Time, Inc. v. Hill

385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456, 1967 U.S. LEXIS 2991, 1 Media L. Rep. (BNA) 1791

• Court: Supreme Court of the United States
• Decided: January 9, 1967
• Docket: 22
• Status: Published

Opinions

Mr. Justice Brennan

delivered the opinion of the Court.

The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional protections of speech and press by the application by the New York courts of §§ 50-51 of the New York Civil Rights Law ¹ to award appellee damages on allegations that Life falsely, reported that a new play portrayed an experience suffered by appellee and his family.

The article appeared in Life in February 1955. It was entitled “True Crime Inspires Tense Play,” with the subtitle, “The ordeal of a family trapped by convicts gives Broadway a new thriller, ‘The Desperate Hours.’ ” The text of the article reads as follows:

“Three years ago Americans all over the country read about the desperate ordeal of the James Hill family, who were held prisoners in their home outside Philadelphia by three escaped convicts. Later they read about it in Joseph Hayes’s novel, The Desperate Hours, inspired by the family’s experience. Now they can see the story re-enacted in Hayes’s Broadway play based on the book, and next year will see it in his movie, which has been filmed but is being held up until the play has a chance to pay off.

“The play, directed by Robert Montgomery and expertly acted, is a heart-stopping account of how a family rose to heroism in a crisis. Life photographed the play during its Philadelphia tryout, transported some of the actors to the actual house where the Hills were besieged. On the next page scenes from the play are re-enacted on the site of the crime.”

The pictures on the ensuing two pages included an enactment of the son being “roughed up” by one of the convicts, entitled “brutish convict,” a picture of the daughter biting the hand of a convict to make him drop a gun, entitled “daring daughter,” and one of the father throwing his gun through the door after a “brave try” to save his family is foiled.

The James Hill referred to in the article is the appel-lee. He and his wife and five children involuntarily became the subjects of a front-page news story after being held hostage by three escaped convicts in their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11-12, 1952. The family was releaséd unharmed. In an interview with newsmen after the convicts departed, appellee stressed that the convicts had treated the family courteously, had not molested them, and had not been at all violent. The convicts were thereafter apprehended in a widely publicized encounter with the police which resulted in the killing of two of the convicts. Shortly thereafter the family moved to Connecticut. The appellee discouraged all efforts to. keep them in the public spotlight through magazine articles or appearances on television.

In the spring of 1953, Joseph Hayes’ novel, The Desperate Hours, was published. The story depicted the experience of a family of four held hostage by three escaped convicts in the family’s suburban home. But, unlike Hill’s experience, the family of the story suffer violence at the hands of the convicts; the father and son are beaten and the daughter subjected to a verbal sexual insult.

The book was made into a play, also entitled The Desperate Hours, and it is Life’s article about the play which is the subject of appellee’s action. The complaint sought damages under §§ 50-51 on allegations that the Life article was intended to, and did, give the impression that the play mirrored the Hill family’s experience, which, to the knowledge of defendant “. . . was false and untrue.” Appellant’s defense was that the article was “a subject of legitimate news interest,” “a subject of general interest and of value and concern to the public” at the time of publication, and that it was “published in good faith without any malice whatsoever . . . .” A motion to dismiss the complaint for substantially these reasons was made at the close of the case and was denied by the trial judge on the ground that the proofs presented a jury question as to the truth of the article.

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 re-enactment 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. It is evident that the article cannot be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information in which the public had, or might have a proper interest.” 18 App. Div. 2d 485, 489, 240 N. Y. S. 2d 286, 290.

At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory damages without punitive damages.²

The New York Court of Appeals affirmed the Appellate Division “on the majority and concurring opinions at the Appellate Division,” two judges dissenting. 15 N. Y. 2d 986, 207 N. E. 2d 604. We noted probable jurisdiction of the appeal to consider the important constitutional questions of freedom of speech and press involved. 382 U. S. 936. After argument last Term, the case was restored to the docket for reargument, 384 U. S. 995. We reverse and remand the case to the Court of Appeals for further proceedings not inconsistent with this opinion.

I.

Since the reargument, we have had the advantage of an opinion of the Court of Appeals of New York which has materially aided us in our understanding of that court’s construction of the statute. It is the opinion of Judge Keating for the court in Spahn v. Julian Messner, Inc., 18 N. Y. 2d 324, 221 N. E. 2d 543 (1966). The statute was enacted in 1903 following the decision of the Court of Appeals in 1902 in Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442. Roberson was an action against defendants for adorning their flour bags with plaintiff’s picture without her consent. It was grounded upon an alleged invasion of a “right of privacy,” defined by the Court of Appeals to be “the claim that a man has the right to pass through this world, if he wills, without having his picture published ... or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers . . . .” 171 N. Y., at 544, 64 N. E., at 443. The Court of Appeals traced the theory to the celebrated article of Warren and Brandéis, entitled The Right to Privacy, published in 1890. 4 Harv. L. Rev. 193.³ The Court of Appeals, however, denied the existence of such a right at common law but observed that “[t]he legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture dr the name of another for advertising purposes without his consent.” 171 N. Y., at 545, 64 N. E., at 443. The legislature enacted §§ 50-51 in response to that observation.

Although “Right of Privacy” is the caption of §§ 50-51, the term nowhere appears in the text of the statute itself. The text of the statute appears to proscribe only conduct of the kind involved in Roberson, that is, the appropriation and use in advertising or to promote the sale of goods, of another’s name, portrait or picture without his consent.⁴ An application of that limited scope would present different questions of violation of the constitutional protections for speech and press. Compare Valentine v. Chrestensen, 316 U. S. 52, with New York Times Co. v. Sullivan, 376 U. S. 254, 265-266.

The New York courts have, however, construed the statute to operate much more broadly. In Spahn the Court of Appeals stated that “Over the years since the statute’s enactment in 1903, its social desirability and remedial nature have led to its being given a liberal construction consonant with its over-all purpose . . . .” 18 N. Y. 2d, at 327, 221 N. E. 2d, at 544. Specifically, it has been held in some circumstances to authorize a remedy against the press and other communications media which publish the names, pictures, or portraits of people without their consent. Reflecting the fact, however, that such applications may raise serious questions of conflict with the constitutional protections for speech and press, decisions under the statute have tended to limit the statute’s application.⁵ “[E]ver mindful that the written word or picture is involved, courts have engrafted exceptions and restrictions onto the statute to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest.” Id., 18 N. Y. 2d, at 328, 221 N. E. 2d, at 544-545.

In the light of questions that counsel were asked to argue on reargument,⁶ it is particularly relevant that the Court of Appeals made crystal clear in the Spahn opinion that truth is a complete defense in actions under the statute based upon reports of newsworthy people or events. The opinion states: “The factual reporting of newsworthy persons and events is in the public interest and is protected.” 18 N. Y. 2d, at 328, 221 N. E. 2d, at 545.⁷ Constitutional questions which might arise if truth were not a defense are therefore of no concern. Cf. Garrison v. Louisiana, 379 U. S. 64, 72-75.

But although the New York statute affords “little protection” to the “privacy” of a newsworthy person, “whether he be such by choice or involuntarily” ⁸ the statute gives him a right of action when his name, picture, or portrait is the subject of a “fictitious” report or article.⁹ Spahn points up the distinction. Spahn was an action under the statute brought by the well-known professional baseball pitcher, Warren Spahn. He sought an injunction and damages against the unauthorized publication of what purported to be a biography of his life. The trial judge had found that “the record unequivocally establishes that the book publicizes areas of Warren Spahn’s personal and private life, albeit inaccurate and distorted, and consists of a host, a preponderant percentage, of factual errors, distortions and fanciful passages . . . 43 Misc. 2d 219, 232, 250 N. Y. S. 2d 529, 542. The Court of Appeals sustained the holding that in these circumstances the publication was proscribed by § 51 of the Civil Rights Law and was not within the exceptions and restrictions for newsworthy events engrafted onto the statute. The Court of Appeals said:

“But it is erroneous to confuse privacy with ‘personality’ or to assume that privacy, though lost for a certain time or in a certain context, goes forever unprotected .... Thus it may be appropriate to say that the plaintiff here, Warren Spahn, is a public personality and that, insofar as his professional career is involved, he is substantially without a right to privacy. That is not to say, however, that his ‘personality’ may be fictionalized and that, .as fictionalized, it may be exploited for the defendants’ commercial benefit through the medium of an unauthorized biography.” Spahn, supra, at 328, 221 N. E. 2d, at 545.

As the instant case went to the jury, appellee, too, was regarded to be a newsworthy person “substantially without a right to privacy” insofar as his hostage experience was involved, but ¡to be entitled to his action insofar as that experience w^s “fictionalized” and “exploited for the defendants’ commercial benefit.” “Fictionalization,” the Spahn opinion states, “is the heart of the cases in point.” 18 N. Y. 2d, at 328, 221 N. E. 2d, at 545.

The opinion goes on to say that the “establishment of minor errors in an otherwise accurate” report does not prove “fictionalization.” Material and substantial falsification is the test. However, it is not clear whether proof of knowledge of the falsity or that the article was prepared with reckless.,disregard for the truth is also required. In New York Times Co. v. Sullivan, 376 U. S. 254, we held that the Constitution delimits a State’s? j power to award damages for libel in actions brought by I public officials against critics of their official conduct. | Factual error, content defamatory of official reputation, or both, are insufficient for an award of damages for false statements unless actual malice — knowledge that the statements are false or in reckless disregard of the truth— is alleged and proved. The Spahn opinion reveals that the defendant in that case relied on New York Times as the basis of an argument that application of the statute to the publication of a substantially fictitious biography would run afoul of the constitutional guarantees. The Court of Appeals held that New York Times had no application. The court, after distinguishing the cases on the ground that Spahn did not deal with public officials or official conduct, then says, “The free speech which is encouraged and essential to the operation of a healthy government is something quite different from an individual’s attempt to enjoin the publication of a fictitious biography of him. No public interest is served by protecting the dissemination of the latter. We perceive no constitutional infirmities in this respect.” 18 N. Y. 2d, at 329, 221 N. E. 2d, at 546.

If this is meant to imply that proof of knowing or reckless falsity is not essential to a constitutional application of the statute in these cases, we disagree with the Court of Appeals.¹⁰ We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.

The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. 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. “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102. “No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression.” Bridges v. California, 314 U. S. 252, 269. We have no doubt that the subject of the Life article, the opening of a rrew play linked to an actual incident, is a matter of public interest. “The line between the informing and the entertaining is too elusive for the protection of . . . [freedom of the press].” Winters v. New York, 333 U. S. 507, 510. Erroneous statement is no less inevitable in such a case than in the case of comment upon public affairs, and in both, if innocent or merely negligent, “. . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive’. . . .” New York Times Co. v. Sullivan, supra, at 271-272. As James Madison said, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” 4 Elliot’s Debates on the Federal Constitution 571 (1876 ed.). 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 non-defamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.

In this context, sanctions against either innocent or negligent misstatement would present a grave hazard of discouraging the press from exercising the constitutional guarantees. 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. v. Sullivan, 376 U. S., at 279; see also Speiser v. Randall, 357 U. S. 513, 526; Smith v. California, 361 U. S. 147, 153-154; and thus “create the danger that the legitimate utterance will be penalized.” Speiser v. Randall, supra, at 526.

But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his official conduct. Similarly, calculated falsehood should enjoy no immunity in the situation here presented us. What we said in Garrison v. Louisiana, supra, at 75, is equally applicable:

“The use of calculated falsehood . . . would put a different cast on the constitutional question. 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. . . . Eor the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. 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. . . .’ Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard' of the truth, do not enjoy constitutional protection.”

We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals. This is neither a libel action by a private individual nor a statutory action by a public official; Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, 383 U. S. 75, 91 (Stewart, J., concurring). 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.

II.

Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a re-enactment of the Hill family’s experience reckless of the truth or with actual knowledge that the portrayal was false. The relevant testimony is as follows:

Joseph Hayes, author of the book, also wrote the play. The story theme was inspired by the desire to write about “true crime” and for years before writing the book, he collected newspaper clippings of stories of hostage incidents. 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 play’s director, Robert Montgomery, later suggested to him that its interesting stage setting would make the play a worthwhile subject for an article in Life. At about the same time, Prideaux ran into a friend of author Hayes, a free-lance photographer, who told Prideaux in casual conversation that the play had a “substantial connection with a true-life incident of a family being held by escaped convicts near Philadelphia.” As the play was trying out in Philadelphia, Prideaux decided to contact the author. Hayes confirmed that an incident somewhat similar to the play had occurred in Philadelphia, and agreed with Prideaux to find out whether the former Hill residence would be available for the shooting of pictures for a Life article. Prideaux then met with Hayes in Philadelphia where he saw the play and drove with Hayes to the former Hill residence to test its suitability for a picture story. Neither then nor thereafter did Prideaux question Hayes about the extent to which the play was based on the Hill incident. “A specific question of that nature was never asked, but a discussion of the play itself, what the play was about, in the light of my own knowledge of what the true incident was about, confirmed in my mind beyond any doubt that there was a relationship, and Mr. Hayes’ presence at this whole negotiation was tacit proof of that.”

Prideaux sent photographers to the Hill residence for location photographs of scenes of the play enacted in the home, and proceeded to construct the text of the article. In his “story file” were several news clippings about the Hill incident which revealed its nonviolent character, and a New York Times article by Hayes in which he stated that the play “was based on various news stories,” mentioning incidents in New York, California, Detroit and Philadelphia.

Prideaux’s first draft made no mention of the Hill name except for the caption of one of the photographs. The text related that a true story of a suburban Philadelphia family had “sparked off” Hayes to write the novel, that the play was a “somewhat fictionalized” account of the family’s heroism in time of crisis. Pri-deaux’s research assistant, whose task it was to cheek the draft for accuracy, put a question mark over the words “somewhat fictionalized.” Prideaux testified that the question mark “must have been” brought to his attention, although he did not recollect having seen it. The draft was also brought before the copy editor, who, in the presence of Prideaux, made several changes in emphasis and substance. The first sentence was changed to focus on the Hill incident, using the family’s name; the novel was said to have been “inspired” by that incident, and the play-was referred to as a “re-enactment.” The words “somewhat fictionalized” were deleted.

Prideaux labeled as “emphatically untrue” defense counsel’s suggestion during redirect examination that from the beginning he knew that the play had no relationship to the Hill incident apart from being a hostage incident. Prideaux admitted that he knew the play was “between a little bit and moderately fictionalized,” but stated that he thought beyond doubt that the important quality, the “heart and soul” of the play, was the Hill incident.

The jury might reasonably conclude from this evidence — particularly that the New York Times article was in the story file, that the copy editor deleted “somewhat fictionalized” after the research assistant questioned its accuracy, and that Prideaux admitted that he knew the play was “between a little bit and moderately fictionalized” — that Life knew the falsity of, or was reckless of the truth in, stating in the article that “the story re-enacted” the Hill family’s experience. On the other hand, the jury might reasonably predicate a finding of innocent or only negligent misstatement on the testimony that a statement was made to Prideaux by the free-lance photographer that linked the play to an incident in Philadelphia, that the author Hayes cooperated in arranging for the availability of the former Hill home, and that Prideaux thought beyond doubt that the “heart and soul” of the play was the Hill incident.¹¹

III.

We do not think, however, that the instructions confined the jury to a verdict of liability based on a finding that the statements in the article were made with knowledge of their falsity or in reckless disregard of the truth. The jury was instructed that liability could not be found under §§ 50-51 “merely because of some incidental mistake of fact, or some incidental incorrect statement,” and that a verdict of liability could rest only on findings that (1) Life published the article, “not to disseminate news, but was using plaintiffs’ names, in connection with a fictionalized episode as to plaintiffs’ relationship to The Desperate Hours”; the Court variously restated this “fictionalization” requirement in terms such as whether appellant “altered or changed the true facts concerning plaintiffs' relationship to The Desperate Hours, so that the article, as published, constituted substantially fiction or a fictionalized version . . . ,” whether the article constituted “fiction,” or was “fictionalized”; and that (2) the article was published to advertise the play or “for trade purposes.” This latter purpose was variously defined as one “to amuse, thrill, astonish or move the reading public so as to increase the circulation of the magazine or for some other material benefit,” “to increase circulation or enhance the standing of the magazine with its readers,” and “for the publisher’s profits through increased circulation, induced by exploitation of the plaintiffs.”

The court also instructed the jury that an award of punitive damages was justified if the jury found that the appellant falsely connected appellee to the play “knowingly or through failure to make a reasonable investigation,” adding “You do not need to find that there was any actual ill will or personal malice toward the plaintiffs if you find a reckless or wanton disregard of the plaintiffs’ rights.”

Appellee argues that the instructions to determine whether Life “altered or changed” the true facts, and whether, apart from incidental errors, the article was a “substantial fiction” or a “fictionalized version” were tantamount to instructions that the jury must find that Life knowingly falsified the facts. We do not think that the instructions bear that interpretation, particularly in light of the marked contrast in the instructions on compensatory and punitive damages. 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.¹² 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. Finally, nothing in the New York cases decided at the time of trial limited liability to cases of knowing or reckless falsity and Spahn, decided since, has left the question in doubt.¹³

The requirement that the jury also find that the article was published “for trade purposes,” as defined in the charge, cannot save the charge from constitutional infirmity. “That books, ‘newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 501-502; see New York Times Co. v. Sullivan, 376 U. S., at 266; Smith v. California, 361 U. S. 147, 150; cf. Ex parte Jackson, 96 U. S. 727, 733; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, 303 U. S. 444.

IV.

The appellant argues that the statute should be declared unconstitutional on its face if construed by the New York courts to impose liability without proof of knowing or reckless falsity.¹⁴ Such a declaration would not be warranted even if it were entirely clear that this had previously been the view of the New York courts. The New York Court of Appeals, as the Spahn opinion demonstrates, has been assiduous in construing the statute to avoid invasion of the constitutional protections of speech and press. We, therefore, confidently expect that the New York courts will apply the statute consistently with the constitutional command. Any possible difference with us as to the thrust of the constitutional command is narrowly limited in this case to the failure of the trial judge to instruct the jury that a verdict of liability could be predicated only on a finding of knowing or reckless falsity in the publication of the Life article.

The judgment of the Court of Appeals is set aside and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

1 The complete text of the New York Civil Rights Law §§ 50-51 is as follows:

Ҥ 50. Right of privacy

“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any-living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

Ҥ 51. Action for injunction and for damages

“Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages. But nothing contained in this act shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, from exhibiting in or about his or its establishment specimens of the work of such establishment, unless the same is continued by such person, firm or corporation after written notice objecting thereto has been-given by the person portrayed; and nothing contained in this act shall be so construed as to prevent any person, firm or corporation from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith.”

2 Initially, appellee's wife was joined in the action, and was awarded $75,000 compensatory and $25,000 punitive damages by the jury. However, her action was apparently dismissed by stipulation prior to remand, because the action has since proceeded solely upon appellee’s judgment.

3 The various facets of this “right” have been the subject of much comment. See, e. g., Beaney, The Constitutional Right to Privacy in the Supreme Court, 1962 Sup. Ct. Rev. 212; Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970’s (Part I), 66 Col. L. Rev. 1003 (1966); Feinberg, Recent Developments in the Law of Privacy, 48 Col. L. Rev. 713, 717-726 (1948). The latest collection of articles appears in 31 Law & Contemp. Prob. 251-435 (1966). The commentary relates not so much to the assertion of constitutional protections against intrusions by government, see Griswold v. Connecticut, 381 U. S. 479, as to rights of action for injunctive relief or damages to combat intrusive behavior in the private sector of society.

4 Utah’s statute was modeled on New York’s and, following early New York decisions, the Utah Supreme Court has construed it to afford a cause of action only in such cases. Donahue v. Warner Bros. Pictures Dist. Corp., 2 Utah 2d 256, 272 P. 2d 177 (1954).

5 See, e. g., Sidis v. F-R Pub. Corp., 113 F. 2d 806 (C. A. 2d Cir.), cert. denied, 311 U. S. 711 (1940); Sweenek v. Pathe News, Inc., 16 F. Supp. 746 (D. C. E. D. N. Y. 1936); Gautier v. Pro-Football, Inc., 278 App. Div. 431, 106 N. Y. S. 2d 553 (1951), aff'd, 304 N. Y. 354, 107 N. E. 2d 485 (1952); Molony v. Boy Comics Pubs., Inc., 277 App. Div. 166, 98 N. Y. S. 2d 119 (1950); Humiston v. Universal Film Mfg. Co., 189 App. Div. 467, 178 N. Y. Supp. 752 (1919); Colyer v. Richard K. Fox Pub. Co., 162 App. Div. 297, 146 N. Y. Supp. 999 (1914); Koussevitzky v. Allen, Towne & Heath, Inc., 188 Misc. 479, 68 N. Y. S. 2d 779, aff’d, 272 App. Div. 759, 69 N. Y. S. 2d 432 (1947); Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 295 N. Y. Supp. 382 (1937).

6 “Upon reargument, counsel are requested to discuss in their further briefs and oral arguments, in addition to the other issues, the following questions:

“(1) Is the truthful presentation of a newsworthy item ever actionable under the New York statute as construed or on its face? If so, does appellant have standing to challenge that aspect of the statute?

“(2) Should the per curiam opinion of the New York Court of Appeals be read as adopting the following portion of the concurring opinion in the Appellate Division?

“ ‘However, if it can be clearly demonstrated that the newsworthy item is presented, not for the purpose of disseminating news, but rather for the sole purpose of increasing circulation, then the rationale for exemption from section 51 no longer exists and the exemption should not apply. In such circumstances the privilege to use one’s name should not be granted even though a true account of the event be given — let alone when the account is sensationalized and fictionalized.’ ” 384 U. S. 995.

7 This limitation to newsworthy persons and events does not of course foreclose an interpretation of the statute to allow damages where “Revelations may be so intimate and so unwarranted in view of the victim’s position as to outrage the community’s notions of decency.” Sidis v. F-R Pub. Corp., 113 F. 2d 806, 809 (C. A. 2d Cir.), cert. denied, 311 U. S. 711 (1940). Cf. Garner v. Triangle Pubs., Inc., 97 F. Supp. 546, 550 (D. C. S. D. N. Y. 1951); Restatement, Torts §867, comment d (1939). See id., illust. 6. This case presents no question whether truthful publication of such matter could be constitutionally proscribed.

It has been said that a “right of privacy” has been recognized at common law in 30 States plus the District of Columbia and by statute in four States. See Prosser, Law of Torts 831-832 (3d ed. 1964). Professor Kalven notes, however, that since Warren and Brandéis championed an action against the press for public disclosure of truthful but private details about the individual which caused emotional upset to him, “it has been agreed that there is a generous privilege to serve the public interest in news. . . . What is at issue, it seems to me, is whether the claim of privilege is not so overpowering as virtually to swallow the tort. What can be left of the vaunted new right after the claims of privilege have been confronted?” Kalven, “Privacy in Tort Law — Were Warren and Brandéis Wrong ?” 31 Law & Contemp. Prob. 326, 335-336 (1966). Some representative cases in which the State “right of privacy” was held to give way to the right of the press to publish matters of public interest are Afro-American Pub. Co. v. Jaffe, 125 U. S. App. D. C. 70, 366 F. 2d 649 (1966); Wagner v. Fawcett Pubs., 307 F. 2d 409 (C. A. 7th Cir. 1962); Jenkins v. Dell Pub. Co., 251 F. 2d 447 (C. A. 3d Cir. 1958); Elmhurst v. Pearson, 80 U. S. App. D. C. 372, 153 F. 2d 467 (1946); Thompson v. Curtis Pub. Co., 193 F. 2d 953 (C. A. 3d Cir.1952); Samuel v. Curtis Pub. Co., 122 F. Supp. 327 (D. C. N. D. Cal. 1954); Miller v. N. B. C., 157 F. Supp. 240 (D. C. Del. 1957); Berg v. Minneapolis Star & Tribune Co., 79 F. Supp. 957 (D. C. Minn. 1948); Smith v. Doss, 251 Ala. 250, 37 So. 2d 118 (1948); Smith v. Suratt, 7 Alaska 416 (1926); Metter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 95 P. 2d 491 (1939); Barbieri v. News-Journal Co., - Del. -, 189 A. 2d 773 (1963); Jacova v. Southern Radio & T. V. Co., 83 So. 2d 34 (Fla. 1955); Waters v. Fleetwood, 212 Ga. 161, 91 S. E. 2d 344 (1956); Buzinski v. Do-All Co., 31 Ill. App. 2d 191, 175 N. E. 2d 577 (1961); Jones v. Herald Post Co., 230 Ky. 227, 18 S. W. 2d 972 (1929); Kelley v. Post Pub. Co., 327 Mass. 275, 98 N. E. 2d 286 (1951); Martin v. Dorton, 210 Miss. 668, 50 So. 2d 391 (1951); Hubbard v. Journal Pub. Co., 69 N. M. 473, 368 P. 2d 147 (1962); Schnabel v. Meredith, 378 Pa. 609, 107 A. 2d 860 (1954); Meetze v. Associated Press, 230 S. C. 330, 95 S. E. 2d 606 (1956); Truxes v. Kenco Enterprises, 80 S. D. 104, 119 N. W. 2d 914 (1963). See Restatement, Torts §867, comment d (1939).

8 “One of the clearest exceptions to the statutory prohibition is the rule that a public figure, whether he be such by choice or involuntarily, is subject to the often searching beam ,of publicity and that, in balance with the legitimate public interest, the law affords his privacy little protection,” Spahn, supra, at 328, 221 N. E. 2d, at 545.

9 Binns v. Vitagraph Co., 210 N. Y. 51, 103 N. E. 1108 (1913); Youssoupoff v. Columbia Broadcasting System, Inc., 19 App. Div. 2d 865, 244 N. Y. S. 2d 1 (1963); Sutton v. Hearst Corp., 277 App. Div. 155, 98 N. Y. S. 2d 233 (1950); Koussevitzky v. Allen, Towne & Heath, Inc., 188 Misc. 479, 68 N. Y. S. 2d 779, aff’d, 272 App. Div. 759, 69 N. Y. S. 2d 432 (1947); Lahiri v. Daily Mirror, Inc., 162 , 295 N. Y. Supp. 382 (1937). The doctrine of “fictionalization” has been applied where there is no statute. See, e. g., Leverton v. Curtis Pub. Co., 192 F. 2d 974 (C. A. 3d Cir. 1951); Hazlitt v. Fawcett Pubs., 116 F. Supp. 538 (D. C. Conn. 1953); Garner v. Triangle Pubs., Inc., 97 F. Supp. 546 (D. C. S. D. N. Y. 1951). Commentators have likened the interest protected in those “privacy” cases which focus upon th§ falsity of the matter to that protected in eases of libel and slander — injury to the reputation. See Prosser, Privacy, 48 Calif. L. Rev. 383, 398-401 (1960); Wade, Defamation and the Right of Privacy, 15 Vand. L. Rev. 1093 (1962). But see Bloustein, Privacy As An Aspect of Human Dignity: An Answer to Dean Prosser, 39 N. Y. U. L. Rev. 962, 991-993 (1964). Many “right of privacy” cases could in fact have been brought as “libel per quod” actions, and several have been brought on both grounds. See, e. g., Hazlitt v. Fawcett Pubs., supra; Freeman v. Busch Jewelry Co., 98 F. Supp. 963 (D. C. N. D. Ga. 1951); Peay v. Curtis Pub. Co., 78 F. Supp. 305 (D. C. D. C. 1948); Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S. W. 364 (1909). Although not usually thought of in terms of “right of privacy,” all libel cases concern public exposure by false matter, but the primary harm being compensated is damage to reputation. In the “right of privacy” eases the primary damage is the mental distress from having been exposed to public view, although injury to reputation may be an element bearing upon such damage. See Wade, supra, at 1124. Moreover, as Spahn illustrates, the published matter need not be defamatory, on its face or otherwise, and might even be laudatory and still warrant recovery. Our decision today is not to be taken to decide any constitutional questions which may be raised in “libel per quod” actions involving publication of matters of public interest, or in libel actions where the plaintiff is not a public official. Nor do we intimate any view whether the Constitution limits state power to sanction publication of matter obtained by an intrusion into a protected area, for example, through the use of electronic listening devices.

10 Of course Spahn is not before us and we in no wise imply any view of the merits of the judgment or remedy afforded the plaintiff in that case. Our reliance is solely on Judge Keating’s opinion as an aid to understanding the construction placed on the statute by the New York courts.

11 Where either result finds reasonable support in the record it is for the jury, not for this Court, to determine whether there was knowing or reckless falsehood. Cf. New York Times Co. v. Sullivan, supra, 284-285.

12 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. Therefore even this instruction would have been constitutionally infirm. Even had the Appellate Division not found prejudicial error affecting the jury’s award of punitive damages, the judgment before us could not be sustained on the basis of the jury’s finding on that issue.

13 The Appellate Division in Spahn v. Julian Messner, Inc., 23 App. Div. 2d 216, 220, 260 N. Y. S. 2d 451, 454 (1965), stated that the concept of fictionalization rested on a “distinction between an intentionally fictionalized treatment and a straight factual treatment (subject to inadvertent or superficial inaccuracies) . . . .” (Emphasis supplied.) In light of the Court of Appeals opinion, we cannot accept this as an accurate statement of New York law.

14 Appellant further contends that the threat of criminal penalty invalidates the statute. However, there have been only two eases of criminal proceedings under the statute and both resulted in dismissal. People v. Charles Scribner's Sons, 205 Misc. 818, 130 N. Y. S. 2d 514 (1954); People v. McBride & Co., 159 Misc. 5, 288 N. Y. Supp. 501 (1936). There is therefore little realistic threat of prosecution. Cf. United States v. Raines, 362 U. S. 17, 20-24 (1960).