

William J. Brennan, Jr.:

Well, I’m just wondering, Mr. Nixon, it may very well be a dictum.

Richard M. Nixon:

Yes.

William J. Brennan, Jr.:

Indeed, if this were an opinion of one of my Brother, and I — I say it was. [Laughter]

But I wonder if we’re in that position in regard to a state court’s interpretation of a state statute.

I wonder if we — you — if — if we are free to just discard it — disregarded it as merely dictum.

Richard M. Nixon:

It would seem to me that this Court could affirm the decision in this case, on what was found in this case.

William J. Brennan, Jr.:

Notwithstanding Dombrowski and —

Richard M. Nixon:

And what this —

William J. Brennan, Jr.:

— and in that line of cases?

Richard M. Nixon:

And that this Court — and this Court could point out what I have just pointed out, that as far as this dictum is concerned, that it is — has not been applied in the State of New York, and if this Court feels it should not be applied, it would not apply.

William J. Brennan, Jr.:

Well, do you think that —

Richard M. Nixon:

Now, let me — excuse me.

William J. Brennan, Jr.:

Go — no, go ahead.

Richard M. Nixon:

Let me say that, as far as the Raiben dictum is concerned, it would be very difficult to find a case to which it would apply.

If it can be clearly demonstrated that the newsworthy item is presented not for the purpose of disseminating news, but rather for the sole purpose of increasing circulation, then the rationale for exemption from Section 51 no longer exist and the exemption should not apply, if it is for the sole purpose of increasing circulation.

William J. Brennan, Jr.:

Indeed, if that were the law, would you think of — could it withstand the First Amendment if it were?

Richard M. Nixon:

Yes.

I would say first, we’re talking about a hypothetical case.

It is not the law of New York, it is not the law of this case.

Let me give —

William J. Brennan, Jr.:

Really, I wish I could be sure of that Mr. Nixon that’s —

Richard M. Nixon:

Yes.

William J. Brennan, Jr.:

— that’s my difficulties.

Richard M. Nixon:

Yes.

And I — I would be glad to answer further questions there.

But let me — let me give a case of — involving a true state of facts.

In the previous argument here, Mr. Justice Warren questioned me about the case of Melvin versus Reid under the California law which was waking up long forgotten misconduct somewhat akin to the old law of criminal libel.

And thus, Court of California found that there was liability in that case.

I indicated in answer to the questions that I did not believe that the court of New York would find liability in the case of Melvin versus Reid.

There is another case, a case in Missouri, 1942, Barber versus Time.

The facts in that case were tried under a common law jurisdiction.

And in that case, what happened was that a woman, very attractive young woman had contracted a disease in which during the previous year, she had eaten enough to feed a family of 10 and yet had lost 25 pounds.

Time Magazine, in its medical section, ran a story on this woman, a story entitled ”Starving Glutton” and the — either Barber, I think, was the heading on the picture, and it used the picture of a woman taken in the hospital.

Liability was found.

Punitive damages were not allowed because Time pled that it had used the picture, taken it from wire services and did not have knowledge of what was the fact.

The fact was that reporters someway got into the hospital room, asked the woman if they could use the story, she said, “No,” she did not want it used.

And then her picture was taken surreptitiously.

The Missouri Court held that there was liability and then pointed out that as far as this particular case was concerned, it did not believe that the use of her name and her picture was necessary for discussion of this medical matter.

Now, I would suggest that a case of that type while I doubt it would meet the Raiben dictum.

I would suggest that a case of that type would present a very difficult problem for the Supreme Court of the United States in holding that the doctor-patient relationship, the right of an individual not to have his physical disabilities published to the world that that does not involve a violation of privacy in which a privacy statute or common law holding could reach.

Earl Warren:

We’ll recess now.