JANUARY 15, 2018
DOES THE PRESS have the right to revisit a story, throwing renewed light on a private family and exposing them to unwanted attention without their permission? When do ordinary people lose their right to be left alone just because they have been involuntarily thrust into the limelight by the news media? What qualifies as sufficiently “newsworthy” to allow the press to expose the private lives of private people to the glare of publicity, and who gets to decide?
In 1952, in the affluent Philadelphia suburb of Whitemarsh Township, James Hill and his family were held hostage by three escaped convicts. After 19 hours, the fugitives stole some clothes and a car, leaving the family unharmed. The Hills became the subject of international media coverage. Eventually, their ordeal led to a best-selling novel entitled The Desperate Hours, followed by a Broadway play, a big-budget movie, and a photo spread in Life magazine.
The Hills’ harrowing experience also resulted in the landmark 1967 decision Time, Inc. v. Hill, one of the most important decisions by the United States Supreme Court, exploring the intersection of news, privacy, and the First Amendment, with implications that resonate to this day with ever-increasing disputes between the twin values of privacy and a free press.
In Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom, Samantha Barbas, professor of law at the University at Buffalo School of Law and author of several books on the cult of celebrity, Hollywood, and laws of image, revisits Time, Inc. v. Hill. This was the first time the Supreme Court addressed the conflict between the right of privacy and freedom of the press, and it sided with the press. Barbas is not happy with that. She considers it “a lost opportunity” in which “the Court missed a chance to seriously contemplate the privacy rights of private citizens against the press.”
Newsworthy is a prodigious work of serious scholarship, but it suffers from lapses in logic and slanted citation of authorities, which undermine Barbas’s provocative thesis. Even so, the subject matter is engrossing, and the book makes a timely and valuable contribution toward answering troubling questions our society urgently needs to address. Ironically, were it not for the shield provided by press freedom, Barbas’s book might itself be an invasion of privacy of the family whose rights she is so keen to protect.
On September 11, 1952, three escaped convicts from the federal prison in Lewisburg, Pennsylvania, forced their way into the Hill home and held James, his wife Elizabeth, and their five children captive. Elizabeth cooked for the convicts and later said they were “perfect gentlemen.” They harmed no one and left early the next morning. Soon after, local and state police and the FBI arrived. Barbas reports that the “Hills were then besieged by the press,” as “representatives from newspapers, television, and radio stations had descended on the Hills’ home,” taking pictures and pushing their way into the living room. To ensure that the public learned that his daughters had not been sexually assaulted and the family had not been physically harmed, James prepared a statement with the help of the police and FBI that he read to the media from his porch.
“Like so many victims of crime,” Barbas writes, “the Hills were catapulted into the media spotlight. National newspapers — the New York Times, Washington Post, and Los Angeles Times — had front-page articles.” The story was carried around the country and the rest of the world, with details of the Hills’ personal lives. Photographers staged a picture of four of the children (apparently with their parents’ permission) sitting on the front lawn, which was published worldwide. A few weeks later, two of the convicts were killed in a shootout with the police. The third surrendered, plead guilty, and was sentenced to 80 years in prison. The demise of the convicts brought another round of news coverage, with new photographs and references to the “James Hill family” in the press.
Barbas calls it a “media circus,” but it’s unclear whether at this stage she considers any of this an actionable invasion of privacy from a legal standpoint. She tells us that the “Hills understood that as crime victims, they would attract media attention,” and while they were appalled by the conduct of reporters at their home, “the publicity itself did not upset them.” What most bothered them was “the media’s ongoing interest in them” because “in their view, the ‘news’ had an expiration date.” Barbas writes that two or three weeks after the crime, the Hills “were no longer newsworthy and had a right to sink back into anonymity,” because James believed that the family had a “right to be forgotten.”
Here, Barbas blurs the line between the Hills’ subjective beliefs and her own objective legal analysis. Assuming she accepts that the media had the right under the freedom of the press to cover the original crime, does Barbas concur in the notion that a mere three weeks later, in connection with the news about the capture of the convicts and its aftermath, that right had indeed “expired”? Meaning what? When covering the capture, killing, prosecution, and imprisonment of the convicts, should the press conceal the names of the Hills? Or should every newspaper, TV network, and radio station have to get the Hill’s permission to name them in advance? Barbas does not address these questions.
A few days after the hostage incident, Elizabeth Hill told a local newspaper that it seemed like a “stage show or drama in which we were all taking part,” and “I should write a book — or [at] least a story on it.”
Joseph Hayes, a 28-year-old struggling writer and playwright, did just that.
As far back as 1946, Hayes had become interested in the “hostage theme” and in that year wrote an article for Woman’s Home Companion about a family held hostage by criminals. In early 1953, using clippings on various hostage stories, including the Hills, in just six weeks, Hayes completed a 90-thousand-word manuscript of The Desperate Hours. His novel was published by Random House in March 1954. It landed on the best-seller list where it remained for 16 weeks, became a Book of the Month Club selection, was serialized in Collier’s, excerpted in Reader’s Digest, and published as a paperback by Pocket Books. The book sold more than a half a million copies and was lauded as the “hottest literary property” of 1954.
Barbas describes The Desperate Hours as “based loosely on the Hills’ real-life story, but substantially leavened by Hayes’s imagination.” Hayes described the story as an amalgam of fact and fiction. While Barbas notes that the parallels between the “Hilliards” in the novel and the Hills in real life are obvious, there were also important differences, most notably that the convicts in the novel are vulgar, profane, and threatening. While the “novel is laden with violence and sexual innuendo,” the “Hilliards respond calmly and with dignity.” Despite reviews which took the book seriously, Barbas demeans The Desperate Hours as “a mindless page-turner, of the sort one might read to pass the time late at night, on an airplane, or on a day off at the beach.”
Hollywood quickly saw the potential in a movie version of The Desperate Hours. Paramount Studios outbid Humphrey Bogart and Hayes signed an unprecedented deal with an up-front fee of $100,000 (valued at almost $900,000 in today’s dollars) and a percentage of the gross profits. Meanwhile, Hayes and a producer formed a theatrical partnership and Hayes wrote a stage play. On February 11, 1955, the play opened at the prestigious Barrymore Theater on Broadway, with Karl Malden as the father, Dan Hilliard, and Paul Newman as one of the convicts. The Desperate Hours won the Tony Award for Best Play and Best Direction. According to Barbas, the play “had an incredible cultural half-life,” with frequent community and school theater productions around the country and a 1967 ABC television version.
The film of The Desperate Hours opened in October 1955, starring Fredric March as the father and Bogart as one of the convicts. Paramount advertised the movie as the “Story of a Real Family.” Critics wrote, “the real star and hero of The Desperate Hours was the hardy, resourceful middle-class American family.”
Beginning in early 1954, James and Elizabeth Hill and their children were peppered by friends and acquaintances with questions about the novel, the play, and the movie. Barbas reports that the Hills were “suddenly confronted with memories they had worked hard to put behind them,” fearing people would think they had collaborated on the book or sold the rights to their story — that “they were making money off their tragedy.”
The February 28, 1955, issue of Life magazine carried a three-page photo spread entitled “True Crime Inspires Tense Play: The Ordeal of a Family Trapped by Convicts Gives Broadway a New Thriller, ‘The Desperate Hours.’” It appeared 17 days before the play opened. It consisted of nine large black-and-white photos in which members of the Broadway cast reenacted scenes from the play in the rooms of the actual house in Whitemarsh where the Hills had been held hostage (and from which they had moved shortly after the incident). The text referred to “the James Hill family” by name, said the novel had been “inspired by the family’s experience,” and that “the story” is now “reenacted in Hayes’ Broadway play based on the book.” Several of the photos showed violent scenes from the play including one captioned “Daring Daughter” showing the actress portraying one of the daughters biting the hand of the youngest convict to make him drop his gun, an event which did not happen in real life.
Barbas recognizes that there was “a connection between the Hills and the play and that the Hills’ story had ‘inspired’ The Desperate Hours.” She also acknowledges that there were “similarities” between the book and the hostage incident and that Life could have assumed that the play was based on real life. But she argues that Life had, willingly or negligently, distorted the relationship between the Hills and The Desperate Hours, and that even a cursory reading of the book, news articles, and Hayes’s notes would have revealed that “the play didn’t reenact the Hills’ experience.”
When James Hill saw the Life article, he was furious and believed it was done for “free publicity.” But according to Barbas, it wasn’t just about Life. Now the grievance had expanded to include the reporters who had first covered the crime:
It was about the reporters who burst into their house back in September 1952; it was about the hounding for statements and interviews in the weeks afterward; it was about Hayes and Erskine and William Wyler and Random House and Paramount and everyone who exploited them for their own gain, whether for money or recognition.
What Barbas again leaves unexplored at this point is whether she contends that the Hills’ personal reaction to all of the unwanted publicity over a span of two-and-a-half years constitutes an invasion of privacy actionable under the law. Should all those reporters, and the journalists who sought interviews, and those responsible for the book, play, and movie be subject to a lawsuit for damages? And what about the wanted publicity generated by the hundreds of thousands of crimes committed every year, which are regularly covered by newspapers, TV, and radio? Should the victims of all those crimes who are thrust into the spotlight and are mentioned, interviewed or profiled in the news, or are the subject of books, plays, and movies inspired by such crimes have a right to sue for invasion of privacy?
The Hills had a connection to the prominent Wall Street law firm of Mudge, Stern, Baldwin, and Todd and sought their legal advice. The case was assigned to a 31-year-old associate named Leonard Garment. He quickly concluded that the Hills did not have a case for libel. Nothing in the novel, play, movie, or Life article falsely accused the Hills of anything defamatory (i.e., loathsome, illicit, illegal, or immoral). To the contrary, they were presented in a positive, flattering light, even heroic and noble. Instead, Garment decided to sue for invasion of privacy; the legal theory that one could seek damages when they are depicted in the media without their permission, in an embarrassing, invasive, or distressing, manner, which is an affront to their dignity, autonomy, and sense of self.
Barbas does a good job exploring both the historical development of the legal doctrine of invasion of privacy (often traced to an 1890 Harvard Law Review article co-written by future Supreme Court Justice Louis Brandeis) and the unprecedented extent over the course of the last 50 years to which government at all levels, law enforcement, private industry, and the media have expanded their intrusion into our private lives.
Barbas’s chapter “Freedom of the Press” is not as well documented and suffers from bias against the media in the context of disputes over privacy. To diminish the constitutional status of freedom of the press, she rendered that term as used in the First Amendment mere surplusage. Although “the press was singled out for special mention in the Constitution,” she writes, “it enjoys no greater protection under the law than any other speaker. The framers saw ‘freedom of speech’ and ‘freedom of the press’ as equivalent and to this day there is no special ‘press clause jurisprudence.’” Really?
Barbas’s unequivocal declaration would certainly come as a surprise to former Supreme Court Justice Potter Stewart, whose 1974 lecture at Yale Law School entitled “Or of the Press” was devoted to this question and concludes by discrediting Barbas’s “constitutional redundancy” theory. Based on extensive historical and legal research, Justice Stewart found that the “Founders quite clearly recognized the distinction between the two” — freedom of speech and freedom of the press. The primary purpose of the separate guarantee of a free press was, in Justice Stewart’s words “to create a fourth institution outside the Government as an additional check on the three official branches.”
Of course, there is a special “press clause jurisprudence.” How else to explain the reporters shield laws in 49 states, which grant the media a special privilege as members of the press to decline a subpoena to testify or produce documents, comparable to special privileges enjoyed by lawyers, clergy, and spouses? The press is afforded special access to public events, including flying with the president and other officials. The press is granted special permission to be embedded with the military in time of war. In 1980, the Supreme Court held in Richmond Newspapers Inc. v. Virginia, that the news media has a constitutional right to access to criminal trials not necessarily enjoyed by members of the general public.
It’s curious Barbas would go out of her way to make such sweeping (and inaccurate) statements belittling the constitutional stature of the news media other than to try to advance her project of denigrating freedom of the press as compared to the right of privacy.
In October 1955, Leonard Garment filed a lawsuit under the New York privacy statute against 11 individuals and companies involved in the creation, publication, and dissemination of the book, play, and movie The Desperate Hours, as well as the Life photo spread. The complaint accused the defendants of engaging in “commercial” and “trade” activities using the Hills’ identities without their permission, thus invading their privacy. The lawsuit further alleged that this was done as a “promotional scheme” to “increase the dramatic impact” of the book, play, and movie, thereby increasing their “commercial value,” and were not intended “as a fair and accurate report of news whether past or current, but were solely for the purposes of entertainment, advertisement, and trade.”
The trial court dismissed all the defendants except Life magazine, after ruling that the law “does not prohibit the portrayal of acts and events concerning a person designated fictitiously in a novel or play merely because the actual experiences of the living person had been similar to the acts and events so narrated.” After years of depositions and discovery, the case went to trial in April 1962 and lasted two weeks. Barbas presents a vivid account of the trial testimony, arguments of the lawyers, and a showing of the movie The Desperate Hours. By a vote of 10 to two, the jury found that the Life article had falsely portrayed the Hills’ story and thus violated their privacy under New York law. The jury awarded James and Elizabeth Hill a total of $175,000 in compensatory and punitive damages against Time, Inc., the publisher of Life magazine, which would have a present value of over $1,400,000. According to Barbas, it was the biggest invasion of privacy verdict in history.
In May 1963, New York’s intermediate court of appeal upheld the judgment, but found that the verdict was excessive and that showing the movie of The Desperate Hours was inflammatory. It ordered a new trial to reassess damages. The majority held that with the passage of time the hostage incident was “relegated to the outer fringe of the public consciousness” and the “falsity” in the article took it out of the category of “news.” A dissenting judge found that a report of a new play was “newsworthy” and the inaccuracies and exaggerations were insufficient to override the “public’s right to know.”
In an effort to ensure that the Hills preserved some of the damage award, Garment negotiated a settlement with Time, Inc. under which Elizabeth received $60,000 (over $480,000 in today’s dollars). At a new trial on damages in 1963, the court eliminated punitive damages and awarded James Hill $30,000 in compensatory damages (over $240,000 in today’s dollars).
As the Hill case was advancing to New York’s highest appellate court, on March 9, 1964, the US Supreme Court issued the landmark decision in New York Times Co. v. Sullivan, which would revolutionize the law of libel and have a profound impact on the outcome of the Hill case as well. In a unanimous opinion, Justice William J. Brennan Jr. wrote that the case was considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Since careless erroneous statements are inevitable in free debate, they must be protected if freedom of expression is to have the “breathing space” it needs to survive. Therefore, in libel actions involving public officials, the plaintiff must prove by clear and compelling evidence that the defendant was motivated by “actual malice” (i.e., they knew their statements were false or were made in reckless disregard of the truth).
A year later, in April 1965, the New York Court of Appeals affirmed the judgment against Time, Inc. Judge Stanley Fuld dissented on the grounds that the Life article was newsworthy since there “can be no doubt that the play certainly bore a close and legitimate relationship to the real-life incident.” Prominent publishing lawyer Harriet Pilpel, writing in Publishers Weekly, called the decision an “unwarranted and threatening” expansion of the right of privacy, which “looms as the greatest single threat we face to a free marketplace of ideas.”
Two months later, the privacy side of the equation was strengthened considerably when the US Supreme Court, in Griswold v. Connecticut, found a constitutional right of privacy in the “penumbras” and “emanations” of the Bill of Rights, and struck down an 1879 law that made it a crime to use contraceptives. Now, as the Hill case headed to the Supreme Court, each side had a newly minted precedent to cite in its favor, Griswold for the Hills and The New York Times for Time, Inc.
In the Supreme Court, the Hills would have a surprisingly new advocate: Richard M. Nixon, Esq.
Nixon had joined Garment’s law firm in 1963, which was then renamed Nixon, Mudge, Rose, Guthrie, and Alexander as part of what Barbas calls his “efforts to rehabilitate his public image during his ‘Wilderness Years,’ the six-year span between his failed run for the California governorship in 1962 and his election as president in 1968.” Nixon was a graduate of Duke Law School and had practiced law in Whittier, California, before serving in the Navy and then launching his political career.
Oral argument in Time, Inc. v. Hill was scheduled for April 27, 1966. According to Barbas, Nixon only got involved in the case three weeks earlier, but Garment said Nixon met the challenge with “meticulous” preparation. Nixon was naturally motivated to give his best possible performance, but Barbas also believes that he “was also enacting his vendetta against the press.” Nevertheless, the press gave him high marks as an advocate and Justice Abe Fortas, who was appointed by President Lyndon Johnson, believed Nixon made one of the best arguments that he had ever heard on the Court.
Ten days after oral argument, the justices met in private conference, discussed the case, and voted six to three to uphold the judgment against Time, Inc. Fortas drafted the majority opinion on behalf of himself, Chief Justice Earl Warren, and Justices Tom Clark, Potter Stewart, William Brennan, and John Marshall Harlan. According to Barbas, the Fortas draft was “perhaps the bitterest critique of the press in any Supreme Court opinion.” It adopted both Nixon’s arguments and his “hostility to the press.” But Fortas may have overplayed his hand. Brennan, who had written the unanimous opinion in New York Times Co. v. Sullivan, thought Fortas may have “distort[ed] the record” and was alarmed that the draft “never once mentioned a First Amendment standard.”
Meanwhile, Justice William O. Douglas drafted a strong dissenting opinion, asserting that once a private person is “catapulted” into the news, he and his activities are in “the public domain” and while some “might well want to let a sad public event be lost in memory […] I see no qualification of the First Amendment that permits it.” White also circulated his own dissent, in which he took the position that the “law of privacy should not be permitted to stifle the reporting of the news or educational or entertainment materials by extending a cause of action for invasion of privacy without requiring the allegation and proof of deliberate or negligent falsehood.”
Fortas circulated a new draft with extensive revisions. But Justice Hugo Black, who had voted for Time, Inc., was still not convinced. In fact, he was seething over Fortas’s opinion, which he considered, according to Barbas, “the worst First Amendment opinion he had seen since 1952.” Black said he needed more time to properly address Fortas’s heavily revised draft, so the case was set for reargument on October 18, 1966.
The lawyers were totally unaware of the internecine battles going on within the Court. Two days after the reargument, the justices met in conference but in a rare reversal, this time the tide had turned in favor of Time, Inc. After draft opinions were circulated, Justices Brennan, Stewart and Harlan had switched sides, resulting in a six-to-three vote to overturn the judgment the Hills had won four years earlier.
On January 9, 1967, the opinion in Time, Inc. v. Hill, written by Justice Brennan, was announced. It applied the New York Times Co. v. Sullivan “actual malice” standard to lawsuits for invasion of privacy. Where such a claim involved “matters of public interest,” even if filed by a private person, the plaintiff could not prevail unless he or she proved that the report was published with knowledge of falsity or in reckless disregard of the truth. Since the original trial judge had failed to instruct the jury in these terms (which would have been prescient, since the Court was only now announcing this new rule), the judgment for the Hills had to be reversed.
Brennan held that there was 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.” He wrote that:
[w]e create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person’s name, picture, or portrait, particularly as related to non-defamatory matter.
Nixon announced that James Hill would seek a new trial, but instead the case was settled for an undisclosed amount. Among Nixon’s papers, Barbas found a memo from Garment stating that Time, Inc. had agreed to pay James $75,000 (over $550,000 in today’s dollars).
While Barbas admits that “the press celebrated the decision,” and quotes widespread positive editorial coverage in the Washington Post, The New York Times, and several other publications, when Time, Inc. itself covered the case in a similar vein in Time magazine, she calls it “a shameless self-congratulatory move,” making explicit the implicit bias that unfortunately pervades her book. Anything Time, Inc. would have said in support of the decision appears to attract Barbas’s ire.
In her text, Barbas spends several pages citing sources to support her claim that “[l]aw reviews and legal journals attacked the Brennan opinion” and then she moves on. One needs to go to an endnote on page 307 to discover the citation of several law review articles “praising the Brennan opinion,” none of which Barbas mentions, let alone discusses in the text. For the many readers not prone to read endnotes, the impression they will get from Barbas’s analysis will be inaccurately one-sided suggesting little or no scholarly support for Brennan’s opinion, when in fact the opposite is true. Barbas is certainly entitled to disagree with a Supreme Court decision, but she owes it to her readers to do so in an even-handed manner.
Barbas concludes her book with an ominous statement regarding freedom of the press. “Democracy does not need a free press so much as it needs a thoughtful press, one that thinks before it speaks.” To make matters worse, she adds that this standard should be enforced by “the pressures of the law.” A “thoughtful” press, not a “free” press, enforced by the law? That’s a terrifying prospect. Through the subjective lens of being “thoughtful,” laws enforced by the government at federal, state, and/or local levels could wreak havoc on freedom of expression as we’ve known it for almost 100 years. Many an authoritarian regime has cloaked its repression of the press in terms like “thoughtful.” Big Brother in George Orwell’s Nineteen Eighty-Four simply wanted the people to only express “thoughtful” ideas; those deemed “thoughtful” by the Party that is. Every censor surely believes he or she is promoting “thoughtful” books, articles, plays, and movies. Everyone in power would be delighted with a system that enforced its own definition of what is “thoughtful.”
While democracies surely aspire to a society in which the press — and frankly everyone — wrote and spoke in a “thoughtful” manner, the fundamental lesson of the First Amendment is that what we may aspire to when it comes to the expression of ideas cannot be enforced by the law on pain of being sued, paying crushing legal fees and costs, and facing huge judgments for compensatory and punitive damages.
The ultimate irony of Newsworthy is that if Barbas’s proposals became law and Time, Inc. v Hill were reversed, ushering in a broader cause of action for invasion of privacy leading to liability for damages for revealing intimate details about the lives of private people years after they have receded from the limelight, her own book could be exposed to multiple lawsuits, starting with the Hill family itself.
Fifty years after the decision in Time, Inc. v Hill and 55 years after the hostage incident at the Hill’s home in Whitemarsh Township, Barbas has chosen to disclose highly revealing personal aspects of Elizabeth Hill’s life. Barbas divulges that after The Desperate Hours was published, Elizabeth “became depressed and withdrawn,” felt “tired and overwhelmed,” and a “local doctor prescribed hormones and vitamins, to no avail.” After the Life article came out, Barbas reveals that “Elizabeth’s mental state plummeted,” her “appearance became disheveled and disarrayed,” and she “often wore the same dress day after day, and her hair was matted and uncombed.” Barbas discloses the contents contained in court records of Elizabeth’s confidential consultations with her psychiatrist — including that a personality test revealed an “abnormal degree of melancholia and obsessive-compulsive-phobic features,” and that she was given six electric shock treatments in less than two weeks. Ultimately, Barbas reveals that a few years after the decision in Time, Inc. v. Hill, Elizabeth committed suicide.
Barbas no doubt considered these tragic details in Elizabeth’s life to be accurate, newsworthy, and relevant to presenting a complete picture of the Hills’ story as a matter of public interest and to suggest the dire consequences that The Desperate Hours, in all its forms, may have caused. No one would complain that Barbas as a journalist has legitimate reasons for revealing these private matters all these years later as part of a candid and comprehensive analysis of Time, Inc. v. Hill. No one that is but Barbas. Under Barbas’s theory, by dredging up and publicizing these intimate, painful, and even shocking details in Elizabeth’s life a half-century later, Newsworthy is a gross invasion of privacy. Indeed, a very callous observer could add, “which Barbas did just to sell books.” That would be as equally unfair to Barbas as Barbas’s similar accusation against Time, Inc. and the other purveyors of The Desperate Hours, who also sold books, tickets, and copies of Life magazine.
But Barbas doesn’t stop with Elizabeth. For example, she reveals that the son of Joseph Hayes, the author of The Desperate Hours, at eight years old contracted pneumonia and was in the hospital three times; that in 1953 Hayes’s family was nearly broke; that Leonard Garment “struggled with depression” and that his wife Grace was “wracked by a seemingly bottomless depression” and “tried to deal with her problems through psychiatry.” While some might find these revelations gratuitous, Barbas, as a journalist, decided to include these intimate, personal details about various people (some of whom are highly tangential to the major themes of her book) because she made the editorial judgment that doing so was relevant, newsworthy, and significant to the story she was telling and therefor a matter of public interest.
If Barbas got her way and Time, Inc. v. Hill was no longer the law of the land, in a state where such claims survive death, would she want lawyers, judges, and jurors second-guessing her editorial decisions in a civil action for invasion of privacy? Would she want to have to hire and pay lawyers to defend herself against a lawsuit filed by the Hills, the Hayes, the Garments, or their estates? Would she want to face a money judgment for — say — $500,000?
Fortunately, Barbas doesn’t face those risks. Because of current First Amendment jurisprudence, in general and Time, Inc v. Hill, in particular, Barbas and scores of writers, journalists, newspaper reporters, publishers, and TV, radio, and online media organizations are able to exercise the broadest scope of free expression in the history of the United States, so long as they refrain from knowingly or recklessly publishing falsehoods. As such, the law wisely upholds the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”