Abstract
Could one of the most important documents in the history of the First Amendment be an unpublished memorandum Justice Hugo Black wrote in fall 1966? According to Samantha Barbas’s book Newsworthy: The Supreme Court Battle Over Privacy and Press Freedom, the memorandum, circulated by the Court’s most famous free speech absolutist to his fellow justices amid their consideration of Time, Inc. v. Hill, prompted a dramatic flip in votes in the landmark case about the clash between privacy and press freedom.
The memo punctuates the final twist in Barbas’s gripping account of a case that she argues was pivotal in establishing the United States’s “relatively weak” regime of personal privacy rights vis-à-vis the media. It is a quintessential legal historical claim: that a classic case in constitutional law deserves closer attention for what it can tell us about what might have been and how we might reconsider the path chosen. Barbas combines meticulously researched detail and broadly sweeping sociolegal context in leading readers to the surprising revelation that until the last moment, the Hill case was poised to draw a clear constitutional line of personal privacy beyond which irresponsible publishers must not step.
The book is a follow-up to Laws of Image: Privacy and Publicity in America, Barbas’s excellent 2015 book tracing the 20th-century rise of “personal image litigation” as a push-back against an ever-more-intrusive press. But while Barbas, a professor at University at Buffalo School of Law, cast a broad array of mostly abstract characters in the previous book—from the “ordinary American” to the ubiquitous mass media—Newsworthy is a story mostly told up close, through the experiences of a handful of individuals who played key roles in a taut human drama. The hapless Hill family’s hopes to put a brief and relatively harmless 1952 home invasion behind them are dashed when a novel loosely based on news reports of their experience hits the bestseller list. The author of the novel and its adaptations for stage and screen, Joseph Hayes, is the first in a series of savvy media types who seek to exploit the foggy space between fact and fiction, using the Hills’ experience as a hook to sell the story as “real life” with no regard for the people whose lives are disrupted by its fictionalization. The Hills file suit when the photographers, editors, and researchers of Life magazine compile a photographic essay linking Hayes’s play to the Hills’ experience and staging scenes from the play in their old house. Through the middle of the book, Barbas deftly weaves together several storylines of the Hills’ case. It is a vehicle for ambitious and high-powered lawyers to do battle over a hot-button issue. (This includes Richard M. Nixon, whose representation of the Hills at the U.S. Supreme Court is part of a coolly calculated return to public life after two failed political campaigns prior to his successful 1968 presidential bid.) The case plays out against an unsettled legal and social backdrop as Americans grapple with the constitutional parameters around the power of the press clarified by New York Times v. Sullivan in 1964 and the right to personal privacy outlined in Griswold v. Connecticut in 1965. The pressure peaks in the final act where, thanks to the clashing personalities and judicial philosophies of Justices Abe Fortas and Hugo Black, Fortas finds himself converting a majority opinion in favor of the Hills into an angry dissent decrying the Court’s callous dismissal of Life’s heedless, heartless, and harmful sensationalism.
In Newsworthy, Barbas demonstrates her formidable skill as a scholar and storyteller, producing a page-turner from deep research that places Time, Inc. v. Hill at the meeting point of the colliding rights of privacy and freedom of the press. Although readers with legal expertise will find few quibbles with the technical descriptions of the case’s procedural twists and turns or broader legal concepts, those without a juris doctorate will not feel left behind or mired in marginalia. One aim of legal history is to show how much context matters, and Barbas does this with color and clarity. Overall, her argument that the case represents a critical juncture for a legal issue that has only grown in urgency since 1967 is convincing. It is made all the more poignant by the deeply buried details Barbas highlights, from James Hill’s use of the phrase “right to be forgotten” in explaining why he brought the suit to protect his family, to the night Fortas arrives at Black’s house to confront him in frustration over the case.
Although the argument about the Hill case’s historical significance and human cost is compelling, some may be unsettled by Barbas’s characterization of the press and its defenders. High drama tends to produce heroes and villains, and Barbas lays the blame for the ultimate tragedy of the Hill case unequivocally at the feet of those who exploited the family: chiefly the author Hayes and the Life magazine staff who conspired to intrude on a private life for reasons ranging from avarice to insensitivity. Similarly, Barbas calls the broadly protective public interest standard established in Justice Brennan’s majority opinion in the case “capacious and circular.”
Ultimately, the book offers crucial context for our understanding of the relationship between the First Amendment and the democratic public sphere. And uncomfortable but timely questions about whether mass media deserve the constitutional protection they currently enjoy may be what we need right now, as news media outlets seem to find courts of both law and public opinion growing impatient with their impertinence.