MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional protections of speech and press by the application by the New York courts of §§ 50-51 of the New York Civil Rights Law
The article appeared in Life in February 1955. It was entitled "True Crime Inspires Tense Play," with the subtitle, "The ordeal of a family trapped by convicts gives Broadway a new thriller, `The Desperate Hours.' " The text of the article reads as follows:
The pictures on the ensuing two pages included an enactment of the son being "roughed up" by one of the convicts, entitled "brutish convict," a picture of the
The James Hill referred to in the article is the appellee. He and his wife and five children involuntarily became the subjects of a front-page news story after being held hostage by three escaped convicts in their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11-12, 1952. The family was released unharmed. In an interview with newsmen after the convicts departed, appellee stressed that the convicts had treated the family courteously, had not molested them, and had not been at all violent. The convicts were thereafter apprehended in a widely publicized encounter with the police which resulted in the killing of two of the convicts. Shortly thereafter the family moved to Connecticut. The appellee discouraged all efforts to keep them in the public spotlight through magazine articles or appearances on television.
In the spring of 1953, Joseph Hayes' novel, The Desperate Hours, was published. The story depicted the experience of a family of four held hostage by three escaped convicts in the family's suburban home. But, unlike Hill's experience, the family of the story suffer violence at the hands of the convicts; the father and son are beaten and the daughter subjected to a verbal sexual insult.
The book was made into a play, also entitled The Desperate Hours, and it is Life's article about the play which is the subject of appellee's action. The complaint sought damages under §§ 50-51 on allegations that the Life article was intended to, and did, give the impression that the play mirrored the Hill family's experience, which, to the knowledge of defendant ". . . was false and untrue." Appellant's defense was that
The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. On appeal the Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury verdict of liability. The court said as to liability:
At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory damages without punitive damages.
The New York Court of Appeals affirmed the Appellate Division "on the majority and concurring opinions
Since the reargument, we have had the advantage of an opinion of the Court of Appeals of New York which has materially aided us in our understanding of that court's construction of the statute. It is the opinion of Judge Keating for the court in Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543 (1966). The statute was enacted in 1903 following the decision of the Court of Appeals in 1902 in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N. E. 442. Roberson was an action against defendants for adorning their flour bags with plaintiff's picture without her consent. It was grounded upon an alleged invasion of a "right of privacy," defined by the Court of Appeals to be "the claim that a man has the right to pass through this world, if he wills, without having his picture published. . . or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers. . . ." 171 N. Y., at 544, 64 N. E., at 443. The Court of Appeals traced the theory to the celebrated article of Warren and Brandeis, entitled The Right to Privacy, published in 1890. 4 Harv. L. Rev. 193.
Although "Right of Privacy" is the caption of §§ 50-51, the term nowhere appears in the text of the statute itself. The text of the statute appears to proscribe only conduct of the kind involved in Roberson, that is, the appropriation and use in advertising or to promote the sale of goods, of another's name, portrait or picture without his consent.
The New York courts have, however, construed the statute to operate much more broadly. In Spahn the Court of Appeals stated that "Over the years since the statute's enactment in 1903, its social desirability and remedial nature have led to its being given a liberal construction consonant with its over-all purpose . . . ." 18 N. Y. 2d, at 327, 221 N. E. 2d, at 544. Specifically,
In the light of questions that counsel were asked to argue on reargument,
But although the New York statute affords "little protection" to the "privacy" of a newsworthy person, "whether he be such by choice or involuntarily"
As the instant case went to the jury, appellee, too, was regarded to be a newsworthy person "substantially without a right to privacy" insofar as his hostage experience was involved, but to be entitled to his action insofar as that experience was "fictionalized" and "exploited for the defendants' commercial benefit." "Fictionalization," the Spahn opinion states, "is the heart of the cases in point." 18 N. Y. 2d, at 328, 221 N. E. 2d, at 545.
The opinion goes on to say that the "establishment of minor errors in an otherwise accurate" report does not prove "fictionalization." Material and substantial falsification is the test. However, it is not clear whether
If this is meant to imply that proof of knowing or reckless falsity is not essential to a constitutional application of the statute in these cases, we disagree with the Court of Appeals.
The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 102. "No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges v. California, 314 U.S. 252, 269. We have no doubt that the subject of the Life article, the opening of a new play linked to an actual incident, is a matter of public interest. "The line between the informing and the entertaining is too elusive for the protection of . . . [freedom of the press]." Winters v. New York, 333 U.S. 507, 510. Erroneous statement is no less inevitable in such a case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, ". . . it must be protected if the freedoms of expression are to have the `breathing space' that they `need . . . to survive'. . . ." New York Times Co. v. Sullivan, supra, at 271-272. As James Madison said, "Some degree of abuse is inseparable from
In this context, sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society. Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to "steer . . . wider of the unlawful zone," New York Times Co. v. Sullivan, 376 U. S., at 279; see also Speiser v. Randall, 357 U.S. 513, 526; Smith v. California, 361 U.S. 147, 153-154; and thus "create the danger that the legitimate utterance will be penalized." Speiser v. Randall, supra, at 526.
But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity
We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals. This is neither a libel action by a private individual nor a statutory action by a public official. Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion,
Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a re-enactment of the Hill family's experience reckless of the truth or with actual knowledge that the portrayal was false. The relevant testimony is as follows:
Joseph Hayes, author of the book, also wrote the play. The story theme was inspired by the desire to write about "true crime" and for years before writing the book, he collected newspaper clippings of stories of hostage incidents. His story was not shaped by any single incident, but by several, including incidents which occurred in California, New York, and Detroit. He said that he did not consciously portray any member of the Hill family,
The Life article was prepared at the direction and under the supervision of its entertainment editor, Prideaux. He learned of the production of the play from a news story. The play's director, Robert Montgomery, later suggested to him that its interesting stage setting would make the play a worthwhile subject for an article in Life. At about the same time, Prideaux ran into a friend of author Hayes, a free-lance photographer, who told Prideaux in casual conversation that the play had a "substantial connection with a true-life incident of a family being held by escaped convicts near Philadelphia." As the play was trying out in Philadelphia, Prideaux decided to contact the author. Hayes confirmed that an incident somewhat similar to the play had occurred in Philadelphia, and agreed with Prideaux to find out whether the former Hill residence would be available for the shooting of pictures for a Life article. Prideaux then met with Hayes in Philadelphia where he saw the play and drove with Hayes to the former Hill residence to test its suitability for a picture story. Neither then nor thereafter did Prideaux question Hayes about the extent to which the play was based on the Hill incident. "A specific question of that nature was never asked, but a discussion of the play itself, what the play was about, in the light of my own knowledge of what the true incident was about, confirmed in my mind beyond any doubt that there was a relationship, and Mr. Hayes' presence at this whole negotiation was tacit proof of that."
Prideaux sent photographers to the Hill residence for location photographs of scenes of the play enacted in the home, and proceeded to construct the text of the article.
Prideaux's first draft made no mention of the Hill name except for the caption of one of the photographs. The text related that a true story of a suburban Philadelphia family had "sparked off" Hayes to write the novel, that the play was a "somewhat fictionalized" account of the family's heroism in time of crisis. Prideaux's research assistant, whose task it was to check the draft for accuracy, put a question mark over the words "somewhat fictionalized." Prideaux testified that the question mark "must have been" brought to his attention, although he did not recollect having seen it. The draft was also brought before the copy editor, who, in the presence of Prideaux, made several changes in emphasis and substance. The first sentence was changed to focus on the Hill incident, using the family's name; the novel was said to have been "inspired" by that incident, and the play was referred to as a "re-enactment." The words "somewhat fictionalized" were deleted.
Prideaux labeled as "emphatically untrue" defense counsel's suggestion during redirect examination that from the beginning he knew that the play had no relationship to the Hill incident apart from being a hostage incident. Prideaux admitted that he knew the play was "between a little bit and moderately fictionalized," but stated that he thought beyond doubt that the important quality, the "heart and soul" of the play, was the Hill incident.
The jury might reasonably conclude from this evidence —particularly that the New York Times article
We do not think, however, that the instructions confined the jury to a verdict of liability based on a finding that the statements in the article were made with knowledge of their falsity or in reckless disregard of the truth. The jury was instructed that liability could not be found under §§ 50-51 "merely because of some incidental mistake of fact, or some incidental incorrect statement," and that a verdict of liability could rest only on findings that (1) Life published the article, "not to disseminate news, but was using plaintiffs' names, in connection with a fictionalized episode as to plaintiffs' relationship to The Desperate Hours"; the Court variously restated this "fictionalization" requirement in terms such as whether appellant "altered or changed the true facts concerning
The court also instructed the jury that an award of punitive damages was justified if the jury found that the appellant falsely connected appellee to the play "knowingly or through failure to make a reasonable investigation," adding "You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs' rights."
Appellee argues that the instructions to determine whether Life "altered or changed" the true facts, and whether, apart from incidental errors, the article was a "substantial fiction" or a "fictionalized version" were tantamount to instructions that the jury must find that Life knowingly falsified the facts. We do not think that the instructions bear that interpretation, particularly in light of the marked contrast in the instructions on compensatory and punitive damages. The element of "knowingly" is mentioned only in the instruction that punitive damages must be supported by a finding that Life falsely connected the Hill family with the play "knowingly or through failure to make a reasonable investigation." Moreover, even as to punitive damages, the instruction that such damages were justified on the
The requirement that the jury also find that the article was published "for trade purposes," as defined in
The appellant argues that the statute should be declared unconstitutional on its face if construed by the New York courts to impose liability without proof of knowing or reckless falsity.
It is so ordered.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
I concur in reversal of the judgment in this case based on the grounds and reasons stated in the Court's opinion. I do this, however, in order for the Court to be able at this time to agree on an opinion in this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 U.S. 254. The Court's opinion decides the case in accordance with this doctrine, to which the majority adhere. In agreeing to the Court's opinion, I do not recede from any of the views I have previously expressed about the much wider press and speech freedoms I think the First and Fourteenth Amendments were designed to grant to the people of the Nation. See, e. g., New York Times Co. v. Sullivan, 376 U. S., at 293 (concurring opinion); Rosenblatt v. Baer, 383 U.S. 75, 94 (concurring and dissenting opinion).
I acquiesce in the application here of the narrower constitutional view of New York Times with the belief that this doctrine too is bound to pass away as its application to new cases proves its inadequacy to protect freedom of the press from destruction in libel cases and other cases like this one. The words "malicious" and particularly "reckless disregard of the truth" can never serve as effective substitutes for the First Amendment words: ". . . make no law . . . abridging the freedom of speech, or of the press . . . ." Experience, I think, is bound to prove that First Amendment freedoms can
I think it not inappropriate to add that it would be difficult, if not impossible, for the Court ever to sustain a judgment against Time in this case without using the recently popularized weighing and balancing formula. Some of us have pointed out from time to time that the First Amendment freedoms could not possibly live with the adoption of that Constitution-ignoring-and-destroying technique,
Finally, if the judicial balancing choice of constitutional changes is to be adopted by this Court, I could wish it had not started on the First Amendment. The freedoms guaranteed by that Amendment are essential freedoms in a government like ours. That Amendment was deliberately written in language designed to put its freedoms beyond the reach of government to change while it remained unrepealed.
MR. JUSTICE DOUGLAS, concurring.
As intimated in my separate opinion in Rosenblatt v. Baer, 383 U.S. 75, 88, and in the opinion of my Brother BLACK in the same case, id., at 94, state action to abridge freedom of the press is barred by the First and Fourteenth Amendments where the discussion concerns matters in the public domain. The episode around which this book was written had been news of the day for some time. The most that can be said is that the novel, the play, and the magazine article revived that interest. A fictionalized treatment of the event is, in my view, as much in the public domain as would be a watercolor of the assassination of a public official. It seems to me irrelevant to talk of any right of privacy in this context. Here a private person is catapulted into the news by events over which he had no control. He and his activities are then in the public domain as fully as the matters at issue in New York Times Co. v. Sullivan, 376 U.S. 254. Such privacy as a person normally has ceases when his life has ceased to be private.
Once we narrow the ambit of the First Amendment, creative writing is imperiled and the "chilling effect" on free expression which we feared in Dombrowski v. Pfister,
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
While I find much with which I agree in the opinion of the Court, I am constrained to express my disagreement with its view of the proper standard of liability to be applied on remand. Were the jury on retrial to find negligent rather than, as the Court requires, reckless or knowing "fictionalization," I think that federal constitutional requirements would be met.
The Court's opinion demonstrates that the fictionalization doctrine upon which New York premises liability is one which would strip newsworthy material, otherwise protected, of its constitutional shield upon a mere
The instructions on punitive damages required the jury to find at least "failure to make a reasonable investigation," in my view a crucial determination. However, the entire damage award was set aside as excessive by
Like the Court, I consider that only a narrow problem is presented by these facts. To me this is not "privacy" litigation in its truest sense. See Prosser, Law of Torts § 112; Silver, Privacy and the First Amendment, 34 Ford. L. Rev. 553; but see Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N. Y. U. L. Rev. 962. No claim is made that there was any intrusion upon the Hills' solitude or private affairs in order to obtain information for publication. The power of a State to control and remedy such intrusion for newsgathering purposes cannot be denied, cf. Mapp v. Ohio, 367 U.S. 643, but is not here asserted. Similarly it may be strongly contended that certain facts are of such limited public interest and so intimate and potentially embarrassing to an individual that the State may exercise its power to deter publication. Feeney v. Young, 191 App. Div. 501, 181 N. Y. Supp. 481; see Sidis v. F-R Pub. Corp., 113 F.2d 806, 808. But the instructions to the jury, the opinions in the New York appellate courts, and indeed the arguments advanced by both sides before this Court all recognize that the theme of the article in question was a perfectly proper one and that an article of this type could have been prepared without liability. Winters v. New York, 333 U.S. 507, 510. The record is replete with articles commenting on the genesis of The Desperate Hours, one of which was prepared
Having come this far in step with the Court's opinion, I must part company with its sweeping extension of the principles of New York Times Co. v. Sullivan, 376 U.S. 254. It was established in New York Times that mere falsity will not suffice to remove constitutional protection from published matter relating to the conduct of a public official that is of public concern. But that decision and those in which the Court has developed its doctrine, Rosenblatt v. Baer, 383 U.S. 75, Garrison v. Louisiana, 379 U.S. 64, have never found independent value in false publications
Two essential principles seem to underlie the Court's rejection of the mere falsity criterion in New York Times. The first is the inevitability of some error in the situation presented in free debate especially when abstract matters are under consideration. Certainly that is illustrated here in the difficulty to be encountered in making a precise description of the relationship between the Hill incident and The Desperate Hours. The second is the Court's recognition that in many areas which are at the center of public debate "truth" is not a readily identifiable concept, and putting to the pre-existing prejudices of a jury the determination of what is "true" may effectively institute a system of censorship. Any nation which counts the Scopes trial as part of its heritage cannot so readily expose ideas to sanctions on a jury finding of falsity. See Cantwell v. Connecticut, 310 U.S. 296, 310. "The marketplace of ideas" where it functions still remains the best testing ground for truth.
But these arguments against suppressing what is found to be "false" on that ground alone do not negative a State's interest in encouraging the publication of well researched materials more likely to be true. Certainly it is within the power of the State to use positive means— the provision of facilities
First, we cannot avoid recognizing that we have entered an area where the "marketplace of ideas" does not function and where conclusions premised on the existence of that exchange are apt to be suspect. In Rosenblatt v. Baer, supra, the Court made the New York Times rationale operative where "the public has an independent interest in the qualifications and performance of the person who holds it [government position], beyond the general public interest in the qualifications and performance of all government employees . . . ." Id., at 86. In elaboration the Court said: "The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." Id., at 87, n. 13. To me this seems a clear recognition of the fact that falsehood is more easily tolerated where public attention creates the strong likelihood of a competition among ideas. Here such competition is extremely unlikely for the scrutiny and discussion of the relationship of the Hill incident and the play is "occasioned by the particular charges in controversy" and the matter is not one in which the public has an "independent interest." It would be unreasonable to assume that Mr. Hill could find a forum for
Second, there is a vast difference in the state interest in protecting individuals like Mr. Hill from irresponsibly prepared publicity and the state interest in similar protection for a public official. In New York Times we acknowledged public officials to be a breed from whom hardiness to exposure to charges, innuendoes, and criticisms might be demanded and who voluntarily assumed the risk of such things by entry into the public arena.
The coincidence of these factors in this situation leads me to the view that a State should be free to hold the press to a duty of making a reasonable investigation of the underlying facts and limiting itself to "fair comment"
A constitutional doctrine which relieves the press of even this minimal responsibility in cases of this sort seems to me unnecessary and ultimately harmful to the permanent good health of the press itself. If the New York
MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE and MR. JUSTICE CLARK join, dissenting.
The Court's holding here is exceedingly narrow. It declines to hold that the New York "Right of Privacy" statute is unconstitutional. I agree. The Court concludes, however, that the instructions to the jury in this case were fatally defective because they failed to advise the jury that a verdict for the plaintiffs could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article. Presumably, the appellee is entitled to a new trial. If he can stand the emotional and financial burden, there is reason to hope that he will recover damages for the reckless and irresponsible assault upon himself and his family which this article represents. But he has litigated this case for 11 years. He should not be subjected to the burden of a new trial without significant cause. This does not exist. Perhaps the purpose of the decision here is to indicate that this Court will place insuperable obstacles in the way of recovery by persons who are injured by reckless and heedless assaults provided they are in print, and even though they are totally divorced from fact. If so, I should think that the Court would cast its decision in constitutional terms. Short of that purpose, with which I would strongly disagree, there is no reason here to order a new trial. The instructions in this case are acceptable even within the principles today announced by the Court.
I fully agree with the views of my Brethren who have stressed the need for a generous construction of the First Amendment. I, too, believe that freedom of the press, of
This Court has repeatedly recognized this principle. As early as 1886, in Boyd v. United States, 116 U.S. 616, 630, this Court held that the doctrines of the Fourth and Fifth Amendments "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property . . . ."
In 1949, the Court, in Wolf v. Colorado, 338 U.S. 25, 28-29, described the immunity from unreasonable search and seizure in terms of "the right of privacy."
Then, in the landmark case of Mapp v. Ohio, 367 U.S. 643 (1961), this Court referred to "the right to privacy," "no less important than any other right carefully and particularly reserved to the people," as "basic to a free society." Id., at 656. MR. JUSTICE CLARK, speaking for the Court, referred to "the freedom from
In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court held unconstitutional a state law under which petitioners were prosecuted for giving married persons information and medical advice on the use of contraceptives. The holding was squarely based upon the right of privacy which the Court derived by implication from the specific guarantees of the Bill of Rights. Citing a number of prior cases, the Court (per DOUGLAS, J.) held that "These cases bear witness that the right of privacy which presses for recognition here is a legitimate one." Id., at 485. As stated in the concurring opinion of Mr. Justice Goldberg, with whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN joined: "the right of privacy is a fundamental personal right, emanating `from the totality of the constitutional scheme under which we live.' " Id., at 494.
The Court today does not repeat the ringing words of so many of its members on so many occasions in exaltation of the right of privacy. Instead, it reverses a decision under the New York "Right of Privacy" statute because of the "failure of the trial judge to instruct the jury that a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article." In my opinion, the jury instructions, although they were not a textbook model, satisfied this standard.
In the first place, the Court does not adequately deal with the fact that the jury returned a verdict for exemplary or punitive damages, under special instructions dealing with them, as well as for compensatory damages. As to exemplary damages, the jury was specifically instructed that these might be awarded "only" if the jury found from the evidence that the defendant "falsely connected plaintiffs with The Desperate Hours, and that this was done knowingly or through failure to make a reasonable investigation." The jury was then informed that "You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs' rights." (Emphasis supplied.) The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. The judgment was reversed solely on the quantum of damages, the Appellate Division sustaining the finding of liability for both compensatory and exemplary damages. The Appellate Division's conclusion was that the award of damages was excessive, and it criticized the admission of certain evidence as improperly tending to cause the jury to return inflated damages. In subsequent proceedings before the trial court on assessment of damages, a jury
The Court refers only to that part of the instructions as to exemplary damages which speaks in terms of the "failure to make a reasonable investigation," and condemns it as permitting a verdict based solely on "negligent misstatement." I respectfully submit that the instruction cannot fairly be so read. The instruction requires the jury to find both that (1) defendant "falsely connected" plaintiffs with the play, and (2) did so knowingly or through failure to make a reasonable investigation. This is certainly a charge satisfying the Court's requirement that "a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article." An error in the course of investigation might be mere negligent misstatement. Failure to make a reasonable investigation is something else. The standard of a "reasonable investigation" is certainly a minimum yardstick by which to measure the liability of publishers. It is certainly not incompatible with the full flavor of the First Amendment and disregard of this standard in the circumstances is recklessness. It might well be that what constitutes an adequate basis for a jury finding of failure to make a reasonable investigation would differ, for example, in the case of a daily newspaper as compared with a feature magazine. But here no such problem arises. The truth
In addition, however, even if appellee had to rely only upon the instructions to the jury on compensatory damages, I do not agree that we should set aside the jury verdict and reverse the New York Court of Appeals. Such drastic action—the reversal of a jury verdict by this remote Court—is justified by the Court on the ground that the standard of liability on which the jury was instructed contravenes the First Amendment. But a jury instruction is not abracadabra. It is not a magical incantation, the slightest deviation from which will break the spell. Only its poorer examples are formalistic codes recited by a trial judge to please appellate masters. At its best, it is simple, rugged communication from a trial judge to a jury of ordinary people, entitled to be appraised in terms of its net effect. Instructions are to be viewed in this commonsense perspective, and not through the remote and distorting knothole of a distant appellate fence. Read in this perspective, the core of the instructions here on compensatory damages—even if we disregard the fact that the jury found liability under the more exacting instructions relating to exemplary damages —was sufficient to meet the majority's test. The gravamen of the court's charge, repeated three times in virtually the same words, was the following:
The jury was also instructed that "Before the plaintiffs can be entitled to a verdict . . . you must find that the statements concerning the plaintiffs in the article constituted fiction, as compared with news, or matters which were newsworthy." (Emphasis supplied.) With all respect, I submit that this is close enough to this Court's insistence upon "knowing or reckless falsity" as to render a reversal arbitrary and unjustified. If the defendant altered or changed the true facts so that the article as published was a fictionalized version, this, in my judgment, was a knowing or reckless falsity. "Alteration" or "change" denotes a positive act—not a negligent or inadvertent happening. "Fictionalization" and "fiction" to the ordinary mind mean so departing from fact and reality as to be deliberately divorced from the fact—not merely in detail but in general and pervasive impact.
The courts may not and must not permit either public or private action that censors or inhibits the press. But part of this responsibility is to preserve values and procedures which assure the ordinary citizen that the press is not above the reach of the law—that its special prerogatives, granted because of its special and vital functions, are reasonably equated with its needs in the performance of these functions. For this Court totally to immunize the press—whether forthrightly or by subtle indirection—in areas far beyond the needs of news, comment on public persons and events, discussion of public issues and the like would be no service to freedom of the press, but an invitation to public hostility to that freedom. This Court cannot and should not refuse to permit under state law the private citizen who is aggrieved by the type of assault which we have here and which is not within the specially protected core of the First Amendment to recover compensatory damages for recklessly inflicted invasion of his rights.
Accordingly, I would affirm.
"§ 50. Right of privacy
"A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."
"§ 51. Action for injunction and for damages
"Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages. But nothing contained in this act shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed; and nothing contained in this act shall be so construed as to prevent any person, firm or corporation from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith."
"(1) Is the truthful presentation of a newsworthy item ever actionable under the New York statute as construed or on its face? If so, does appellant have standing to challenge that aspect of the statute?
"(2) Should the per curiam opinion of the New York Court of Appeals be read as adopting the following portion of the concurring opinion in the Appellate Division?
" `However, 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 exists and the exemption should not apply. In such circumstances the privilege to use one's name should not be granted even though a true account of the event be given—let alone when the account is sensationalized and fictionalized.' " 384 U.S. 995.
It has been said that a "right of privacy" has been recognized at common law in 30 States plus the District of Columbia and by statute in four States. See Prosser, Law of Torts 831-832 (3d ed. 1964). Professor Kalven notes, however, that since Warren and Brandeis championed an action against the press for public disclosure of truthful but private details about the individual which caused emotional upset to him, "it has been agreed that there is a generous privilege to serve the public interest in news. . . . What is at issue, it seems to me, is whether the claim of privilege is not so overpowering as virtually to swallow the tort. What can be left of the vaunted new right after the claims of privilege have been confronted?" Kalven, "Privacy in Tort Law—Were Warren and Brandeis Wrong?" 31 Law & Contemp. Prob. 326, 335-336 (1966). Some representative cases in which the State "right of privacy" was held to give way to the right of the press to publish matters of public interest are Afro-American Pub. Co. v. Jaffe, 125 U. S. App. D. C. 70, 366 F.2d 649 (1966); Wagner v. Fawcett Pubs., 307 F.2d 409 (C. A. 7th Cir. 1962); Jenkins v. Dell Pub. Co., 251 F.2d 447 (C. A. 3d Cir. 1958); Elmhurst v. Pearson, 80 U. S. App. D. C. 372, 153 F.2d 467 (1946); Thompson v. Curtis Pub. Co., 193 F.2d 953 (C. A. 3d Cir. 1952); Samuel v. Curtis Pub. Co., 122 F.Supp. 327 (D. C. N. D. Cal. 1954); Miller v. N. B. C., 157 F.Supp. 240 (D. C. Del. 1957); Berg v. Minneapolis Star & Tribune Co., 79 F.Supp. 957 (D. C. Minn. 1948); Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948); Smith v. Suratt, 7 Alaska 416 (1926); Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491 (1939); Barbieri v. News-Journal Co., ___ Del. ___, 189 A.2d 773 (1963); Jacova v. Southern Radio & T. V. Co., 83 So.2d 34 (Fla. 1955); Waters v. Fleetwood, 212 Ga. 161, 91 S.E.2d 344 (1956); Buzinski v. Do-All Co., 31 Ill.App.2d 191, 175 N.E.2d 577 (1961); Jones v. Herald Post Co., 230 Ky. 227, 18 S.W.2d 972 (1929); Kelley v. Post Pub. Co., 327 Mass. 275, 98 N.E.2d 286 (1951); Martin v. Dorton, 210 Miss. 668, 50 So.2d 391 (1951); Hubbard v. Journal Pub. Co., 69 N.M. 473, 368 P.2d 147 (1962); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956); Truxes v. Kenco Enterprises, 80 S. D. 104, 119 N.W.2d 914 (1963). See Restatement, Torts § 867, comment d (1939).
". . . There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose."