Law prof’s new book scrutinizes privacy versus press case

Law professor Samantha Barbas has built a reputation around her expertise in privacy law, First Amendment rights and libel. Her latest book, “Newsworthy: The Supreme Court Battle over Privacy and Press Freedom,” examines the first Supreme Court case to weigh the right of privacy versus freedom of the press.

In Time Inc. v. Hill, the Supreme Court in 1967 upheld freedom of the press, a decision that gave people whose private lives had been exposed in the media little legal recourse.

“It was victory for freedom of the press,” says Barbas, whose expertise includes the intersection of law, culture, media and technology, including digital privacy and what “freedom of the press” means in a digital age.

“But others wondered whether the court had overlooked the importance of privacy, especially for private citizens.”

Time Inc. v. Hill featured many elements of the celebrated “trial of the century” courtroom dramas that have captured the imagination and fierce interest of today’s public audiences.

The case involved the seven members of the James Hill family, all of whom were held hostage in their suburban Pennsylvania home in 1952 by escaped convicts. The family was trapped for 19 hours by three fugitives who treated them politely, took their clothes and car, but otherwise left them unharmed.

The year after the crime, an author wrote a “true crime” novel based loosely on the incident. “The Desperate Hours” described how the family attempted a daring escape. The novel also featured scenes in which the family was physically abused and the daughter raped, fictional events that disregarded the facts. The novel later was made into a play and a big-budget Hollywood movie starring Humphrey Bogart.

In 1955, two years after “The Desperate Hours” was published, Life magazine, the country’s most popular magazine at the time with 5 million readers, ran an article that stated the play was an accurate and exact account of what happened to the Hills. The article mentioned the Hills by name and printed a picture of their home.

“The Hills were outraged by this false, invasive story,” Barbas says. “It thrust them into the spotlight and forced them to relive the hostage incident.”

The family sued Time Inc., which published Life magazine, for invasion of privacy; the case eventually went to the Supreme Court.

The family was represented by Richard Nixon, five years after he lost the 1962 California gubernatorial election and a year before he ran for president. Nixon was practicing law for a Wall Street firm when took over the case on behalf of the family. It was the only case Nixon argued before the Supreme Court.

After much deliberation — and what Barbas discovered was behind-the-scenes maneuvering in which some justices changed their initial positions — the court ruled in favor of Time Inc.’s first Amendment right to publish “newsworthy” material, and against the Hill family’s right not to be victims of unwanted publicity.

“The court defined newsworthiness broadly — what was ‘newsworthy’ was essentially what the media said was ‘news,’” Barbas says. “This expansive definition of newsworthy material essentially negated the ability of people like the Hills to recover damages against the media for invasion of privacy.

“The Supreme Court’s decision chose freedom of the press over privacy and gave the media an expansive right to publish personal, private information about people, even intimate facts,” she says.

After the Hill case, people whose private lives were exposed and distorted in the media had few legal protections.

But amid the ongoing tension between privacy and press freedom, there have been some interesting recent developments, according to Barbas. The “first real pushback” against the Hill case came last year in the Hulk Hogan v. Gawker case.

In that case, a jury concluded that Hogan’s sex tape was not newsworthy and that it wasn’t up to the media alone to determine what was news, Barbas says.

“That decision signaled that there might be a new direction coming in the courts’ weighing of privacy and freedom of the press, and new judicial views on ‘newsworthiness,’” she says.

Nevertheless, Time Inc. v. Hill took place in the late 1960s, when Americans were becoming “privacy conscious,” Barbas notes, “sensitive to the importance of personal privacy in a media-saturated world.”

“It was also a time when the press had become very influential and powerful,” she says. “We see the rise of ‘big media.’”

This was at the same time the Supreme Court was expanding freedom of the press, according to Barbas. In 1964, the court issued its historic decision in the libel case New York Times v. Sullivan. At the same time, the court recognized privacy as a constitutional right in Griswold v. Connecticut (1965).

“Time Inc. v. Hill forced the court to weigh in on the privacy-free press conflict at a time when privacy and press freedom were becoming significant issues, both in the law and in American society more broadly,” she says.

Barbas conducts research and teaches in the areas of legal history, First Amendment law and mass communications law. Her recent book, “The Laws of Image: Privacy and Publicity in America,” details the history of libel and privacy in the United States. She is also the author of “Movie Crazy: Fans, Stars, and the Cult of Celebrity.”

She was attracted to the Hill family story from a social, as well as legal perspective.

“The saga of the Hill family was one compelling part to this story; how they suffered emotionally,” says Barbas. “The mother became so embarrassed and self-conscious after the Life article that she entered into a severe depression and eventually committed suicide. It’s a testament to how devastating unwanted publicity in the media can be, especially for private individuals who have done nothing to put themselves in the spotlight.”

Nixon’s involvement in the case also intrigued Barbas. She has access to his personal papers, including his preparation for his case before the Supreme Court.

“Nixon saw his representation of the family in this high-profile case as a way to win favor in the public eye and to brand himself as a ‘new Nixon,’” Barbas says.

Her research also gave her a front-row seat to the behind-the-scenes maneuvering of the Supreme Court. Initially, a majority voted in favor of Nixon and the Hills, according to Barbas. However, right before the opinion was issued, Justice Hugo Black lobbied the justices to change their position, and in the end the decision went in favor of Time Inc.

“I had access to the court’s internal memoranda that illustrated how much personal politics played a role in this decision,” she says. “Petty feuds, personality clashes — these can be as important in the outcome of a Supreme Court case as formal legal arguments and doctrines.”