US SUPREME COURT DECISIONS

Appellee, Hill, and his family, in 1952, were held hostage in their home by some escaped convicts, and were ultimately released unharmed without any violence having occurred. They later moved away, and appellee discouraged further publicity efforts about the incident, which had caused extensive involuntary notoriety. A novel about a hostage incident, but depicting considerable violence, later appeared, and was subsequently made into a play, these portrayals having been shaped by several incidents. Appellant's magazine, Life, published an account of the play, relating it to the Hill incident, describing the play as a reenactment, and using as illustrations photographs of scenes staged in the former Hill home. Alleging that the Life article gave the knowingly false impression that the play depicted the Hill incident, appellee sued for damages under a New York statute providing a cause of action to a person whose name or picture is used by another without consent for purposes of trade or advertising. Appellant maintained that the article concerned a subject of general interest, and was published in good faith. The trial court instructed the jury that liability under the statute depended upon a finding that the Life article was published not to disseminate news, but as a fictionalized version of the Hill incident and for the purpose of advertising the play or increasing the magazine's circulation. The court also instructed the jury that punitive damages were justified if the jury found that the appellant falsely connected Hill with the play knowingly or through failure to make a reasonable investigation, and that personal malice need not be found if there was reckless or wanton disregard of Hill's rights. The jury awarded compensatory and punitive damages. Though liability was sustained on appeal, the Appellate Division ordered a new trial as to damages, at which only compensatory damages were awarded, and the Court of Appeals affirmed. The New York courts have limited the reach of the statute as applied to reports of newsworthy persons or events, and have made it clear since reargument here that truth is a complete defense. (Spahn v. Julian Messner, Inc., 18 chanrobles.com-red

Page 385 U. S. 375

N.Y.2d 324, 221 N.E.2d 543 (1966)). However, the New York courts allow recovery under the statute when such reports are "fictitious."

Held:

1. Constitutional protections for free expression preclude applying New York's statute to redress false reports of newsworthy matters absent proof that the publisher knew of their falsity or acted in reckless disregard of the truth. Cf. New York Times Co. v. Sullivan, 376 U. S. 254. Pp. 385 U. S. 380-391.

(a) Erroneous statements about a matter of public interest, like the opening of a new play linked to an actual incident, which was the subject of the Life article, are inevitable, and, if innocent or merely negligent, must be protected if "freedoms of expression are to have the breathing space' that they 'need to survive. . . .'" Id. at 376 U. S. 271-272. Pp. 385 U. S. 388-389.

(b) But constitutional guarantees of free expression can tolerate sanctions against calculated falsehood without impairment of their essential function. P. 385 U. S. 389.

2. Since the evidence in this case would support a jury finding either (1) that appellant's inaccurate portrayal of the Hill incident was innocent or merely negligent or (2) that it was recklessly untrue or knowingly false, the trial court's failure properly 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 constituted reversible error. Pp. 385 U. S. 391-397.

3. A declaration would be unwarranted that the New York statute is unconstitutional on its face even if construed by the New York courts to impose liability without proof of knowing or reckless falsity, because the New York courts have been assiduous to construe the statute to avoid invasion of freedom of speech and of the press. P. 385 U. S. 397.

15 N.Y.2d 986, 207 N.E.2d 604, reversed and remanded. chanrobles.com-red

Page 385 U. S. 376