time hill argued april decided january appellee hill family held hostage home escaped convicts ultimately released unharmed without violence occurred later moved away appellee discouraged publicity efforts incident caused extensive involuntary notoriety novel hostage incident depicting considerable violence later appeared subsequently made play portrayals shaped several incidents appellant magazine life published account play relating hill incident describing play using illustrations photographs scenes staged former hill home alleging life article gave knowingly false impression play depicted hill incident appellee sued damages new york statute providing cause action person whose name picture used another without consent purposes trade advertising appellant maintained article concerned subject general interest published good faith trial instructed jury liability statute depended upon finding life article published disseminate news fictionalized version hill incident purpose advertising play increasing magazine circulation also instructed jury punitive damages justified jury found appellant falsely connected hill play knowingly failure make reasonable investigation personal malice need found reckless wanton disregard hill rights jury awarded compensatory punitive damages though liability sustained appeal appellate division ordered new trial damages compensatory damages awarded appeals affirmed new york courts limited reach statute applied reports newsworthy persons events made clear since reargument truth complete defense spahn julian messner however new york courts allow recovery statute reports fictitious held constitutional protections free expression preclude applying new york statute redress false reports newsworthy matters absent proof publisher knew falsity acted reckless disregard truth cf new york times sullivan pp erroneous statements matter public interest like opening new play linked actual incident subject life article inevitable innocent merely negligent must protected freedoms expression breathing space need survive pp constitutional guarantees free expression tolerate sanctions calculated falsehood without impairment essential function since evidence case support jury finding either appellant inaccurate portrayal hill incident innocent merely negligent recklessly untrue knowingly false trial failure properly instruct jury verdict liability predicated finding knowing reckless falsity publication life article constituted reversible error pp declaration unwarranted new york statute unconstitutional face even construed new york courts impose liability without proof knowing reckless falsity new york courts assiduous construe statute avoid invasion freedom speech press harold medina reargued cause appellant briefs victor earle iii richard nixon reargued cause filed brief appellee louis lefkowitz attorney general pro se samuel hirshowitz first assistant attorney general barry mahoney brenda soloff assistant attorneys general filed brief attorney general state new york amicus curiae urging affirmance justice brennan delivered opinion question case whether appellant publisher life magazine denied constitutional protections speech press application new york courts new york civil rights law award appellee damages allegations life falsely reported new play portrayed experience suffered appellee family article appeared life february entitled true crime inspires tense play subtitle ordeal family trapped convicts gives broadway new thriller desperate hours text article reads follows three years ago americans country read desperate ordeal james hill family held prisoners home outside philadelphia three escaped convicts later read joseph hayes novel desperate hours inspired family experience see story hayes broadway play based book next year see movie filmed held play chance pay play directed robert montgomery expertly acted account family rose heroism crisis life photographed play philadelphia tryout transported actors actual house hills besieged next page scenes play site crime james hill referred article appellee wife five children involuntarily became subjects news story held hostage three escaped convicts suburban whitemarsh pennsylvania home hours september family released unharmed interview newsmen convicts departed appellee stressed convicts treated family courteously molested violent convicts thereafter apprehended widely publicized encounter police resulted killing two convicts shortly thereafter family moved connecticut appellee discouraged efforts keep public spotlight magazine articles appearances television spring joseph hayes novel desperate hours published story depicted experience family four held hostage three escaped convicts family suburban home unlike hill experience family story suffer violence hands convicts father son beaten daughter subjected verbal sexual insult book made play also entitled desperate hours life article play subject appellee action complaint sought damages allegations life article intended give impression play mirrored hill family experience knowledge defendant false untrue appellant defense article subject legitimate news interest subject general interest value concern public time publication published good faith without malice whatsoever motion dismiss complaint substantially reasons made close case denied trial judge ground proofs presented jury question truth article jury awarded appellee compensatory punitive damages appeal appellate division ordered new trial damages sustained jury verdict liability said liability although play fictionalized life article portrayed hills experience inescapable conclusion done advertise attract attention play increase present future magazine circulation well evident article characterized mere dissemination news even effort supply legitimate newsworthy information public might proper interest app div new york appeals affirmed appellate division majority concurring opinions appellate division two judges dissenting noted probable jurisdiction appeal consider important constitutional questions freedom speech press involved argument last term case restored docket reargument reverse remand case appeals proceedings inconsistent opinion since reargument advantage opinion appeals new york materially aided us understanding construction statute opinion judge keating spahn julian messner statute enacted following decision appeals roberson rochester folding box roberson action defendants adorning flour bags plaintiff picture without consent grounded upon alleged invasion right privacy defined appeals claim man right pass world wills without picture published eccentricities commented upon either handbills circulars catalogues periodicals newspapers appeals traced theory celebrated article warren brandeis entitled right privacy published harv rev appeals however denied existence right common law observed legislative body well interfere arbitrarily provide one permitted selfish purpose use picture name another advertising purposes without consent legislature enacted response observation although right privacy caption term nowhere appears text statute text statute appears proscribe conduct kind involved roberson appropriation use advertising promote sale goods another name portrait picture without consent application limited scope present different questions violation constitutional protections speech press compare valentine chrestensen new york times sullivan new york courts however construed statute operate much broadly spahn appeals stated years since statute enactment social desirability remedial nature led given liberal construction consonant purpose specifically held circumstances authorize remedy press communications media publish names pictures portraits people without consent reflecting fact however applications may raise serious questions conflict constitutional protections speech press decisions statute tended limit statute application ver mindful written word picture involved courts engrafted exceptions restrictions onto statute avoid conflict free dissemination thoughts ideas newsworthy events matters public interest light questions counsel asked argue reargument particularly relevant appeals made crystal clear spahn opinion truth complete defense actions statute based upon reports newsworthy people events opinion factual reporting newsworthy persons events public interest protected constitutional questions might arise truth defense therefore concern cf garrison louisiana although new york statute affords little protection privacy newsworthy person whether choice involuntarily statute gives right action name picture portrait subject fictitious report article spahn points distinction spahn action statute brought professional baseball pitcher warren spahn sought injunction damages unauthorized publication purported biography life trial judge found record unequivocally establishes book publicizes areas warren spahn personal private life albeit inaccurate distorted consists host preponderant percentage factual errors distortions fanciful passages misc appeals sustained holding circumstances publication proscribed civil rights law within exceptions restrictions newsworthy events engrafted onto statute appeals said erroneous confuse privacy personality assume privacy though lost certain time certain context goes forever unprotected thus may appropriate say plaintiff warren spahn public personality insofar professional career involved substantially without right privacy say however personality may fictionalized fictionalized may exploited defendants commercial benefit medium unauthorized biography spahn supra opinion goes say establishment minor errors otherwise accurate report prove fictionalization material substantial falsification test however clear whether proof knowledge falsity article prepared reckless disregard truth also required new york times sullivan held constitution delimits state power award damages libel actions brought public officials critics official conduct factual error content defamatory official reputation insufficient award damages false statements unless actual malice knowledge statements false reckless disregard truth alleged proved spahn opinion reveals defendant case relied new york times basis argument application statute publication substantially fictitious biography run afoul constitutional guarantees appeals held new york times application distinguishing cases ground spahn deal public officials official conduct says free speech encouraged essential operation healthy government something quite different individual attempt enjoin publication fictitious biography public interest served protecting dissemination latter perceive constitutional infirmities respect meant imply proof knowing reckless falsity essential constitutional application statute cases disagree appeals hold constitutional protections speech press preclude application new york statute redress false reports matters public interest absence proof defendant published report knowledge falsity reckless disregard truth guarantees speech press preserve political expression comment upon public affairs essential healthy government one need pick newspaper magazine comprehend vast range published matter exposes persons public view private citizens public officials exposure self others varying degrees concomitant life civilized community risk exposure essential incident life society places primary value freedom speech press freedom discussion fulfill historic function nation must embrace issues information needed appropriate enable members society cope exigencies period thornhill alabama suggestion found constitution freedom guaranteed speech press bears inverse ratio timeliness importance ideas seeking expression bridges california doubt subject life article opening new play linked actual incident matter public interest line informing entertaining elusive protection freedom press winters new york erroneous statement less inevitable case case comment upon public affairs innocent merely negligent must protected freedoms expression breathing space need survive new york times sullivan supra james madison said degree abuse inseparable proper use every thing instance true press elliot debates federal constitution create grave risk serious impairment indispensable service free press free society saddle press impossible burden verifying certainty facts associated news articles person name picture portrait particularly related matter even negligence elusive standard especially content speech affords warning prospective harm another falsity negligence test place press intolerable burden guessing jury might assess reasonableness steps taken verify accuracy every reference name picture portrait context sanctions either innocent negligent misstatement present grave hazard discouraging press exercising constitutional guarantees guarantees benefit press much benefit us broadly defined freedom press assures maintenance political system open society fear large verdicts damage suits innocent merely negligent misstatement even fear expense involved defense must inevitably cause publishers steer wider unlawful zone new york times sullivan see also speiser randall smith california thus create danger legitimate utterance penalized speiser randall supra constitutional guarantees tolerate sanctions calculated falsehood without significant impairment essential function held new york times calculated falsehood enjoyed immunity case alleged defamation public official concerning official conduct similarly calculated falsehood enjoy immunity situation presented us said garrison louisiana supra equally applicable use calculated falsehood put different cast constitutional question although honest utterance even inaccurate may fruitful exercise right free speech follow lie knowingly deliberately published enjoy like immunity use known lie tool odds premises democratic government orderly manner economic social political change effected calculated falsehood falls class utterances essential part exposition ideas slight social value step truth benefit may derived clearly outweighed social interest order morality chaplinsky new hampshire hence knowingly false statement false statement made reckless disregard truth enjoy constitutional protection ii turning facts present case proofs reasonably support either jury finding innocent merely negligent misstatement life finding life portrayed play hill family experience reckless truth actual knowledge portrayal false relevant testimony follows joseph hayes author book also wrote play story theme inspired desire write true crime years writing book collected newspaper clippings stories hostage incidents story shaped single incident several including incidents occurred california new york detroit said consciously portray member hill family hill family experience although admitting direct way hill experience triggered writing book play life article prepared direction supervision entertainment editor prideaux learned production play news story play director robert montgomery later suggested interesting stage setting make play worthwhile subject article life time prideaux ran friend author hayes photographer told prideaux casual conversation play substantial connection incident family held escaped convicts near philadelphia play trying philadelphia prideaux decided contact author hayes confirmed incident somewhat similar play occurred philadelphia agreed prideaux find whether former hill residence available shooting pictures life article prideaux met hayes philadelphia saw play drove hayes former hill residence test suitability picture story neither thereafter prideaux question hayes extent play based hill incident specific question nature never asked discussion play play light knowledge true incident confirmed mind beyond doubt relationship hayes presence whole negotiation tacit proof prideaux sent photographers hill residence location photographs scenes play enacted home proceeded construct text article story file several news clippings hill incident revealed nonviolent character new york times article hayes stated play based various news stories mentioning incidents new york california detroit philadelphia prideaux first draft made mention hill name except caption one photographs text related true story suburban philadelphia family sparked hayes write novel play somewhat fictionalized account family heroism time crisis prideaux research assistant whose task check draft accuracy put question mark words somewhat fictionalized prideaux testified question mark must brought attention although recollect seen draft also brought copy editor presence prideaux made several changes emphasis substance first sentence changed focus hill incident using family name novel said inspired incident play referred words somewhat fictionalized deleted prideaux labeled emphatically untrue defense counsel suggestion redirect examination beginning knew play relationship hill incident apart hostage incident prideaux admitted knew play little bit moderately fictionalized stated thought beyond doubt important quality heart soul play hill incident jury might reasonably conclude evidence particularly new york times article story file copy editor deleted somewhat fictionalized research assistant questioned accuracy prideaux admitted knew play little bit moderately fictionalized life knew falsity reckless truth stating article story hill family experience hand jury might reasonably predicate finding innocent negligent misstatement testimony statement made prideaux photographer linked play incident philadelphia author hayes cooperated arranging availability former hill home prideaux thought beyond doubt heart soul play hill incident iii think however instructions confined jury verdict liability based finding statements article made knowledge falsity reckless disregard truth jury instructed liability found merely incidental mistake fact incidental incorrect statement verdict liability rest findings life published article disseminate news using plaintiffs names connection fictionalized episode plaintiffs relationship desperate hours variously restated fictionalization requirement terms whether appellant altered changed true facts concerning plaintiffs relationship desperate hours article published constituted substantially fiction fictionalized version whether article constituted fiction fictionalized article published advertise play trade purposes latter purpose variously defined one amuse thrill astonish move reading public increase circulation magazine material benefit increase circulation enhance standing magazine readers publisher profits increased circulation induced exploitation plaintiffs also instructed jury award punitive damages justified jury found appellant falsely connected appellee play knowingly failure make reasonable investigation adding need find actual ill personal malice toward plaintiffs find reckless wanton disregard plaintiffs rights appellee argues instructions determine whether life altered changed true facts whether apart incidental errors article substantial fiction fictionalized version tantamount instructions jury must find life knowingly falsified facts think instructions bear interpretation particularly light marked contrast instructions compensatory punitive damages element knowingly mentioned instruction punitive damages must supported finding life falsely connected hill family play knowingly failure make reasonable investigation moreover even punitive damages instruction damages justified basis failure make reasonable investigation instruction proof negligent misstatement enough rejected test negligent misstatement inadequate next trial judge plainly regard instructions limiting jury verdict liability based finding knowing reckless falsity denied appellant motion dismiss close evidence perceived jury find whether life article true whether inference obtained reading true implies view fictionalization synonymous falsity without regard knowledge even negligence except purpose award punitive damages finally nothing new york cases decided time trial limited liability cases knowing reckless falsity spahn decided since left question doubt requirement jury also find article published trade purposes defined charge save charge constitutional infirmity books newspapers magazines published sold profit prevent form expression whose liberty safeguarded first amendment joseph burstyn wilson see new york times sullivan smith california cf ex parte jackson grosjean american press lovell griffin iv appellant argues statute declared unconstitutional face construed new york courts impose liability without proof knowing reckless falsity declaration warranted even entirely clear previously view new york courts new york appeals spahn opinion demonstrates assiduous construing statute avoid invasion constitutional protections speech press therefore confidently expect new york courts apply statute consistently constitutional command possible difference us thrust constitutional command narrowly limited case failure trial judge instruct jury verdict liability predicated finding knowing reckless falsity publication life article judgment appeals set aside case remanded proceedings inconsistent opinion ordered footnotes right privacy person firm corporation uses advertising purposes purposes trade name portrait picture living person without first obtained written consent person minor parent guardian guilty misdemeanor action injunction damages person whose name portrait picture used within state advertising purposes purposes trade without written consent first obtained provided may maintain equitable action state person firm corporation using name portrait picture prevent restrain use thereof may also sue recover damages injuries sustained reason use defendant shall knowingly used person name portrait picture manner forbidden declared unlawful last section jury discretion may award exemplary damages nothing contained act shall construed prevent person firm corporation practicing profession photography exhibiting establishment specimens work establishment unless continued person firm corporation written notice objecting thereto given person portrayed nothing contained act shall construed prevent person firm corporation using name portrait picture manufacturer dealer connection goods wares merchandise manufactured produced dealt sold disposed name portrait picture used connection therewith using name portrait picture author composer artist connection literary musical artistic productions sold disposed name portrait picture used connection therewith initially appellee wife joined action awarded compensatory punitive damages jury however action apparently dismissed stipulation prior remand action since proceeded solely upon appellee judgment various facets right subject much comment see beaney constitutional right privacy sup rev prosser privacy rev westin science privacy freedom issues proposals part rev feinberg recent developments law privacy rev latest collection articles appears law contemp prob commentary relates much assertion constitutional protections intrusions government see griswold connecticut rights action injunctive relief damages combat intrusive behavior private sector society utah statute modeled new york following early new york decisions utah construed afford cause action cases donahue warner pictures dist utah see sidis pub cir cert denied sweenek pathe news supp gautier app div aff molony boy comics app div humiston universal film mfg app div supp colyer richard fox pub app div supp koussevitzky allen towne health misc aff app div lahiri daily mirror misc supp upon reargument counsel requested discuss briefs oral arguments addition issues following questions truthful presentation newsworthy item ever actionable new york statute construed face appellant standing challenge aspect statute per curiam opinion new york appeals read adopting following portion concurring opinion appellate division however clearly demonstrated newsworthy item presented purpose disseminating news rather sole purpose increasing circulation rationale exemption section longer exists exemption apply circumstances privilege use one name granted even though true account event given let alone account sensationalized fictionalized limitation newsworthy persons events course foreclose interpretation statute allow damages revelations may intimate unwarranted view victim position outrage community notions decency sidis pub cir cert denied cf garner triangle supp restatement torts comment see illust case presents question whether truthful publication matter constitutionally proscribed said right privacy recognized common law plus district columbia statute four see prosser law torts ed professor kalven notes however since warren brandeis championed action press public disclosure truthful private details individual caused emotional upset agreed generous privilege serve public interest news issue seems whether claim privilege overpowering virtually swallow tort left vaunted new right claims privilege confronted kalven privacy tort law warren brandeis wrong law contemp prob representative cases state right privacy held give way right press publish matters public interest pub jaffe app wagner fawcett cir jenkins dell pub cir elmhurst pearson app thompson curtis pub cir samuel curtis pub supp cal miller supp del berg minneapolis star tribune supp smith doss smith suratt alaska metter los angeles examiner cal app barbieri del jacova southern radio waters fleetwood buzinski app jones herald post kelley post pub mass martin dorton miss hubbard journal pub schnabel meredith meetze associated press truxes kenco enterprises see restatement torts comment one clearest exceptions statutory prohibition rule public figure whether choice involuntarily subject often searching beam publicity balance legitimate public interest law affords privacy little protection spahn supra binns vitagraph youssoupoff columbia broadcasting system app div sutton hearst app div koussevitzky allen towne health misc aff app div lahiri daily mirror misc supp doctrine fictionalization applied statute see leverton curtis pub cir hazlitt fawcett supp garner triangle supp commentators likened interest protected privacy cases focus upon falsity matter protected cases libel slander injury reputation see prosser privacy rev wade defamation right privacy vand rev see bloustein privacy aspect human dignity answer dean prosser rev many right privacy cases fact brought libel per quod actions several brought grounds see hazlitt fawcett supra freeman busch jewelry supp peay curtis pub supp chinn although usually thought terms right privacy libel cases concern public exposure false matter primary harm compensated damage reputation right privacy cases primary damage mental distress exposed public view although injury reputation may element bearing upon damage see wade supra moreover spahn illustrates published matter need defamatory face otherwise might even laudatory still warrant recovery decision today taken decide constitutional questions may raised libel per quod actions involving publication matters public interest libel actions plaintiff public official intimate view whether constitution limits state power sanction publication matter obtained intrusion protected area example use electronic listening devices course spahn wise imply view merits judgment remedy afforded plaintiff case reliance solely judge keating opinion aid understanding construction placed statute new york courts either result finds reasonable support record jury determine whether knowing reckless falsehood cf new york times sullivan supra although qualified instruction requiring finding reckless wanton disregard plaintiffs rights absence finding actual ill personal malice reasonably taken jury relate truth falsity appellant attitude toward appellee privacy therefore even instruction constitutionally infirm even appellate division found prejudicial error affecting jury award punitive damages judgment us sustained basis jury finding issue appellate division spahn julian messner app div stated concept fictionalization rested distinction intentionally fictionalized treatment straight factual treatment subject inadvertent superficial inaccuracies emphasis supplied light appeals opinion accept accurate statement new york law appellant contends threat criminal penalty invalidates statute however two cases criminal proceedings statute resulted dismissal people charles scribner sons misc people mcbride misc supp therefore little realistic threat prosecution cf raines justice black justice douglas joins concurring concur reversal judgment case based grounds reasons stated opinion however order able time agree opinion important case based prevailing constitutional doctrine expressed new york times sullivan opinion decides case accordance doctrine majority adhere agreeing opinion recede views previously expressed much wider press speech freedoms think first fourteenth amendments designed grant people nation see new york times sullivan concurring opinion rosenblatt baer concurring dissenting opinion acquiesce application narrower constitutional view new york times belief doctrine bound pass away application new cases proves inadequacy protect freedom press destruction libel cases cases like one words malicious particularly reckless disregard truth never serve effective substitutes first amendment words make law abridging freedom speech press experience think bound prove first amendment freedoms permanently diluted abridged action sixth amendment guarantee right counsel think fate befell betts brady cf gideon wainwright already foreseeable even dimly new york times dilution first amendment rights ii think inappropriate add difficult impossible ever sustain judgment time case without using recently popularized weighing balancing formula us pointed time time first amendment freedoms possibly live adoption technique palpable penalties imposed speech press specifically views spoken printed prohibitions constitution written prohibit certain specific things one specific things prohibited law abridges freedom press freedom written constitution constitution binding judges well public officers weighing doctrine plainly encourages actually invites judges choose conflicting values even first amendment founders made choice values one free press though constitution requires judges swear obey enforce altogether strange judges always dead set constitutional interpretations expand powers power claimed others loath give finally judicial balancing choice constitutional changes adopted wish started first amendment freedoms guaranteed amendment essential freedoms government like amendment deliberately written language designed put freedoms beyond reach government change remained unrepealed judges however fiat today created right privacy equal superior right free press constitution created tomorrow next day next judges create rights balance away cherished bill rights freedoms one thing strongly indicate founders wrong reposing much trust free press suggest press wake grave danger freedom inherent certain weighing process life conduct mere understandable incidental error fact reporting newsworthy event one prophet foresee judgments like one reverse frighten punish press much publishers cease trying report news lively readable fashion long always doubt complete accuracy newsworthy facts consummation hardly seems consistent clearly expressed purpose founders guarantee press favored spot free society see anastaplo dissenting opinion braden dissenting opinion barenblatt dissenting opinion jefferson wrote purpose first amendment guarding sentence words freedom religion speech press insomuch whatever violates either throws sanctuary covers others libels falsehood defamation equally heresy false religion withheld cognizance federal tribunals jefferson works ford ed see example curtis publishing butts libel judgment cut appeal cert granted post associated press walker tex civ app libel judgment cert granted post new york times sullivan libel judgment reversed justice douglas concurring intimated separate opinion rosenblatt baer opinion brother black case state action abridge freedom press barred first fourteenth amendments discussion concerns matters public domain episode around book written news day time said novel play magazine article revived interest fictionalized treatment event view much public domain watercolor assassination public official seems irrelevant talk right privacy context private person catapulted news events control activities public domain fully matters issue new york times sullivan privacy person normally ceases life ceased private narrow ambit first amendment creative writing imperiled chilling effect free expression feared dombrowski pfister almost sure take place fear result allow exception knowing reckless falsity elusive exception gives jury finder facts broad scope almost unfettered discretion trial chancy thing matter safeguards provided let jury record return verdict chooses let first amendment rights ride capricious whimsical circumstances emotions prejudices often carry day exception knowing reckless falsity therefore view abridgment speech barred first fourteenth amendments indicated brother black opinion joined opinion order make possible adjudication controls litigation cf justice rutledge concurring screws see baggett bullitt naacp button justice harlan concurring part dissenting part find much agree opinion constrained express disagreement view proper standard liability applied remand jury retrial find negligent rather requires reckless knowing fictionalization think federal constitutional requirements met opinion demonstrates fictionalization doctrine upon new york premises liability one strip newsworthy material otherwise protected constitutional shield upon mere showing substantial falsity agree compensatory damage instruction given trial required determination finding commercial purpose sustain liability reading opinion appellate division light new york decisions believe theory upon jury finding sustained true trial told jury must find appellant altered changed true facts specify whether alteration change reckless negligent whether innocent variation facts found jury suffice award damages clearly knowing falsification required refused appellant request charge jury must find favor unless found knowing falsification instructions punitive damages required jury find least failure make reasonable investigation view crucial determination however entire damage award set aside excessive appellate division found unduly influenced inflammatory evidence remand reconsideration damages compensatory award made award affirmed appeals decision reviewing case posture think fairly said binding jury interpretation degree fault involved fictionalization agree conduct involved bear variety interpretations like consider narrow problem presented facts privacy litigation truest sense see prosser law torts silver privacy first amendment ford rev see bloustein privacy aspect human dignity answer dean prosser rev claim made intrusion upon hills solitude private affairs order obtain information publication power state control remedy intrusion newsgathering purposes denied cf mapp ohio asserted similarly may strongly contended certain facts limited public interest intimate potentially embarrassing individual state may exercise power deter publication feeney young app div supp see sidis pub instructions jury opinions new york appellate courts indeed arguments advanced sides recognize theme article question perfectly proper one article type prepared without liability winters new york record replete articles commenting genesis desperate hours one prepared author used appellee demonstrate supposed falsity life piece finally claim made appellant published article advance commercial interest play evidence show time financial interest production even article published advertisement thus question whether state may apply stringent limitations use personality purely commercial advertising see valentine chrestensen ii come far step opinion must part company sweeping extension principles new york times sullivan established new york times mere falsity suffice remove constitutional protection published matter relating conduct public official public concern decision developed doctrine rosenblatt baer garrison louisiana never found independent value false publications reason protection except add protection truthful communication quick note private actions involved social interest individual protection falsity may substantial rosenblatt baer supra thus believe rigorous scrutiny principles underlying rejection mere falsity criterion imposition ancillary safeguards well interest state seeks protect necessary reach proper resolution case two essential principles seem underlie rejection mere falsity criterion new york times first inevitability error situation presented free debate especially abstract matters consideration certainly illustrated difficulty encountered making precise description relationship hill incident desperate hours second recognition many areas center public debate truth readily identifiable concept putting prejudices jury determination true may effectively institute system censorship nation counts scopes trial part heritage readily expose ideas sanctions jury finding falsity see cantwell connecticut marketplace ideas functions still remains best testing ground truth arguments suppressing found false ground alone negative state interest encouraging publication well researched materials likely true certainly within power state use positive means provision facilities training students end issue presented case constitutionality state employment sanctions accomplish goal acknowledges sanctions may employed knowing reckless falsehoods seem grant talismanic immunity unintentional errors however distinction facts presented us situation issue new york times case progeny casts serious doubt grant immunity calls limited breathing space granted criticism public officials first avoid recognizing entered area marketplace ideas function conclusions premised existence exchange apt suspect rosenblatt baer supra made new york times rationale operative public independent interest qualifications performance person holds government position beyond general public interest qualifications performance government employees elaboration said employee position must one invite public scrutiny discussion person holding entirely apart scrutiny discussion occasioned particular charges controversy seems clear recognition fact falsehood easily tolerated public attention creates strong likelihood competition among ideas competition extremely unlikely scrutiny discussion relationship hill incident play occasioned particular charges controversy matter one public independent interest unreasonable assume hill find forum making successful refutation life material public interest sufficient truth win comparison might area discussion central free society thus state interest encouraging careful checking preparation published material far stronger new york times dangers unchallengeable untruth far well documented summarily dismissed second vast difference state interest protecting individuals like hill irresponsibly prepared publicity state interest similar protection public official new york times acknowledged public officials breed hardiness exposure charges innuendoes criticisms might demanded voluntarily assumed risk things entry public arena hill came public attention unfortunate circumstance making rather voluntary actions sense considered waived protection state might justifiably afford irresponsible publicity inured vicissitudes journalistic scrutiny individual easily injured means limited public less likely view normal skepticism written accustomed seeing name press expects disinterested report coincidence factors situation leads view state free hold press duty making reasonable investigation underlying facts limiting fair comment materials gathered theoretically course rule might slightly limit press discussion matters touching individuals like hill pragmatic standpoint press least new york labored exacting handicap existing new york privacy law certainly remained robust professional activity great social value carried duty reasonable care reason suspect press less hardy medical practitioners attorneys example freedom press guaranteed first amendment reflected fourteenth thought insulate press conduct review responsibility harm inflicted majority allow sanctions conduct morally culpable insist also reached creates severe risk irremediable harm individuals involuntarily exposed powerless protect remand case new york courts possible retrial principle constitutional doctrine relieves press even minimal responsibility cases sort seems unnecessary ultimately harmful permanent good health press new york times case ushered trend prove impact done disservice true values encompassed freedoms speech press majority new york appellate division denied article characterized mere dissemination news even effort supply legitimate newsworthy information added points similarity book occurrence justified neither identification commercial exploitation plaintiffs name family play justice rabin concurring agreed subject presented without liability albeit presentation newsworthy material increases publisher circulation new york appeals affirmed majority concurring opinions appellate division decision seems ample support new york law see spahn julian messner binns vitagraph app div supp aff youssoupoff cbs misc aff app div koussevitzky allen towne heath misc aff app div passage garrison louisiana supra quoted opinion makes clear interest protecting falsehood give added breathing space truth undeniable falsity may published especially political arena may considered good motives example belief absolute necessity defeating evil candidate remove state power control conduct thus underlining strong social interest discouraging false publication thus state may take land construction library facilities hayford bangor laird pittsburg thus many state universities professional schools journalism see department health educ welfare education directory higher education see riesman democracy defamation fair game fair comment rev beauharnais illinois state klapprott despite denial opportunity rebuttal germane must circulation falsity harm stemming lead allow imposition liability finds subject life article matter public interest xposure self others varying degrees concomitant life civilized community thus permit new york allow compensation mere exposure unless holding sure presence reckless falsehood written material strips constitutional protection suggestion hill might anxious rebut falsehood might increase harm exposure equally applicable libel actions opportunity rebut may limited fear reiterating libel factor emphasizes rather lessens state interest discouraging falsehood increases likelihood falsity continue circulate detriment truth encouraged benefit us negligence standard applied libel actions underlying facts alleged libelous layne tribune comment subject action clancy daily news similarly press constitutionally insulated privacy actions brought parties position hill reasonable care taken ascertaining communicating underlying facts publisher kept within traditional boundaries fair comment relation underlying facts honest opinion see prosser law torts similar standards reasonable investigation presentation long applied misrepresentation cases see international products erie nash minnesota title ins trust mass standard fact publication involved case defamatory enter determination amount care reasonable preparation article see mccoid care required medical practitioners vand rev wade attorney liability negligence vand rev may argued professions distinguishable practitioners may insure liability course also open press developments law defamation harv rev never held press absolute privilege publish falsity nothing history first amendment fourteenth indicate authors contemplated restrictions ability private persons seek legal redress injury see generally levy legacy suppression duniway development freedom press massachusetts founders rejected attempt madison add art guarantee freedom press state action main argument advanced unduly interfere proper powers see madison writings hunt ed annals cong justice fortas chief justice justice clark join dissenting holding exceedingly narrow declines hold new york right privacy statute unconstitutional agree concludes however instructions jury case fatally defective failed advise jury verdict plaintiffs predicated finding knowing reckless falsity publication life article presumably appellee entitled new trial stand emotional financial burden reason hope recover damages reckless irresponsible assault upon family article represents litigated case years subjected burden new trial without significant cause exist perhaps purpose decision indicate place insuperable obstacles way recovery persons injured reckless heedless assaults provided print even though totally divorced fact think cast decision constitutional terms short purpose strongly disagree reason order new trial instructions case acceptable even within principles today announced fully agree views brethren stressed need generous construction first amendment believe freedom press speech assembly religion freedom petition essence liberty fundamental values see brown louisiana agree statement brother brennan speaking button freedoms delicate vulnerable well supremely precious society believe whatever words however much aggression may upon individual rights beyond reach law matter heedless others rights remote public purpose reckless irresponsible untrue may believe first amendment precludes effective protection right privacy matter effective law libel believe must deference whose views absolute scope first amendment ingenious strike state action however circumspect penalizes use words instruments aggression personal assault great important values society none greater reflected first amendment also fundamental entitled careful respect protection among right privacy eloquently extolled scholars members judge cooley long ago referred right right let alone warren brandeis published famous article right privacy eloquently argued excesses press overstepping every direction obvious bounds propriety decency made essential law recognize right privacy distinct traditional remedies defamation protect private individuals unjustifiable infliction mental pain distress distinct right privacy recognized either right statute least exact scope varies respective jurisdictions simply stated right let alone live one life one chooses free assault intrusion invasion except justified clear needs community living government law justice brandeis said famous dissent olmstead right privacy comprehensive rights right valued civilized men repeatedly recognized principle early boyd held doctrines fourth fifth amendments apply invasions part government employees sanctity man home privacies life breaking doors rummaging drawers constitutes essence offence invasion indefeasible right personal security personal liberty private property wolf colorado described immunity unreasonable search seizure terms right privacy landmark case mapp ohio referred right privacy less important right carefully particularly reserved people basic free society justice clark speaking referred freedom unconscionable invasions privacy intimately related freedom convictions based upon coerced confessions said served cause perpetuating principles humanity civil liberty secured years struggle quoting bram said express supplementing phases constitutional purpose maintain inviolate large areas personal privacy quoting feldman griswold connecticut held unconstitutional state law petitioners prosecuted giving married persons information medical advice use contraceptives holding squarely based upon right privacy derived implication specific guarantees bill rights citing number prior cases per douglas held cases bear witness right privacy presses recognition legitimate one stated concurring opinion justice goldberg chief justice justice brennan joined right privacy fundamental personal right emanating totality constitutional scheme live privacy basic right may appropriate legislation within proper bounds enact laws vindicate right cf kovacs cooper sustaining local ordinance regulating use sound trucks breard alexandria sustaining state law restricting solicitation private homes magazine subscriptions difficulty presents application state legislation may impinge upon conflicting rights accused invading privacy others automatically fatal objection particularly right privacy invaded words press book pamphlet careful sensitive appraisal total impact claimed tort upon congeries rights required hesitancy say example political personalities issues involved event alleged invasion privacy occurred matter current public interest first amendment values entitled least types protection extended new york times sullivan certainly concur greatest solicitude first amendment compel us deny state right provide remedy reckless falsity writing publishing article irresponsibly injuriously invades privacy quiet family purpose except dramatic interest commercial appeal difficulty gives lip service principle decision claims based erroneous instructions discloses hesitancy go beyond verbal acknowledgment today repeat ringing words many members many occasions exaltation right privacy instead reverses decision new york right privacy statute failure trial judge instruct jury verdict liability predicated finding knowing reckless falsity publication life article opinion jury instructions although textbook model satisfied standard first place adequately deal fact jury returned verdict exemplary punitive damages special instructions dealing well compensatory damages exemplary damages jury specifically instructed might awarded jury found evidence defendant falsely connected plaintiffs desperate hours done knowingly failure make reasonable investigation jury informed need find actual ill personal malice toward plaintiffs find reckless wanton disregard plaintiffs rights emphasis supplied jury awarded appellee compensatory punitive damages judgment reversed solely quantum damages appellate division sustaining finding liability compensatory exemplary damages appellate division conclusion award damages excessive criticized admission certain evidence improperly tending cause jury return inflated damages subsequent proceedings trial assessment damages jury waived stipulation parties case proceeded reassessment damages judge fixed amount damages compensatory judgment thereupon affirmed appeals judgment us namely jury findings liability based instructions covering exemplary compensatory damages award stated compensatory damages alone refers part instructions exemplary damages speaks terms failure make reasonable investigation condemns permitting verdict based solely negligent misstatement respectfully submit instruction fairly read instruction requires jury find defendant falsely connected plaintiffs play knowingly failure make reasonable investigation certainly charge satisfying requirement verdict liability predicated finding knowing reckless falsity publication life article error course investigation might mere negligent misstatement failure make reasonable investigation something else standard reasonable investigation certainly minimum yardstick measure liability publishers certainly incompatible full flavor first amendment disregard standard circumstances recklessness might well constitutes adequate basis jury finding failure make reasonable investigation differ example case daily newspaper compared feature magazine problem arises truth folder desk author story deliberately disregarded editor lead time story three months addition however even appellee rely upon instructions jury compensatory damages agree set aside jury verdict reverse new york appeals drastic action reversal jury verdict remote justified ground standard liability jury instructed contravenes first amendment jury instruction abracadabra magical incantation slightest deviation break spell poorer examples formalistic codes recited trial judge please appellate masters best simple rugged communication trial judge jury ordinary people entitled appraised terms net effect instructions viewed commonsense perspective remote distorting knothole distant appellate fence read perspective core instructions compensatory damages even disregard fact jury found liability exacting instructions relating exemplary damages sufficient meet majority test gravamen charge repeated three times virtually words following determine whether publishing article defendant time incorporated altered changed true facts concerning plaintiffs relationship desperate hours article published constituted substantially fiction fictionalized version trade purposes emphasis supplied courts may must permit either public private action censors inhibits press part responsibility preserve values procedures assure ordinary citizen press reach law special prerogatives granted special vital functions reasonably equated needs performance functions totally immunize press whether forthrightly subtle indirection areas far beyond needs news comment public persons events discussion public issues like service freedom press invitation public hostility freedom refuse permit state law private citizen aggrieved type assault within specially protected core first amendment recover compensatory damages recklessly inflicted invasion rights accordingly affirm cooley law torts ed harv rev see prosser law torts et seq ed prosser op cit supra wolf held basic values fourth amendment apply via fourteenth declined require exclude illegally seized evidence criminal trials latter respect overruled mapp ohio infra last term rosenblatt baer justice stewart concurring referred right man protection reputation unjustified invasion wrongful hurt reflecting basic concept essential dignity worth every human concept root decent system ordered liberty referred protection private personality like protection life entitled recognition basic constitutional system see also justice douglas dissenting poe ullman cf breard supra equal unanimity opportunists private gain permitted arm acceptable principle right work privilege engage interstate commerce free press proceed use iron standard smooth path crushing living rights others privacy repose indication record award intended set aside otherwise nullify jury finding punitive damage restrictions majority seek avoid impact instruction reference necessity finding reckless wanton disregard plaintiffs rights speculating referred failure obtain consent falsity basis speculation placing part instruction immediately discussion falsity suggests contrary true charge new york cases emphasize definition important recent case spahn messner spahn new york observed untrue statements necessarily transform book category fiction distortions inaccuracies invented dialogue narration happenings context clearly indicate best careless disregard responsibility press within context action abuse public limited privilege inquire individual life misc affirming appellate division per breitel observed book question fictionalized concededly order make suitable juvenile readership publishers made effort intention follow facts concerning plaintiff life except broad outline app div dept appellate division surveyed earlier new york cases including present hill case concluded based distinction intentionally fictionalized treatment straight factual treatment subject inadvertent superficial inaccuracies emphasis supplied