William J. Brennan, Jr.

“ One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press. ”

“ Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society. Fear of large verdicts in damage suits for innocent or merely negligent misstatement, even fear of the expense involved in their defense, must inevitably cause publishers to 'steer * * * wider of the unlawful zone,' New York Times Co. ”

“ The words 'malicious' and particularly 'reckless disregard of the truth' can never serve as effective substitutes for the First Amendment words: '* * * make no law * * * abridging the freedom of speech, or of the press * * *.' Experience, I think, is bound to prove that First Amendment freedoms can no more be permanently diluted or abridged by this Court's action than could the Sixth Amendment's guarantee of right to counsel. ”

“ One does not have to be a prophet to foresee that judgments like the one we here reverse can frighten and punish the press so much that publishers will cease trying to report news in a lively and readable fashion as long as there is-and there always will be doubt as to the complete accuracy of the newsworthy facts. ”

“ The element of 'knowingly' is mentioned only in the instruction that punitive damages must be supported by a finding that Life falsely connected the Hill family with the play 'knowingly or through failure to make a reasonable investigation.' Moreover, even as to punitive damages, the instruction that such damages were justified on the basis of 'failure to make a reasonable investigation' is an instruction that proof of negligent misstatement is enough, and we have rejected the test of negligent misstatement as inadequate. ”

“ We 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 nondefamatory matter. ”

“ Next, the trial judge plainly did not regard his instructions as limiting the jury to a verdict of liability based on a finding of knowing or reckless falsity, he denied appellant's motion to dismiss after the close of the evidence because he perceived that it was for the jury to find 'whether the Life article was true or whether an inference could be obtained from reading it that it was not true.' This implies a view that 'fictionalization' was synonymous with 'falsity' without regard to knowledge or even negligence, except for the purpose of an award of punitive damages. ”

“ If judges have, however, by their own fiat today created a right of privacy equal to or superior to the right of a free press that the Constitution created, then tomorrow and the next day and the next, judges can create more rights that balance away other cherished Bill of Rights freedoms. ”

“ The 'weighing' doctrine plainly encourages and actually invites judges to choose for themselves between conflicting values, even where, as in the First Amendment, the Founders made a choice of values, one of which is a free press. ”

“ Calculated falsehood falls into that class of utterances which 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ”

“ Moreover, a different test might be required in a statutory action by a public official, as opposed to a libel action by a public official or a statutory action by a private individual. Different considerations might arise concerning the degree of 'waiver' of the protection the State might afford. But the question whether the same standard should be applicable both to persons voluntarily and involuntarily thrust into the public limelight is not here before us. ”

“ Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published * * * should enjoy a like immunity. ”

“ His story was not shaped by any single incident, but by several, including incidents which occurred in California, New York, and Detroit. He said that he did not consciously portray any member of the Hill family, or the Hill family's experience, although admitting that 'in a very direct way' the Hill experience 'triggered' the writing of the book and the play.
The Life article was prepared at the direction and under the supervision of its entertainment editor, Prideaux. He learned of the production of the play from a news story. ”

“ The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. On appeal the Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury verdict of liability. The court said as to liability:
'Although the play was fictionalized, Life's article portrayed it as a reenactment of the Hills' experience. It is an inescapable conclusion that this was done to advertise and attract further attention to the play, and to increase present and future magazine circulation as well. ”

“ Cf. New York Times Co. v. Sullivan, supra, 376 U.S. 284-285, 84 S.Ct. 728-729, 11 L.Ed.2d 686.↑ Although the court qualified this instruction by requiring a finding of 'reckless or wanton disregard of the plaintiffs' rights' in absence of a finding of 'actual ill will or personal malice,' this reasonably could have been taken by the jury to relate, not to truth or falsity, but to appellant's attitude toward appellee's privacy. ”