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Privacy Rights in the Digital Age

Time, Inc. v. Hill, 385 U.S. 374 (1967)

by Eric P. Robinson

The first decision by the United States Supreme Court to balance privacy interests and First Amendment free speech rights by applying the “actual malice” standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to a privacy claim.

The case stemmed from an article in Life magazine about a Broadway production of the novel (and later film) The Desperate Hours by Joseph Hayes. The article said that the book and play had be inspired by a 1952 real-life incident in which James J. Hill, his wife Elizabeth, and their five children were held hostage in their home for nineteen hours by escaped convicts. The article primarily consisted of photographs of actors portraying scenes from the play, taken in the Hill's former home.

James and Elizabeth Hill sued Life in New York, claiming that the article violated their right of privacy by placing them in a “false light.” They claimed that the photos inaccurately portrayed the events of their captivity as more violent and menacing than the actual events, and caused them emotional distress. After eleven years of litigation, the U.S. Supreme Court reversed a trial court verdict for the Hills, holding that the award infringed on the magazine's First Amendment free speech rights to report on a matter of public interest.

The Hills sued under New York's “right of publicity” statute, N.Y. Civil Rights Law §§ 50–51, which creates civil and criminal liability for unauthorized use of an individual's likeness to promote a commercial product. While this is the only privacy claim recognized in New York, courts in the state have applied the statute to other scenarios in which an individual's name and likeness was published in the media without permission. To fit their claim into the statute, the Hills argued that the purpose of the article was to promote the play.

After a two-week trial, the jury awarded James Hill $50,000 in compensatory and $25,000 in punitive damages, and awarded Elizabeth Hill $75,000 in compensatory and $25,000 in punitive damages. Elizabeth Hill then settled, but Life appealed the award to James Hill, leading to a 4–1 decision by New York's Appellate Division sustaining the jury verdict of liability, with the majority finding that the article's implication that the photos were accurate re-creations made it commercial speech “to advertise and attract further attention to the play, and to increase present and future magazine circulation as well” (Hill v. Hayes, 18 A.D.2d 485, 489, 240 N.Y.S.2d 286, 290 [N.Y. App. Div., 1st Dep't. 1963]). But the appeals court ordered a new trial on damages, holding that jurors were improperly shown the film and other evidence that the appellate court deemed improper.

In a bench retrial, the judge awarded $30,000 compensatory damages to James Hill but no punitive damages. This verdict was affirmed by New York's highest court, the Court of Appeals, by a 5–2 vote (Hill v. Hayes, 15 N. Y. 2d 986, 207 N. E. 2d 604, 260 N.Y.S.2d 7 [N.Y. 1965]).

After granting certiorari with the votes of five justices, the U.S. Supreme Court heard arguments in the case on April 27, 1966. Richard M. Nixon, then practicing law after having served as vice president, argued the case for Hill. The initial vote after the argument was 6–3 for the Hills, based on the rationale that the “fictionalized” nature of the Life story meant that actual malice did not apply. Justice Abe Fortas was assigned to write the majority opinion. Justice John Marshall Harlan II circulated a concurrence, while Justice William O. Douglas circulated a dissent. Justice Byron White circulated another dissent raising questions regarding interpretation of the New York statute.

According to Leonard Garment, Justice Hugo Black was offended by the tone of Fortas's draft and said that he needed time to respond. Thus, at the end of its 1965–1966 term, the Court ordered re-argument in the case, asking the lawyers to focus on the scope of the New York statute and whether “fictionalization” of a story led to reduced First Amendment protection.

Justice Black finally circulated a memo on the case on the eve of re-argument. The memo blasted Justice Fortas's draft, and it had the intended effect. After the re-argument, held on October 18 and 19, 1967, the initial vote was 7–2 for reversal of the award to the Hills.

The Court eventually reversed the award in a 5–4 decision. The majority opinion by Justice William Brennan, joined by Justice Potter Stewart and Justice Byron White, held that actual malice, which the Court had held to limit libel actions by public officials regarding matters of public concern in New York Times Co. v. Sullivan, also applied to the privacy case brought by the Hills. According to the majority, the Hills were public figures involved in a matter of public concern and thus had to show actual malice in order to prevail. Because the jury instructions did not require this, the instructions were unconstitutional and the jury verdict had to be reversed.

Justice Black wrote a concurring opinion, joined by Justice Douglas, agreeing with the majority's application of Sullivan but also expressing support for broader protection for free speech. In his own, separate concurrence, Justice Douglas agreed that the First Amendment's protection of free speech should be absolute, and “[when] a private person is catapulted into the news by events over which he had no control[, h]e and his activities are then in the public domain as fully as the matters at issue in New York Times Co. v. Sullivan.”

Justice Harlan concurred in part and dissented in part, and was joined by Justice Fortas. While he agreed that it was unclear whether the jury based its compensatory award after remand on a finding that Life had acted with negligence or actual malice, he diverged from the majority on the significance of this, saying that either basis would pass constitutional muster. He also disagreed with the extension of Sullivan's protection for discussion of public officials to the Hills, whom he characterized as private, not public, figures.

Justice Fortas also authored his own dissent, joined by Chief Justice Warren and Justice Clark, arguing that privacy is a fundamental right, and it should not be outweighed by free speech rights in cases such as the Hills', which he classified as involving private individuals and a matter that is not of public concern. As Garment and Bernard Schwartz have both noted, later cases actually took this view, holding that people such as the Hills should be considered private figures to whom the “actual malice” standard does not apply (Gertz v. Robert Welch, Inc., 418 U.S. 323 [1974]).

After the U.S. Supreme Court's reversal, the case was again remanded to the trial court for a new trial (Hill v. Hayes, 20 N.Y.2d 738, 229 N.E.2d 698, 283 N.Y.S.2d 101 [1967]). But the new trial never occurred: According to papers in the Nixon library uncovered by Samantha Barbas, Life settled the case with James Hill for $75,000. But the profound effect of the article on the Hill family took its toll, with Elizabeth Hill taking her own life in August 1971.

Further Reading

1 

Barbas, Samantha. “When Privacy Almost Won: Time, Inc. v. Hill (1967).” University of Pennsylvania Journal of Constitutional Law http://ssrn.com/abstract=2588870.

2 

Friend, Charles E. “Constitutional Law—Right of Privacy—Time, Inc. v. Hill, 87 S. Ct. 534 (1967).” William & Mary Law Review 8 (1967): 683–687. http://scholarship.law.wm.edu/wmlr/vol8/iss4/10.

3 

Garment, Leonard. “Annals of Law: The Hill Case.” The New Yorker, April 17, 1989, 90–110.

4 

Kalven, Jr., Harry. “The Reasonable Man and the First Amendment: Hill, Butts, and Walker,” Supreme Court Review 1967 (1967): 280–309.

5 

Levine, Lee, and Stephen Wermiel. The Progeny: Justice William J. Brennan's Fight to Preserve the Legacy of New York Times v. Sullivan. Chicago, IL: American Bar Association, 2014, pp. 55–64.

6 

Schwartz, Bernard. The Unpublished Decisions of the Warren Court. New York: Oxford University Press, 1985, pp. 240–303.

See also: Constitutional law; First Amendment to the U.S. Constitution; Supreme Court of the United States

Citation Types

MLA 9th
Robinson, Eric P. "Time, Inc. V. Hill, 385 U.S. 374 (1967)." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0215.
APA 7th
Robinson, E. P. (2016). Time, Inc. v. Hill, 385 U.S. 374 (1967). In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Robinson, Eric P. "Time, Inc. V. Hill, 385 U.S. 374 (1967)." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.