Janice A. Oser, Esq.

In Griswold v. Connecticut (1965), the United States Supreme Court recognized for the first time a constitutional right of privacy. It was argued in that case that “the right to be let alone” was older, even, than the Bill of Rights. The Court held that the "Connecticut statute forbidding use of contraceptives violated the right of marital privacy which is "within the penumbra of specific guarantees of the Bill of Rights.”

In his opinion for the Court in Griswold, Justice William Douglas cited Supreme Court cases that suggested that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." He continued, "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one . . . ."

If the words “penumbras” and “emanations” sound familiar in the context of the current Presidential election campaigns, it is because they are red flags to those who would limit the Bill of Rights pretty much to exactly what it says – no penumbras or emanations, hence, presumably, no constitutional right of privacy. Accordingly, how a candidate uses these words gives an indication of the sort of appointments to the Supreme Court the candidate would be likely to make if elected President.

In addition to the controversy over penumbras and emanations, there is tension between the constitutional right of privacy and the constitutional right of freedom of the press. How that tension is to be resolved is an evolving process. As good a way as any to give an account of some of the recent history of that process is to begin with the following true story.

On the morning of September 11, 1952, Elizabeth Hill, at home in an affluent suburb of Philadelphia, was listening to the news on the radio. She heard that three convicts had escaped from the penitentiary in Lewisburg, and they were described as being “desperate and vicious bank robbers.” Shortly thereafter, she answered a summons at her back door and found the escapees, armed, on her doorstep. Thus began a home invasion lasting 19 hours.

Despite the description of the escapees on the radio, they inflicted no violence on the Hill family. In fact, the convicts were quite polite during the entire time the family was held hostage. When Mrs. Hill’s two teen-age daughters returned from school and found a gunman guarding their mother and their three younger brothers (two were four-year-old twins), they thought at first that it was a joke.

The escapees allowed the Hills' domestic life to go on in an ordinary fashion, except for the terrifying twist that they were being held hostage by armed, if polite, escaped convicts. Mrs. Hill gave the convicts breakfast, and called off her cleaning lady. She gave the convicts a little help when they worked on altering her husband’s clothes in order to wear them. When two of the convicts returned from some errands, they politely asked to come in. After her husband, James, a high-level business executive, came home around dinnertime, Mrs. Hill made dinner for the family in the kitchen.

At bedtime, the convicts helped the family to move mattresses for them to sleep on. Mr. Hill sat up in a chair watching his family sleep, and heard the escapees drive away in his car during the night. They had cut his telephone wires, and he waited until morning, as he had been instructed, before going to a neighbor’s house to call the police. (Subsequently, two of the convicts were killed in a shootout.)

When he described the incident later, Mr. Hill emphasized that the convicts had been polite and that there had been no violence. He said he wanted to protect his family’s privacy and move on, and he turned down repeated requests for interviews, some made with offers of substantial amounts of money. A few months later, he moved his family to Greenwich, Connecticut.

Within a year, the Hills heard from friends in Greenwich about a best-selling novel clearly based on the Hills’ ordeal. In the novel, however, the convicts brutalize the family, and a daughter is subjected to verbal sexual abuse. In other respects, the similarities between the novel and the Hills' experience are striking. The author of the novel then wrote a play based on it, and the play ran on Broadway.

When the play opened, in 1955, Life Magazine photographed the actors in the Hills’ old house in poses showing physical violence, and ran the pictures with a brief article. In the text of the article, the connection was made explicitly between the play and the Hills’ experience. The article did not mention that the play was a fictionalized account of the Hills' experience, or that in the true-life incident, the Hills had not suffered any physical violence. This despite the fact that the magazine's parent company, Time, Inc., had in its files the original Time article, which referred explicitly to the nonviolent nature of the Hills' experience.

Mr. Hill consulted an attorney, who asked Life to print a retraction of the story. When Life refused, James and Elizabeth Hill sued Time, Inc. under a New York privacy statute that allowed them to recover damages for the use of their name for commercial purposes without their consent. The Hills’ children were not included in the suit to protect their privacy, and Mrs. Hill was dropped from the initial suit when she became ill.

Her psychiatrists traced her illness directly to the story in Life, and she was dropped from the suit despite the fact that the trauma she had suffered from the story, with the insinuating questions it raised about sexual violence perpetrated by convicts upon her and her two teen-age daughters, was central to the trial. In 1971 she committed suicide.

After a two-week trial, the jury found in favor of Mr. Hill, in 1962, and he was awarded a judgment for $30,000. The verdict was upheld upon appeal by the New York State appeals courts, but Time, Inc., appealed to the United States Supreme Court. The company argued that its First Amendments rights, freedom of speech and freedom of the press, had been violated. Richard M. Nixon, the former Vice President who would become President two years later, argued the case for Mr. Hill. (It was the only time Nixon argued a case before the Supreme Court.)

All this was the subject of an article in the New Yorker (“Annals of Law: The Hill Case,” by Leonard Garment, April 17, 1989). The Supreme Court case, Time, Inc. v. Hill (1967), is known to anyone with any special interest in the law of privacy and freedom of the press.

At issue in the Supreme Court case was the bearing of two previous Supreme Court cases. In one of them, The New York Times v. Sullivan (1964), the Court held that a news organization could be held liable for printing “false facts” about a public official only if it was shown that the news organization (1) knew about the falsehood in advance, and (2) acted with “actual malice,” that is, made the statement with knowledge of its falsity or with reckless disregard of whether it was true or false.

The evidence against the New York Times, the Court had held in Sullivan, was “Constitutionally insufficient” since it failed to meet this “actual malice” standard. Thus was a blow struck for freedom of the press in this case, known to anyone with a special interest in freedom of the press, and beyond. 0ne of the issues in Time, Inc. v. Hill concerned the bearing on James Hill's suit against Time, Inc. of the Sullivan “actual malice” standard.

The other Supreme Court case bearing on Mr. Hill’s case was Griswold v. Connecticut, in which the Court recognized the constitutional right of privacy.

Two constitutional rights were in conflict, then, in Time, Inc., v. Hill, and in that case, freedom of the press won out. Essentially, the Court applied the Sullivan public person standard of “actual malice” to the private figure of James Hill since he was, at least as far as the hostage situation was concerned, a “newsworthy figure.”

It wasn’t until 1974, seven years later, that the Court held in Gertz v. Robert Welch, Inc. that the Sullivan standard of “actual malice” did not apply to private persons. The Court determined that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”

James Hill would almost certainly have prevailed under this standard, a standard for which he paved the way, even though he lost his case.